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The Commissioner now, under statehood, has "absolute dominion" over state lands. State ex rel Otto v. Field, supra. Appellant urges, therefore, that any legislative attempt to provide for an appeal to the District court and trial de novo of such questions as are here presented where the "discretion" of the Commissioner is involved, is unconstitutional. We find no merit in the contention. The appeal granted to the District court to try de novo is authorized in plain language. It was never intended that such complete control of the lands by the Commissioner would place any unlawful acts of his beyond the power of the court to correct. Ex rel Walker v. Hinkle, 37 N. M. 444, 24 P. 2d 286.

Although in this contest the Railway Company, and not the state, is the party seeking to uphold the Commissioner's ruling, in modifying and amending appellee's lease, counsel for the Company nevertheless appears to look upon this appeal as bringing up for review a controversy in which the state is, or should be, interested. It will be noticed in this connection, however, that the Commissioner from whose decision the appeal was taken for trial de novo in the District court, refused to find fraud practiced on the part of appellee Dansburg, and refused to declare cancellation of the contract. He apparently held that the appellee had done all that a prudent person could or should have done under the circumstances; but, that nevertheless in view of the extensive improvement made by the Company, he should find some equitable way of protecting this investment however irregularly made. In this the Commissioner was in error.

A rescission of a contract such as this must be as to the whole or none. See 6 R. C. L., Par. 321, Contracts; 13 C. J. 623; 66 C. J. 733; and the consideration must be returned. Mutual mistake-- and it could be no more under the evidence and the findings of either the Commissioner or the Court -- would require the return of the purchase price, certainly, if there could be a cancellation at all. 

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