(concurring in part and dissenting in part).
I concur in that part of the opinion affirming the judgment of the trial court quieting title in the plaintiff to the land in question, but I dissent from that part of the opinion holding valid the reservation by the State of fifty per cent (50%) of the coal.
I adhere to the opinion of this Court in Permann v. Knife River Coal Mining Co., 180 N.W.2d 146 (N.D.1970), wherein we affirmed the judgment of the trial court holding that the reservation in the patent attempting to reserve the coal to the State was beyond the power of the State, was void, and did not constitute a reservation of coal.
The State cannot reserve that which it cannot sell. It is not necessary to determine whether or not “coal” is a “mineral” and therefore includable under the provisions of § 38-0901, N.D.R.C.1943, reserving to the State “all oil, natural gas, or minerals,” which reservation is set forth in the contracts and the patent, for the reason that Section 155 of the North Dakota Constitution prohibits the sale of “coal lands” and therefore such reservation of coal is contrary to the constitutional and statutory provisions.
A purchaser from the State acquires certain contract rights and upon full payment of such contract is entitled to a patent under Section 158 of the North Dakota Constitution. Any clause in any contract for the sale of school grant lands, or in the patent to such lands, in direct contravention of constitutional provisions, is unconstitutional and ineffective insofar as it relates to the sale of school grant lands. The Constitution, and the statutes enacted in compliance therewith, is the authority-under which the officers of the State act, and not the recitals in the contract or in the patent that determine its scope and validity. It appears that it would be incongruous to sell land forbidden by the Constitution to be sold and insert in the contract or patent thereto the reservation to the State of that which was repugnant to the constitutional prohibition.
The substance of the contract or patent may not be varied by the officers executing it, and the powers of public officers are to be measured by the terms and necessary implications of the grant conferring the power on them. In this case the mandate of the Constitution is that in conveying school grant lands, coal lands belonging to the State shall never be sold. The *132reservation of coal lands to the State in a contract or patent conveying school lands is not in compliance with constitutional or statutory provisions, and the contracts and patent must be construed as though it contained only the reservation required by statute (§ 38-0901, N.D.R.C.-1943) as limited by the Constitution (§ 155; N.D.Const.) and the State is estopped from asserting a right to the reservation of coal. Convis v. State, 104 N.W.2d 1 (N.D.1960); State v. Oster, 61 N.W.2d 276 (N.D.1953).