Dantzler Lumber Co. v. State

Anderson, J".,

delivered the following dissenting opinion.

The clause of section 211 of the Constitution providing that the sixteenth section lands shall not be sold is not open to construction. Its meaning is plain and unambiguous. The term “land” has long had a well-settled definition in law. There can be no misunderstanding of its meaning under the decisions of this court, beginning back before the adoption of section 211, which hold as follows: In Harrell v. Miller, 35 Miss 700, 72 Am. Dec. 154, that the term “land” embraced, not only the soil, but its natural produce growing upon and affixed to it, such things are a part and parcel of the realty and pass by grant of the land, and therefore the sale of growing timber on the land is within the statute of frauds and must be in writing; McKenzie v. Shows, 70 Miss. 388, 12 South. 336, 35 Am St. Rep. 654, that growing trees are a part of the realty, and the conveyance by the'husband of all the merchantable timber on his homestead is an incumbrance of such homestead, and void if it is not joined in by his wife; Nelson v. Lawson, 71 Miss. 819, 15 South. 798, that a verbal contract for the sale of growing timber is void as to trees standing on the land, and if these are removed over the owner’s objection he may maintain replevin for the timber into which they are converted; Walton v. Lowrey, 74 Miss. 484, 21 South. 243, that a parol agreement authorizing the cutting of standing timber on lands is within the. statute of frauds and must be in writing; Fox v. Lumber Co., 80 Miss. 1, 31 South. 583, that growing trees are part of the real estate, and subject to separate ownership from the soil, and where the soil *392belongs to one person and the trees upon it to another they may be separately assessed for taxation to their respective owners; Butterfield Lumber Company v. Guy, 92 Miss. 361, 46 South. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540, that-the sale of the standing timber conveys an interest in the realty, and that the owner of the land in fee may convey to another a fee-simple title to the standing timber thereon; Lumber Co. v. Harrison County, 89 Miss. 448, loc. cit. 529, 42 South. 290, loc. cit. 302, that to permit a tenant of a particular estate in land to remove the timber without compensation to the estate is illegal, “for he takes in that case not the product of the estate arising in his own time, but he takes that which nature has been elaborating in all ages, being a part of the inheritance itself, and that, too, which imparts to it its chief value.”

The definition of “land” is also fixed by our statutes, beginning with section 15, Code 1880, before the adoption of section 211 of the Constitution, and coming down with sections 1507, Code 1892, and 1584, Code 1906, which provide in varying language that the term “land,” when used in any statute, includes corporeal hereditaments and any interest or estate in the land. This is no new doctrine, as the following quotations from Coke and Blackstone show: “It is elementary that ‘land’ itself in legal contemplation extends from the sky to the depths. ‘The term “land” includes, not only the ground or soil, but everything which is attached to the earth, whether by the course of nature, as trees, herbage, and water, or by the hand of man, as houses and other buildings; and it has an indefinite extent upwards as well as downwards, so as to include everything terrestrial under or over it.’ ” Coke, Litt. 4a. “Land comprehends all things of a permanent and substantial nature being a word of very extensive signification; also, if a man grants all his lands, he grants all his mines of metals, and his fossils, his woods, his waters, and his houses, as well as his fields and meadows.” 2 Bl. Comm. 16-18.

*393This court had laid down well-defined rules for ascertaining the meaning of the Constitution: “The Constitution is a law, differing from a statute, as it is of superior and paramount force, irrepealable by the legislature, and which prevails, where it conflicts with a statute. When the framers of the Constitution employ terms which, in legislative and judicial interpretation, have received a definite meaning and application, which-may be more restricted or general than when employed in other relations, it is a safe rule to give to them that signification sanctioned by the legislative and judicial use.” Daily v. Swope, 47 Miss. 367; Hawkins et al. v. Carroll Co., 50 Miss. 758. “To the courts only is the authority given to determine this [the constitutionality of a statute], and great caution should be and always is exercised by them in such delicate inquiries. Otherwise, instead of being the final refuge of liberty, they would be its grave. Loose construction would eventually mean ruin. Another principle to be carried along is that, if the language be plain, the announcement must enforce it, to whatever evil it may apparently lead; and a state legislature is an absolute despot, its acts on all subjects being free from any restriction whatever not found in the state or federal Constitution. Congress has no power not confided to it. A legislature has all power not withheld from it. Another principle is that, where the Constitution deals with a subject, its words must be the sole boundary, and sacred from the legislatures, except where it permits, expressly or by. necessary implication. Another is that, where the Constitution schedules powers, giving or taking away, it must be presumed to have scheduled all, and it only must be looked to, with its necessary implications, for the limit of authority or restriction. Still another is that, where the language is plain, subsequent- action by the departments, or contemporaneous or antecedent history of the subject, cannot be appealed to for interpretation.” State v. Henry, 87 Miss. 125, 40 South. 152, 5 L. R A. (N. S.) 340.

*394I agree that the rule is all doubts must be resolved in favor of the constitutionality of-the statute; but that rule has no application here, because there is no doubt. There is no room to inquire into the purpose of the framers of this section of the Constitution. It provides in plain and unmistakable terms that the sixteenth section lands shall not be sold. There is nothing in the section to indicate that the term “lands” is used in any other than its well-defined legal sense, which means not only the soil, but trees standing thereon. In 1890, when the Constitution was adopted, the timber lands of Southeast Mississippi were of little value, either for their timber or for agricultural purposes. The provision authorizing the legislature to lease sixteenth section lands in consideration of their improvement clearly has reference to lands valuable principally for agricultural purposes, and not to those in Southeast Mississippi, which have no value except for the .timber standing thereon. The .timber cannot be sold, because in selling the timber the land is sold, one being a part and parcel of the other; and here all the value of the land will be gone, because the timber interest is all there is of it of any value. The Constitution has scheduled the powers of the legislature with reference to the sixteenth section lands, giving and taking away; and in the language of Judge Calhoon, in State v. Henry, supra; “It must be presumed to have scheduled all, and it only must be looked to, with its necessary implications, for the limit of authority or restriction.” There is the general inhibition against sale, followed by the clause permitting lessees to remove the timber in order to improve for agricultural purposes. This excludes any other method of disposing of the timber. This is the limit of the power of the legislature with reference to the timber.

This court has nothing to do with the question of the wisdom of the constitutional provision in question, or what is to the best interest of the school children. The Constitution itself settles *395that in plain language. However, if it were proper to go into that question there are two sides to it. In Lumber Company v. Harrison County, supra, this court held that the ninety-nine-year lessees of the sixteenth section lands, in cutting and selling the merchantable timber therefrom, were guilty of waste; such lessees under their leases acquiring the right alone to remove the timber for agricultural purposes. By this decision that great domain of wealth, the standing timber oh sixteenth section lands in Southeast Mississippi, was thought to be preserved for the school children; such lessees having paid practically nothing for their leases.

Now the effect of that decision is nullified, because those same lessees, by the decision in the instant case, may purchase all of the standing timber at very much less than its value, because others who might desire to purchase would refrain, in view of the fact that they would not have the right to remove the timber' until the expiration of the leases. If expediency is to be considered, the thing to do is to let this timber stand until the expiration of the leases, and then amend the Constitution, permitting its sale. By that time, in all probability, it will constitute a great mine of wealth, sufficient to maintain the township schools for all time.

Section 4702, Code 1906, which authorizes the sale of the timber on these lands by the boards of supervisors, contains no restriction as to tire title which may be conveyed. If this statute is not violative of section 211 of the Constitution, it authorizes a sale of the standing timber in fee. In the instant case such a conveyance of the timber is made; the deed being substantially the same as the deed in Butterfield Lumber Company v. Guy, supra, which was held by the court in that case to convey a fee-simple title to the timber. So you have on the one hand, under section 211 of the Constitution, no power to sell soil itself (which is of little value), and, on the other, you have the power, under *396the same constitutional provision, to sell the timber in fee, which constitutes practically all the value there is in the -land. It is not conceivable to mé that the framers of the Constitution intended that the soil should not be sold, while the standing timber on it, consisting practically of all its value, might be. When you sell the timber, you sell all.