Montana Attorney General Opinion 16-362

Opinion No. 362. State Lands, Exchanges-State Board of Land Commissioners-State Water Conservation Board. HELD: The State Board of Land Commissioners does not have the au- thority, express or implied, to ex- change land with the State Water Conservation Board. October 8, 1936. Hon. 1. M. Brandjord Commissioner of State Lands The Capitol I have your letter of October 2, raising the question of the authority of the State Board of Land Commis- sioners to exchange State school land for land owned by the State Water Conservation Board. The State Board of Land Commis- sioners was created by the provisions of Section 4 of Article' XI of the State Constitution. The said board has control over State lands "under such regulations and restrictions as may be prescribed by law." The lands granted the State by Congress must be held in trust for the people to be disposed of for the respective pur- poses for which they are granted. (Section 1 of Article XVII of the State Constitution). The lands grant- ed by Congress under the provisions of The Enabling Act of the State of Montana "may be exchanged for other lands, public or private, of equal value and as near as may be of equal area." The authority of the State to exchange lands granted by Congress for other lands did not exist until the amendment of Section 11 of the Enabling Act approved May 7th, 1932 and accepted by the State of Montana through the Twenty-third Legislative Assembly. (Chapter 84, Laws of 1933). Lands granted to the State by Con- gress may not be disposed of except in pursuance of general laws provid- ing for such disposition. (Section 1 of Article XVII of the State Constitu- tion, Section 11 of the Enabling Act.) General laws have been passed pro- viding for the exchange of timbered lands or lands from which timber has been cut or burned. These la.ws were enacted by the legislature in 1931 in contemplation of the amendment of Section 11 of the Enabling Act and appear as Sections 1995.1 to 1995.6, inclusive, Revised Codes of Montana, 1935. Section 1805.19, Revised Codes of Montana, 1935, gives authority to the State Board of Land Commis- sioners to exchange lands with coun- ties and, in certain instances, with the. federal government. No legisla· tion has been enacted by the legis- lature which authorizes the State Board of Land Commissioners to dis- pose of state lands by exchange with the State Water Conservation Board. Generally speaking, the powers of public officers and boards are limited by the Constitution or by statute, and their acts, to be valid, must find war- rant in the law, either expressly or by fair implication. (21 Cal. Jur. 872, 46 C. J. 1031, 22 R. C. L. 455). Concern- ing the power of the State Board of Land Commissioners the Montana Su- preme Court in the case of Leuthold v. Brandjord, et aI, 100 Mont. 96, 106, 47 Pac. (2nd) 41, has said: "The para- mount law, it is true, vests the con- trol over state lands in the state board as the instrumentality to ad- minister the trust in such manner 'as to secure the largest measure of legiti- mate advantage to the beneficiary of it. To that end, and of necessity, the board must have a large discretionary power over the subject of the trust.' (State ex reI. Gravely v. Stewart, 48 Mont. 347, 137 Pac. 854, 855; Rider v. Cooney, supra). But wherever such control is mentioned in the Enabling Act and in the Constitution, it will be noted that it is specifically declared that the control and management are subject to such rules and regulations as are prescribed by the legislature." OPINIONS OF THE ATTORNEY GENERAL 357 No legislation provides for the dis- position of State lands by exchange except those statutes relating to ex- change of timbered, cut over or burnt over lands and those relating gener- ally to exchange of lands with the United States and with counties as stated above. In my opinion the State Board of Land Commissioners does not have the authority, express or implied, to exchange land with the State Water Conservation Board. In view of the fact that no general law exists which provides for the dispo- sition of State lands in such a man- ner it seems that such procedure would be directly contrary to the clear mandate of the State Constitu- tion and of the Enabling Act.