Dantzler Lumber Co. v. State

53 So. 1, 97 Miss. 355

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinions

Smith, J.,

delivered the opinion of the court.

The appellant, lessee of certain sixteenth section lands situated in Harrison county, valuable only for the timber situated thereon, purchased said timber from the board of supervisors of said county, under the provisions of the Code of 1906, § 47-02, authorizing such sales. This suit was thereafter instituted in the court below by appellee to cancel the deed made by the board to the timber pursuant to said sale. From a decree in accordance with the prayer of said bill this appeal is taken.

The validity of this sale is challenged upon several grounds, the first of which is: “Because the acts of the legislature under-which said sale was made are violative of section 211 of the-Constitution of 1890.”

Section 211 of the Constitution of 1890 is as follows: “The-legislature shall enact such laws as may be necessary to- ascertain the true condition of the title to- the sixteenth section lands in. this state, or land granted in lieu thereof, in the Choctaw Purchase, and shall provide that the sixteenth section lands reserved for the support of township schools shall not be sold, nor shall they be leased for a longer term than ten years for a gross sum * but the legislature may provide for the lease of any of said lands for a term not exceeding twenty-five years for a ground rental, payable annually, and, in case of uncleared lands, may lease them for such short term as may be deemed proper in consideration of the improvement thereof, with right thereafter to lease for a term or to hold on payment of ground rent”

Section 4702 of the Code of 1906 (first enacted in 1898) is as follows: “That the board, of supervisors in counties- having control of any sixteenth section of land, or a part of such section, or of another section or part of a section taken in lieu of any sixteenth section or a part thereof, reserved for the support of township schools, be, and they are hereby, authorized and empowered to sell the merchantable timber of any and all varieties and wood on such land, or to lease for a term not exceeding three years said lands for turpentine, or pasturage purposes for a term not exceeding one year. The funds arising from the sale of such timber or wood, or from the leasp for turpentine or pasturage purposes shall be credited to the proper township, and the treasurer of each county shall keep a separate account with each township. Such funds shall not be expended, but shall be loaned out by the boards of supervisors in the same manner and under the same restrictions as is provided by law for the loan and security of other sixteenth section funds. The interest arising from such funds shall be expended for the support of the township schools as is provided by law for the expenditure of the interest on other sixteenth sections.”

The question to be answered by us is: Do the words, “the sixteenth section lands reserved for the support of township schools shall not be sold,” contained in the above section of the Constitution, prohibit the sale of the timber growing’ on such land ? Should this question be answered in the affirmative, the statute, of course, would be unconstitutional. It has long since been settled in this state, by a line of decisions beginning with Harrell v. Miller, 35 Miss. 701, 72 Am. Dec. 154, that at common law “the term land’ embraces not only the soil, but its natural produce (trees) growing upon and affixed to it.” It is also settled that, in construing a Constitution, words having a certain and definite meaning at common law should, when used in a Constitution, be given that meaning, unless it is clear from the instrument itself that same are used in a different sense. Daily v. Swope, 47 Miss. 367.

In order to determine the sense in which the word “lands” is used in this section of the Constitution, it will be necessary for us to consider briefly the law prior to the adoption of this- section and the evils it was intended to remedy. Prior thereto- the legislature could deal with these lands almost at its pleasure, and the result was that most of them had been leased for a period of ninety-nine years for a small sum in gross, and this small sum was frequently never collected, and, when collected, generally wasted. The remedy provided for this- evil by this section of the Constitution is that the title to these lands shall never pass out of the state, and that all leases thereafter made shall be only for a short period of time, thereby insuring for all time the receipt by the schools of a stated revenue, either annually or at comparatively short intervals of time. It is manifest, therefore, tliat the framers of the Constitution did not intend to cut off any source of revenue from these lands, which did not necessitate the divesting of the state’s title thereto or its control thereof. They were dealing with, lands, nearly all of which were primarily agricultural lands, valuable only as such, and they intended only to prevent the sale of the thing out of which crops, annual or perennial, are produced. The word “lands,” therefore, was used in that restricted sense in which it is so frequently used in common parlance, meaning, not. the soil and everything’ above and below it, but simply the soil itself. The prohibition, therefore, extends only to the land, using the term in this restricted sense, and not to the timber growing on the land.

It is hardly possible that the framers of the Constitution meant to prohibit the sale of timber, thus cutting the schools off from any revenue which might be derived therefrom, when in the same section they authorized leases of these lands to be made, the consideration thereof being only the improvement thereof; the principal item of improvement consisting, of course, in the removal of timber, the title to which timber would thereby pass to the lessee. By selling the timber, its removal would constitute an additional source of revenue, and the land could be brought into cultivation at comparatively small expense. It is also hardly possible that it was meant by this section of the Constitution to prohibit the sale of timber, when in some instances, as in the case at bar, the sale of the timber would constitute the only source of revenue therefrom; the soil being unsuitable for agricultural purposes. To so hold would deprive the schools of the townships in which such lands are situated, possibly forever, of any revenue therefrom, and convict the state of having, to that extent, violated the trust which it assumed when it accepted these lands.

It is said by counsel that: “The makers of the Constitution of 1890 thought best to prohibit for the present the sale of it, and leave it to the people to dispose of this part of the property when they should decide that the time for such disposition had arrived.” It is true that Constitutions may be amended; but it is also time that this can be done only with great difficulty, and, moreover, frequent changes in the fundamental law of a state are not desirable. But, be that as it may, Constitutions must be construed upon the theory that they were intended to last for all time. The supreme court of the United States long since has said, in Martin v. Hunter, 1 Wheat. 304, 4 L. Ed. 97, that the Constitution was.not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse •of ages.

And, moreover, there are two elementary rules of construction which should always be borne in mind when the constitutionality of the statute is called in question. The first is that statutes are always presumed to be constitutional, and this presumption will be indulged in by the courts until the contrary is shown; all .doubts being resolved in favor of the validity of the statute. The second is that where there is an ambiguity or doubt, or where two views may be well entertained of the meaning of a constitutional provision, the legislative construction thereof is entitled to great weight. State v. Henry, 87 Miss. 125, 40 South. 152, 5 L. R. A. (N. S.) 340; 8 Oyc. 801; Cooley’s Const. Limitations (7th ed.) 252; Digest U. S. Supreme Court Reports (Law. Ed.), vol. 2, p. 1577, and authorities there cited.

In State v. Henry, sufra, these rules were thus announced: “In solving the question first to be considered, the interpreter of the language used must carry along with him the elementary principle that, if there be a well-founded, reasonable doubt of the constitutionality of a legislative act, it must be held constitutional. This is a well-recognized rule of the courts, ever vigilant, as they should be, of the rights and prerogatives of each branch of the governmental body politic. This rule is based on common sense. Each branch represents the people. Each branch, legislative, executive, or judicial, is the people, by the intendment of the organic law, in its proper sphere, and must be presumed to act within its powers under the Constitution, unless the contrary plainly appears. To the courts only is the authority given to determine this, 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.”

The second ground upon which the decree of the court below is challenged is: “Because the sale made by the board of supervisors in this instance was void, even though the said acts of the legislature might be valid since the contract evidenced a purpose to convey thereby a fee-simple interest in the land; no time limit being fixed within which the timber must be removed.”

In Butterfield v. Guy, 92 Miss. 361, 46 South. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540, it was held that one party could own the land and another the timber growing thereon; the deed to the timber alone conveying no title to the land itself. It was also held that, where the deed conveying the timber contained no limit of time within which the purchaser must remove same, he could do so at his pleasure, and that he thereby obtained an interest in the land to the extent that he had the right to burden same with the support of the timber for an indefinite period of time. In that case the seller could convey what could not be done in the case at bar; that is, the land itself in fee simple.

Since the boards of supervisors have the right to sell this timber, it follows that they have the right to permit the purchaser to enter upon the land and remove same, and necessarily to burden the land with the support thereof until removed; but they have no right or power to grant him an indefinite length of •time for this purpose, for the reason that section 211 of the Constitution prohibits the state from parting with the possession and control of sixteenth section lands except for a definite and comparatively short period of time. Such purchaser, therefore, can only be granted a reasonable time in which to remove the timber, during which, of course, he has the right to burden the land with the support thereof, and to that extent has a right to or interest in the land. Section 2774 of the Code provides: “All alienations and warranties of lands purporting to convey or pass a greater estate than the grantor may lawfully convey or pass shall operate as alienations or warranties of so much of the right and estate in such land as the grantor could lawfully convey, but shall not pass or bar the right to the residue of the estate to be conveyed,” etc. The deed in controversy, therefore,, conveyed to the purchaser only such right or interest in the land as 'the board of supervisors could lawfully convey, to wit, the right to burden same with the support'of the timber for a reasonable length of time. The question of what constitutes such reasonable time is not presented on this record.

The third ground of objection to the decree of the court below is: “Because the sale was made for such a grossly inadequate consideration as to operate as -a fraud upon the inhabitants of' the townships interested.”

According to the agreed statement of facts, the timber in controversy was worth, in round numbers, the sum of $20,000, or rather, said sum could have been obtained for it “if the board of supervisors had possessed the authority to make a fee-simple title to the entire property, including the soil on which the timber' and wood was growing.” It also appears from this agreed state, of facts: “The price paid by defendant for the said timber and wood were as much as could have been obtained on the market at that time for the same, in view of the facts' that it was growing on sixteenth section lands, the right to cut and remove it was involved in some uncertainty, and the defendant was the owner of the leases.” The price paid for the timber was $1,550, inadequate, of course; but it is elementary that mere inadequacy of consideration alone is not ground for setting aside a conveyance of this character. Inadequacy of price must be connected with fraud or other circumstances which tend to bring about such inadequacy before the sale can be set aside by the courts. No other circumstance indicating fraud is alleged in the bill or contained in the agreed statement of facts'.

The determination of the price at which such timber shall be sold has been committed by the statute to the boards of supervisors, and in the absence of fraud or collusion the courts cannot interfere with their discretion in the matter. And, moreover, when we remember that these leases had seventy years and more to run, during which time the board could not sell, except to the lessee or with the consent of the lessee, the inadequacy of price is not so great as it would otherwise seem to be.

The decree of the court below is reversed, and cause dismissed.

Reversed.