No. 79-105 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER OF 

MONTANA PACIFIC OIL AND GAS CO. AND 

VARIOUS RECORD OWNERS OF OIL AND GAS 

INTERESTS FOR WHICH MONTANA PACIFIC 

OIL AND GAS CO. IS HOLDING FUNDS. 

MONTANA PACIFIC OIL AND GAS CO., 

Appellant. 

Appeal from: District Court of the Ninth Judicial District, 

In and for the County of Toole. 

Hon. R. D. McPhillips presiding District Court Judge. 

Counsel of Record: 

For Appellant: 

Aronow, Anderson, Beatty and Lee, Shelby, Montana 

Richard Munson argued, Shelby, Montana 

For Amicus Curiae: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dennis Dunphy argued, Assistant Attorney General, 

Helena, Montana 

Ray Kalbfleisch argued, County Attorney, Shelby, Montana 

Filed: ;RR 2 9 1980 

Submitted: May 29, 1980 

Decided: July 22, 1980 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

On December 18, 1979, the Montana Pacific Oil and Gas 

Co. (MOPOG) petitioned the District Court, Toole County, Ninth 

District, to obtain orders requiring the clerk of the court, 

Vivian S. Hall, to receive funds tendered by the petitioner and 

to establish a trust in the name of the petitioners; to receive 

future funds; and further that the court decree the petitioner 

had no duty to search for owners of interest hereafter described, and to require the clerk of the court to hold MOPOG 

harmless from any future claims of the owners of those property 

interests. 

The District Court, on December 18, 1979, denied each request and prayer of MOPOG by its written order of that date. 

Thereafter, MOPOG petitioned this Court for an order of super-. 

visory control and after considering that petition, we ordered 

MOPOG to appeal the order of the District Court in the usual 

course. Attorney General Mike Greely appeared and filed a 

brief in this Court as amicus curiae in supprt of the District 

Court. 

This appeal arises because of the provisions of Ch. 513, 

Laws of Montana (1979), which have been recodified as sections 

82-1-302, 82-1-303, 82-1-304 and 82-1-305, MCA. Section 6 of 

said Chapter 513, defining the word "person" has been now 

codified as section 82-1-301, MCA. 

MOPOG principally attacks the provisions of section 82-1- 

305, on constitutional grounds. That section provides as 

follows : 

"Existing trust for unlocatable mineral, leasehold, and royalty interest owners -- transfer of 

trustees -- penalty. (1) Any bonuses, rental 

payments, royalties, and other income now held 

by any person or association for unlocatable 

owners or claimants of an interest in person or 

association for unlocatable owners or claimants 

of an interest in minerals underlying a tract of 

land must be deposited with the clerk of the 

district court in which the tract is located 
of unlocatable owners of mineral interest. It is quite evident that the enactment is not a taxing statute. The enactment 

of a statute for the protection of private property is a valid 

exercise of the sovereign police power of the state: 

". . . the police power extends . . . to the 

protection of the life, limbs, health, comfort 

and quiet of all persons, and the protection of 

all property within the state . . ." Ruona v. 

Billings (1958), 136 Mont. 554, 558, 323 P.2d 

29, 31. 

MOPOG in asserting its claim of discriminatory classification under its equal protection argument, states that it belongs 

to a class of persons holding "unclaimed property", that is, 

money or other tangible or intangible property for which no 

claim has been filed by the reputed owner thereof or for which 

the holder has no knowledge of the reputed owner's whereabouts. 

MOPOG contends that a certain class of persons, oil and gas 

operators, holding unclaimed royalties, bonuses or other income 

from oil and gas operations are a "subclass" subjected to 

burdens and responsibilities for failure, intentionally or 

; unwittingly, to comply with the provisions of section 82-1-305. 

It points out that other persons holding unclaimed property 

in Montana in the form of cash, stock dividends, or security 

deposits, are subject to the terms of the Uniform Disposition 

of Unclaimed Property Act, sections 70-9-101, et seq., MCA. 

Under that Act, MOPOG states the presumption of abandonment 

arises from the inaction of the owners, not the holders, of 

the property. The only burden of the holder of that property 

is to report, under that Act, to the Department of Revenue, 

and to turn over funds which are presumptively abandoned. 

Likewise, MOPOG contends that under the provisions rela,:--- 

ing to public administrators and escheated estates, the public 

administrator is directed under statute, section 72-15-102, 

MCA, to take charge of estates of persons dying with no known 

heirs or where the estate is ordered into the public admin- 
within 6 months after July 1, 1979. An 

accounting for the funds, any related 

documents, and any instrument creating a 

trust must be filed with the funds. 

"(2) No person may personally hold for longer 

than 6 months any bonuses, rental payments, 

royalties, and other income for unlocatable 

owners or claimants of an interest in minerals, 

but in such case must petition the district 

court for creation of a trust as provided in 

82-1-302. 

"(3) If any person fails to comply with subsections (1) or (2), he is liable for all 

attorney fees and court costs and interest on 

such funds at twice the current average passbook account rate paid by financial institutions in that district." 

MOPOG attacks section 82-1-305, MCA, as being unconstitutional under the equal protection and due process clauses of 

the federal and state constitutions. MOPOG further contends 

that it was entitled to the declaratory relief sought in the 

District Court, and that the filing fee charged by the District 

Court clerk in the matter of $35 was improper. 

MOPOGts equal protection argument is,that the statute is 

not an exercise of police power, but a tax enactment; that 

taxing statutes are subjected in equal protection cases to 

more than minimum scrutiny but less than strict scrutiny to 

determine constitutionality; and that MOPOG and other oil and 

gas producers have been singled out in an arbitrary fashion to 

be subject to the requirements of section 82-1-305, MCA. 

MOPOG1s argument that section 82-1-305 is a tax statute 

arises from the provision that the clerk of the District Court, 

as trustee, is entitled to receive 50 percent of the interest 

earned on trust funds for administrative costs, section 82-1- 

304(5), MCA, and because the trust funds may eventually be 

considered abandoned to the state under Title 70, Chapter 9, 

MCA . 

The primary purpose of these statutes, as enacted under 

Ch. 513, Laws of Montana (1979), is the protection of property 
istrator's hands by a court. MOPOG contends that here the 

person lawfully holding the unclaimed property has no duty 

to attempt to find the owner, but rather the owner or his 

heirs have seven years (section 26-1-602(26), MCA) within which 

to come forward and make a claim. MOPOG fukther contends that 

section 82-1-305, although presumably having the same goal, 

reverses the theory and method applicable to other holders of 

unclaimed property in that oil and gas operators have a duty 

to make a diligent search for the owner thereof and to establish trusts if the owners are not otherwise located. 

Is the classification so delineated by MOPOG unconstitutional under the equal protection clause of either the state 

or federal constitutions? Clearly not. 

In the first place, the provisions of Ch. 513, Laws of 

Montana (1979) apply t o a l l mineral producers, and not only 

to oil and gas producers. In the second place, the classification can be found proper and rational for its purposes: 

the protection of funds for unlocated property owners for at 

least the presumptive period of their lives after the establishment of the trust, and the legal release of those persons who 

hold the funds of unlocated owners from further liability if 

they have complied with the statutes codified under Chapter 513. 

As the attorney general has pointed out, this Court has 

consistently followed the lead of the United States Supreme 

Court in interpreting the equal protection clauses of both the 

state and federal constitutions. Both the Fourteenth Amendment 

of the federal constitution and Art. 11, S4, Mont. Const. ". . . 

provide generally equivalent but independent protection in 

their respective jurisdictions". Emery v. State (19781, 

Mont . , 580 P.2d 445, 35 St.Rep. 709; cert-den. 439 U.S. 

874. 

We find rational support for the classification here in 

its stated objectives. See, State v. Safeway Stores, Inc. 
(1938), 106 Mont. 182, 76 P.2d 81; State v. Johnson (1926), 

75 Mont. 240, 243 P.% 1073; State v. Loomis (1925) , 75 Mont. 

88, 242 P. 344; Hill v. Rae (1916), 52 Mont. 378, 158 P. 826; 

City of Butte v. Paltrovich (1904), 30 Mont. 18, 75 P.2d 521. 

In the matter of classification, the legislature enjoys broad 

discretion, and the question of classification is primarily 

one for the legislature. Safeway Stores, supra, 106 Mont. at 

204, 76 P.2d at 86. 

Even if section 82-1-305, MCA, were considered to be a 

tax statute, the classification power of the legislature is 

one of broad discretion. Madden v. Kentucky (1940), 309 U.S. 

83, 87-88, 60 S.Ct. 406, 408, 84 L.Ed. 590, 593. 

We find that the state, through its legislature, has a 

legitimate interest in establishing a classification for the 

protection of unlocated owners of interests in minerals or in 

mineral production and in providing a method for the protection 

of mineral producers, including oil and gas operators, as a 

defense against liability from future claims of such unlocated 

owners. On that basis, the classification is well within the 

power of the state under the equal protection clause of either 

constitution. 

The due process argument of MOPOG is that section 82-1- 

305, MCA, is so vague and uncertain in its terms as to convey 

no meaning and that it is confusing and inconsistent with other 

statutes, including section 82-1-302, MCA. MOPOG also attacks 

the terms "existing trust", "transfer of trustees", "unlocatable 

owners", "tract of land", and "related documents", as being 

uncertain and incapable of definition under the act. It states 

that these asserted ambiguities expose MOPOG to great potential 

liability under section 82-1-305(3), MCA, for attorney fees, 

court costs and interest at twice the current average passbook 

account rate. 

The due process test for vagueness of a statute is whether 
the law is so vague and uncertain that men of common intelligence must guess at its meaning. Cramp v. Bd. of Public 

Instruction (1961), 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; 

Connally v. General Const. Co. (1926), 269 U.S. 385, 46 S.Ct. 

126, 70 L.Ed. 322. 

We agree with the attorney general that the requirements 

of the sections are not difficult to ascertain: 

1. Any person holding funds payable to persons the holder 

cannot locate, produced from mineral interests or mineral production, including oil and gas, must turn the funds over to 

the clerk of the local District Court. A grace period of six 

months is allowed from the enactment of the statutes. 

2. Subsequent to the enactment of the statutes, no holder 

of the type stated above may continue holding payments for the 

account of unlocatable persons for longer than six months. In 

turning over the monies to the dlerk of the court as required 

by the statutes, the holder must petition for a trust as provided for in section 82-1-302, MCA. 

3. Civil penalties are provided for failure to comply 

with the statutes. 

In addition, the petitioner must allege or prove facts 

which show that the petitioner has made a diligent but unsuccessful effort to locate the absent owners or claimants. The 

related documents would of course be the documents that are 

"related", --the lease, mineral deed or other instrument which 

gives the producer the right to produce the minerals, and the 

producer's records of production and division of proceeds from 

production should suffice. "Tract of land" would include all 

parcels described in a single lease, mineral deed, or other 

instrument giving the producer the right to produce minerals. 

While some minor difficulties might arise from the innumerable 

varieties of situations possible from the mineral production 

business, we are not required by MOPOG's search for ambiguities 
to find such vagueness in the terms used as to destroy the act, 

when our duty is to construe it so as to be consistent with 

the will of the legislature and to comport with constitutional 

limitations. CSC v. Letter Carriers (1973), 413 U.S. 548, 571, 

93 S.Ct. 2880, 2893, 37 L.Ed.2d 796, 812. The term "existing 

trust" is found in the title of the statute, and is an inadvertence which has no importance because it is the body of the 

act and not its title which controls. Manufacturer's Acceptance 

Corporation v. Krsul (1968), 151 Mont. 28, 35, 438 P.2d 667, 

671. 

The petition filed by MOPOG in the District Court under 

section 82-1-302, MCA, was clearly deficient. MOPOG1s petition 

to create a trust failed to allege any effort to locate owners, 

sought an order declaring that it had no such duty, and sought 

to establish a lump sum trust for all of the monies held by 

MOPOG for unlocatable owners without regard to the particular 

tract of land involved. The District Court had no power to 

establish a trust as petitioned by MOPOG since it was outside 

the applicable statutes. The petition was properly rejected. 

MOPOG has also proposed nine questions for our review 

under the act and has asked us to give our determination with 

respect to those questions. We limit ourselves, however, to 

the issues growing out of the appeal which is before us, and 

insofar as the answers to MOPOG1s questions are not found herein, we decline to answer for the reason that it is not the 

function of the Supreme Court, by way of declaratory judgment, 

to give opinions on abstract or moat questions. In this we 

follow the rule applicable to District Courts. Chovanak v. 

Matthews (1948), 120 Mont. 520, 525-6, 188 P.2d 582, 586. 

The remaining issue is the amount of fee chargeable by 

the clerk of the District Court. None of the statutes with 

which we are involved in this case set forth the amount of fee 
to be charged by the District Court clerk. The applicable 

statutes with respect to fees of the clerk appear in conflict 

as to the nature of these proceedings and it is therefore a 

matter of our choice here as t3 which fee would be most consistent with the intent of the legislature. 

Section 25-1-201(1) (a), MCA, provides a fee shall be 

charged by the clerk of $20 for each "action or proceeding". 

cn> 

Section 25-1-201(1) (40, MCA, requires a fee of $35 for probate 

proceedings, guardianships, or the appointment of a conservator 

The District Court clerk here apparently determined that the 

establishment of a trust was most likely a probate proceeding 

and therefore charged the $35 fee. 

Section 27-1-102, MCA, defines the words "actions" and 

"special proceedings". An "action is an ordinary proceeding 

in a court of justice by which one party prosecutes another 

. for the enforcement of protection of a right, the redress or 

prevention of a wrong . . . Every other remedy is a special 

proceeding." Under that provision we determine that the requirements of sections 82-1-302 and 82-1-305, MCA, are "special 

proceedings" and as such the fee of $20 would be proper to 

assess for each such proceeding filed. Such a filing fee 

would apply whether the trust was established under section 

82-1-302 or section 82-1-305, MCA. It seems obvious from the 

statutes that if a trust were to be instituted under section 

82-1-302, and that subsequently funds subject to deposit were 

cumulated in the same mineral leasehold where there were unlocatable owners or claimants, subsequent deposits should be 

deposited in the trust already created under section 82-1- 

302, MCA. 

Affirmed except for the amount of filing fees to be 
collected by the clerk of the District Court upon the 

institution of trusts under these statutes. 

We Concur: 

Chief Justice 

Justices I 

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