Montana Attorney General Opinion 15-285

Opinion No. 285 State I,ands-Leases-R~nt-R~funds. HI~LD: Where leases of stnte lands have been executed hefore the enact- ment of Chapter 42, Laws of 1933, nnd moneys for the rentnl thereof have been .paid to the state treasurer, no part of them may he refunded. .July 14, 1933. You request an opinion regarding the lensing of grazing nnd minel'lll lands helonging to the State of Montana. You ask: "Shall we charge the rentals as specified in the aforesaid leases now ready for delivery, or shall one-half of the rentals under each of the said leases be refunded? The ruling of the Supreme Court on this point seems clen I' and convincing; the letter of the 'law' as expressed in Chapter 42 of the 1933 Session Laws is equa lIy plain. "'hleh shall we follow '3" In Hider v. Cooney, et aI., !H )Iont. 295, the Supreme Court said: "The legislature may determinE' the policy to be followed in the lea~ing of the state grazing lands, and that ques- tion may not be re\'iewed bv the courts. But the question as to ~'heth­ (>1' or not, under the poliCy adopted by the legislature, the market mlue for -the grazing lands is heing received is II question of fact which ma \' lie in- Yestigated by a proper tribunlll in on appropriate proceeding. It is our in- tention by this opinion not to in any manner foreclose the judicial im'esti'- gation of this fact. but only to point out that the contention that it may not be investigated under l)roper plead- ings and in a proper tribunal is with- out merit.· • • 'l'he presumption being that the act is con!:'titutional, we are compelled to assume for the pnrpose of this opinion that the state will 1'1.'- ceh'e the market value for its grazing lands. However, if it should later ap- pear that the valuations determined br the act of the legislature have been Ii rbitrarily fixed, and amount to a mere suhterfuge -to enable persons de- siring to secure these grazing lands nt less than their true value. or that the policy declared by this legislative act results in a material portion of thcse lands being leased at a price le~s thnn their actual value, then clearly the act is llllconstitutional and cannot stand. "'Ve arc therefore unable on the re- cord before us to declare tlte act un- constitutional. No reason appears herein why the defendants ;;bould IJe enjoined from proceeding under the pl'o,isions of chapter 42 of the laws of 193B." On the 18th day of ~:lay, 1U33, two (lays after the opinion in the Hider case was handed down, the State Board of Land Commissioners adopted a motion conforming to the provisions of Section X of the Act in question so far as state g-razing lands are concerned, but pro- viding that all new leases in cases where there was no competiti\'e hidding should expire on or beforc February 28, 1935. Under the circumstances, we think the leases to which you refer should UH OPIKIOXS OF THE ATTORNEY GENERAL he executed in accordance with the terms of the motion and the pro,isions of Chapter 42, Laws of 193R If tl~e rent moneys ha,'e already found their way into the state treasury, of course no part of them can now he returned, (Tn re Pomeroy, 51 Mont. 119: First :-lat. Bank Y. Sanders County, B5Mont. 450) but if they have not. then so much of them as is o,'er and above the re- quired amounts should be refunded to the proper parties. You also state: "Another question has ari>'en unrll'r the new legislation: Hundreds of Ie,,' sees holding grazing leases on State lands l)Uid the rentals for the rental year beginning March 1, 1!l33, before Chapter 42 of the 1933 Session Laws went into effect; some of them paid the rentals after the bill was signed hut hefore the Supreme Court ren- dered its decision. Many of the les- sees who paid the full rentals under these leases now claim that the~' are entitled to the refundment of one-half of the rentals paid. Please render your opinion on this point also." Evidently the leases just mentioned were executed before the measure was enacted. As the lessees 11a"e done no more than live up to their contractual . obligations no refunds can or should be made. EYen the legislature itself, broad as nre its powers, may not command that refunds be made in such cases. (Rtn te v. Fischl, fl4 Mont. 92., 20 Pac. (2d) 1067: Yellowstone Packing & Pro· yi:;ion Co. v. Hays, 83 Mont. 1). You express some doubt about the nliidity of the proviso to Section 3, Chapter 186, Laws of 1933, relating to the leasing of mineral lands owned by the state. It is true that the royalty which it exacts is small, but we think the rule laid down in the Rider case applies.