Montana Attorney General Opinion 15-367

Opinion No. 367 Oil and Gas - Royalties - Common School Equalization Fuml-High way Fund HELD: Under the provisions of Section}, Chapter 119, Laws of 1927, 254 OPINIONS OF THE ATTOHXEY GENERAL the moneys received from the Federal Government for oil and gas royalties and rentals should· be distributed equally between the common school equalization fund and the state high- way fund. October 18, IH33. You ask for a construction of Sec- tion 1, Chapter 119 of the Laws of 1927, and inquire: "Under the pro- visions of that section how much of the amount received from Federal oil royalties should be credited to the Common School Equalization Fund?" Chapter 85 of the act of February 25, 1920, of the United States provided for the payment of certain bonuses, royalties and rentals from oil and other sources to be turned over to the several states where same were pro- duced, which statute in part provides: "Said moneys to be used by such state. or subdivisions thereof, for the con- struction and maintenance of public roads or for ,the support of public schools or other public educational in- stitutions as the legislature of the state may direct." 41 Stat. 450, Sec- tion 35, 30 U. S. C. A., Section 191. It is to be noted that by the terms of the Federal statute these funds may be used by the state for highway or ed- ucational purposes as the legislature may direct. Chapter 104 of the Laws of 1923, amending section 1211, Revised Codes, provides insofar as material as fol- lows: "All sums of money derived from any and all bonuses, royalties, and rentals paid into the treasury of the United States on account of any permits or leases granted by the gov- ernment of the United S'tates as pro- \'ided by the Act of Congress of Feb- ruary 25, 1920, and paid by the Sec- retary of the Treasury of the United States to the State of Montana, shall within thirty days after being received by the State of Montana, lip appor- tioned and distributed by the state treasurer as follows: One-half there- of shall be deposited to the credit of thEf state highway fund, and the other one-half thereof shall be apportioned between and distributed and paid over to the several counties of the state." In the year 1927 a law was passed creating the State Common School Equalization fund, same being Chap- ter 119 of the Laws of 1927. This law pro\'ided in part: ,,*.... all moneys acquired from the sources referred to in Sections 1211 and 1212 Revised Codes of Montana of 1921 as amended by Chapter 104 Session Laws of the Eighteenth Legislative Assembly, be- ing moneys received b.,- the Rtate of }Iontana from the Treasurer of the United States under the provisions of the act of Congress of February 25. 1920; 'being Federal Oil and Gas Hoy- alties," (and certain other funds) "be and the same hereby are transferred to a fund to be known as the State Common School Equalization Fund. and the State Auditor and the State Treasurer are hereby directed to set up such :F'und on their respective books and transfer thereto all moneys now in, or hereafter recei\-ed for the credit of the several funds above enumer- ated." In determining the question of the disposition of the money which comes to the state from Federal oil and gas royalties for highway or school pur- poses, it is to be noted that the first statute quoted divides this money equally between the Highway Depart- ment and the common schools. The second statute (Chapter 119 of the Laws of 1927) was the law enacted primarily for the purpose of creating a State Common School Equalization lJ'und and is so stated in its title. In considering this question we must determine whether or not the subse- quent statute repeals the prior statute by implication. Repeals by implica- tion are not favored. (State ex reI. Metcalf y. Wileman, 49 Mont. 436.) They are only to be considered re- pealed beyond the point where they cannot be reconciled. On first reading it appears that the 1927 law requires all the funds herein discussed to go to the State Common School Equali- zation Fund. A more careful readiug shows that there are a numher of rea- sons which indicate that was not in- tended to be the case. The limited title of the 1927 law shows no intent to repeal the prior law in this respect. While the 1927 law refers to all moneys acquired it does not state by whom such moneys shall have been OPIXIOXS Ol!' THE ATTOn~EY GENERAL 255 acquired. It may refer to all moneys acquired by the state or it may refer to all moneys pre"iously acquired for the use of the schools of this state. These interpretations show that this is a statute upon the interpretation of which reasonable men may differ. One most convincing principle of in- terpretation is the fact that this law has been construed in a /,,'h-en way for the past six years by the executi.e de- pa rtment of this state. From this fact we may well infer that prior to this year it was nm'er contended that all of this money belonged to the State Common School Equalization Fund. I~ver since the enactment of this law the money reeeh'ed from these funds has been equally divided between the Highway department and the State Common School Equalization Fund. 'Vhere an executive department of a government has construed a statute in a certain way for many years, that construction will be given great weight by the courts. (5!) C. J. 1025). This rule has been recognized although not followed in this state. (State v. Bran- non, 86 Mont. 2(0). Other sta tes have definitely held thut where a law has been construed in a given manner by the executive department of the state and that sub- sequently meetings of the legislature have heen held, that it will be pre- sumed that the legislature knew the construction placed upon the law by the executive department; that such construction met with the approval of the legislature and that same consti- tuted the reason why the law was not amended. (5!) C. J. 1030; State v. Hathbun, 256 Pac. 330; Lewis Sutherland on Statutory Construction, 2nd Ed. No. 474.) In view of the practical interpre- tation which has been given this stat- ute, and the fact that the statute is somewhat ambiguous, we do not feel justified in disturhing the intel'pre- tation which has been placed upon it for the past six years. Therefore, we hold that moneys receh'ed from the Federal Government for oil and gas royalties and rentals are to be distrib- uted equally between the Common School Equalization Fund amI the :-:ltate Highway Fund.