(dissenting).
The majority uses ' conventional legal principles to dispose of the title issue in this appeal. If the law were that well settled, I would have no qualms in joining them in affirming the judgment of the trial court. However, the law is not settled and the exact nature of the title interest granted Arizona by Congress in the “trust” lands at statehood, has never been fully settled by the courts. In a recent judicial exercise defining one aspect of the “trust” land title, the U.S. Supreme Court acknowledged the problem in these terms:
“The ■issues here stem chiefly from ambiguities in the grant itself. The terms under which the United States provided these lands were included in the New Mexico-Arizona Enabling Act. 36 Stat. 557. The Act described with particularity the disposition Arizona may make of the lands and of the funds derived from them, but it does not directly refer to the conditions or consequences of the use by the State itself of the trust lands for purposes not designated in the grant. Of the issues which may arise from the Act’s silence, we need now reach only two: first, whether Arizona is permitted to obtain trust lands for such uses without first satisfying the Act’s restrictions on disposition of the land; and second, what standard of compensation Arizona must employ to recompense the trust for the land it uses. Both issues require consideration of the Act’s language and history.” (Emphasis added). Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U.S. 458, 461, 87 S.Ct. 584, 586, 17 L.Ed.2d 515, 518, (1967).1
In Lassen, the Supreme Court, noting the extreme care exercised by Congress to “guarantee, by preventing particular abuses through the prohibition of specific practices, that the trust received appropriate compensation for trust lands”,2 held that Arizona was excluded from the express public notice and sale restriction imposed on the trust lands where trust lands were to be used for state purposes, and where the trust received full compensation for the lands transferred from it to the state.
This instant appeal raises yet another aspect of the “trust” title question: Can title to the “trust” lands be conveyed or transferred from the trust in any manner other than that expressly authorized by the Enabling Act, supra, and Article X of the Arizona Constitution, 1 A.R.S.? My answer to this question is: No, while the majority answer is in the affirmative. .
The facts of the case at bar show a cat-alogue of administrative nonfeasance and malfeasance regarding the “trust” lands involved herein, and a transfer or recognition of the transfer of title to those lands in direct violation of the express terms of the “trust”. Can we say that title to the “trust” lands can be conveyed out of the back door of the “trust” when it could not be conveyed out of the front door of the “trust”? To state it another way, can title to the “trust” lands be transferred by the failure of state officers to perform their express duties under the Enabling Act, the Arizona Constitution and Statutes? Again, I would answer these questions in the negative, while the majority would answer them in the affirmative.
One basis for my answer is that in my opinion the Arizona Courts lack jurisdic*238tion to recognize title to the “trust” lands in any other context than full and sufficient compliance with the “trust” of the Enabling Act requirements. These “trust” land provisions are as much a part of the organic law of the State of Arizona as is the judicial branch of the government itself. Compare: Article VI and Article X, Arizona Constitution, 1 A.R.S. In some respects, the “trust” rises to a higher level than the Arizona judicial branch because the Enabling Act, supra, is the supreme law (U.S. Constitution, Article VI; Arizona Constitution, Article II, § 3, 1 A.R.S.) which we must recognize and apply to cases before us. How then can the Arizona courts recognize title to the “trust” lands in the case at bar in the appellee when the Act of Congress and the Arizona Constitution require a differant result? My answer is that we can’t. See Murphy v. State, 65 Ariz. 338, 181 P.2d 336 (1947).
Another basis for my dissent and my answer is that the questions raised here are really federal questions of public land law which must be answered in that context.3 Throughout our history the U.S. Supreme Court has been extremely protective of the public “trust” lands and has said:
“. . As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest .... A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or remove a cloud from it.” Utah Power and Light Co. v. United States, 243 U.S. 389, 409, 37 S.Ct. 387, 391, 61 L.Ed. 791, 818 (1917).
The necessity for such a statement is understandable within the framework of the history of land-grab schemes that plagued the administration of the U.S. public lands over the years. See Lassen v. Arizona ex rel. Arizona Highway Dept., supra. Here, in my opinion, the federal land law would not recognize title of the “trust” lands in the appellee based upon the facts of this case, since to do so completely frustrates the purposes and intention of Congress as expressed in the Enabling Act. See Murphy v. State, supra.
A third basis for my dissent and answer is that even though a financial hardship would result to the appellee from an adverse ruling in this case, it cannot be contended that the appellee or his predecessor did not have constructive notice of the “trust” nature of the land since the land was an indemnity selection by the state under clear list No. 9, dated September 5, 1918, pursuant to the provisions of the Enabling Act and a matter of record in the respective federal and state land offices.
Finally, although not raised by either party, the stipulation of facts does not stipulate compliance with A.C.A. § 11-106 (1939), which required that the State Land Commissioner be joined and personally served in an action involving the “trust” lands. I can find nothing in the record to indicate that this was done. To the contrary, the stipulation of facts indicates that the Commissioner was unaware of the activities of the Attorney General in 1945 since the Land Department continued to lease the land in question from 1919 up to the filing of this action in 1964.
. See also State ex rel. Arizona Highway Dept. v. Lassen, 99 Ariz. 161, 407 P.2d 747 (1965), rev’d 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967); State ex rel. Arizona Highway Dept. v. Lassen, 102 Ariz. 318, 428 P.2d 996 (1967).
. 385 U.S. at 464, 87 S.Ct at 587, 17 L.Ed.2d at 520 (1967).
. Congress has amended the Enabling Act at least seven times with respect to its land restriction provisions. See Appendix C, S.Rep. No.194, 82nd Congress, 1st Session 7 (1951) ; and Act of June 2, 1951, ch. 120, 65 Stat. 51.