(dissenting).
I concede the obvious conclusion that the state accepted the grant of sections 16 and 36 as trustee for the common schools and that the state must administer the trust as Congress directed in the grant and that is the sum and substance of the holding in State ex rel. Galen v. District Court, 42 Mont. 105, 112 Pac. 706, so strongly stressed in the majority opinion.
The question before us is what limitations and restrictions, if any, did Congress impose in its grant. Section 11 of the Enabling Act which treats of sections 16 and 36, provides: “But said lands may * * * be leased for periods of not more than five years * * Section 18 then provides: “That all mineral lands shall be exempted from the grants made by this act. But if sections sixteen and thirty-six, or any subdivision or portion of any smallest subdivision thereof in any township shall be found by the department of the interior to be mineral lands, said states are hereby authorized and empowered to select, in *267legal subdivisions, an equal quantity of other unappropriated lands in said states, in lieu thereof, for the use and benefit of the common schools of said states.”
I think Judge Hattersley was right in following the Supreme Court of New Mexico in the case of Neel v. Barker, 27 N. M. 605, 204 Pac. 205, 207, which dealt with similar provisions of the New Mexico Enabling Act. In that case the court approved the language of the lower court as follows:
“It would be utterly inconsistent to say that no mineral lands should be granted to the state, and at the same time that the state in leasing its mineral lands, which it was not to obtain, should follow the formalities prescribed in section 10 of the act. When Congress used the word ‘lease’ with respect to lands it considered and denominated as nonmineral, it certainly did not have in mind a mineral lease. When the word ‘lease’ is used with respect to grazing land, a lease for grazing purposes is contemplated; when used in respect to timber lands, a lease for timber purposes is necessarily contemplated; when used regarding agricultural lands, a lease for agricultural purposes is obviously in contemplation, and the same is true with regard to other leases; but when the word is used with respect to lands considered to be non-mineral, certainly a lease for mineral purposes is not in contemplation. The word ‘lease,’ as used in the Enabling Act, did not contemplate nor include a lease for mineral purposes. * * *
“Bearing in mind that, in my opinion, Congress did not intend to grant to the state any mineral lands, I conclude that the provisions of the Enabling Act with reference to sale and leasing of said lands do not embrace nor include a lease for mineral purposes, and it follows that the state is not controlled nor restricted by said act in regard to leasing said lands for mineral purposes.”
There is nothing in the Galen case, supra, that in any manner conflicts with the holding in the Neel case, as stated in the majority opinion, and in fact the Galen case has nothing to da *268with the principle of law involved in and passed upon in the Neel case.
I accept the conclusion reached in the majority opinion that the latter part of section 18 of the Enabling Act giving the right to make lieu selections confers a right to be exercised on land known to be mineral at the time of survey and- clear listing. I agree too that “lands” in its legal signification includes minerals.
Section 18 of the Enabling Act was enacted in pursuance of the policy and practice of Congress to withhold mineral lands for the use of the United States in the absence of an expressed purpose to include them. United States v. Sweet, 245 U. S. 563, 38 S. Ct. 193, 62 L. Ed. 473. The same policy was reflected in section 11 of the Enabling Act which permitted the exchange of lands for others with the proviso that if anj*- such are exchanged with the United States the exchange shall be limited to surveyed, non-mineral, unreserved public lands of the United States.
Lands not known at the time of survey and listing to contain minerals but which actually did contain minerals were nevertheless granted to the state and with it passed the minerals as a part of the land. But it does not follow that a lease of the lands for grazing or agricultural purposes gave any right to explore for, develop or remove the minerals therefrom. Otherwise a lessee ostensibly for grazing or agricultural purposes would have the right to explore for and remove the minerals therefrom at a mere nominal rental. Such results were never contemplated by Congress when it passed the Enabling Act exempting mineral lahds from its provisions.
In my opinion when lands contained in the grant by Congress to the states were subsequently found to contain minerals there was no limitation or restriction whatsoever in the Enabling Act affecting the power and right of the state to have the mineral contents of the land developed and removed, except that it still was duty bound to discharge its trust for the common schools. It was however free to choose reasonable means of carrying the *269trust into execution. Stearns v. State of Minnesota, 179 U. S. 223, 21 S. Ct. 73, 45 L. Ed. 162.
The legislature of Montana by Chapter 147, Laws of 1909, made provision for the development of the mineral contents of state lands by providing in section LXII thereof that: “If stone, coal, coal oil, gas or other mineral not mentioned herein, be found upon the state land, such land must be leased only for the purpose of obtaining therefrom the stone, coal, coal oil, gas or other mineral, for such length of time, and conditional upon the payment to the register of such royalty upon the product, as the State Board of Land Commissioners may determine.” This was a legislative declaration that the board could lease land containing minerals “for the purpose of obtaining therefrom” the minerals “for such length of time” as the board might determine.
It is true that section LXIII of the same Act after speaking of agricultural or grazing lands contains the provision that “no land shall be leased for a longer period than five years”. And section LXVII provides that “No State Land shall be leased for any person for a longer period than five years. ’ ’ Those provisions have nothing to do with lands leased for the purpose of obtaining minerals therefrom. As to minerals the special provisions of section LXII control.
This same question under similar statutory provisions was considered in Be Leasing of State Lands, 18 Colo. 359, 32 Pac. 986, 989, and the court disposed of the question by saying: “By the act of 1887- the right to lease for a period of 20 years was taken away, and a 5-year limitation substituted, in cases of farming and grazing lands; the leasing of stone, gas, and mineral lands being provided for by section 8 of the latter act. By the terms of this section it is expressly provided that such lands may be leased ‘for such length of time * * * as the commissioners may determine.’ At the oral argument it was suggested that the five-year limitation was applicable to the leasing of these lands as well as to the agricultural and grazing lands of the state; the argument being that the discretion as to time given the *270board was subject to tbe five-year limitation. Under the five-year limitation contained in section 10 the board may, at its option, lease for a less period than five years. Hence to construe the words, ‘for such length of time * * * as the commissioners may determine,’ as meaning for such length of time, not to exceed five years, would be to give no effect whatever to the language of section 8. For the reasons already given, such a construction cannot be indulged. We therefore agree with the attorney general that the five-year limitation does not apply to the leasing of such lands.”
The legislature made separate provision for the disposal of the mineral rights in state lands from the general provisions treating of sales and leases of the land itself. Compare, Toomey v. State Board of Land Com’rs, 106 Mont. 547, 81 Pac. (2d) 407.
Thus by section XXXVII of the 1909 Act it was provided that “All sales of state lands shall be at public auction only.” But it is clear that the legislature by this provision was not dealing with the mineral interests for they were treated separately by section LXXI et seq. of Chapter 147, and section 11 of the Enabling Act provides: ‘ ‘ That all lands granted by this act shall be disposed of only at public sale after advertising.” If the majority opinion herein is sound then carried to its logical conclusion there can be no disposal of the minerals in state school lands except at public sale and as a part of the sale of the land itself. I think the Enabling Act is not open to such an interpretation.
Chapter 147, Laws of 1909, was the only Montana statute in force when the lease in question here was executed. By its terms the lease gives the lessee the privilege and option of renewal upon the same terms and conditions as to rentals and royalties as contained in the original lease, upon the lessees’ discharging certain enumerated obligations, all of which were performed by plaintiff. Also by its terms the state reserved the right to sell or lease the land subject to the rights of the lessee under the terms of its lease. It is clear that the lease was made in conformity with Chapter 147, Laws of 1909, then in effect.
*271True, Congress by Act of August 11, 1921, 42 Stat. 158, proposed an amendment to the Enabling Act, see. 11, providing in part: - “And provided further, That any of such granted lands found, after title thereto has vested in the State, to be mineral in character, may be leased for a period not longer than twenty years upon such terms and conditions as the legislature may prescribe.” This amendment was not consented to by the state of Montana until in 1927. The lease in question here was made in 1925.
The rule is that: “A grant by congress of land to a state 'for the use of schools’ is an absolute grant, vesting title for a specific purpose, and not a grant as on a condition subsequent. The grant and its acceptance by the state constitute a solemn compact between the state and the United States * * * and the grant cannot be withdrawn after its acceptance by the state, nor can the terms of the grant be changed except with the consent of the state.” 50 C. J., Public Lands, sec. 162, p. 963.
The approval of the 1921 amendment in 1927 could not affect the lease in question for that would be an impairment of the obligations of a contract contrary to the United States Constitution. That the legislature in 1927 did not intend to have the Act affect existing leases is shown by the fact that it expressly provided that: “All existing oil and gas leases heretofore executed by the Register of State Lands on behalf of the State of Montana are hereby ratified, confirmed, and approved, provided, that the holder of any such lease shall, within ninety (90) days from the date this Act goes into effect, file in the office of the Register of State Lands consent in writing to the amendment of such lease to contain a reservation to the State of the right at all times to take and receive its royalties in money or kind * * Chapter 108, Laws of 1927, sec. 8.
Plaintiff here filed this consent in writing within the time provided for. But it is claimed that by section 13 of this Chapter the Act was made retroactive as of 1921 when the Congressional Act was passed.
Section 13 provides in part: “The State of Montana, for the *272purpose of enabling it to take advantage of the powers to it granted by the United States, mentioned in an Act (describing it by title) approved August 11th, 1921, hereby accepts said powers as of said date of approval of said Amendatory Act. ’ ’
This section does not affect the plain provisions of section 8 above quoted. Its retroactive effect is limited to the powers conferred upon the state and does not apply to obligations under outstanding leases affecting rights of third parties, which are specially treated, ratified and confirmed in section 8.
In my opinion Judge Hattersley was right in holding that plaintiff had the right to have its lease renewed.
Chapter 107, Laws of 1909, in effect as the controlling law when the lease was made, clearly authorized such a lease.
It is noteworthy that Congress by an Act of April 13, 1948, 62 Stat. 170, has provided that: “Leases for the production of minerals, including leases for exploration for oil, gas, and other hydrocarbons and the extraction thereof, shall be for such term of years auA on such conditions as may be from time to time provided by the legislatures of the respective States”. Experience apparently has demonstrated to Congress that the legislatures of the respective states can be entrusted with the responsibility of carrying out their trust with respect to the production of minerals on school lands.
I think the judgment should be affirmed.