I concur in the result but believe that the majority opinion goes beyond the issue which is properly before us and that it announces a rule concerning the correctness of which I have serious doubts and which rule, even if correct, is not applicable here. The issue in the case at bar is a simple one. The statute imposes a penalty upon any person harvesting forest crops from lands which have been classified as reforestation lands who “shall have failed to make his remittance of yield taxes due hereunder within said 15-day period. ’ ’ The plaintiffs failed to make their remittance within the statutory period. They were about two months late. There was no other failure on the part of the plaintiffs in the performance of their statutory duties. There is no dispute as to the “number and kinds of units of all forest products harvested.” The number of board feet of fir saw logs, and the unit value “as determined by the State Board of Forestry” and the total value of the timber harvested are all alleged in the complaint, and, for the purposes of this case, admitted by the demurrer. It is clear that the prompt payment of sums due before the timber has lost its identity by manufacture or been sold to innocent parties is a matter of great importance if the state is not to lose its remedies for enforcement of the tax. The statutory penalty is a severe one but it is imposed as a strong inducement to insure payment within the time required. The imposition of a penalty for nonpayment of taxes or for delay in payment is a common and approved device universally *193employed to facilitate the collection of the public revenues. While the penalty in this case approaches the verge of arbitrary excessiveness, I nevertheless agree with the majority that, as applied in this case on the issues here presented, we should hold the law constitutional. The majority opinion goes on to consider whether the penalty provision would be equally valid if applied to other persons under circumstances wholly different from the simple facts of the pending ease. The question which is, I think, unnecessarily discussed, is “whether or not the penalty clause can deter anyone from challenging its validity or any charge made against him under the act.” More specifically stated, the question discussed is whether or not the owner who harvests the crop would be liable for the penalty if he failed to remit the proper amount of yield taxes “due” under the requirement that the report to the tax collector “shall be accompanied by the owner’s remittance * * * of the yield tax due hereunder.” OCLA, § 107-123. The conclusion of the majority appears to be that the penalty provision cannot deter an owner from resorting to the courts because the facts which determine the amount due are knowable. “He is not required to hazard a guess in regard to something which cannot be established without litigation.” As stated, the amount due is determined by two factors; the unit values of the various kinds of units harvested and the amount of each kind which was harvested. The unit market values are as determined by the State Board of Forestry “from all evidence it commands.” OCLA, §107-124. If the owner “to whom such permit is issued” shall feel aggrieved he may have a hearing and thereafter an appeal to the courts as to the true unit values, giving bond to indemnify the board and the tax col*194lecting officers. OCLA, § 107-124. He may then proceed to harvest the product. It is inaccurate, however, to refer to the product as “timber”. The statute refers broadly to “forest crops harvested” and thus includes various ldnds of product; the tree species, such as hemlock, pine, second-growth Douglas fir, etc., and the type of product such as cordwood, piling, saw logs, etc. Disregarding the possibility that after an appeal has been taken and a bond given and after the crop has been harvested, the trial court might hold that the unit values were greater than those set forth in the required report of the owner, with the ensuing possibility of the imposition of a penalty, there is a possibility, and judicial experience would indicate a probability, of many honest and reasonable disagreements as to the scale and proper classification of the products harvested. What timber harvested was merchantable; what was properly listed as a pole, a pile, or a second-growth log; how many board feet of merchantable timber were included in a given log in view of its condition; was the scale accurate? It should be remarked that the commercial procedure of log scaling is not an exact science. The result is determined by measurement plus estimate by expert sealers. If an owner should, in good faith, file a report under oath in which he had erroneously stated the “number and kinds of units of all forest products harvested”, and if the board should ultimately prevail in establishing that a somewhat greater sum should have been tendered as tax, a most serious question would arise as to the owner’s liability for the penalty. On such an issue it would be the duty of a court first to construe the act to determine if it was the legislative intent that the penalty should be incurred in such case and if, following the literal words of the *195statute, it should he held that the penalty was imposed, a question of constitutionality would arise. It may well be that in the event of a dispute between the owner and the board or the tax collector as to the exact amount due, the owner would yield to the claim of the board or tax collector and pay the amount demanded rather than litigate the issue with the knowledge that he would be subjected to a severe penalty if the court should find that his remittance was too small. Again, if the remittance was too small to any extent, and if the owner acted in good faith, the question would necessarily arise as to whether the penalty specified was not grossly disproportionate to the offense penalized. I have no disposition to argue these hypothetical issues. The cases cited in the majority opinion, and many others which might be cited, indicate that under some circumstances penalties may be held invalid because excessive and disproportionate, especially if they tend to deter a party from appeal to the courts for a determination of his rights.
There is eminent authority which indicates that we should limit our inquiry to the constitutionality of the act as applied to the specific facts of the pending case.
“One of the elementary doctrines of constitutional law, firmly established by the authorities, is that the constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby. Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights. * * *” 11 Am Jur 748, Constitutional Law, § 111.
“A person who is seeking to raise the question as to the validity of a discriminatory statute has no standing for that purpose unless he belongs to *196the class which is prejudiced by the statute. * * * 11 Am Jur 759, Constitutional Law, § 114.
In Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 US 217, 57 L ed 193, plaintiff brought an action to recover damages for the partial loss of a shipment of vinegar. Plaintiff recovered judgment for actual damages and $25 as a penalty. A statute provided that a common carrier failing to settle claims for damaged freight as therein required should be subject to the penalty. On appeal to the United States Supreme Court the carrier challenged the act as unconstitutional. The court said:
“As applied to such a case, we think the statute is not repugnant to either the due process of law or the equal protection clause of the Constitution, but, on the contrary, merely provides a reasonable incentive foj the prompt settlement, without suit, of just demands of a class admitting of special legislative treatment. See Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 52 L. ed. 108, 28 Sup. Ct. Rep. 28; St. Louis, I. M. &. S. R. Co. v. Wynne, 224 U. S. 354, 56 L. ed. 799, 42 L. R. A. (N. S.) 102, 32 Sup. Ct. Rep. 493.
“Although seemingly conceding thus much, counsel for the railway company urge that the statute is not confined to eases like the present, but equally penalizes the failure to accede to an excessive or extravagant claim; in other words, that it contemplates the assessment of the penalty in every case where the claim presented is not settled within the time allotted, regardless of whether, or how much, the recovery falls short of the amount claimed. But it is not open to the railway company to complain on that score. It has not been penalized for failing to accede to an excessive or extravagant claim, but for failing to make reasonably prompt settlement of a claim which, upon due inquiry, has been pronounced just in every respect. Of course, the argument to sustain the contention is that, if *197the statute embraces cases such as are supposed, it is void as to them, and, if so. void, is void in toto. But this court must deal with the case in hand, and not with imaginary ones. It suffices, therefore, to hold that, as applied to cases like the present, the statute is valid. * *
In Aikins v. Kingsbury, 247 US 484, 62 L ed 1226, the court said:
“* * * He who would successfully assail a law as unconstitutional must come showing that the feature of the act complained of operates to deprive him of some constitutional right. * * *”
See also: McKinney v. Watson, 74 Or 220, 145 P 266; Mulkey v. Bennett, 95 Or 70, 186 P 1115; Briedwell v. Henderson, 99 Or 506, 195 P 575; Red Hawk v. Joines, 129 Or 620, 278 P 572.
In the light of the rule established in the cases cited, I think we should apply the doctrine of separability of application and pass upon the constitutionality of the act only as it applies to the case presented in the record.
Mr. Justice Lusk joins in this opinion.