William J. COLMAN, Plaintiff, v. UTAH STATE LAND BOARD, Defendant.
No. 10132.
Supreme Court of Utah.
June 30, 1965.
403 P.2d 781
From what we have said it should be plain that the money held by Mr. Carter was subject to the garnishment and to the garnishee judgment, which should be reinstated. Costs to plaintiff (appellant).
MCDONOUGH, WADE and CALLISTER, JJ., concur.
HENRIOD, Chief Justice (dissenting).
I must dissent. The main opinion says this case is “distinguishable from the case of Wilcox v. District Court, 2 Utah 2d, 227, 272 P.2d 157 (1954), wherein the attempt was to have the Utah Court assert jurisdiction over a California appointed executrix who was in Cаlifornia, so the person and the assets were in California.” That case says no such thing. All it said was that a California appointed representative of a deceased person officially can exercise his authority no further East than the California checking stations. I think the cases are indistinguishable on principles of conflicts of law. In this case it is not so much one of jurisdiction over a “res” but one of jurisdiction over an out of state official, who incidentally is holding а res.
in this state in order for a Writ of Garnishment to issue, see Restatement (Second), Conflict of Laws § 108, (Tent. Draft No. 4, 1957); Restatement, Judgment, § 36 (1942).
A. Pratt Kesler, Atty. Gen., Ronald N. Boyce, Chief Asst. Atty. Gen., Salt Lake City, for defendant.
CROCKETT, Justice:
Plaintiff seeks review of a decision of the Utah Land Board which rejected his ap
The position of the plaintiff is that because he filed the first application for an oil and gas lease on the land in question, in which he offered $1 per acre, the Land Board was compelled to approve it solely because of his priority in filing. The Board rejected his contention and ruled that the leasing on the land was subject to competitive bidding and so proceeded.
Title to the land in question was transferred by the federal government to the state of Utah on February 9, 1961, as so-called “school lands” under the Dawson Acts,
In support of his position that the Board was compelled to grant him the lease because of priority of application, the plaintiff argues that this land does not meet the requirement of
Before considering
As to this land having been “newly acquired,” it is true that the State had obtained title to it two years before. But when it “became available for leasing” is quite another matter. We think it involves no strained analysis of the facts here shown to agree with the conclusion of the Land Board that “the obvious construction requires the statute to be interpreted as providing that * * * the date upon which the Land Board first receives actual notice of the expiration or cancelation of a federal lease * * * is the date upon which the Land Board should assume jurisdictional control over the lands, and is the date upon which the lands which are newly acquired first become available for leasing.”4 Looking at the situation realistically one will realize that the date of “actual notice” is thе very first time the Land Board could do anything about leasing such land. In spite of the fact that the State took title in February, 1961, the State acquired it subject to the outstanding federal leases, and of course could not itself grant a similar lease until the federal leases expired.5
It is not disputed that the Land Board carried forward with dispatch the procedure for leasing these lands after March 27, 1963, when it first received notice that the federal leases had expired. We perсeive no dereliction of the Land Board in the performance of its duty in that regard.6 On the other hand, it appears to have been well advised in seeking the opinion of the Attorney General and in acting in conformity therewith.
The statutes we have referred to should be considered together and in connection with the entire act and harmonized insofar as possible with the carrying out of the responsibilities the Land Board is charged with of managing the public lands of the State in the most prudent and profitable manner possible. Viewed in conformity with that objective, it appears to be intended that when mineral leasing rights are “first available for leasing” they should be put on the open market and an opportunity for competitive bidding be given. This safeguards the interests of the State by getting the best price a qualified bidder will pay, and also protects the interest of all persons who might be interested by allowing them a fair opportunity to bid.
Support of the Lаnd Board‘s action is also found by noting particularly the wording of
From the dispute that has arisen over the situation at hand, it is obvious that our statutes leave something to be desired as to certainty. Where such uncertainty exists the interpretation and application of statutes adopted by the administrative agency is usually looked upon with some indulgence.8 It is both just and practical that the Board should be allowed considerable latitude of discretion in deciding what policies will best carry out the responsibilities imposed upon it.9 Due to the considerations just stated, and because of its experience and presumed expert knowledge in its field, an administrative interpretation and application of a statute, although not necessarily controlling, is generally regarded as prima facie correct and not to be overturned so long as it is in conformity with the general objeсtives the agency is charged with carrying out, and there is a rational basis for it in the provisions of law.10
Finally, plaintiff advances an argument that inasmuch as his application was filed first, the Land Board is “estopped” from refusing him the lease because of the way it has handled similar cases in the past. Even under the facts as he asserts them to be, there could be no estoppel because the requisite elements are not present.11 His contention rests upon his avouchment that in the past the Board has followed a policy of granting leases upon land after the expiration of federal leases on the basis of priority of filing, and with
The order of the Land Board is affirmed. No costs awarded.
MCDONOUGH and WADE, JJ., concur.
CALLISTER, Justice (dissenting):
The majority opinion is correct in stating that the crucial question is whether the subject lands became available for leasing by the State because they were newly acquired. The majority holds that they were and, therefore, the Land Board properly denied plaintiff‘s application and followed the statutory competitive bidding procedure.
Considerable emphasis has been placed upon the words “become available for leasing” while the importance of the words “because they are newly acquired” have been minimized in the majority opinion. It states “* * * it aрpears to be intended that when mineral leasing rights are ‘first available for leasing’ they should be put on the open market and an opportunity for competitive bidding be given. * * *” This, evidently, without relation to when the lands are acquired by the State and under what circumstances.
The construction placed upon
Unless I misinterpret the majority opinion, its effect would permit the Land Board
Prior to its amendment in 19591
Except as otherwise provided in this chapter, applications to lease shall be considered in the order filed; provided, that when simultaneous applications are filed the land board may, if deemed advisable by it, let the land to the рerson who will pay the highest rental therefor; and provided further, that applications to lease land already under lease shall not be received before sixty days prior to the expiration of said lease, and all such applications received within said sixty days shall be considered simultaneous.
Thus it is apparent that prior to 1959 the first qualified applicant was to be given preference in all instances with only one exception—where the filings were simultanеous as defined by the statute. In 1959 the legislature (undoubtedly prompted by the 1958 Dawson Acts) made two more exceptions: (1) Where lands become available for leasing because they are newly acquired and (2) where the lands become available for leasing because a previous mineral lease is canceled or otherwise terminated by the Board (not mentioning the United States).
It is true that the phrase “shall be considered” is somewhat nebulous. However, prior to 1959 it must be construed as mandatory rather than directory language. The word “shall” is ordinarily considered as mandatory and particularly when it is used in a statute which is addressed to public officials.2 The two exceptions added by the 1959 Legislature do not make for naught the general provision relating to the preference to be given qualified applicants who are first in time. Exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision.3 An exception to a general provision of a statute is indicative of a legislative intent that the thing excepted would be within the general provision had not the exception been made.4 If the majority opinion is correct, insofar as it implies that the Land Board may exercise its discretion in all instances, the legislative enactment of the two exceptions was a needless gesture.
Further indication that the legislature intended that preference should be given to
The same 1959 Act also contained what is now
Except as otherwise provided by section 65-1-45, Utah Code Annotated 1953, as amended by this act, oil and gas leаses in units not exceeding 640 acres or one section, whichever is larger, shall be issued to the applicant first applying for the lease who is qualified to hold a lease under this act. * * * (Emphasis added.)
The same 1959 Act also provided:5 Yearly rental for state oil and gas leases shall be one dollar ($1.00) per acre or fraction thereof for each lease year. * * *
Also important is a 1963 legislative enactment again amending
(c) At the discretion of the land board, leases for minerals other than oil and gas may be offered at public auction upon such terms, conditions, and minimum bid as may be prescribed by the board. (Emphasis added.)
It is apparent from the foregoing that the legislature evidently has a different notion than the majority opinion as to how oil and gas leases should be leased to provide the State with the greatest benefit possible. If the lеgislature deemed it to be in the best interest of the State to have competitive bidding in all instances, it could very easily have so provided. Instead, over the years, it has seen fit to retain the priority mandate.
Mention is made in the majority opinion that the federal mineral leases of the subject land terminated July 27, 1962, but that the Land Board was not notified of this fact until March 27, 1963, after which it “carried forward with dispatch the procedure (competitive bidding) for leasing these lands.” The opinion quotes with approval the conclusion of the Land Board that “the date upon which the Land Board first receives actual notice of the expiration or cancelation of a federal lease * * * is the date upon which the Land Board should assume jurisdiction and control over
The foregoing is based upon fallacious reasoning as applied in the instant case where we are dealing with a situation where the lease was not canceled but terminated at the expiration of the term. In such a situation the federal government is not required to give any “actual notice” of the termination. As a matter of fact, the Dawson Acts7 specifically provide that the patents issued to the State shall, if a lease is then outstanding, show the date when title vested in the State and the extent to which the lands are subject to prior conditions, limitations, easements, or rights, if any. It is provided that the State shall succeed to the position of the United States as lessor under such lease or leases. Certainly, the Land Board has only to examine a patent issued to the State and ascertain if there is a lease outstanding and, if so, should be able to ascertain from either the patent itself, or by routine inquiry, the term and conditions of the lease. Furthermore, the State, having succeeded the United States as lessor, receives the rentals due under the lease and should be put on notice if they stop that the lease is either terminated or canceled. As an aside, it would seem that under the Dawson Acts the State, once a patent is issued to it, is the proper party to cancel a lease if there is a default in its terms.
In the instant case, the patent to the subject lands was evidently issued in February, 1961. At that time, title in the fee vested in the State, and it had complete control and management over the lands, subject only to the terms of the outstanding lease. True, the Land Board could not lease the oil and gas rights while the federal lease was in force and effect, but the same is true if there were an outstanding State lease of State lands. It is hard to see the difference between a State lease and a federal lease where the State receives the fee-title to the land and succeeds the United States as lessor.
The subject lands cannot be considered as “newly acquired.” The State held the fee title for over two years before the lands were put up for bid. The lands did not become available for leasing because they were “newly acquired,” but rather because the lease expired.
For the foregoing reasоns, the decision of the Land Board should be reversed.
HENRIOD, Chief Justice (commenting):
I do not participate in the outcome of this case, since I cannot determine the exact basis of the main opinion in the light of points made on appeal. If the opinion be predicated on the theory that the lands were “newly acquired” by “transfer of the mineral interests to the State of Utah by virtue of the expiration of the federal lease,”1 under 65-1-45, I think the opinion to be in error. Nothing was transferred to anyone by expiration of the lease. A barnacle simply was removed from the ship of reversion, which vessel always was there. There cannot be a transfer of a reversion by simple death of a lesser estate, and to attribute to the expiration of a lease the transfer of the fee or any part of it belies the concepts of tenure, which hardly could be said to have been changed by provisions of 65-1-45.
The main opinion seems to be somewhat inconsistent and discouraging to an applicant in urging at one point that the administrative agency‘s interpretation should be viewed with indulgence and its discretion recognized in carrying out its policies and responsibilities, which may have justified deviations in seven identical cases, but not in case of this eighth one which actually had priority of time over one of the others, but was processed later. The main opinion technically may be correct as to administrative constructiоn, but if so, there would seem to be no justification for continued approval of the other seven, although those matters are not before us.
The dissent of Mr. Justice CALLISTER appears to be more logical and reasonable in legislative construction than that of the main opinion. The latter would seem to penalize the poor prospector in favor of a richer nonprospector, who may not have been diligent in searching out natural resources аt all, and seems to fly in the teeth of Archer v. Utah State Land Board, recently decided by this court and reported at 15 Utah 2d 321, 392 P.2d 622 (1964).