DISSENTING OPINION. The question for decision here is clear and simple. Is it shown that "Logger's Dream" is an exclusive necessity for moving logs from the woods to sawmills where the logs are cut into lumber? The answer, under the proof in this record, is as clear and simple as the question. The use of this machine could not be an exclusive necessity for that purpose for these reasons:
First, the device had been in existence only three or four years when the case was tried. Patent had been applied for but not granted. During all the years in the past, since the use of sawmills began, other methods had been used for moving the logs to the mills.
Second, the cost of this machine is prohibitive to small sawmill operators. It sells for some twenty-eight hundred *Page 823 dollars. Hundreds of small operators could not afford to pay such a price.
Third, the proof shows that when the case was tried there were some seven thousand sawmills being operated in Mississippi. Approximately eight hundred of these devices had been sold. Part of these were sold out of this State. It is not shown how many had been sold in Mississippi. But even if all eight hundred had been sold in this State, less than one out of seven mills was using the "Logger's Dream."
Many methods are used to get logs from the woods to sawmills — skidders, tram cars operated on dummy rail lines, caterpillar and other tractors to drag or haul them, snaking them by horse or motor power.
How, then, can it be said, as a simple matter of reason and logic, that "Logger's Dream" is the exclusive method necessary for doing that? A dozen other methods are used. The use of this device is not a necessary method — much less an exclusive necessity.
The controlling opinion now being handed down lays much stress upon the assumption that this machine was being used exclusively to move logs to mills, whereas it could have been used for a number of other purposes. With great deference to my brethren who have adopted the controlling opinion, they have the spade by the wrong end of the handle. They have permitted themselves to run off on a tangent to the real issue in the case. The question is not whether the device is being used exclusively to move logs but whether its use is an exclusive necessity for that purpose. If exclusive use is the test, then the owner may exempt all trucks, trains, or other devices from the applicable tax, by simply showing that they are being used only to move logs, although they be just as suitable, or more so, for doing numerous other things, and although there are dozens of other devices better adapted to moving logs, and are actually being used for that purpose. *Page 824
The trial judge, and the Members of this Court joining in the original dissenting opinion, apparently grounded their conclusions mainly upon the assumption that the State Tax Commissioner had ruled that Diesel engines, furnishing motive power, came within the statute here involved. There is no proof whatever in the record that such is the fact, and it has developed on the Suggestion of Error that no such ruling has ever been made, and no such exemption has been allowed by the State Tax Commissioner. The present controlling opinion has abandoned that assumption. It makes no mention of it. Thus, in my humble judgment, the only plausible reason in support of the former dissenting opinion and the now controlling opinion has entirely disappeared. It was a collateral matter in the first place. It is now shown the assumed fact never existed. The foundation having fallen, it would seem that the superstructure builded thereon should fall also.
Alexander and McGehee, JJ., join in this dissent.