State v. Brooks-Scanlon Lumber Company
| Decision Date | 11 July 1913 |
| Docket Number | 18,163 - (13) |
| Citation | 142 N.W. 717,122 Minn. 400 |
| Parties | STATE v. BROOKS-SCANLON LUMBER COMPANY and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county against defendant lumber company, William O'Brien and F. W. Bonness to recover $20,305.81 upon the bond of defendants for the faithful performance by defendant corporation of the terms of a certain logging permit. The answer alleged that if the state auditor had undertaken to have the timber cut under the permit scaled or rescaled subsequent to the original scale any such rescale had been made without authority of law without the knowledge or consent of defendants, by persons unauthorized to make the same, and included timber not included in the permit and bond. The case was tried before McClenahan, J., who made findings and ordered judgment for $15,062.71 in favor of plaintiff. Defendant's motion for amended findings was denied. From an order denying defendant's motion to vacate the order for judgment and grant judgment for defendants or for a new trial, they appealed. Affirmed.
Sale of state timber -- demand for rescale -- action for price -- laches.
The state sold to defendant lumber company all the pine timber of certain dimensions standing and growing upon a tract of state land; the lumber company cut and removed the timber under the contract; it was scaled under the direction of the surveyor general of logs and lumber of the proper district, and paid for by the company in accordance with such scale. Subsequently, and over three years from the date of the settlement and payment, the state auditor discovered that an incorrect scale of the timber had been made and reported, and acting under the provisions of chapter 163, Laws 1895, demanded a rescale of the timber as therein provided for. The rescale was thereafter made and disclosed a discrepancy against the state of nearly 3,000,000 feet of timber. In this action to recover the contract price of the timber so unscaled and unreported, it is held:
(1) The findings of the trial court are sustained by the evidence.
(2) If the doctrine of laches has any application to the state in any case involving its rights at law, it does not apply to the facts of this case, for there was no unreasonable delay in demanding the rescale after knowledge that the first scale was incorrect.
(3) The duties imposed upon public officers are functions and attributes of the office, and the demand for the rescale was properly made upon the person holding the office of surveyor general at the time it was made.
(4) The officer selected by the state auditor to make the rescale was not disqualified, from the fact that he made a preliminary examination to determine the correctness of the information that the original scale was incorrect.
(5) The findings of the court, to the effect that the rescale was the joint work of the representative of the state auditor and the deputy surveyor general, are sustained by the evidence.
(6) The court below did not err in receiving evidence tending to show that the rescale included timber which defendant lumber company had no right to remove under the contract, nor in deducting the quantity of such timber from the recovery against defendants.
(7) Defendants have not been deprived of their property without due process of law, in violation of the fourteenth amendment of the Federal Constitution or otherwise.
J. N. Searles and R. J. Powell, for appellants.
Lyndon A. Smith, Attorney General, and Alexander L. Janes, Assistant Attorney General, for respondent.
At a public sale held in December, 1903, the state sold to defendant, Brooks-Scanlon Lumber Company, all the pine timber, not less than 8 inches in diameter 24 feet from the ground, standing and growing upon section 16, town 53, range 12, St. Louis county, at the agreed price of $7 per thousand feet. On the day of sale, the usual permit was issued by the state auditor to the lumber company, which by its terms expired or terminated June 1, 1905. The sale was made and the permit issued under and pursuant to the provisions of chapter 163, p. 349, Laws 1895, and subsequent amendatory acts, and the transaction was in all things in compliance therewith. At the time of the issuance of the permit, the lumber company duly executed to the state the bond required by the statute, with defendants O'Brien and Bonness as sureties, conditioned for the faithful performance of and compliance with the terms of the contract. During the life of the permit, the lumber company entered upon the premises and cut and removed therefrom all the pine timber standing thereon. The timber so cut and removed was scaled under the directions of the surveyor general of the Duluth district, in which the land is located. That official reported to the state auditor that there had been cut and removed from the land 5,026,990 feet of pine timber, and the auditor drew his draft upon the lumber company for the sum of $28,397.37, the same being the amount due the state under the terms of the permit. The lumber company paid the draft on June 2, 1905, and the auditor in turn executed to it a bill of sale of the timber. This closed the transactions, and prima facie terminated all rights and obligations under the permit. The timber was cut and removed from the land by J. E. Hurd & Co., acting under contract with and for the lumber company. Hurd & Co. had in its employ during the logging season one William E. Stack, who, after release from his employment, reported to the state auditor some time in the fall of 1908, that an incorrect scale of the timber removed from the land had been made, and that much more timber had been taken than had been reported or paid for by the lumber company. Upon receipt of this information, the auditor immediately inquired into the matter and, acting under the authority of the statute in such cases provided, caused a rescale to be made, termed in the record a "top and stump" scale, from which it appeared that 7,927,820 feet of timber had been removed from the land, or nearly 3,000,000 feet more than had been reported by the surveyor general. The result of the rescale was submitted to the lumber company, and payment demanded for the quantity of timber actually taken and which was not included in the original scale and report by the surveyor general. Payment was refused, and the state thereafter brought this action to recover the amount so claimed to be due.
The cause was tried below without a jury, and the court made findings of fact and conclusions of law favorable to the state, and ordered judgment for the sum of $14,756.33, with interest, the sum of $306.38 the cost and expense of the rescale, together with the costs and disbursements of the action. The court found the facts, substantially as here stated, and that the rescale of the timber taken exceeded the quantity reported by the surveyor general by 2,900,830 feet, but further found that of the timber so taken 792,782 feet represented timber under the dimensions authorized by the permit to be cut and removed, and the amount thereof was excluded from the recovery, and defendants are not charged therewith by the judgment. Defendants thereafter moved the court for amended findings of fact, for judgment in their favor, or for a new trial of the action. The motion was in all respects denied and defendants appealed.
1. The statute under which this sale of timber was made is quite full and complete, defining the rights, duties and obligations of the parties definitely and with certainty. Among other things, it provides that the scale by the surveyor general of the timber shall be final and conclusive of the quantity removed, "provided, however, that state land commissioner (state auditor) may question the correctness of any scale made by the surveyor general, and cause a rescale to be made in the manner and form as provided for in ...
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