(dissenting).
I dissent. Title 65-1-15 says “All coal and other mineral deposited in lands belonging to the state of Utah are hereby reserved to the state.” This is clear and unambiguous. In my opinion it is an interdiction against alienation of mineral rights. Other sections do not obscure it, nor do arguments of counsel anent administrative construction, unfairness, confusion of titles, evolution of a rule of property, nor the main opinion.
1. It is urged that since the land board, before and after 1919, thought and acted as though Secs. 65-1-14, 27 and 70 gave it authority to trade school lands to the U. S. without reservation of minerals, due weight should be given to that understanding, to the end that the state be bound by any exchanges made, the full fee going to the U. S. Even so, such conclusion and conduct are no answer justifying evasion of fundamentals negating such result, because: A) Although 65-1-14 gives general control over state lands, it authorizes no exchange *295with the U. S., and is subject to the provisions of 65-1-15; B) 65-1-27 has no bearing on the question as it has to do with exceptional cases of erroneous transfers; C) 65-1-70 is inapplicable as it concerns itself only with exchanges designed to “compact” state lands, — not the case here. It has to do only with individuals, not the U. S., as is apparent when it says that no exchange can be effectuated unless a patent has been issued to a proprietor; D) administrative practice over the years cannot create a nonexistent authority; and E) administrative construction has judicial weight only where, not as here, a statute is ambiguous or unclear. As to this last observation, the cases cited in the main opinion are not helpful since they deal with legislation obviously ambiguous, and not clear, as here.
2. Counsel say that where a committee was appointed by a Governor to investigate land transfer abuses, resulting in a recommendation for a five-year moratorium on sales of state lands, followed by passage of 65-1-15, together with subsequent approval by him of exchanges with the U. S. without reservation of minerals, should preclude the state from asserting such a reservation under the statute. The answer is two-fold: A) Such an assertion is bottomed on ah equitable defense, such as estoppel, laches and the like, not binding on a sovereign acting in its governmental capacity1 (contention of the respondents that the state was not so acting to the contrary notwithstanding); and B) such history could be no vehicle for transmutation of non-power into power.
3. It is said further that because Secs. 851 and 852, Title 43 U.S.C.A. (Secs. 2275 and 2276 Rev.Stat.) pre-dated the Utah legislation mentioned, the latter was subject to the former and its proviso that in the event of any exchange, the state waived any rights in the land it exchanged. Fallacy of such contention is that no matter *296what the federal legislation might say, it cannot alter, amend or create any authority in a state agency to waive state rights if such authority has not been in existence since 1919.
4. It is urged also that to construe 65-1-15 so as to require reservation of minerals in exchanges with the U. S. would confuse titles. Such contention is not meritorious for two reasons: A) If confusion of titles is urged as a defense, it necessarily would have to be urged as an equitable defense, which would be unassertable against the state; and B) confusion of titles cannot change the complexion of a state official’s or a state agency’s authority.
5. Respondents also contend that the state is not entitled to minerals in the lands it exchanges, and also the full fee in those it receives in exchange, and that such exchange would not be an equivalent one. The answer to this argument is that saying the state is not “entitled” to both is but an ipse dixit. There is no reason why the state should not be entitled to both if that be the basis for the bargain. If the U. S. does not wish to trade on those terms, it may decline. If it has exchanged, believing it was on some other basis, there may be an equitable question involving mistake and rescission. Otherwise, the argument is unimpressive, since it is not what is fair, what will happen to titles, nor what you and I think the state is entitled to, nor what is an equivalent, — but simply how far a state agency can go under its delegated authority.
6. Another argument advanced is that 65-1-15-deals only with sales to individuals, not exchanges with the U. S., — that “sales” and “exchanges” are not synonymous. A complete answer to such contention is that synonymity makes no difference. Secs. 65-1-27 and 70 deal with something foreign to 65-1-15, the latter being quite silent as to any kind of dealing with the U. S. as an expected transferee. In clear language it reserves minerals as against every one, and nothing therein excepts any exchange with the U. S. The other sections pertain to “erroneous” and “compact” adjustments,— neither of which is claimed in the instant case.
7. The argument that a rule of property has arisen by protracted administrative conduct can only be an argument to the effect that if you compound error long enough you may reverse it and actually establish title by such reversal, where none existed before. Decisional nonconformity of a state agency, not unknown in political history, so far as I know, never has been held to be justification for an administrative stray-away’s conduct, or for binding the sovereign with such conduct in complete circumvention of a governmental function.
8. The assertion is made that this case improperly was tried, side-stepping federal questions and evidence of numerous transactions over a long period of time. The *297only problems here are what authority did the legislature give to the land board, and did that agency act within that authority, and it malees no difference whether the transactions effected were one or a thousand.
9. Further, it is asserted that the legislature must have meant something other than it said, when two cases involving trades with the U. S. are cited in which mineral rights expressly were reserved, while in a third, such rights expressly were granted. Because of such circumstances in these cases, the main opinion says that “The only conclusion to be drawn from these express reservations and omissions in transactions involving the United States is that the legislature and the Land Board did not consider the 1919 mineral reservation applicable to automatically apply to the federal government but where it was desired to reserve such rights it was expressly provided for.” It is arguable just as sensibly, if one is to' use such reasoning, that in transactions with the U. S., the legislature intended that the reservation should apply, and to make sure of it, every exchange transaction should contain it, provided, that if such reservation were not intended to apply, an express exception thereto should be made, as reflected by what happened in the three cases mentioned.
The case should be reversed.
WORTHEN, J., heard argument but died before opinion was filed.. a) Sec. 6 of the Enabling Act (28 Stat. 107), says “That upon the admission of said State into the Union, sections numbered two, sixteen, thirty-two, and thirty-six * * * are hereby granted to said State for fhe support of common schools.”
b) Sec. 10 of the Enabling Act (28 Stat. 107) says “That the proceeds of lands herein granted for education purposes * * * shall constitute a permanent school fund, the interest of which only shall be expended for the support of said schools.”
c) Utah Constitution, art. XX, Sec. 1, says that “All lands of the State that have been, or may hereafter be granted to the state by Congress * * * shall he held in trust for the people, to be disposed of as may be provided by law, for the respective purposes for which they have been * * * granted.”
d) In Van Wagoner v. Whitmore, 58 Utah 418, 199 P. 670, 679, rehearing 58 Utah 441, 442, 199 P. 678, construing art. XX, Sec. 1, Utah Constitution, says: “If there ever was a solemn declaration of trust made by a grantee of lands and published as such to all the world, it seems to us that this declaration is a perfect example. In view of the pledges, guaranties, assurances, and declarations of the Constitution, it must be conceded that these lands are held by the state in its governmental capacity and not otherwise.”