(dissenting).
I dissent.
First. There are but two tenable theories as to the title to timber purchased under the provisions of the act. The title passes to the *8purchaser when the trees are severed, afid thereafter the state has a lien only upon the logs for the purchase price, or the title passes when the purchase price is paid, if the timber had then been converted into logs within the prescribed time. Upon either theory the title, to the logs in question hád passed when they were removed from the land, and the state cannot maintain this action.
Second. Conceding that the title never passed from the state, the state timber board having authority to extend the permit, and the land commissioner having assumed to extend it, and respondent having in good faith paid for the timber and removed the logs, the state is estopped from asserting any title thereto.
Third. In any event, the state cannot recover any more than the actual stumpage value of the timber* at the place and time the same was taken.
The decision of the majority is based upon the theory that the title to the timber never passed from the state, for the reason that the logs were not removed from the land within the two years. To a correct-understanding of the scope and purpose of the act, it must be considered in view of the law relative to the subject at the time it was enacted. It was the general rule, enforced in many jurisdictions, that the contract must expressly so provide, in clear and unmistakable terms, in order to prevent a purchaser of standing timber from going on the land and removing the logs after they were cut. To illustrate: In Sanders v. Clark, 22 Iowa, 275, the contract provided that the timber should be taken off the land by a specified time, and there was no reasonable excuse for the delay. In Pease v. Gibson, 6 Greenl. 81, the contract provided that the purchaser was to have two years in which to take the timber off the land. To the same effect, Reed v. Merrifield, 10 Metc. (Mass.) 155, where the provision was: “Said W. to have five years to get off said timber,” In these three cases the question of the right to remove the timber which had been cut was not involved. That question, however, was involved in Gamble v. Gates, 92 Mich. 510, 52 N. W. 941, where the contract expressly provided that whatever timber should remain upon the lands after the time expired should revert and become the property-of the grantor. In Kemble v. Dresser, 1 Metc. (Mass.) 271, 35 Am. Dec. 364, the contract *9was as follows: “Is to get off and remove from said lot said wood and timber within two years from the date hereof, and not afterwards.”
On the other hand, where the language of the contract is not explicit, and a purchaser cuts but does not remove the timber within the specified time, it is held that title to the timber so cut does not revert to the owner, but becomes the personal property of the purchaser, and he has the right to remove it within a reasonable time. Such is the' case of Macomber v. Detroit, 108 Mich. 491, 66 N. W. 376, 32 L. R. A. 102, 62 Am. St. 713. The court there referred with approval to Golden v. Glock, 57 Wis. 118, 15 N. W. 12, 46 Am. 32, and to Hicks v. Smith, 77 Wis. 146, 46 N. W. 133, and said: “The rule of the Wisconsin court seems consistent with reason and justice. It is no stretch to treat the severance of the timber from the soil and its manufacture into logs as a removal, within the terms of the provision for forfeiture.” In Golden v. Glock the contract reads: “It is agreed and understood * * * that the timber on the south half of the [premises described] shall be removed within one year from the date hereof, and the balance within two years” — and it was held that trees cut and manufactured into stave bolts within the time limited became personal property and were thereby removed from the premises within the terms of the deed, and that the grantee might, after the expiration of the two years, go upon the premises and take therefrom the manufactured product. In Hicks v. Smith the contract reads: “The said pine timber to be cut and removed from the above-described forties on or before January 1st, 1888” — and still it. was held that all timber cut and severed from the soil by the purchaser before the date specified became his personal property, which he might remove within a reasonable time thereafter.
In our court the same principle was applied in the case of Alexander v. Bauer, 94 Minn. 174, 102 N. W. 387, where the contract provided that the purchaser had the right until a specified date to cut and remove the timber standing on the land. One portion was cut before the expiration of the time limited, and another portion thereafter, and the whole amount of the timber so cut was removed several months after the expiration of the time, and the court, basing its decision upon justice, reason and authority, held that the standing timber, when cut, was converted into chattel property, the ownership of which became *10vested in the purchaser, with the light to remove the same, and that there was no implied condition that the title should revert if the duty to remove the timber was not strictly performed.
The- author of chapter 163, p. 349, Laws 1895, had in mind these well-settled rules of law, and there was no intention to make any radical departure from them. It was, however, intended to protect the public from being filched out of its timber b)r the acts of careless or dishonest state officials. To that end that act centers upon two prominent features: First, the sale; and, second, payment. No sale of the state’s timber shall take place until appraised, and then only at public auction to the highest bidder. An actual sale is contemplated, and elaborate means provided to secure the best obtainable price. Then comes a series of provisions to secure the payment, and twenty five per cent, of the • appraised value must be paid in cash at the time of the sale. The permit issued by the auditor is not a part of the sale. It is a license to the purchaser to go upon the state’s land upon certain conditions and cut and remove that which he has purchased. The permit is based upon a sale. The language used with reference to the permit requires no other construction than that applicable to private parties under similar circumstances, viz., the title passes when the trees are cut and the state thereafter retains a lien on the product until payment is made'. The words, “Under no circumstances shall he cut or remove said timber, or any part thereof, after the expiration of such permit,” must be construed in harmony with the evident purpose of the act. “Unless paid for” is implied.
There is neither reason nor justice in the position taken by the state. It insists that the purchaser enters into a contract (by purchasing at the sale) which he must fulfil; that he must pay for the timber, whether he takes it or not; that if he does pay for it, and at great expense converts it into a merchantable product on the land, and is-engaged in the process of transporting it to the market, and by a sudden change in the weather the roads are ruined, and he is unable tO' use them until after the expiration of the time, yet the state may receive and retain his money and take advantage of an act of God to-deprive him of the benefit of his labor. Not only that, but the state claims the right to stand by and permit him to come back, repair the-roads, expend his time and money in transporting the logs to a distant *11market, and then seize them after they have been doubled in value at the expense of the purchaser. No more manifestly unconscionable proposition has ever been called to my attention. If such a contingency should arise in a contract between citizens of the state, the courts, would make short work of it upon equitable principles. Should the state prescribe for itself a rule of action which would not be tolerated in business transactions of its citizens? It is not necessary to resort to such an extreme in construing this act. The state is amply protected, without doing such violence to the language used.- If it,had been intended to go so far and to place purchasers at such a disadvantage, it would have been a very easy matter to have said so in direct and explicit language.
2. The reason why the logs were not removed prior to June l.was stipulated and found by the court as follows:
“(9) That on account of the condition of the roads, the weather, and the inability of securing sufficient and reliable woodsmen and teamsters during the logging season of 1899 — 1900, it was not practical to haul all of said timber from said land, and that in removing from said land said 11,126 logs, containing 934,010 feet, board measure, after said first day of June, 1900, defendant believed that it had the right to do so under the permission of the said Kehl & Dearey and said state auditor. * * *
“(11) That the surveyor general of said district and the state auditor of the said state of Minnesota was each duly notified of the time when defendant would enter upon said land and remove said saw logs therefrom, and no objection was made to the removal of the same. * * * ”
The court also found that all-oí the timber purchased and cut was duly scaled and paid for — one draft for $1,185.60, paid on June 2, and another for $1,939.'?'2, paid August 1.
It does not distinctly appear whether the drafts were drawn prior to the first day of June, but it is clear that at the time they were drawn and paid the logs had been cut and skidded, ready for removal, and had not been removed for the reason above stated. The court further found that a representative of respondent, prior to June 1, called upon the state auditor and requested an extension of the permit for another year, and that he was informed by the auditor that the ex*12tension would be made, but no extension was ever executed. The timber commissioners were authorized by section 24 to make the extension requested by respondent’s representative. The auditor himself did not have the power to make the extension; but, being the executive officer of the commission, it was natural that he should assume the duty of seeing that the timber commission complied with the request.
I am of opinion that the reasons found by the court why the logs ■could not be taken off were sufficient to justify the timber commission in granting the extension; that having been requested through its •executive officer to make such an extension, having knowledge of the fact that the logs had been cut and could not be removed for the reasons stated, having acquiesced in the position assumed by respondent that it had a right to remove the logs after the first of June, having ■made drafts upon respondent for the logs so cut and not removed, and the same having been paid by respondent in good faith, and the state having received the money, the auditor and timber commission ratified the acts of respondent in paying the drafts and in subsequently removing the logs. Under such circumstances the state is estopped from asserting that it has any right, title, or interest in and to the logs in •question.
This feature of the law was not involved in State v. Shevlin-Carpenter Co., 102 Minn. 470, 113 N. W. 634. In that case the timber was both cut and carried away after the expiration of the third logging season. The state officials had no authority whatever'to renew the permit, and in such a case there can be no ratification or estoppel. But in this case the timber commissioners were expressly authorized to grant the extension, and the parties all acted in good faith upon the supposition that it had been extended.
Where discretion with reference to a particular matter is lodged 'in public officials, the state is bound by their acts, if performed within the general authority imposed. Under such circumstances it was not a fatal omission that the timber commission did not call a meeting and formally pass upon the matter. Its executive officer conveyed the information that the extension had been made. Sufficient reasons ■existed for making it, and with respect to such conditions the same rules apply as govern the conduct of private parties. “The. state, in *13all its contracts and dealings with individuals, must be adjudged and abide by the rules which govern in determining the rights of private citizens contracting and dealing with each other. There is not one law for the sovereign and another for the subject; but when the sovereign engages in business and the conduct of business enterprises,, and contracts with individuals, although an action may not lie against the sovereign for a breach of the contract, whenever the contract in any form comes before the courts, the rights and obligations of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand upon equality before the law, and the sovereign^ is merged in the dealer, contractor, and suitor.” People v. Stephens, 71 N. Y. 527, 549. The-principle that public officials are not necessarily responsible to the state when acting in a discretionary manner is illustrated by the case of State v. Buchanan (Tenn. Ch. App.) 52 S. W. 480, wherein it was. held that the governor, comptroller, and treasurer were not responsible for failure to forfeit a certain check which had been deposited in payment of state bonds.
3. The .court found that respondent acted honestly, believing it had a right to remove the logs after the first day of June. Such being the case, the state cannot in any event recover any more than the actual value of the logs at the place and time they were taken. This question was thoroughly discussed in State v. Shevlin-Carpenter Co., 62 Minn. 99, 64 N. W. 81. In that case no valid timber permit had been issued, but the parties assumed that it was valid and cut the timber. It was held that the company was entitled to show that it had acted in good faith, and that it honestly and reasonably believed that it had a. legal right to cut the logs, and, if good faith was established, then the value of the logs was to be assessed as of the time and place of the-original taking. If respondent in good faith removed the logs involved, believing it had the right to do so, it cannot be charged with the value thereof as enhanced by its own labor in transporting them, to a distant market.
On October 16, 1908, the following opinion was filed:
PER CURIAM.In its petition for rehearing the defendant urged upon the court the following federal questions:
*141. That the decision of this court was unconstitutional and void, as being in violation of and contrary to section one of the fourteenth •article of amendment to the constitution of the United States, which provides that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” and the said decision deprives the respondent of its property without due process of law and denies it the equal protection of the laws, in violation of said -constitutional provisions.
2. That said decision is unconstitutional and void, as being in violation of and contrary to the fifth article of amendment to the constitution of the United States, which provides that no person shall be “deprived of life, liberty, 'or property, without due process of law; nor shall private property be taken for public use, without just compensation,” and the said decision deprives the respondent of its property without due process of law and takes its property for public use without just compensation, in violation of such constitutional provision.
3. The said decision is unconstitutional and void, as being in violation of and contrary to section 10 of article 1 of the constitution of the United States, which provides that “no state shall * * * pass any * * * law impairing the obligation of contracts,” and the said decision impairs the obligation of the contract set forth in the findings herein, in violation of said constitutional provisions.
Upon consideration we have concluded to adhere to our original conclusion.
Denied.