State v. Rat Portage Lumber Co.

JAGGARD, J. The state of Minnesota on December 1, 1898, issued to defendant’s assignors a permit which conferred the privilege of cutting and removing timber on a specified tract of state land prior to June 1, 1900. It will be assumed for present purposes that the permit had been properly assigned to defendant. During the life of that permit the timber was cut; but 934,010 feet, board measure, which were cut, were not removed from the land within the time limit, but were removed at a later period. The state was thereafter paid by draft for the timber cut. The value of the stumpage was $2 per thousand; the value of the logs was $5 per thousand. No sharp practice or fraud was chargeable to the defendant or its assignors. Its good faith is conceded throughout. The state, more than three years after the removal of the logs and the payment, brought this action of conversion for their value. The trial court found facts in accordance with this statement, and also found: “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 11,126 logs, containing 934,010 feet, board measure, .after said first day of June, 1900, the defendant believed that it had [3] the right to do so under the permission of the said Kehl & Deárey and the said state auditor. * * * That the surveyor general of said district and the state auditor of the said state of Minnesota were 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, éxcept as is herein found.” He concluded as a matter of law that the defendant was entitled to judgment. From the judgment entered thereon, the state took this appeal. This court has recently expressed its views of what the ordinary rule of law should be, and was, in the absence of statutory provisions, on the subject. According to that view, under the circumstances presented to it for consideration, this court held that the title to the timber, when cut, vested in the persons given permission to enter the lands of another and cut and remove timber therefrom. If such person, after the expiration of the license, entered upon the lands and took the timber which he had cut, he took what he owned, and'was not liable in trover for the value of the logs which he removed. The remedy of the landowner, it was suggested, was in trespass, or in an action for use and occupation, or perhaps both. Alexander v. Bauer, 94 Minn. 174, 102 N. W. 387. It is unnecessary, however, to enlarge upon this view of the law, or on State v. Shevlin-Carpenter Co., 62 Minn. 99, 64 N. W. 81, which arose before the passage of chapter 163, p. 349, Laws 1895, and was determined on common-law rules. The controversy presented on this appeal is not what this court thinks the common-law rule may be, but simply what the legislature has determined that the law is on this point. The only question involved in this case is the determination of the liability of defendant under the timber act of 1895 (chapter 163, p. 349, Laws 1895). The constitutionality of that act has been sustained. State v. Shevlin-Carpenter Co., 99 Minn. 158, 108 N. W. 935. The especially significant provisions of that act are as follows: Section 7 provides that “if any'person * * * without a valid .and existing permit therefor, cuts * * * any timber of whatsoever description on state lands, or removes or carries away * * * any such timber, * * * he shall be liable to the state in treble damages. * * * Whoever cuts or removes * * * any timber or other property from state lands, contrary to the provisions of this act, shall be guilty of a felony.” [4] Section 23 provides that “ * * * the land commissioner shall issue to such purchaser a permit in such form as may be prescribed by the attorney general, by the terms of which said purchaser shall be authorized and empowered to enter upon and cut and remove from the land therein described the timber sold, according to the provisions-of this act,” and that “said permit shall also provide that the purchaser shall pay the state the permit price for all the timber which he fails, to cut and remove.” Section 24 provides that: “No permit shall be issued to cover more than two logging seasons. The timber shall be cut and removed within the time prescribed by such permit.” See State v. Shevlin-Carpenter Co., 102 Minn. 470, 113 N. W. 635. Section 26 provides: “In case the purchaser at any such sale, or his assignee, if any, fails or neglects to cut and remove the timber, or any part thereof, purchased by him, prior to the time when the permit, issued on the sale thereof, expires, he shall, nevertheless, pay the state the permit price for all the timber which he fails to cut and remove, but under no circumstances shall he cut or remove said timber, or any part thereof, after, the expiration of such permit. The sureties on the bonds given at the time of the purchase or the assignment, if any, of the permit issued on such sale, shall be liable therefor.” Section 37 provides in part: “Provided, however, that neither the-making of said draft, the payment thereof, the bringing suit thereon, the seizure of such'timber or the sale thereof, as herein provided,, shall in any manner be construed to release or discharge any surety upon any bond given pursuant to the terms of this act, anything herein contained to the contrary notwithstanding, nor to in any manner bar or estop the state from afterwards claiming that the timber for which said draft was given was cut, or taken, or removed, contrary to the law, and recovering for the same, in any civil action, or prosecuting the offender criminally under the provisions of this act or both.”' The permit prepared in accordance with directions of the attorney general conforms to the requirements of these sections. It provides-that “the purchasers shall pay the state permit price for all timber remaining standing or remaining cut and not removed from the premises which they have agreed to cut, haul, and remove, after the expiration of this permit.” (All italics are ours.) These provisions, leave no doubt that the legislature deliberately changed the common5 law rules applicable to timber cut on, but not removed from, state lands. The effect of the provisions of the act on this point is that the person to whom a permit is issued has a right to cut and to remove timber during the life of the permit, and that after the expiration of the permit the timber not removed is the property of the state. The defendant, therefore, had no right to remove this property, and was guilty of conversion in so doing. Defendant, however, argues that other portions of the law sustain its position. As a result of an examination of the statute as a whole,_ we have found some confirmation of the view previously expressed, and no necessary inconsistency with it. The provision most favorable to defendant’s contention is probably section 36, concerning collection for timber, cut. That requires that payment on a sight- draft on the purchaser shall be made to the state treasurer, who shall give duplicate receipts therefor, upon filing one of which he shall execute under his hand and seal a bill of sale of the timber so paid for by the purchaser or his assignee. It may be presumed in this case that the officials did their duty and that such a bill of sale had been executed. This provision must, however, be construed with reference to other provisions to which reference has been made. It did not operate to repeal those provisions or to nullify the rights which they conferred upon the state. In other words, the legal effect of a bill of sale must be limited to cases in which the purchase did not violate the law. The defendant further assumes it was not the purpose of the legislature to construct a trap for the unwary, viz., by allowing the state to accept payment of timber cut and to keep what it had sold, and, if the vendee removed it, then, by making him liable for its conversion, to compel him to pay the consideration twice for nothing. We agree with the defendant as to the appearance of injustice in such a construction. It is not, however, in the power of courts to avoid legislation because it may seem drastic or inexpedient. It is not their function to supervise what the legislature sees fit to do, or to enforce only such session laws as appear to be wise. It is not within their power to alter them because of hardship involved in their application to particular circumstances. When the legislature has the constitutional power to enact a given law, and it properly frames an act clearly [6] expressing a legal intent, it is the duty of the courts to construe that act so as to effectuate it. The argument based on the inconvenience of the result is then out of place. The act in question was drawn with care and deliberation. It expresses the legislative intention in exact and apt words. There can be no reasonable doubt as to what its requirement that the holder of a permit “cut and remove” the logs means. If the timber was cut and allowed to remain on state lands, it was not “removed,” within the obvious meaning of the term. It is undoubtedly true that there is no difficulty in reading “or” for “and,” or “and” for “or,” when the sense requires it. The sense of no single provision, nor of all the provisions, construed as a whole, either requires or justifies such a change in this instance. On the contrary, so to do would pervert the unmistakable intent. A consideration of the occurrence of these two words, for example, in section 26 and in the part of section 37 previously quoted demonstrates that they were used ex industria, and not casually. Nor does the familiar rule of construing so as to avoid forfeiture change the conclusion otherwise inevitable. In no proper sense is a forfeiture here involved. The contract with the state expressly provided that, unless the timber was removed within the prescribed time, the title to the timber should remain in the state. The action is, moreover, at law, and not in equity. The principle that equity will not enforce a forfeiture is wholly irrelevant. Nor is this construction so unreasonable nor so unjust as has been argued. The occasion for this enactment is supplied by the history of the abuse of timber permits in this state. State v. Shevlin-Carpenter Co., 99 Minn. 158, 163, 108 N. W. 935. The objects sought to be attained by it seem to have been the saving of state timber from waste and destruction, the conversion of the proceeds as soon as possible to school funds, and the complete clearing of the land for agricultural or other use. Moreover the law allows a “year of grace.” Section 24, with respect to the permit, provides that “no permit shall be issued to cover more than two logging seasons.” The remedy provided by statute, but of which defendant neglected to avail itself, was to have secured from the timber board the extension of the permit under this section. This is not, however, an essential consideration. [7] The further contention of defendant that state officials expressly or impliedly acquiesced in and consented to their procedure does not, on its face, state a legal justification. Such failure to object neither estopped the state nor was equivalent to a permit. It constituted no> bar to this action. The state officers could not thus do indirectly what they were forbidden to do directly. Official discretion was limited to the granting of an additional and formal permit for one year. No official conduct extending it for a longer period or in a different manner can properly be given the effect of prevénting the successful assertion of the rights of the state. In this case the state owned certain lands. The legislature had the power to prescribe the terms upon which it would permit timber thereon to be cut and removed. The law in question clearly and certainly set forth these terms. The permit was executed in accordance with them. It is our duty to enforce them. This court is vested with no discretion in so doing. The defendant acquired only such rights as the permit conferred and no others. The conclusion follows that the state is entitled to maintain this action of conversion. That action was not barred by the statute of limitations. It was not at law an action based “upon a statute for a penalty or forfeiture,” which must be commenced within three years (section 4077, R. R. 1905), nor an action “for a penalty or forfeiture to the state,” which must be commenced within two years (section 4078). This follows from the previous conclusion as to the legal effect of the rights conferred by the permit, and from the form of the present action. This is an action in trover. State v. Buckman, 95 Minn. 272, 104 N. W. 240, involved an action for a penalty. It is a sufficient answer to defendant’s argument in this connection that the same state of facts may give rise to two causes of action, one of which, at the time of suit, may be barred by the statute of limitations, and the other not. This is too elementary to justify discussion. Reversed.