*1 plaintiff rely et title suit. While the must title,

on his own he need not have a title The OKLAHOMAEDUCATION ASSOCI superior persons parties ATION, INC., Petitioner, to the suit. It suffices if he has some kind of an estate in the property, legal equitable, which is George NIGH, Spencer The Honorable paramount to that of the defendant.12 Bernard, Daxon, Tom Leslie Fisher and plaintiffs here legal cannot derive Craig, Jack as Commissioners of the comfort from flaw in the title to State’s Office, Respondents. Land the fee. In prevail they order to must show No. 57361. a mineral interest of their own. That min- eral interest was Dearings’ lost when the Supreme Court of Oklahoma. title to the “farm” became divested resale tax deeds. Feb. 1982.

Reversed and remanded with directions Rehearing Denied March quiet title in defendants below. IRWIN, J., BARNES, J., C. V. C.

HODGES, LAVENDER, DOOLIN, and

HARGRAVE, JJ., concur.

SIMMS, J., dissents.

SIMMS, Justice, dissenting.

I must Dissent. The majority, my

opinion, misapprehended has dispositive

issue in appeal. It is May this:

state claim the mineral interest when its

title rests on a Sheriff’s Deed executed

pursuant to the 1944 mortgage foreclo-

sure—when the in question land WAS NOT

MORTGAGED? The mortgage had been

released discharged of record in 1929.

I would affirm the trial judgment court’s

in favor of plaintiffs these (appellees). Okl., Langley, 666; Reneau, Welch v. 264 P.2d note 10 at Smith v. 188 Okl. [1953]; Logan, [1941], Pearson v. 208 Okl. 112 P.2d [1953]; Reed, P.2d supra Blanchard v. *3 Counsel, Long,

Karen L. Gen. Oklahoma Ass’n, Inc., Ed. City, petition- Oklahoma for er. Gen.,

Jan Eric Cartwright, Atty. Neal Leader, Gen., Atty. Asst. City, Oklahoma intervenor/petitioner, for Atty. Gen. of Okl. Montazzoli, Keith McMillin and John E. Kornfeld, McMillin, Phillips Upp, & Oklaho- City, respondents. ma for Tyree, Lana Jeanne City, Oklahoma intervenors, Independent Districts School 41, # # 12 and # 52 of County, Oklahoma and Independent School Dist. # 20 of Le- County, Flore Okl. Groves,

William Bleakley, Bleakley P. & Tague, intervenors, City, Oklahoma In- dependent School Dist. # 89 of Oklahoma County, and Vocational-Technical School Dist. # 22 County, of Oklahoma Okl. Phil A. Daugherty and R. Haught, Steven City, Oklahoma intervenors/respon- dents, James, R. H. et al. Godlove, 86.1, Godlove, Joyner, Mey-

Ernest F. O.S. O.S.Supp. § § Inc., Lawton, Mayhall, ers & interve- 52(c), O.S.Supp. and 64 § nors, Glover, Earl et al. O.S.Supp. 260.2.1 Petitioners contend that these statutes

BARNES, Chief Vice Justice: prohibit Respondents, Office, the Land complying with the original Court jurisdic- This has assumed terms and purposes the Oklahoma Enab- 57,361 tion of Case No. sole purpose Act,2 ling Congress 16, 1906, Act of considering constitutionality June of 64 (8* n %)per percent annum, eight 1. 64 O.S. 86.1: and one-half payable annually paid. semiannually, “The Commissioners of until the Land Officewhen re-leasing preference right delinquent installments, principal All lands both charge interest, and collect therefor an annual at shall bear interest a rate ten equal percent (3%) rental to three fair percent (10%) per paid. annum until All such thereof, cash market value im- exclusive of paid loans shall the manner and within provements, *4 as determined and fixed the period may required of time as be the appraisal provisions of such lands under the of Office; provided, of the Commissioners Land 86, 64, Statutes, 1951, Section Title Oklahoma any paid the entire amount of within a shall loan be provided that the Commissioners of Land the period thirty-three of not to exceed may, Office whenever the market the value of years (33) Provided, the from date of loan. the greater is land than its market value for the further, persons receiving fifty percent purpose leased, being charge for it which is and (50%) or of their more total annual income collect an annual rental of not less than three operation given from the preference by of a farm shall be percent (3%) of the value the of land for the approval the Commissioners purpose may to which it is or be devoted under any of loans made under the of Every speci- the terms of the lease. lease shall act.” fy purpose and limit the for which land the 1974, O.S.Supp. 100: used, improvements shall be no and or struc- price any purchase “The of balance the of necessary tures of such use land all and lands sold the the Commissioners of agricultural grazing purposes placed or shall be Land Office after effective date of this act authorizing thereon. No lease land for grazing the use of such under sales contract shall bear interest at the purposes agriculture other than and (7'/ n %) percent per of rate annum. All cipal seven and one-half operate ratify previous shall ac- installments, delinquent prin- any both tion of tures than who lessee improvements have erected struc- interest, and shall interest at rate purposes and bear other agriculture percent (10%) per paid.” grazing, of ten 64 annum until and no such lease 1976, (2) O.S.Supp. shall extend for a term of more than 260.2: two years.” “Every holding preference right lessee lease who, 64 O.S. agricultural grazing ap- § 89: on or lands after right “Preference lease lands be rented praisement purposes, for rental desires to re- by the Commissioners of the Land Office covering new said lease the same tracts of land years of terms per five at an annual rental of four application of shall make to the Commissioners (4%) appraised centum value of such Land for a lease on or Office new before Provided, improvements. lands exclusive of expiration preceding 1 next October however, opinion if in the of the Commission- existing applicants of other term his lease. All Office, per (4%) ers Land four centum proper lease on said land shall make then, high, proper showing too may the rental pre- application on before November 1 next or per be reduced to not less than two cen- ceding expiration existing If of such lease. (2%) by tum the Commissioners of Land complied good has the current lessee faith departmental appraisement Office. The land requirements existing all with of his lease lands such including shall be the basis rental and the satisfaction Commissioners of year or until said be lands Office, new Land lease shall be awarded to appraised again, which the lessee, if de- said current the Commissioners during the Land Office are directed to do be cide said land leased.” year and in no event than later the month September, 1936.” Act, Congress Act of Oklahoma O.S.Supp. 52(c): 16, 1906, Large, pp. U.S. 267- June St. at “(c) All farm loans made the Commission- 278, provides pertinent part: ers of the Land Office of the State of Oklahoma 7. That of the State “§ the admission jurisdiction from the trust funds under their into the Union numbered sixteen control, sections provided and of this as otherwise the laws thirty-six, every township Ter- state, in Oklahoma shall bear at the interest rate 267-278, Large, 7, 8, 9, imposed upon at pp. managers U.S. St. them as of this §§ (the being Trustee) which established this State’s School trust under Trust, prohibit XI, Land and said statutes Re- Article Section and Section spondents from complying with the 5 of the duties Oklahoma Constitution.3 There- interest therein ations. The shall be reimbursed all

authorities in leases not in conflict herewith. scribe additional ee without the consent of the royalty addition to all the agricultural and no transfer or sible bidder. The advertisement shall competition sealed years by law, vertisement in the manner to be Act to the State of Oklahoma are valuable for sold may nineteen hundred and minerals, as the third . . . served under said charitable and buildings, tofore selected in lieu third; of the normal schools now established or Colored the use and benefit of the ma and the hereafter to be tion issued dred and the the Pawnee Indian hereby since said date and section lands which have been or settlement in the all lands heretofore selected in lieu the President of the ed in lieu Outlet, ritory State schools.. . “Where “That section “§ proceeds damage fund to which that shall lands, Agricultural purpose, and all such by be be valid or confer 8. That section and all for the use and bids and awarded to the Legislature sfs ^[*] to be reserved and leased for the said State Agricultural the State officers gas and shall be any part ninety-three, opening any thereof, University lessees in done to said Tonkawa Indian Reservation and after not less than August from leases shall be covered into Legislature ^[*] such indemnity paid by writing: Provided, however, ^[*] by any bonus offered for the thirty-three, penal established, one-third; and Mechanical Territory Oklahoma, leasing apportioned of said State reason of such legislation governing leasing oil, proclamation, ^[*] of the lands periods specify ^[*] are United States by nineteenth, Reservation; assignment granted Normal possession the successful thirteen in the Cherokee Preparatory Act or Acts of such lands shall not be institutions and any right benefit of the common fifteen; thereof, prior the lands heretofore select- hereby granted of the State University ^[*] shall be made to ^[*] shall be done under agricultural in each case a fixed duly thirteen mining and all lands here- to to said State for properly *5 University, and require highest granted by thirty ^[*] may prescribe. exceeding ^[*] authorized for but the same heretofore re- eighteen prescribed January in the to settlement of such lands be of proper and Acts for mining oper- by proclama- College School, reserved disposed lessees for of Oklaho- thereof, any opened lease, bidder, may pre- by Congress ^[*] days all other ^[*] and the lessees’ respon- belong, assign- and of public to the public State lease such first, hun- one- one- and five ad- by of 3. Article inviolate. It be diminished. The Article provides fund held State shall reimburse said nies derived from the sale of or donated.” uses and provides as a sacred trust and to and donations of whether States under the reserved for til such time as as existing other lands under not be entry ture shall est bid tions as the such periods three rules and prescribe, to homestead the land laws of the United acre tracts or scribe, preference right sold at for school under such prescribe, surveyed to constitute a ten est of support . . . and the faith of the State is the lessee at the time of such the said State to hundred and for the may such rules and and lands taken in lieu “. . . The “The State “10. That said sections thirteen and preserve “9. That said sections sixteen and aforesaid such lands purchase years; be sale, under the land laws of the United aforesaid, existing subject : n XI, being given which support of not more than five public appraised rule...” of such schools. But said lands XI, surveyed purposes and until such time as the regulations be leased for purposes only. prescribe but such lands and such lands shall not be Section Oklahoma pertinent part: pertinent part: granted such lands and monies and all mo- regulations principal Legislature designated purposes Section Oklahoma the State and shall forever remain unsurveyed, at the hereby accepts tfs less, sixty to homestead entry permanent only rules and regulations may sale, of the common the if provisions be increased but shall never money and sold at for which or under such rules and sold, may to the lessee at the time of ^[*] to the State shall be highest acre tracts or Legislature prescribe, preference right shall be in one hundred and such rules these and all unsurveyed, shall be deemed a trust as the to as the thereof, of said State keep periods shall be leased under regulations, but shall be reserved made purchase n : school fund the inter- as the may bid entry other all years, sale, public expended the Legislature Legislature may States, hereby pledged schools, shall : by n being given grants herein appraised not to exceed be leased for Legislature only, were of said lands Enabling Constitution, Constitution, same or but shall be entry at the the United under such less, sale in one any and shall prescribe thirty-six, may pre- proceeds n whether granted Legisla- and un- granted of land subject regula- States, if leased in the thirty- under under other high- sixty may, shall sold, Act the fore, out requiring these said the current lessee to Petitioners contend exceed statutes are unconstitutional. other match bids. statutes, Two of the 64 O.S. Trust, The Lands School adminis and 86.1 established maximum § § tered of Commissioners the Land charge rents which the can Office, Trustee, State consists leasing preference right when land. The granted certain lands and funds

first statute limits the rent to but three State of Oklahoma its admission into percent of the land’s fair market value and the Union the Enabling gift Act. The limits the second rent to between two Enabling these lands and funds under percent percent four the land’s valu Act accepted people was irrevocably e.4 Oklahoma, acceptance such was set statutes, O.S.Supp. 1979, 52(c), Two out in the Oklahoma Constitution under and 64 O.S.Supp. XI, limit the acceptance Article 1. These Section amount of interest which the Commission- provisions of the Oklahoma Constitution loans, charge ers can in making farm Enabling Act an irrevo constitute selling property. 52(c) when trust compact cable between the United States eight limits interest on farm loans Oklahoma, com benefit percent, and one-half while Section 100 lim- schools, mon which cannot be altered or its the that can charged interest be abrogated.5 disposition such No lands purchase land, price setting of trust either with funds can be that conflict made rate percent. interest at seven one-half grant purposes the terms and Act or of the Con being challenged, The last statute 64 O.S. 1976, 260.2, relating stitution to such land and funds.6 Supp. preference establishes a lands, duty, as Trus right to has an irrevocable requiring re-lease trust tee, Commission, estate manage when the the trust land is to re- leased, beneficiaries, award the lease to the current exclusive benefit if in good disposi lessee he has complied faith with return full value from the use and requirements express existing property.7 his lease with- tion trust permanent provide fund all school losses which of Section 259 that the Com- visions *6 any occur, portion rental, in manner and no of said fix the annual while missioners are to any pro- fund shall purpose.” provisions challenged be diverted for other use or the of statutes the fixing vide the method for said rates. XI, 5, Constitution, Article Section Oklahoma provides pertinent part: 5. of ex rel. Mac Williamson State Oklahoma Q. Office, proceeds .. Said “. lands ... or the of of the P.2d the v. Commissioners Land 301 kept safely regu (Okl. 1956), provided sale thereof be or invested and 655 that: “. . . said preserved by trust, Enabling a the State as which shall as lations the Oklahoma exist [in Act] diminished, to, may States, be may never but be added which not valid laws of the United thereof, the income modified, changed by interest rentals or other- be or an Act of restricted wise, only exclusively shall be used Legislature people the of the Oklahoma benefit of said educational institutions...” of the Oklahoma amendment Oklahoma Constitution.” 4.Respondents argue that 86.1 and Sec- by implication repealed tion 89 were Legislature when the 584, Arizona, 458, v. 385 87 Lassen U.S. S.Ct. enacted 64 which O.S. (1967); 17 L.Ed.2d 515 Alamo Land & Cattle provides: Co., Arizona, v. 424 96 Inc. U.S. S.Ct. “Any lands leased the Commissioners of (1976); 47 1 States v. 78.61 L.Ed.2d United agricultural graz- the Land Office for for Counties, Acres of Land in Dawes and Sioux ing purposes period shall be leased for a not Nebraska, F.Supp. (D.Neb.1967); 265 An- 564 years to exceed five under such terms and Funds, v. derson Board Lands & of Educational may conditions and as such annual rental as 198 Neb. 256 N.W.2d 318 be fixed the Commissioners of the Land Office.” Arizona, supra; United States v. Repeal Lassen implication of statutes is not favored (1939)); (S.D.Idaho Fenton, any F.Supp. indulged and will not if there is other Gooding, Roach v. 81 P. 642 reasonable Idaho construction which will allow all pro- (1905); given Highway statutes al v. concerned to be State Commission et effect. “The trust at the of

designation of the lands as receive time school and funds land, disposition of interest in the a effect of “sacred trust” has the irrevoca- Act, particular the then full value of the inter- bly the incorporating into Thus, being . . dispensed. est which is . Constitution, Oklahoma and conditions of the lease trust calls for if of lands rental grant, of duties all rules law and substantially of less than land’s fair governing of the administration trusts.8 ” value, it is null . . rental and void. . Legislature No Act of the can valid Similarly, in case ex rel. of State Ebke alter, ly modify duty or diminish the State’s Funds, of & v. Board Educational Lands as to ad Trustee school land trust (1951), the Neb. 47 N.W.2d 520 Su- in a minister it manner most beneficial to preme Court of Nebraska was asked to de- the trust a which estate and in manner legislative constitutionality termine the obtains return the maximum benefit trust management. restrictions on While property the use of trust loan of recognizing Legislature that had the trust funds.9 regulations authority to establish rules and trust, Legis- that the the Court held allege Petitioners the below- only so lature could do insofar did rents, statutorily market set interest and violate not Constitution. The State Su- re-leasing rights, uneconomical inure held preme Court of Nebraska only to benefit of farmers and ranchers. “subject appli- was to the rules of law trust urge ceilings Petitioners the income handling cable to the of trust estates be- re-leasing rights pur only serve one assigned to the cause status trust pose, that of subsidizing farming and ranch the Constitution.” The held Court that: ing operations. agree We with this content required dispose “A Trustee is ion.10 Just as a State school not use property trust the most advanta- land trust funds high assets to subsidize its possible which is geous terms them way program, construction benefit que secure cestui use school land trust assets to subsidize represents. whom trust he rule is no farming ranching.11 The use of trust property in the different fund subsidizing assets purpose required trust estate. A trustee is farmers and contrary ranchers is to the accept highest bid the absence of Constitution, of the Oklahoma cogent doing reasons for not so. It ais and to the provisions of En Oklahoma for a to knowingly breach trust trustee abling Act. property handle the of a trust estate for Said statutes any person interfere with the the expense the benefit of at the State as Trustee to maximize return of the trust estate.... It is a funda- Court, Supreme trust estate. The principle mental that a owes Trustee ben- Co., Arizona, Alamo &Land Cattle Inc. v. loyalty eficiaries of a trust his undivided *7 295, 303, 910, 917, faith, 424 U.S. 96 47 good S.Ct. and all acts his as such 8,1, (1976), L.Ed.2d 10 stated: Trustee must in the interest of the State, (1941); Spe- saying proper 70 N.D. 297 N.W. 194 10. We are not that under circum- State, preference right cial School District v. No. 5 139 Ark. a stances requiring to release trust lands (1919); Popp Munger, 213 282, equal S.W. 961 v. 131 Okl. the current lessee to exceed (1928). merely given. 268 1100 P. other bids cannot be We are saying preference given right that a re-lease to require pay- Co., the Phillips 8. to current that not State lessee does v. Petroleum 1193 258 P.2d (Okl. competitive 1953); ment of a rate such lease is State ex rel Ebke v. Edu Board of Funds, duty to violative the trustee’s obtain the cational Lands & Neb. (1951). maximum the trust benefit return to estate. N.W.2d 520 Arizona, supra; Arizona, v. v. United States supra; Lassen Lassen Anderson v. Board Funds, Sioux 78.61 Acres of Land Dawes and Coun- Educational Lands & 198 Neb. ties, Nebraska, supra. 256 N.W.2d 318 regulations designed (1) que trust no . . cestui and to one else. . to attain the a acting The State in as Trustee is sub- goals protection trust coupled of assets — standards, ject to the same when return; its with (2) maximum provide status as a Trustee is fixed the Consti- standards to foster proper even-handed and tution violation of its as a Trustee administration of the trust. is a violation the Constitution itself.” Act, In the Enabling Section 8 of 47 N.W.2d at 523. instance, the is explicit. speci- intent After Thus, Supreme the Court of Nebraska fying leasing that all mineral of school right that alleged found the to “re-lease” lands must be by “sealed bids and awarded school lands without to regard other bids bidder,” to the highest responsible the sec- was unconstitutional and violative the “Legislature tion says of the State grant. Federal may prescribe legislation govern- additional

Respondents contend that the as ing such leases not conflict herewith.” legislative sailed expressly enactments are [Emphasis added] ordained 10 of Sections and the Enab And, 9, dealing subject with the ling Act and therefore cannot be constitu land, of selling requires trust land tionally impermissible. argument ., “be appraised public and sold at sale . . that the language literal of the Act vests in preference right purchase at highest Legislature the authority prac to enact given bid to the lessee at time of tically any or regulation rule it chooseswith ” sale. .. . These land sales are to be con- regard selling federally regulations ducted “under such rules and granted land.12 Legislature may pre- said State ” speciousness position of this is that it appears scribe .... language Similar reads selected language in isolation Section 10. When considered the context from the entire contextual content of the text, of the overall there be no can doubt relevant dictates, sections. Common sense making authority granted that the rule gift when the land of the Enab- Legislature promote was intended to rather ling whole, Act are read as a that this was than impede attainment of manifest purpose the intent or behind Sections objective Enabling provisions, Act and 10. Nor logically could it be. For if viz., rents, to assure realization of maximal Respondents correct, are then a potentially profits and returns from the trust estate self-defeating incompatibility exists be- the benefit of the school children of this tween the purpose objective stated of State. hand, the trust on the one alleged and the unbridled authority granted the Leg- of Respon also the contention It

islature to defeat that strategy by means of dents that considerations of conservation regulations creative rules and on the other waste enter into situation and hand. the attainment of a maximum return to the course, controlling trust is not a In this Of factor. question the natural is, respect, point primary pur ask we out why or for what reason did the pose production of the trust is the of income framers of the Act Enabling authorize the Legislature support and maintenance of the to make and regulations rules XI, govern common schools of State. Article the administration of the trust? An analysis Section Constitution of Oklahoma. While language employed it provides precaution Act is true that reasonable should rather clear *8 property answer—the be for the authority protection intent was to vest in taken Legislature statutory trust, establish rules within the does not mean XI, answer, thing principal, argued 12. This same be with Article Section in cannot re- gard loaning given enabling Act trust funds at below is as market the same to the interest rates. That contention be based has to contention. provision. on a similar State constitutional See a manner inconsistent with the terms of the unimportant an question of income becomes vi- grant, requiring Respondents to original necessary protect factor. Conservation managerial as trustees olate their duties the value of the lands leased can be ade- Trust, vio- and therefore School Land quately controlled lease and XI, provisions of Article Section late the conditions, and reasonable conservation 5 of the Oklahoma and Section Section regulations imposed by Respondent Board. Constitution, and the Oklahoma Respondents argue that the in also 16, 1906, Act, Congress Act of June U.S. preferences vestment contained in Article 7, 8, 9, 267-279, Large, pp. at St. Sections XI, Section of the Oklahoma Constitut Legislature does have and 10. While the ion,13 justify require statutory and these to, power may, regulate and the activi- income restrictions which benefit farmers Commissioners, ties of the it can neither justification and ranchers. No such can be to func- abridge impair nor their freedom provision. found in this We constitutional good day-to-day in utmost faith in the tion find that the proper interpretation of said discharge public obligation of their as man- requires preference given section be acting while agers of the trust estate and the investments in the order in which behalf of the as Trustee. State appear, long preference as such does not question raise the Respondents also prevent fulfilling as Trustee from State Attorney empow- whether the General to obtain the maximum return poli- procedures ered to determine what control, property the trust under its follow, Respondents should absent cies exercising ordinary prudence subject to field. legislative occupation valid of the the taking necessary precautions for the VI, Article of the Oklahoma Section preservation of the The con trust estate.14 Constitution,15 charges Respondents with that, provision provides stitutional nowhere sale, rental, disposal managing preference, in addition to the farmers and the school lands and funds under rules and discounts, given ranchers are to be rental Legislature. regulations of Until or, preference, because of the they should Legislature promulgates time as the new be able to borrow trust funds at below matter, concerning subject statutes market interest rates. are man- Commissionersof the Land Office reasons, For the above stated we dated the Oklahoma Constitution use hold that the challenged require therein, statutes powers their so and are enumerated management of property mandated, opinion, trust funds and pursuant further to this XI, rules, restrictions, regulations, 13.Article Section of the and conditions Oklahoma Con- stitution, provides part: shall be which the funds aforesaid loaned invested, things necessary or safety and do all permanent “The common school and other permanency of the funds and educational funds shall be invested first investment.” mortgages upon good improved farm lands (and within the state in no case shall more than (Okl.1964); Pipkin Pipkin, 393 P.2d 534 fifty per (50%) centum of the reasonable valua- Peterson, 156Neb. 57 N.W.2d 280 State v. improvements tion of the lands without any tract), bonds, loaned on Oklahoma State county Oklahoma, bonds of the counties of VI, school district 15. Article Con- bonds of the school districts of Oklahoma Oklahoma, promissory stitution, evidencing provides part:

239 SIMMS, Justice, to prudently their dissenting: exercise maintain the maximum return to the trust estate I must dissent. We no have facts before from the trust properties under their con- majority us in this A action. of the Court trol, course, subject, of to the of taking jurisdiction voted assume of this matter precaution necessary preservation any without factual having determination the trust estate. any been made or stipulation of facts on, agreed

Lastly, Respondents purpose” “sole of decid- and those dealing citizens Respondents ing constitutionality with have of five I statutes. authority taking jurisdiction heretofore acted under of the sub dissented to of this cause ject statutes, believing framed, accurately such statutes to be as it was or more it—as valid law. While it has often been in prob- stated was not framed-—and I believe the general an terms that unconstitutional stat lems inherent in a in decision rendered ute rights, liability, confers no creates no are abstract evident from the face of the protection,16 affords no there are well majority opinion.1 recognized general exceptions to this rule. facts, opinion is not proven based on An law ap unconstitutional should not be but on assumptions of facts which or plied hardship impose to work a liability may not be valid or accurate. Some on public official or citizen who acted assumptions those are: good faith and relied on validity (1) The the Land Of- statute before courts have it declared inval charge fice do not more than 3% the id, or until proper advised its officials of appraised agricultural value of land for unconstitutionality.17 In to protect order leases; Respondents dealing and the citizens with (2) Leases “but of appraised 3%” val- good faith, them in under the facts of this are bringing good ue the trust a case, Respondents we hold that and citizens land; fair return hereby are protected liability for (3) require The Commissioners do not any retrospective acts committed under said competitive bidding leasing, in fact unconstitutional statutes because of their require bidding cannot under the stat- unconstitutionality, and our decision invali utes. dating said will operate prospec statutes

tively from the date this opinion becomes may may things These not be true. final. do not how We know the Commissioners lease land or how establish rental WILSON, J., CHARLES sitting S. price. “good” We do not also know what a place IRWIN, J., C. disqualified. who It agricultural lease rate is for land. very be that 3% is a fair return for land of BRIGHTMIRE, J., sitting vacancy. S. type. may It also that the financial LAVENDER, JJ., HODGES and concur. loss, if any, to the trust results not from the ALA, OP J. part, concurs in dissents statutory provisions, rental but from the part. appraising method and manner of the land. SIMMS, HARGRAVE, JJ., DOOLIN and important No less fact that dissent. majority’s opinion constitutionality on the Brown, Shelby County, 425, (1908); 16. Norton v. P. 118 U.S. 6 49 Wash. 95 270 Village City, S.Ct. 30 L.Ed. v. of Garden 74 Idaho 265 (1953). P.2d 328 County 17. Board of Com’rs of Pottawatomie v. Sons, A. C. Davis & 184 Okl. 86 782 P.2d thorough problems 1. A more discussion Conner, (1939); Gordon v. 183 Okl. 80 P.2d presented by deciding questions in this manner (1938); v. Board Wade of Com’rs of Har- dissenting opinion in Okla. can be found in the County, mon (1933); 161 Okl. 17 P.2d 690 State, Okl., Municipal Attorneys Ass’n. v. Dist., Corp. Irrig. Provident Land v. Provident P.2d Cal.App., (1939); Shafford P.2d *10 240 rejects majority The ignores these statutes all relevant rules Commissioner’s

of controlling making process. repealed that decision It that and argument 86.1 § § presumed that implication, is axiomatic statutes are that by based on the rule § showing of be constitutional and the burden implication and repeals by are not favored party on the unconstitutionality rests indulged will not if another reasonable be asserting a statute is it. Also that where to be will allow all statutes construction constructions, of two one which capable being I given effect. do not believe that valid, would render it invalid other and the being unconstitutionality is stricken for uphold the construction which will its valid- of “given contemplation effect” within the must ity adopted. be The cardinal rule in repealed, the rule. I would not find 86.1 § that leg- the construction of statutes is would, above, it as discussed hold that but govern, islative intent must to ascertain would requires a minimum rental of 3%. I intent portions all the of the various repealed by implication. hold that 89 was § legislative particular upon enactments implied- I would find the statute which subject, together should be construed however, ly repealed 87a(g) it was not § general of the light purposes the Act and of 259. § given effect as a Additionally, whole. (Laws 89 was enacted in 1935 when a statute of susceptible is two inter- 25) 87a(g) p. § § pretations, that one effect giving it intend- (Laws p. 299) The be- differences by legislature adopted. ed be should recon- tween two sections cannot be of None this was done in case. this They cannot be construed harmoni- ciled. agree I do not majority’s with the deter- be, ously 87a(g) 86.1and can because as § § O.S.1971, mination that 64 86.1 establish- § provisions specific are in conflict. Sec- es a maximum An- lease-value rate 8%. floating provides tion 89 for rent between statutory other the clear provision reveals 4%, 87a(g) 2% and for a minimum § minimum, legislative a demand that 3% rent of 3%. maximum, O.S.1971, not rental rate. majority assumes competitive 87a(g) provides pertinent part: § bidding will allow the trust a fair rate “. .. appraisment Such be used val- return commensurate with the market and followed by the Commissionersof the property ue of the and strikes 86.1 §§ Land Office in fixing the annual rental because, view, they majority’s value of all preference right, lease prohibit bidding potential and limit return lands and all by such lands be leased percentage a by imposing ceiling.2 the Commissionersof the Office for Land term years, a of five at an annual rental true, still taking things these as Even (3%) less than per three cent majority’s reasoning, its under the own appraised lands, value of such exclusive 260.2 also striking of for its failure to § improvements.” require competitive bidding is un- expressly

Words can supplied or modified necessary. Section 260.2 does not contain give establishing price. Court a statute intended It the effect method lease legislature. See, Reg- dependent e.g., wholly Curtis Oklahoma, istered appraisal percentage Dentists of 193 Okl. determination of (1943). Gathering 143 P.2d 427 majority the intent stricken price rental legislature require enactments— own bidding. Using all the failure to . assuring adequate majority already income to trust has cured analysis, the a requiring provi- require- minimum rate absence problem statutory of 3%—-the can, should, striking sion of 86.1 competitive bidding by be read to ment § 3%", require “rental equal anyway. to at least con- but 86.1 and strikes 260.2 §§ with 87a(g). sistent requirement bidding imposed O.S.1971, (64 195) It should be noted that while it has not been leases also are included mentioned, procedures majority’s holding. rental for commercial opinion, necessity, carry will over action complaining about the Commission adoption competitive and be added ers’ separate necessary bidding re prerequisite obtaining preference quirements, lease. asserting *11 power had no I to do so. doubt that the view, my striking In 260.2 is also un- § Court position. would have sustained that necessary for a reason. The different Com- This Court certainly rejected such a conten fully empowered just missioners are to do State, rel., tion in a similar case ex what they adopt requirement did: the for Wall, Commissioners Okl. competitive bidding by on leases rule. The P.2d a lessee There contended authority statutes do not the limit that the did not Commissioners have the Commission, a constitutionally created power or authority appraise to lands with body, implement to rules necessary those to being out expressly specifically and directed protect manage the trust prudently and the by legislature. to do so the Various statu leasing and income therefrom. To the con- tory provisions (including 89) 86.1 and §§ trary, provide: 259 and 260 §§ were specific examined and it was held that “Any by lands leased the Commissioners direction appraise reappraise to and land the for agricultural Land Office was not necessary power to confer such on grazing and/or purposes shall be leased the Commissioners. The Court stated: for period a years not to exceed five “A careful the study of various acts of under such terms and conditions and at legislature, the the constitutional such annual may by rental as be fixed the forth, provision above set convinces us Commissioners Land Office.” 64 power lands, that appraisal the of state O.S.1971, in order the to arrive at amount of a “The Commissioners of the Land Office therefor, reasonable rental was a neces- hereby are empowered authorized and to sary management, incident the leasing, make and promulgate regula- rules and disposal of said lands vested in the tions relating appraisement to the of land by Commissioners of the Land Office any improvements upon located such ” 6, sec. ... [art. 32] by State, land as be owned the leas- ing and subleasing such lands and im- “It

provements, us that a commis- rights reservation of inconceivable to and in- terests, rentals, composed highest sion offi- collection five conservation state, cials of the with the preservation entrusted such lands and the managing lands to effectuate the said fertility thereof and other rules and purposes they granted for were which regulations necessary in order that the state, is, funds for the provide that purposes for which such lands are owned state, use of the common schools of the by held be accom- hampered should be so and restricted in O.S.1971, plished.” 64 management prop- of such operation position Given the majority’s that permitted erties they were statutes actually prohibit competitive bid- place a valuation lands for the ding requirement leasing, it is unneces- purpose renting agricultural them sary to set out plan purposes were expressly unless au- did adopt and it. examine legislature. thorized to do so We point plan says, is not what the but nothing find in the Constitution or laws plan. the fact that plan, there is a That it prohibiting of the state the exercise of me, occurs to rather than constitutional- Commissioners, power by and as ity statutes, of these should be the focal stated, necessarily above incident it was point of this adequate, action. If it would proper to the of their trust. performance render (assuming this matter it moot was power By the exercise of this the state is viable). ever goes it Instead unmentioned. adequate assured of rentals the leased lands, Assume prior regardless fluctuating to this action value being filed, unhappy an had 943-944. brought lessee an thereof.” 232 P.2d at

Likewise, process, by very nature, bid bidding is incom- providing proce- a necessary manage- open dures is incident to the an market patible with sale. powers imposed ment Com- process gas vested sealed bid for oil and missioners art. sec. 32. on the Commissioners of the Land Office O.S.1971, required by 8 of sec. disagree majority’s I with the conclusion Act, majority cited prohibit competitive bid- the statutes support argument compet- here in of its statutes, I ding. properly find the when bidding itive insure fair market value. construed, clearly compatible are with imple- competitive bidding requirement Miller, In the Court stated: Commissioners, mented and that “The is one can fair market value which *12 recognize statutes such power vested in by neither be inflated nor deflated refer- Commissioners. I that would hold consist- special types ence to of sales. The latter ent with 259 and the Commissioners §§ open-market condi- are not reflective of * * * power exercised their to leas- vested create tions. ing they procedures most beneficial deemed “By process nature very its the sealed-bid to majority, the trust. As concluded incompatible open with an is market sale. competitive bidding competitive bonus bidding unwill- Sealed reflects seller’s compatible offers would be with the stat- ingness bargain in, openly yield utes and function the trust. of, place. open the forces market I would hold im- 87a(g) that 86.1 §§ buyer Confrontational interaction of the pose requirement a minimum income on with the seller is thus avoided. The value rental, so procedure that whatever es- process property obtained for sold tablishing used, rent is the Commissioners very to represent cannot be said same must receive a minimum rate of at least 3% price property as that which the would of the value of land they lease. Section bring if it were sold under the usual and stricken; 260.2 need not be the rental provi- ordinary so circumstances. This is be- sions of the other statutes control that re- process obviously op- cause the sealed-bid quirement. erates to alter those ‘economic forces’ at play shape which the fair market value. may Preference right leases not even be a short, In the method which the state is problem. real There not be such required by price statute to exact a thing any longer. slight More than is doubt per its leases not se co-incidental with cast on their continued viability by 64 O.S. process the market in action. Supp.1977, 253(D), provides: which § sion.” “Hereafter created no preference right the School Land Commis- lease cedures for “The statutorily n : sfc leasing mandated sealed-bid sfc state-owned minerals ^[*] n : ^[*] pro- represent not Perhaps, open do a sale mar- every then preference right price The through re-lease is ket. secured extinguished when the peri- lease process though od not se expires per and much of indicative of this lawsuit has value, been over fair market nothing. may nonetheless be of coupled relevance when it is with some point Another must be mentioned in re- showing that it is co-extensive co-inci- gard to the issue of and rental price. dental with fair market value. rec- The majority’s competitive conviction that ord before us does not demonstrate bidding will be the cure needed to fix the price nexus between sealed-bid and a assumed ill being of land leased at below value.” fair market At 1009. rates, fair market rests shaky ground. on year, Only Comm., last in Miller Corp. majority I also believe has struck too Okl., (1981), 635 P.2d 1006 a majority of this a blow in its holding pertaining broad Court held the statutory process preferences sealed bid for investment set forth art. for leasing gas oil rep- They did provi- lands sec. 6. have rendered the sale open resent a in the nugatory. market and sion State, goal, holds it is the decisions. Toward that majority Commission- its responsibility give preferences Legislature, ers’ and Commissioners are bound long the “order in they appear, duty imposed which as as to follow their constitutional preference prevent O.S.1971, does not the State art. sec. and 64 fulfilling majority Trustee from to obtain The that duty impossible. makes property. maximum return” from the conceding Even that the interest fixed in situation, is, time, impossible 52(c) This creates an for it at this unconscionable and low, knowledge greater is common that a return arbitrarily the harm done to the consti- by investing today greater those funds can be obtained tution is of importance. The high yield than possible majority holding accounts precipitously acts in its mortgage will, loans or demanding school bonds. maximum return which if followed, ignore lead the Commissioners to I feel safe in assuming that this has al- constitution, the clear demands of the art. ways been true. I’m confident that at the O.S.1971, implemented by sec. time the adopted, Constitution was those given preference items were not the best “maximum return” investments available. I am authorized to state DOOLIN did, however, They security offer maximum HARGRAVE, JJ., join in this dissent- funds, still do. *13 OPALA, J., ing opinion, and concurs in preferences The imple- art. sec. part. O.S.1971, 51, mented do not benefit only farmers and ranchers. The trust bene- thereby,

fits for there probably is no invest-

ment that is more secure than a first mort-

gage.

The trust property protected even from securing State itself. Liens the loans of priority Commissioners have over tax LEE, Petitioner, M. Gail O.S.1971, 24346; See, State, liens. 68 ex v. rel., Passmore, Commr’s of Land Office v. 120; 189 Okl. 115 P.2d 136 ALR 324 HESTER, Special Judge The Hon. Jon L. of the District Court of Oklahoma Oklahoma, County, Respondent. people adopted provi- could have requiring sion the state to obtain the maxi- MOHR, Petitioner, Charles Olin return, possible mum they but did not. It is obvious that forego intended to some investments,

return in favor of more secure AMICK, Judge The Hon. John M. District bonds, such as mortgages and school etc. Wier, and the Hon. Charlie Y. Associate The other relevant of article Judge District District Court 1, 2, sections clearly weighted are Oklahoma, County, Respon Oklahoma favor of safe and conservative financial dents. funds, management of these consistent with 55966, 56053. Nos. preferences dictated art. sec. 6. security Supreme investment is of the Court of Oklahoma. first and highest importance. This balanc- 2, 1982. March ing today. of interests is undone

While the majority obviously correct duty good trustees have a to obtain a

return property, from the trust it is also

true pru- that trustees have a act

dently and to make financially responsible notes federal and state insured loans made to students under Governor, Governor, “A. The Lieutenant any federal or State of Oklahoma insured stu- Auditor, Superintendent of Public In- program, bonds, dent loan and United States struction, and the President of the Board of preference given to be to the securities Agriculture shall constitute the Commissioners order named. The said funds also be Office, charge of the Land who shall have deposits compa- invested in in banks or trust sale, rental, disposal managing deposit nies in Oklahoma to the extent such state, public school lands and lands of the other Deposit insured the Federal Insurance Cor- proceeds and of the from, derived there- funds poration. regulations prescribed under rules Legislature provide “The the manner of Legislature.” selecting aforesaid, prescribe the securities