Rider v. Cooney

• Decision Date: 16 May 1933
• Docket Number: 7134.
• Parties: RIDER v. COONEY, Governor, et al.
• Court: Montana Supreme Court

23 P.2d 261

94 Mont. 295

RIDER v. COONEY, Governor, et al.

No. 7134.

Supreme Court of Montana

May 16, 1933

Original proceeding by Thomas B. Rider for an injunction, prohibiting Frank H. Cooney, as Governor, and others, constituting the State Board of Land Commissioners of the State of Montana and another, from leasing state lands.

Complaint dismissed.

Ralph L. Arnold, of Missoula, and S. C. Ford, of Helena, for plaintiff.

Raymond T. Nagle, Atty. Gen., and Jeremiah J. Lynch, Asst. Atty Gen., for defendants.

W. H Hoover, of Great Falls, Rudolph Nelstead, of Miles City, W. G. Gilbert, of Dillon, S. P. Wilson, of Deer Lodge, and Harry P. Bennett and T. B. Weir, both of Helena, amici curiae.

ANDERSON Justice.

This is an original proceeding, brought against the state board of land commissioners and the commissioner of state lands by the plaintiff, who seeks an injunction against the defendants prohibiting their leasing state lands pursuant to the provisions of chapter 42 of the Laws of 1933, and section 20 of chapter 60 of the Laws of 1927. The case is before us on the complaint of plaintiff and the answer of defendants, admitting certain allegations of the complaint and denying others. Under the stipulation of counsel, the facts which were denied by defendants' answer are not before us, and likewise questions raised on such disputed facts are eliminated from our consideration.

The plaintiff is a qualified resident, taxpaying freeholder, and elector of the state. The defendants are the elected constitutional members of the state board of land commissioners and the commissioner of state lands and investments. The federal government granted to the state, for the public schools and various educational institutions, in excess of 5,500,000 acres of land to be sold, the proceeds to be held inviolate as a permanent fund, and the interest from the investment of this fund to be expended in the support of the public schools and other educational institutions. The terms of the grant are found in the Act of Congress approved February 22, 1889 (25 Stat. 676), which act was amended by Congress and approved May 7, 1932. The terms of the original grant were accepted by the state. Section 7 of Ordinance 1. The amendment of the grant was accepted by Act of the Twenty-Third Legislative Assembly (chapter 84, Laws of 1933).

Section 4 of article 11 of the state Constitution provides: "The governor, superintendent of public instruction, secretary of state and attorney general shall constitute the state board of land commissioners, which shall have the direction, control, leasing and sale of the school lands of the state, and the lands granted or which may hereafter be granted for the support and benefit of the various state educational institutions, under such regulations and restrictions as may be prescribed by law."

Section 1 of article 17 of the same document provides: "All lands of the state *** shall be held in trust for the people; *** and none of such land, nor any estate or interest therein, shall ever be disposed of except in pursuance of general laws providing for such disposition, nor unless the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state."

Section 3 of chapter 42, Laws of 1933, provides:

"The minimum annual rental for agricultural purposes shall be 5 per centum of the appraised valuation of such lands but in no case less than fifty cents (50c) per acre. The maximum annual grazing rental for state land shall not exceed fifty dollars ($50.00) per section, except where the leasing price is increased above this sum by competitive bidding. For the purpose of determining the rental price of grazing lands they shall be classified as follows:

Class 1. Extra good grazing land, Thirty-five Dollars ($35.00) to Fifty Dollars ($50.00).

Class 2. Good grazing land, well sodded with grass, Thirty Dollars ($30.00).

Class 3. Fair grazing land, with medium grass, Twenty-five Dollars ($25.00).

Class 4. Poor grazing land, thinly grassed, Twenty Dollars ($20.00).

Class 5. Any other grazing land, such amount as may be fixed by said board.

Valuations for purposes of leasing shall be made from plats, records and information now on file in the office of the Commissioner of State Lands and Investments, by competent persons, qualified for this work."

Section 20 of chapter 60, Laws of 1927, provides that in all cases where there is only one qualified person offering to lease any tract of state land, the lease must issue at the minimum rental; and by the amendment of 1933, supra, as specified therein.

Plaintiff contends that the acts supra are in violation of the constitutional provisions noted above; that unless the defendants are restrained and enjoined they will, pursuant to the provisions of chapter 42, supra, proceed to lease the public lands of the state at a much lower rental than heretofore received; and that, consequently, there will result for the support of the public schools and the other educational institutions of the state a reduction in revenue which will increase the burden upon the plaintiff and all other taxpayers similarly situated.

Chapter 42 of the Laws of 1933 under its express terms does not attempt to limit the rental for state grazing lands where more than one person has made application to lease a given tract or tracts of land. The legislative act classifies grazing lands into five classes and determines the rentals to be paid in all cases where only one person is desirous of leasing lands of the state.

It is alleged in the complaint, and denied in the answer, that the schedules of prices found in the act are much less than the market prices for the leasing of lands for grazing purposes within the state. These allegations are under stipulation of counsel eliminated from our consideration, but we mention them, as it may become necessary for us to consider whether they might be considered in any event.

This court, in the case of State ex rel. Gravely v. Stewart, 48 Mont. 347, 137 P. 854, 855, said: "The grant of lands for school purposes by the federal government to this state constitutes a trust (State ex rel. Bickford v. Cook, 17 Mont. 529, 43 P. 928; State ex rel. Dildine v. Collins, 21 Mont. 448, 53 P. 1114; State ex rel. Koch v. Barret, 26 Mont. 62, 66 P. 504); and the state board of land commissioners, as the instrumentality created to administer that trust, is bound, upon principles that are elementary, to so administer it as to secure the largest measure of legitimate advantage to the beneficiary of it."

These constitutional provisions are limitations upon the power of disposal by the Legislature. In re Beck's Estate, 44 Mont. 561, 121 P. 784, 1057; Newton v. Weiler, 87 Mont. 164, 286 P. 133.

Where a legislative act is attacked on the ground of its unconstitutionality, the question presented is not whether it is possible to condemn it, but whether it is possible to uphold it, the presumption being in favor of its validity, and it must be upheld unless its unconstitutionality appears beyond a reasonable doubt. Herrin v. Erickson, 90 Mont. 259, 2 P.2d 296; Martien v. Porter, 68 Mont. 450, 219 P. 817; State ex rel. Diederichs v. State Highway Commission, 89 Mont. 205, 296 P. 1033; Arps v. State Highway Commission, 90 Mont. 152, 300 P. 549.

The public lands of the state may be leased for a period of not in excess of five years. Section 23, c. 60, Laws of 1927. It becomes important to determine whether or not leases of state lands for such period or less, for grazing purposes, is the disposing of an estate or interest therein.

Section 6723, Revised Codes 1921, provides that "estates in real property, in respect to the duration of their enjoyment, are either: *** 3. Estates for years." This section was amended by chapter 48 of the Laws of 1931, but the amendment merely added an additional class of estates and in nowise affected the classification of estates for years. An estate for years has been held by this court to be an interest in land. Wheeler v. McIntyre, 55 Mont. 295, 175 P. 892; Williard v. Federal Surety Co., 91 Mont. 465, 8 P.2d 633.

It is contended that even though the leasing of the state lands grants an interest in the land, nevertheless, because at the end of the term the state is reinvested with title and possession, no disposal of the lands is made, and that, therefore, the constitutional prohibition is inapplicable in the circumstances under consideration. It is said that the word "dispose" means "to get rid of, to put out of the way, to finish with, to alienate, to part with." Webster's Dictionary. If the constitutional prohibition ran only against disposal of the lands and was silent upon the question of the disposal of an interest or estate in the lands, there would be merit to the contention. The constitutional prohibition, however, is against the disposal of the lands, or an interest or an estate therein. When a lease is granted upon the public lands of the state, an interest or estate in the lands has been alienated, and therefore the leasing of the lands of the state for a term of years is the disposal of an interest or estate in the lands within the provisions of our Constitution.

It is contended that in view of the fact that the acts of the Legislature under consideration apply only to those cases where one applicant is desirous of leasing a tract of land, no market exists, hence there is no market value; and that therefore the provision requiring lands of the state, or an interest therein, to be disposed of at the full market value, does not apply.

"Value" means the price which property could command in the market. By "value," in common parlance, is...