Dantzler Lumber Co. v. State

53 So. 1 | Miss. | 1910

Lead Opinion

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.

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Concurrence Opinion

Mayes, O. J.,

delivered the following concurring opinion.

The principal contention in this case arises out of the alleged unconstitutionality of chapter 41 of the Acts of 1898 and chapter 124 of the Acts of 1904. If the above acts violate section 211 of the Constitution, as is claimed by appellee, then it follows that section 4702 of the Code of 1906, and chapter 220 of the Acts of 1910 must also be declared unconstitutional, as all these acts are practically the same. Before discussing these several acts, it may be well to set out the provisions of section 211 of the Constitution, since that section is the section which it is claimed is violated by the acts in question. It is there provided that: “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, * * * 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 ease of uncleared lands, may lease them for such short terms as may be deemed proper in consideration of the improvement thereof,” etc.

Before proceeding to discuss the acts in question, there are several prominent and undoubted purposes sought to be accomplished by this section of the Constitution to which I desire to call especial attention. While it is plain that it is the purpose of the Constitution to forever retain the title to these lands in tire trustees, for the use and benefit of the schools, it is also plain that the section contemplated that tírese lands should be made revenue-bearing, so as to be a benefit to the schools. If the lands were to remain unimproved and unused, it would bar and defeat the very purpose of their donation. After providing that the lands should not be sold, this same section outlines a scheme to be pursued for the improvement of these lands and their utilization; the very scheme outlined by it necessitating the removal of tire timber therefrom, in order to accomplish its purpose and to obtain a revenue therefrom. The section provides for the leasing of both the cleared and the uncleared lands. In the case of Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 42 South. 290, 873, we held that the lessees of these lands had the right to clear the lands and remove timber therefrom, and the Constitution contemplates and directs that this very thing be done.

I now come to a discussion of the acts in question as applied to this section, keeping in mind always that the effectuation of the scheme directed by the Constitution for the utilization of these lands compels the removal of the timber. The first act was passed in 1898, and is chapter 41, p. 62. That act empowered the board of supervisors “to sell the merchantable pine timber and wood on such lands, or to lease said lands for turpentine purposes for a term not exceeding, one year.” The next act was passed in 1904, and is practically the same as the act of 1898, except a little broader. This last act empowers the board of supervisors “to sell the merchantable timber of any and all varieties, and wood on such land, or to lease for a'term Of not exceeding three year's said lands for turpentine purposes, or pasture purposes for a term not exceeding one year.” The next act was placed in the Code of 1906, becoming section 4702, and is identical in its language with the act of 1904. The next act was passed by the legislature of 1910, being chapter 220, p. 220, and is practically the same as the former acts, but a little broader, in that this last act also authorizes the sale of gravel and acid iron earth.

It may not be amiss to note the fact that the distinguished commission, consisting of former Chief Justice Whitfield, Thos. C. Catchings, and W. H. Hardy, appointed under chapter 100, Acts 1904, “to revise, arrange, and classify all the statute laws of this state into one Code,” adopted and approved the acts under discussion in the very .language that they are now found in the same. This is shown -by .section 4150a of their report to legislature, called the “Dummy Code,” which contains the laws recommended by them to the legislature of 1906 for passage, and, as indicated above, this section was passed. In the concurring opinion of Chief Justice Whitfield in the case of Moss Point Lumber Co. v. Harrison County, 89 Miss. 448, 540, 42 South. 873, the constitutionality of these acts is again recognized by him. It is there .stated by him that, “if sales of timber are best in some cases, let tbe legislature-authorize tbe sale, as it did by tbe act of 1904.” Of course, I use- the above as illustrative of tbe view that tbe legislature and the court bad of tbe constitutionality of these laws from the-time they were passed until tbe institution of this suit.

Our court has always held that all doubts or uncertainties arising either from the language of the Constitution or the act must be resolved in favor of the validity of the act, and the court will only assume to declare it void in case of a clear conflict with the Constitution. the duty of the .court is to so construe the acts of the legislature as to uphold their constitutionality and validity if it can be reasonably done, and if their construction is doubtful the doubt will be resolved in favor of the law. State v. Henry, 87 Miss. 125, 40 South. 152, 5 L. R. A. (N. S.) 340; Beck v. Allen, 58 Miss. 143; Burnham v. Sumner, 50 Miss. 517; Virden v. Bowers, 55 Miss. 1; People v. McBride, 234 Ill. 146, 84 N. E. 865, 123 Am. St. Rep. 82; Hart v. State, 87 Miss. 177, 39 South. 523, 112 Am. St. Rep. 437. It is my judgment that these acts of the legislature but answer the command made on it by section 211 of the Constitution, and provide for the utilization of that which constitutes the possible-revenue of the land. the timber must be destroyed in order to carry out the constitutional scheme and instead of leaving it standing on the land, to be utilized or destroyed by the lessees, the legislature but planned a method to conserve all values in the land for the use of the schools.

If the contention of appellee in this case be correct, let us see what the result would be. Take, first, a tract of land that could not be leased, because not susceptible of cultivation, but still well' timbered. If the legislature bad no power to authorize the sale of the timber, land so situated would be of no use to the schools whatever, and the timber must be left to stand, subject to the ravages of the storm, the forest fires, and the depredator. It •could never be used, and its value must be lost, though the title to the soil is to remain in the trustees forever, and the removal of one growth of timber would be supplied in time by another, thus creating successive crops and continued revenue. Can it be supposed that so intelligent a body of men as composed our last convention involved themselves in such folly ? The whole section of the Constitution shows that it contemplates the use of the lands for the purpose of revenue, and does not contemplate stifling and defeating the very object of the donation of the lands for school purposes, which was to obtain revenue therefrom.

Again, let us take another illustration. Suppose a fertile tract of land, well timbered and desirable for agricultural purposes, the rental value of which, when put in cultivation, would produce a good annual revenue. The board of supervisors desire to- utilize this land and have it put in cultivation. If they cannot sell the timber, thus getting its value, they must let the land stand in its natural state, unimproved, or they must lose the value of the timber by leasing the land and permitting the timber to be destroyed by the lessee in clearing the land. The contention of appellee resolves itself into this simple proposition, and that is: The trustees must submit to the destruction of the trees, the natural yield of the soil, if the school lands are to do the schools any good, or they must refuse to lease at all, and leave the lands useless for the purpose for which they are intended. To uphold the construction as contended for by appellee involves a conviction of the constitutional convention of folly in their dealing with these lands.

Soon after the adoption of the Constitution the legislature placed this construction on same. In fact, four different and successive legislative assemblies have placed the same construction on the Constitution, and whatever force may be gathered from legislative construction is entitled to great weight .here. It will not do to close one’s eyes to the whole of section 211, and its objects, and to say, because the section in question says that the “sixteenth section lands” shall not be sold, and because this court has held that in some instances “land” includes trees, it therefore follows that the term here is also meant to include trees. In arriving at the sense in which the word “land” is used in section 211, the whole section and its purposes are to be. taken into consideration. It is quite true that this court has held that the term “lands” includes trees. See case of Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; McKenzie v. Shows, 70 Miss. 388, 12 South. 336, 35 Am. St. Rep. 654; Nelson v. Lawson, 71 Miss. 819, 15 South. 798; Walton v. Lowrey, 74 Miss. 484, 21 South. 243; Fox v. Lumber Co., 80 Miss. 1, 31 South. 583; Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 South. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540. Ordinarily this is true, and in the cases in which this has been held there can be no doubt as to the correctness of the court’s holding. An inspection of the various cases cited above, however, shows that the question usually arose in a controversy as to the application of the statute of frauds in making a conveyance of same, or upon a contest growing out of a homestead right, or upon a question of taxation, where the trees were owned by one person and the soil by another.

In all of the above caséis it was, and it should have been, the policy of the law to give the broadest significance to the use of the term “land.” There would be no reason to depart from this construction, even in applying it to section 211 of the Constitution, if it was not apparent that it was the purpose of the section to use it in its more restricted sense. The term “land” has no such significance in the law — no such fixed and unvarying meaning as that it cannot be changed by constitutional provision or legislative enactment. I am satisfied that the Constitution dealt with the title to the soil only. It prohibited any enactment of any law by the legislature that had for its purpose the divestiture of title to these lands, and this alone constituted the only limitation that it was ever designed to place on the authority of the legislature to obtain revenue from these lands. Of course, the time in which leases may run is also limited; but we are not considering that feature of the Constitution.

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Dissenting Opinion

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 belongs 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.

This 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.

I 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 that 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 the 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.