Montana Attorney General Opinion 16-24

Opinion No. 24. Grazing Districts, Qualifications of Incorporators. HELD: 1. The incorporators of a co-operative grazing association must own lands within the district. 2. Only a natural person of either sex may become a member of an in- corporated grazing association. 3. Section 12 of Chapter 66, Laws of 1933, is of doubtful validity inso- far as it differentiates between per- sons who own land and livestock of an assessed value of at least $2,500 and persons who own land and live- stock of a lesser assessed value. Mr. Fred C. Gabriel County Attorney Malta, Montana January 9, 1935. You have asked us to give you a construction of Chapters 65, 66 and 67, Laws of 1933. We shall attempt to do so in a somewhat limited way. Chapter 65 and Chapter 66 were in- troduced on February 7, 1933, and designated as Senate Bill No. 126 and Senate Bill No. 127, respectively. Chapter 67 was introduced on Feb- ruary 8, 1933, and designated as Sen- ate Bill No. 128. Chapter 65 relates to the selling, leasing and exchanging of and quieting title to lands acquired by a county through tax deed. Chap- ter 66 relates to the incorporation of grazing district associations for the purpose of aiding in the conservation of natural forage resources and in the restoration and improvement of lands which may be acquired by lease or purchase from a political subdivision of the state or from others. Chapter 67 relates to the creation of a county land advisory board which shall, upon request, advise with the board of county commissioners in the lease, sale, exchange and disposition of all lands owned by the county, other than such as may be required for the regular conduct of county af- fairs, and "may cooperate with the board of county commissioners in es- tablishing grazing districts or enter- ing into agreements with other land- owners for the establishment of graz- ing districts, whereby county lands may be leased either on a per head or per acre basis." The fifth paragraph of Section 1 of Chapter 65 provides that "when- ever any lands acquired by a county by tax deed have been offered for sale at public auction and not sold, the county commissioners may, if deemed for the best interest of the county, lease said lands upon the best terms obtainable, provided that such lease shall not extend over a period longer than five years, except of lands to be or within a legally created grazing district, when such lease may run for a period of not to exceed ten years." Section 3 of Chapter 66 provides that each cooperative grazing association shall have power "to lease from the county or counties in which the co- operative grazing district is located, land acquired by such county or coun- ties through tax sale or otherwise, which is located in or contiguous thereto and not already under lease." Section 6 of Chapter 66 provides that "any incorporated grazing associa- tion may purchase or lease any and all lands owned by the county not al- ready leased, and located within the proposed district; such lease to be for a period of five years, with the land thus leased not subject to sale to other parties, but with the privilege of purchase by the Incorporated Graz- ing District at any time during the term of the lease at such appraised price as shall be determined at or prior to the origination of the lease; provided, however, no such lease shall be entered into until the Board of 22 OPINIONS OF THE ATTORNEY GENERAL County Commissioners, in order to conserve and protect the existing for- age resources on such county land and to restore the maximum carrying capacity of such land, shall reserve the right to regulate and limit the amount of grazing thereon and the limitations and restrictions imposed shall be made a part of such lease. Annual rentals for county lands in- cluded in Incorporated Grazing Dis- tricts shall be payable annually in advance. Failure to comply with reg- ulations prescribed in the lease relat- ing to protection, administration, or improvement of such Grazing Dis- tricts or to make payments of annual rentals within the time prescribed shall be grounds for forfeiture and cancellation of such leases. Provided, however, that where county.lands are included in Grazing Districts, which include also lands belonging to the Federal Government, then the provi- sions for the protection, administra- tion, regulation, and improvement of such Grazing Districts, as shall be laid down by the Secretary of the In- terior, shall be designated in each lease to apply to the county lands in- cluded therein. In negotiating the terms of any lease with a Cooperative Grazing District, the County Commis- sioners may provide for a variable scale of rental charges, based on mar- ket prices for livestock and/or live- stock products, or on the number and character of stock to be grazed in said district." Section 8 of Chapter 66 provides that the directors of the association shall have power, "on behalf of the association, to enter into leases with persons, corporations, partnerships or with the county or counties in which the district is located or with the State or Federal Government for tracts of land within, contiguous to or adjacent to such districts." The statutes, being in pari materia, should be considered together and har- monized if possible. (City of Butte v. Industrial Accident Board, 52 Mont. 75; Huber v. Thomas, 19 Pac. (2d) 1042; City and County of Denver v. School District, 30 Pac. (2d) 866; 59 C. J. 1053.) But as section 1 of Chapter 65 is in irreconcilable conflict with sec- tion 6 of Chapter 66 so far as the term of a lease of county lands within or contiguous to a cooperative grazing district is concerned, which should prevail? Paragraph 5, quoted in full above, is the only part of Section 1, or for that matter of Chapter 65, which has to do with the leasing of county lands to a cooperative grazing associa- tion. It deals with the subject only in a general way. Section 6 deals with the subject in a more minute and particu- lar way. It is well settled that where a statute deals with a subject in gen- eral terms and another deals with it in a more minute and definite way, the special will prevail over the gener- al statute so far as there is any repug- nancy between them. (Section 10520, R. C. M. 1921; In re Stevenson, 87 Mont. 486; Koelsch v. Girard, 33 Pac. (2d) 816; Key System Transit Co. v. Oakland, 13 Pac. (2d) 979; Davis v. State, 1 Pac. (2d) 824; 59 C. J. 1055.) Chapter 65 passed the Senate and was transmitted to the House on February 13, 1933, and passed the House and was returned to the Senate on Febru- ary 27, 1933. It was presented to the Governor on March 1, 1933. Chapter 66 passed the Senate and was trans- mitted to the House 011 February 17, 1933, and passed the House and was returned to the Senate in amended form for concurrence on February 27, 1933. On February 27, the Senate con- curred in the amendment made by the House. It was presented to the Gov- ernor on March 2, 1933. Both pieces of legislation were approved by the Governor on March 7, 1933. Chap- ter 66, then, has the added argument in its favor that it was acted upon later in the Assembly than was Chap- ter 65. (Daly v. Horsefly Irr. Dist., 21 Pac. (2d) 787.) We think the necessary implication from the language of sections 1, 2, 3, 4 and 5 of Chapter 66 is that the incorporators must not only own lands but lands within the proposed grazing district. To contend otherwise would do violence to the intent of the legis- lature. That which is implied in a statute is as much a part of it as that which is expressed. (State v. Riedel, 46 S. W. (2d) 131; Colorado & S. Ry. Co. v. City of Ft. Collins, 121 Pac. 747; 2 Lewis' Sutherland Statutory Construction 933, sec. 500; 25 R. C. L. 978, sec. 228; 59 C. J. 972, sec. 575.) Chapter 66 declares that three or OPINIONS OF THE ATTORNEY GENERAL 23 more persons may incorporate there- under. It has been held more than once by the courts that statutes which provide for the formation of corpora- tions are not to be construed as au- thorizing other corporations to be- come corporators, unless such an in- tention on the part of the legislature is clear, especially statutes authoriz- ing "persons" to form corporations, wherein cannot be implied or dis- cerned any intendment that other than natural "persons" is meant. In the case of a proposed stock corporation there is the further obstacle that an existing corporation cannot become a subscriber to its capital stock in the absence of express statutory author- ity or charter power. (Denny Hotel Co. v. Schram, 32 Pac. 1002; Ameri- can Ball Bearing Co. v. Adams, 222 Fed. 967; 1 Fletcher Cyclopedia Cor- porations, sec. 85, p. 287.) In view of the peculiar language of Chapter 66 it would seem that only a person of either sex may become a member of an incorporated grazing association. Section 4 thereof pro- vides: "Any person owning land with- in or contiguous to the proposed boundaries of any Cooperative Graz- ing District, set up by any associa- tion incorporated under this Act, shall be entitled to become a member thereof by paying the membership fee and by subscribing to the by-laws and by complying with the regulations and limitations determined by the di- rectors thereof or by the terms of lease of leased lands included therein. The membership fee, which shall be fixed and determined by the directors of such associations, shall in no case exceed Five Dollars. "When any member shall dispose of lands owned by him within or con- tiguous to the Cooperative Grazing District so that he is no longer the owner of lands so within or contigu- ous, then he shall cease to be a mem- ber of such association and his rights and interests in the association shall be determined by the directors there- of. 'When any member shall dispose of a part of the lands owned by him so that another individual or other in- dividuals shall by the purchase and ownership of such lands acquire right to membership, then the rights and interests involved shall be determined by the Board of Directors. "Each member shall have one vote." Section 7 thereof provides: "Each association incorporated under this Act shall, within thirty days after its incorporation, adopt, by majority vote of its members, for its government and management, a code of by-laws, not inconsistent with the powers granted under this Act. Such asso- ciation may also under its by-laws provide for any or all of the follow- ing: * * * "2. The number of members con- stituting a quorum. In voting at meetings, no proxies shall be al- lowed." It will be noted that a person who desires to become a member of any such association must first pay the membership fee and subscribe to the by-laws thereof. It will be noted further that a member may sell a part of his land to another individual, thereby placing the latter in a posi- tion to acquire membership in the as- sociation. It will be noted also that the by-laws may provide for the num- ber of members which shall constitute a quorum at a meeting of the associa- tion. Moreover, it is not without sig- nificance that the words "corpora- tions" and "partnerships" occur only in section 8 of the Act and then only in connection with the leasing by such entities to the association of lands owned by them within, contiguous to, or adjacent to a ,grazing district. Section 12 of Chapter 66 is of doubt- ful validity in so far as it differenti- ates between persons who own land and livestock of an assessed value of at least $2,500 and persons who own land and livestock of an assessed value of $2,499 or under. If a mono- poly may be injurious to a person who owns land and livestock of an as- sessed value of say $5,000, it may be doubly injurious to a person who owns land and livestock of an assessed value of say only $1,000. The latter would go down much quicker perhaps than the former. It is said that a statute makes an improper and un- lawful discrimination if it confers par- ticular privileges upon a class arbi- trarily selected from a larger number of persons, all of whom stand in the same relation to the privileges grant- ed, and between whom and the per- sons not so favored no reasonable dis- 24 OPINIONS OF THE ATTORNEY GENERAL tinction or substantial difference can be found justifying the inclusion of the one and the exclusion of the other. (Franchise Motor Freight Ass'n v. Seavey, 235 Pac. 1000; Selby v. Oak- dale Irr. Dist., 35 P. (2d) 125.) We do not see how section 7 of Chapter 67 can be made effective ex- cept in conjunction with the provi- sions of Chapter 66.