Dantzler Lumber Co. v. State

• Citation: 97 Miss. 355,53 So. 1
• Decision Date: 04 July 1910
• Docket Number: 14,427
• Court: United States State Supreme Court of Mississippi
• Parties: DANTZLER LUMBER COMPANY v. STATE OF MISSISSIPPI

53 So. 1

97 Miss. 355

DANTZLER LUMBER COMPANY v. STATE OF MISSISSIPPI

No. 14,427

Supreme Court of Mississippi

July 4, 1910

FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

The state, appellee, was complainant in the court below; the Dantzler Lumber Company, a corporation, appellant, was defendant there. From a decree in favor of complainant the defendant appealed to the supreme court. The opinion of the court, by SMITH, J., states the facts.

Reversed.

Ford White & Ford, and Green & Green, for appellant.

The first state legislature enactment authorizing the sale by boards of supervisors of the standing timber on sixteenth sections appears in chapter 41 of the Laws of 1898, amended in 1904 and later incorporated in condensed form in Code 1906, § 4702. This legislation has accordingly been in effect for over ten years, has received sanction, both judicial, executive and legislative, and has been acted upon in good faith by divers citizens and now forms the predicate of the title to real estate upon which large sums of money have been expended. It should not in this case be declared unconstitutional unless it be so beyond all reasonable doubt.

The court will not construe the law so as to make it conflict with the Constitution, but will rather put such an interpretation upon it as will avoid conflict with the Constitution and give it the force of law if this can be done without extravagance. The court may disregard the natural and usual import of the words used, and if it is possible to adopt another construction sustaining the statute, which shall not be strained or fantastic. In so doing, they may continue to act in accordance with the presumed intention of the legislature. For the law making body is always presumed to have acted within the scope of its power. Black's Const. Law, 60, and see 3 Serg. & Rawls, 63, 73; Harrison County v. Moss Point Lumber Co., 89 Miss. 536.

This court has sanctioned the evolution of legislation wherein a sale of timber was authorized, by assuming the unanswerable position that the law was a natural growth prescribing a rule of action commensurate with the needs of advanced civilization and when the timber became of such value as that it was for the interest of the wards that it be sold, then in accordance with the declaration of this court, the legislature was appealed to, and in answer to this appeal which this court has since directed and sanctioned, the legislation was enacted.

Furthermore the distinction between the prohibiting against the sale of the lands reserved for the support of township schools and the sale of the timber growing upon such lands is unequivocally established. Harrison County v. Moss Point Lumber Co., 89 Miss. 565.

We direct particular attention to this portion of the opinion in Harrison County v. Moss Point Lumber Co., supra, demonstrating that the judicial mind had in it a definite distinction between the sixteenth section land reserved for the support of schools and the mere trees growing thereon, which by fiction of law have been denominated land, because partaking in certain aspects, of its nature. Trees grow up and are cut down, are destroyed by each passing hurricane, while the land continues unchanged and immovable.

The Mississippi decision above cited, determines that the constitutional prohibition extends only to land in its appropriate and narrower signification, namely, the soil itself, and that the acts of 1898 and 1904 dealing with the timber did not come within the constitutional inhibition.

The word used in the constitution is not "land," but "lands," the plural as contradistinguished from the singular, and furthermore as limited by a clause of reservation for the support of the schools. The timber is separable, severable and distinct from the soil as said in the Moss Point Lumber Company case, supra, at page 567: "Decades count for little, so far as time is concerned, in the earthly immortality of a state," but the proposition is that the timber on the land is there today and gone tomorrow, and that it is subject to every wind, and after it reaches its maturity it begins to decay and die. If not harvested when ripe it deteriorates and becomes wholly worthless, and will, in the course of a short time, be succeeded by another and different growth; the long leaf pine first by the oak, and again the oak by the long leaf pine, and so on through the several mutations and under well settled principles.

When a word of ordinary signification is used in the constitution it is given its common interpretation. Where words have a strictly legal meaning they are to be given such meaning; but where such meaning has obviously no application, and where such a construction would lead to absurd results, and where the popular and usual acceptance of the term is manifest throughout the entire context it is almost useless to argue its meaning. If opposing counsel's contention be correct, namely, that the constitution by the use of the word "lands" embraced the trees growing thereon, then, we ask, why was the verbiage adopted of "uncleared lands," drawing a distinction between the soil and the trees growing thereon? If it be assumed that a valuable coal deposit existed on sixteenth section land, could it be legally contended that section 211 of the constitution prohibited the utilization thereof, because it was land, and when by reason of the prohibition the children of the township on account of such good fortune would be deprived of an education by reason of the fact that no disposition could be made of that which belonged in trust to them, and which was dedicated to the purposes of their education? Is the phraseology of the section so uselessly extended as that its words are to work a destruction of the purpose that was sought to be conserved thereby? Assume a lake or spring, whose waters are valuable to be upon sixteenth section land, would it be contended that since waters as well as trees are embraced within the legal signification of land, the children of the township should be denied the revenue derived by reason of the prohibition of the sale of that which was transient?

Assume the sole value of the sixteenth section to be growing timber, are the school children of that townshsip to be deprived of an education by reason of the prohibition in this section against the sale of that alone which congress has expressly provided for their education? Would not our constitution itself be invalid as a violation of the federal constitution and statutes, and of the conditions upon which Mississippi was admitted to the Union, if it were attempted to enact a law whereby such a result were attainable? Congress has ratified both leases and sales and the sixteenth sections have been dedicated to the children for their education. And can this state now pass an act whereby the obligation of the contract made a century ago will be impaired, and the school children be deprived of their property without due process of law by an enactment of the convention which seeks to divert from its appointed course property devoted by national acts to the education of the children of the commonwealth?

Furthermore, suppose a great storm arose whereby the timber was severed from the soil, it would then become personalty and could be sold as such because the prohibition extended to the land only. The time of such severance by the storm would be most inopportune for a realization upon the value of the trees as they would have been twisted and torn by the storm, and yet opposing counsel in effect contend that without the intervention of such an unfortunate occurrence, the legislature is without power to dispose of the timber. It seems absurd to think that the school children for whose benefit a power was vested in the state would not, when the section was uncleared, be compelled to go without an education awaiting a catastrophe to destroy in large measures the trust estate so that the remainder could be available for their purposes.

The constitutional section must be construed by its four corners. The first portion hereof was dealing manifestly with cleared lands and had no reference whatever to those uncleared. This is true by reason of the fact that an annual rental was expected to be realized from them, and certainly no sane man could expect an annual rent from a forest. Futhermore, express provision is made with regard to the "uncleared land" and the legislature given power to do what it sees fit, and, inter alia, to lease the land for some short period in consideration of its improvement. This demonstrates that the legislature was to have power to do what it saw fit in the premises, and could sell the timber. The opening portion of this provision of the Constitution provides that the legislature shall do certain acts positively and unequivocally, but in its concluding portion provides merely that the legislature may do these things. Permissive, as contradistinguished from compulsory; directory as contradistinguished from the mandatory expression of the prior portion of the section. We are well aware that some times "may" is to be read as "must," but in the present instance there is no necessity in so doing. The act merely defines a course that the legislature can pursue after declaring certain principles for legislative guidance in the opening portions of the section. Certainly the removal of the timber is contemplated with regard to the improvement of the section, and there being no provision prohibiting the legislature from selling the timber, the constitution would work this absurd rule.

The legislature, unlike congress, has full power in the premises unless restrained by constitutional limitations, and the only restriction imposed is that the lands...