On Motion for Rehearing. The opinion of the court in Burguete v. Del Curto is the law of that case, and is binding on us and on the district court. This court by its mandate did not authorize the trial court to permit new parties to be added, nor did it authorize a new trial. The fact that the Commissioner of Public Lands had signified his willingness to enter his appearance in the case as the motion to recall the mandate indicated, is immaterial. We did not authorize any such proceeding, and the district court's jurisdiction is limited by the law as stated in the opinion of the court. The mandate directed the district court to set aside its judgment; and authorized "further proceedings consistent with and conformable to the views herein (in the opinion of the court) expressed."
This accorded with the opinion; but if there had been any doubt about this court's intention the district court must look to the opinion, not to motions filed in *Page 305 this court. Even the mandate must give way to the opinion as to the law of the case, if there is any conflict between them. In First National Bank of El Paso, Tex., v. Cavin, 28 N.M. 468, 214 P. 325, the mandate ordered a new trial with no limitations, and the district court granted it. But the supreme court on a second appeal held that the trial court erred in trying the issues anew, except as to an accounting authorized by the opinion of the Court. This court said:
"Appellee strenuously contends that the lower court, at the second trial, was correct in rehearing all the issues involved, and bases this contention largely upon the wording of the judgment and mandate of this court made and issued at the time this case was first before this court on appeal. * * * In effect they contend that when a case is reversed and a new trial ordered, the lower court is bound by the judgment and mandate only, and may close his eyes to any limitations or conditions imposed in the opinion of the court. * * *
"The only thing contained in the mandate issued on said judgment was a direction to the lower court to grant a new trial. If, as the appellee's counsel contend, the only thing the lower court looks to is the judgment and mandate of this court, it is useless for this court to write an opinion, and, in effect, the rule of the `law of the case' is destroyed, for no one will contend that the court will look to the judgment or mandate, such as was rendered and issued in this matter, for the law of the case, but necessarily must look to the opinion of the court."
The mandate in this case, however, requires the district court to proceed according to the law as it was adjudged to be in the opinion of the court. It does not permit of a new trial or the addition of parties contrary to the express terms of the opinion. Neither in the opinion nor in the mandate is there any suggestion of a new trial or the addition of parties, and the opinion of the court does not permit of it.
The effect of the opinion is that the state was a necessary party to the suit, and that this court was without authority to pass on the merits, and that it should be dismissed.
The trial court is without authority to retry any issue or permit the making of additional parties, as the opinion of the court fixed the law of the case in favor of sustaining the motion to dismiss for want of an indispensable party. Whether right or wrong, the district court's jurisdiction is limited to a dismissal of the case. A similar question was decided in City of Orlando v. Murphy, 5 Cir., 94 F.2d 426, 429. The court stated in its opinion:
"* * * Where the merits of a case have been once decided on appeal, the trial court has no authority, without express leave of the appellate court, to grant a new *Page 306 trial and rehearing, or a review, or to permit new defenses, on the merits to be introduced by amendment. * * *
"When, as here, the reversing decision, though it directs the entry of no particular judgment, yet comprehensively canvasses and finally disposes adversely of the right of plaintiff to recover, and remands the cause for further proceedings not inconsistent with the opinion, the District Court should not permit the filing of, and the retrial of the case on, amendments which do not go to and remove the adjudged deficiencies in the cause of action. It should, as was done here, refuse the amendments and proceed to judgment in accordance with the reversing opinion."
It is to be regretted that the Commissioner of Public Lands was referred to in the Burguete opinion a number of times, when the reference should have been made to the state. The Commissioner of Public Lands is merely an agent of the state with such powers, and only such, as have been conferred upon him by the Constitution and laws of the state as limited by the Enabling Act. This court has stated that the Commissioner of Public Lands has "absolute dominion" over the state's public lands, State ex rel. Otto v. Field, 31 N.M. 120, 241 P. 1027; but that was modified in Burguete v. Del Curto, in which it was said [49 N.M. 292, 163 P.2d 259]:
"It's well settled in New Mexico that under the Enabling Act, our Constitution and the statutes based thereupon, the Commissioner of Public Lands has complete dominion, which is to say complete control, over state lands. (Citations.) This `dominion' is, of course, subject to the restrictions imposed by the Enabling Act, the Constitution, and the statutes, and the manner of its exercise is subject to review by the courts."
But this last statement fixes the Enabling Act, Constitution and state laws as limitations on his authority, not a grant of it. The fact is the Commissioner of Public Lands has only such authority as has been granted to him by the Constitution and state laws, as limited by the Enabling Act.
By the Constitution of the State of New Mexico, Article 21, Sec. 9, the following compact with the United States was adopted:
"This state and its people consent to all and singular the provisions of the said act of congress, approved June twentieth, nineteen hundred and ten, concerning the lands by said act granted or confirmed to this state, the terms and conditions upon which said grants and confirmations were made and the means and manner of enforcing such terms and conditions, all in every respect and particular as in said act provided."
By this compact the Enabling Act became a part of the Constitution of New Mexico. Lake Arthur Drainage Dist. v. Field,27 N.M. 183, 199 P. 112. *Page 307
Article XIII of the Constitution reads as follows:
"Sec. 1. All lands belonging to the Territory of New Mexico, and all lands granted, transferred or confirmed to the state by congress, and all lands hereafter acquired, are declared to bepublic lands of the state to be held or disposed of as may beprovided by law for the purposes for which they have been or may be granted, donated or otherwise acquired. * * *
"Sec. 2. The commissioner of public lands shall select, locate, classify, and have the direction, control, care and disposition of all public lands, under the provisions of the acts ofcongress relating thereto and such regulations as may be providedby law." (Our emphasis.)
The Constitution of New Mexico in this particular is very similar to the Constitution of Idaho; Secs. 7 and 8 of Art. IX of which read as follows:
"Sec. 7. The Governor, Superintendent of Public Instruction, Secretary of State, and Attorney General * * * shall constitute the State Board of Land Commissioners, who shall have thedirection, control and disposition of the public lands of theState, under such regulations as may be prescribed by law.
"Sec. 8. It shall be the duty of the state board of land commissioners to provide for the location, protection, sale or rental of all the lands heretofore, or which may hereafter be granted to the state by the general government, under suchregulations as may be prescribed by law, and in such manner as will secure the maximum possible amount therefor." (Our emphasis.)
The powers conferred by the Idaho Constitution on the State Board of Land Commisioners are so similar to those conferred by our Constitution on the Commissioner of Public Lands as to render highly persuasive what is said by the Idaho Supreme Court in Balderston v. Brady, 17 Idaho 567, 107 P. 493, 494, regarding such powers. The Board of Land Commissioners of that state were going to relinquish certain public lands to the United States, as ordered by a resolution of the legislature. In that action brought to contest the right and authority of the board to release the land to the United States, the court held that the resolution was not "a regulation prescribed by law," and held that the board of land commissioners was not authorized to make such release, and further stated:
"In support of the demurrer the defendant contends that the board is vested by the Constitution (section 7, art. 9) withunqualified power and authority over the lands granted by the United States to the state, and is vested with unlimiteddiscretion in the matter of selection of such lands, and may likewise, in its discretion, relinquish any such lands." (Our emphasis.)
Secs. 7 and 8 above quoted, are then quoted by the court. *Page 308
"Now, there can be no question or doubt but that the `direction, control and disposition of the public lands of the state' is vested in the State Board of Land Commissioners. It is equally clear and certain that this power must be exercised`under such regulations as may be prescribed by law.' Both of the foregoing sections of the Constitution contain the same provision as to this limitation of power. * * *
"The real question then recurs: Has the state authorized the relinquishment of sections 16 and 36, and has the State LandBoard the authority to relinquish the state's right to such land? But one answer can be given to this query. The authorityfor such an act cannot be found in either the Constitution orstatute. It is therefore perfectly safe to say that no such power exists. We have hereinbefore said that the board must act under the law. It must find authority in the Constitution and statute for its acts. * * *" (Our emphasis.)
Also see Newton v. State Board of Land Commissioners, 37 Idaho 58, 219 P. 1053; Walpole v. State Board of Land Com'rs,62 Colo. 554, 163 P. 848; Burke v. Southern Pacific Ry. Co., 234 U.S. 669,34 S. Ct. 907, 58 L. Ed. 1527.
Nothing stated in this opinion is intended to question the authority of the Commissioner of Public Lands to reserve to the state all minerals in any contract, sale or conveyance of state lands. We agree that he has that authority, as held in State ex rel. Otto v. Field, supra.
There is no law authorizing the Commissioner to substitute himself for the state in litigation; nor can he make the state a party or enter its appearance without specific authority from the legislature, and none has been granted to him which will authorize him to enter the appearance of the state in the Del Curto case, and that is the effect of his act. See State ex rel. Evans v. Field, 27 N.M. 384, 385, 201 P. 1059.
The district court lost complete jurisdiction of the Del Curto case when it was appealed to this court. Upon remand it regained only such jurisdiction as the opinion and mandate of this court conferred; and in effect that was a direction to dismiss the case because of the lack of an indispensable party.
The contention that the district court should first pass upon the question of the right of the Commissioner of Public Lands to make himself a party to the suit as a representative of the state, in view of the preceding conclusion, we think need not be answered. But as the Commissioner cannot make himself a party to the suit in his official capacity, because it would be in effect an attempt to make the state a party without authority of law, it would but prolong litigation to permit it. *Page 309
Our original conclusion will not be disturbed.
It is so ordered.
LUJAN, McGHEE, and COMPTON, JJ., concur.