I dissent:
As I interpret chapter 61, Laws of 1951, and chapter 122, Laws of 1953, both are in conflict with the Constitution and the Ordinances of Montana, which is the fundamental law of this state.
The Enabling Act, approved February 22, 1889, specifically provides, by section 11, in part, “That all lands granted by this act shall-be disposed of only at public sale after advertising # * * ’> Emphasis supplied.
Section 1, article XVII, Montana Constitution, requires that all lands of the state that have been granted to the state by Congress shall be public lands of the state, and shall be held in trust for the people, to be disposed of for the respective purposes for which they have been granted, and none of such land, nor any estate or interest therein, shall ever be disposed of except in pursuance of general laws providing for such disposition, nor unless the full market value of the estate or interest disposed of be paid or safely secured to the state. This provision is mandatory. Mont. Const, art. Ill, section 29.
Under neither of the above-mentioned legislative acts of 1951 or 1953 is the full market value of the estate or interest of the school lands disposed of, secured to the State of Mon*73tana. The record shows that at public sale some bidders were willing to bid more than the statutory-restricted royalty reservation for the lease. Where the statute sets an arbitrary reservation of 12% per cent royalty, and at public auction sale the fact that bidders are able, willing and bid 16 2/3 per cent royalty for the lease, demonstrates conclusively that the royalty provided by statute of 12% per cent only is not the full market value of the state’s interest being disposed of, nor can the full market value be correctly determined under said enacted laws.
It is only by free, open, unrestricted, competitive bidding at a public auction sale that the true value or full market value of the state’s interest may be determined and realized. Compare State ex rel. Galen v. District Court, 42 Mont. 105, 117, 112 Pac. 706. While the power is left with the Legislature to enact laws for the regulation and restriction of leasing state lands, yet such laws must, in adopting restrictions and regulations for the purpose of leasing, clearly and unequivocally provide a system that will, without doubt or uncertainty, secure to the people of the state the full market value of these lands or any interest therein. Section 1, art. XVII, supra. This the Legislature has failed to do by enacting chapter 61, Laws of 1951, and chapter 122, Laws of 1953.
It has been urged that the case of State of Montana ex rel. Johnson v. State Board of Land Commissioners, 348 U. S. 961, 75 S. Ct. 524, 99 L. Ed. 750, settled this question, but there the Supreme Court only found, that on petition for writ of' certiorari, B..G.M. 1947, section 81-1702 (2d), was not inconsistent with “federal law.” The Supreme Court did not of course pass upon the question whether the statute was or was not in conflict with our Ordinance I or the provisions' of the Constitution of Montana.
Section 11 of the Enabling Act has been amended by the Congress, giving the consent of the United States to the changing of the letter, word, spirit and intent of that section, and our Legislature purportedly and erroneously attempted to accept such amendments by proceeding to enact such legislation *74as chapter 84, Laws of 1933, chapter 8, Laws of 1939, and chapter 18, Laws of 1949, without first submitting the proposed changes to the people of the State of Montana, as is required by the Montana Constitution, Ordinance I, supra, and the Enabling Act. Thus were the people of this state denied the right to either accept or reject the amendments proposed.
In this connection it should be pointed out that our State Constitution and Ordinance I, supra, was submitted to the people of Montana for approval or rejection and the same was approved and ratified by the people of Montana in a general election for that purpose on October 1, 1889.
Section sixth of Ordinance I, supra, contains the restriction on the legislative, the executive and the judicial departments of our state government as follows: “That the ordinances in this article shall he irrevocable without the consent of the United States and the people of said State of Montana.” Emphasis supplied.
All officers of our government, from the highest to the lowest, are creatures of the law and are legally and morally bound to obey it. It is the only supreme power in our republican system of government. Courts of justice are established not only to decide controversies between citizens, but also to decide controversies between citizens and their government. Compare United States v. Lee, 106 U.S. 196, 220, 1 S. Ct. 240, 27 L. Ed. 171. Any statute must yield to the fundamental law of the land. The Constitution does not yield to the statute.
The foregoing constitutional provision and the provisions of Ordinance I are limitations upon the power of disposal by the Legislature and are equally binding upon the executive and the judiciary. See In re Beck’s Estate, 44 Mont. 561, 576, 121 Pac. 784, 1057.
Section seven of Ordinance I contains the trust agreement of the people of Montana that the lands so granted to our state under the Enabling Act are and were accepted upon the terms amd conditions in the Enabling Act specifically provided. It is to be noted that .while amendments to the Enabling Act have *75been consented to by tbe United States, none of the so-called amendments of the Enabling Act have ever been submitted to the people of Montana for approval or rejection as made mandatory by section sixth of Ordinance I. The provisions of Ordinance I are in harmony with and do not conflict with any provision of our State Constitution, and are therefore binding upon the executive, legislative and judiciary, as are all other mandatory provisions of our Constitution. It will be noted that Ordinance I is unrestricted and is permanent, while Ordinance II is restricted by section 12 thereof.
The majority rule is that an ordinance such as Ordinance I, where permitted or required by an enabling act such as ours, when attached to and submitted to the people of a state together with the constitution for approval or rejection, when approved becomes a part of the basic, fundamental, and supreme law of this state. State ex rel. Thompson v. Kenney, 9 Mont. 223, 23 Pac. 733; Stewart v. Crosby, 15 Tex. 546, 548. The supreme law of the state is beyond the control of the legislature. 16 C.J.S., Constitutional Law, section 11, pages 63, 64.
It should be noted that the opinion in Thompson v. Kenney, supra, was written the next year after the Ordinances and Constitution were ratified by the people of Montana and the opinion in Stewart v. Crosby, supra, was promulgated a few years after Texas was admitted to the Union. The authors of those opinions were well aware of the meaning and intent of the provisions of the Ordinances and Constitution there involved.
There can be no question that a constitutional convention, assembled and acting as directed by an enabling act, for the purpose of framing a constitution and ordinances for a new state, has the inherent and unquestioned power and right to frame and adopt ordinances to be submitted with the constitution to the people for either ratification or rejection. The people of the state are the possessors of and the foundation of the supreme authority and power flowing with a sovereign people, and by such ordinances when so approved may and did by Ordinance I place beyond the control of the Legislature the *76power and authority to modify, change and amend the Enabling Act without submitting the question to the people of the state. Section 1 of article III of our Constitution declares: “All political power is vested in and derived from the people; all government of right originates with the people; is founded upon their will only, and is instituted solely for the good of the whole.”
Such an ordinance as Ordinance I herein discussed, being in dignity a part of our fundamental law, may not be ignored nor abrogated by legislative act any more than any of the other mandatory provisions of our Constitution may be ignored by the Legislature, the Executive or the Judiciary. The Ordinances were written by outstanding lawyers of the Constitutional Assembly, and then were submitted to and approved by the people. They were carefully prepared for the purpose of protecting and caring for the people’s most valuable and sacred interests. Ordinance I was, and is, permanent and irrevocable until changed by the people of Montana. The language is simple, direct and certain; it needs no interpretation. If it had been intended that the people were surrendering this power to chang the terms of the Enabling Act to the will of their Legislature, it would have been so very easy to have said so, but the people did not so provide, but, on the contrary, the people did declare that this Ordinance shall be irrevocable without the consent of the people of the said State of Montana. This was the act of the sovereign people, framed by the people themselves for themselves. The people so acting constitute the highest legislative body. We think no reasonable conclusion can otherwise be reached. This court may not rightfully declare or hold that merely by nonuse or merely by implication the people surrendered a right so valuable to them that they expressed their intention in plain and vigorous terms as to the one and only method of giving their consent to any proposed change or changes. It should be noted that Ordinance I, which is a part of the fundamental law of Montana, is unique and it is differ*77ent in its terms and restrictions from any other ordinances or schedules adopted by other states.
It has been urged that it is a cumbersome and slow method in requiring the question to be submitted to the people. The short answer to all such arguments is that we operate under a constitutional form of government where haste, fiat or decree are not tolerated and expediency has no place in the interpretation of constitutional provisions of ordinances or of statutory acts. A provision of the Constitution or of Ordinance I may sleep but it may not be ignored.
For the foregoing reasons, in my opinion, no legislative act is valid which purports to accept or approve or operate under any proposed change or amendment of the Enabling Act approved February 22, 1889, until such contemplated change or amendment first has been duly and regularly submitted to the people of the State of Montana for their approval or rejection, as well as being approved by the Congress of the United States as is made mandatory by Ordinance I. Therefore chapter 61, Laws of 1951, and chapter 122, Laws of 1953, being in conflict with the Constitution of Montana and Ordinance I, supra, are void.
It is therefore my opinion that the judgment of the district court should be reversed; that the injunction heretofore issued be dissolved and that the action in the district court should be ordered dismissed.