Montana Attorney General Opinion 16-257

Opinion No. 257. Schools-School Land-Oil & Gas. HELD: A board of school trustees may not hold land for the purpose of prospecting, exploring and drilling for gas, developing gas wells and re- moving gas therefrom. Mr. Fred C. Gabriel County Attorney Malta, Montana March 2, 1936. On behalf of the school board of Malta you have requested an opinion as to the authority of the City of Malta to own and operate its own gas 268 OPINIONS OF THE ATTORNEY GENERAL system. You state that the city con- templates drilling a well on the school property. It is assumed that you mean that it is contemplated that the wells from which the city hopes to obtain its supply of natural gas for the sys- tem will be drilled on property owned by the school district which embraces the City of Malta and used as a site for a district school house. Under the provisions of Chapter 128, Laws of 1927, I believe there is no doubt that the city has the power and authority to construct, purchase or develop an adequate supply of nat- ural gas and to construct or purchase a system of gas lines for the dis- tribution thereof to the inhabitants of said city or vicinity and to contract an indebtedness, within constitutional and statutory limitations, to pay for the same. - However, the problem with which your local school board is probably more concerned is whether or not it has the authority to permit the drill- ing of a test well on school property and, in case gas is produced in suf- ficient quantities, to lease or other- wise contract for the use of the prop- erty for the purpose of extracting gas therefrom. It is well established that although school districts are public corporations their powers are very limited and they can exercise none except such as are conferred by the law creating them, either expressly or by fair implication. (Jay v. School District No.1, 24 Mont. 219, 232, 61 Pac. 25Q; Finley v. School District No. 1, 51 Mont. 411, 415, 153 Pac. 1010; State ex reI School Dist. No. 4 v. McGraw, 74 Mont. 152, 156, 240 Pac. 812). The board of school trustees constitutes the board of directors and managing officers of such corporation and may exercise only those powers expressly conferred upon them by statute and such as are necessarily implied in the exercise of those ex- pressly conferred. (McNair v. School District No.1, 87 Mont. 423, 425, 288 Pac. 188, 69 A. L. R. 866; Keeler Bros. v. School District No.3, 62 Mont. 356, 361, 205 Pac. 217; State ex reI Bean v. Lyons, 37 Mont. 354, 362, 96 Pac. 922.) Section 1015, R. C. M. 1921, as amended by Chapter 122, Laws of 1931, provides in Subdivision 7 that every school board shall have the power and it shall be its duty "to re- pair and insure school houses and to rent, lease and let to such persons or entities as the board may deem proper, the grade school halls, gym- nasium and other buildings and parts thereof for such time and rental as the board may designate. All rentals shall be paid to the County Treasurer for the credit of the school district." Subdivision 12 of Section 83, Chapter 148, Laws of 1931, gives the same power and authority to boards of trus- tees of every county high school and every school district maintaining a district high school. By their terms these provisions limit trustees' powers to lease, rent and let school property to school halls, gymnasiums, buildings and parts thereof. Neither Section 1008, R. C. M. 1921, relating to the powers of school trus- tees over·property generally nor Sub- division 9 of Section 1015, R. C. M. 1921, as amended, making it a power and duty of school boards "to hold in trust for their districts all real or personal property for the benefit of the schools thereof" can be said to authorize the use of school property for the production of gas. As to school sites, Subdivision 8 of Section 1015, R. C. M. 1921, as amended, gives school boards the pow- er "to purchase, acquire, sell and dis- pose of plots or parcels or lands to be used as sites for school houses, school dormitories and other school buildings and for other purposes in connection with the schools of the district; .... ' provided they shall not build or re- move school houses or dormitories nor purchase, sell or locate school sites un- less directed so to do by a majority of the electors of the district voting at an election held in the district for that purpose .... " Section 1173, R. C. M. 1921, pro- vides in part as follows: "The school site shall be selected in a place that is convenient, accessible, suitable, and well drained; provided, that in dis- tricts of the first and second class, the site shall be not less than one- half of an average city block, and in districts of the third class shall con- tain . not less than one acre." I am of the opinion that in view of the foregoing decisions and statutes OPINIONS OF THE ATTORNEY GENERAL 269 boards of school trustees do not have the authority to acquire property ex- cept for purposes in connection with the schools of the district and that land may not be held by a school dis- trict for the purpose of prospecting, exploring and drilling for gas, de- veloping gas wells and removing gas therefrom. However, if a sale of part of the property of a school district would not reduce the area of the school site remaining to less than the minimum required by Section 1173, R. C. ~. 1921, then, perhaps, the school board could upon being "di- rected so to do by a majority of the electors of the district voting at an election held in the district for that purpose" dispose of. that portion of the school site upon which the pro- posed well would be drilled.