Bell v. Kerr

Calhoon, J., delivered the opinion of the court. We do not decide whether sec. 8, ch. 43, p. 44, laws 1900, is violative of the constitution of the United States, as is so ably argued by counsel. It is not necessary that we should decide this question, and courts do not deliver opinions on the constitutionality of statutes unless it be essential to the determination of the case in hand. Section 8, referred to, is in a statute creating privilege taxes, and is this: “On each land timber mill company, or corporation, or individual in each county, who buys timber without buying the land, for 500 acres, or less, $25. Same: For 1,000 acres, or more than 500 acres, $50, and so on at the rate of $25 on each 500 acres in each county so purchased ; provided, that this does not apply to saw-mill operators who do not ship timber or lumber out of this state.” This statute is penal, and must have strict construction. We think a proper interpretation confines its scope to such companies, corporations, or individuals as operate mills for transforming timber for transportation, or saw mills. Otherwise it would include [180] mere raftsmen, who buy trees and float them off. We are not able to find the words “timber mill” in our language. This record shows that R,. T. McPherson, who is the beneficiary in a trust deed executed by J. B. Kerr, the judgment debtor of appellant, Bell, to J. B. Dabney, trustee, who is appellee here, had bought standing timber in Warren county in the year 1900. McPherson had no ownership of, or any interest in, any miii in that county; but he contracted with Kerr, who did own and operate a saw mill there, to saw timber for him, and deliver it to him at a point indicated. After part had been sawed, McPherson sold to Kerr what was left, together with a logging outfit, took his note for the agreed price, and had it secured by the trust deed mentioned, on November 1, 1900, which instrument covered the property in controversy. This property was levied on by Kerr’s judgment creditor, Bell, and the trustee. Dabney, interposed his claim to it, and his right to it was vindicated by the circuit court, and Bell appeals. The effort to defeat this claim is solely on the contention that the trust conveyance was invalid because McPherson had not paid the privilege tax provided for in sec. 8, above mentioned. To prove shipment of the lumber out of the state, the only evidence is that McPherson sold to parties in Missouri, but for delivery in Warren county, free on board, on a barge at a landing, and on cars at a railroad station. It is hardly material to inquire whether this sale was a shipment “out of the state” by McPherson, under sec. 8 of the act, because it is not shown that any of this was done with the Warren county lumber before the execution of the trust instrument, and certainly there was no obligation to pay the tax until business -began. Affirmed.