McKenzie County v. Hodel , 1991 N.D. LEXIS 54 ( 1991 )

VANDE WALLE, Justice,

concurring specially.

Counties are creatures of the North Dakota Constitution and may act only in the manner and on the matters prescribed by the Legislature in statutes enacted pursuant to constitutional authority. Stutsman County v. State Historical Soc., 371 N.W.2d 321 (N.D.1985). As a political subdivision of the State, its rights and powers are determined and defined by law. Eikevik v. Lee, 73 N.D. 197, 13 N.W.2d 94 (1944). It is because the county was required to act in accordance with legislative edicts that this Court in DeShaw v. McKenzie County, 114 N.W.2d 263 (N.D.1962), reaffirmed its decision in Kopplin v. Burleigh County, 77 N.D. 942, 47 N.W.2d 137 (1951), that when the county conveyed title to property it acquired by forfeiture for nonpayment of taxes, it must convey all right, title, and interest to such property as required by statute.

The majority opinion concludes that DeShaw does not prohibit reacquisition of the mineral interests by McKenzie County. But in view of the principle espoused by this Court in a line of cases exemplified by Eikevik v. Lee and Stutsman County v. State Historical Soc., that conclusion does not appear to entirely resolve the issue of the county’s authority to reacquire the mineral interests. Thus, I am not totally convinced we adequately answer the questions certified to this Court without determining whether or not the county has the authority to buy and hold mineral interests other than by operation of law. However, I read footnote one of the majority opinion to hold that the Court does not decide the issue.

Subsequent legislative enactments raise questions which the majority concludes we are not required to answer in this proceeding but which nevertheless appear pertinent. For example, chapter 136 of the 1941 Session laws, section 1 of which was codified as 11-2704 of the NDRC of 1943, repealed by chapter 112 of the 1951 S.L., required the county to reserve fifty percent of all “oil, natural gas and/or mineral” in “all transfers of land hereafter made by any county ... of lands now owned by such county or of lands which may hereafter be acquired by any county ... by tax proceedings, deed, quitclaim deed, or by any other method....” If the county was not entitled to reacquire the mineral interests at the time of the condemnation action, did the 1941 legislation somehow implement the conveyance in the judgment?

Although section 1 of chapter 136 of the 1941 S.L. was repealed in 1951, section 2 remains part of our law. That section, codified as section 11-27-05, NDCC, provides that the county, acting through the county commissioners, may join with the other owner or owners of mineral rights in any lands in which an interest in such rights has been reserved by the county in a lease for production of oil, gas and minerals. Thus, it is apparent that, at least today, the Legislature recognizes the authority of the counties to hold mineral interests although a specified authorization to do so is not readily apparent. See also NDCC § 11-27-04.2 and chapter 38-09, NDCC, particularly section 38-09-11.

If a county was authorized to accept money in the condemnation action, was it entitled to accept a mineral interest in lieu thereof, either in payment or as a gift? I am aware of no statutes other than the tax statutes requiring the county to dispossess itself of mineral interests validly acquired. Thus it would seem possible to conclude that the county had the authority to acquire the mineral interests under these circumstances without concluding that the county has the authority to engage in the general purchase of mineral interests as a broker or as an investment. Finally, however, because the quitclaim deed with the reservation and the condemnation judgment with its conveyance were for the same purpose and nearly simultaneous, and because the decision in DeShaw left open the question of the effect of the condemnation judgment, it may be that as a matter of equity the original owners or their heirs should yet be given the opportunity to redeem the interest in the forfeited property held by the county. I agree with the majority opinion that a decision which unjustly enriched the federal government, fifty years after the fact, would be absurd. I am not as convinced that permitting the former owners to redeem would, under the circumstances of this case, be as absurd, although it appears a theory of unjust enrichment might also exist as to them. As the majority opinion observes, we are not called upon to resolve those issues.

I concur in the result.