1

Constitution is a thing separate and apart from the sale of the timber. Whether the timber be sold for a cash consideration or for deferred annual payments can in no wise affect the right of the board of supervisors to burden the land with the timber. The period of time referred to in the Dantzler Lumber Co. Case, supra, can only be the maximum period of 25 years as provided in the Constitution. Within this limit, in the exercise of good faith the board is the sole judge of what is a reasonable time. This inhibition merely provides for a time beyond which the board cannot burden an unleased sixteenth section.

[2] In chapter 40, Laws of 1898, which is now section 7510, Hemingway's Code, it is provided that these lands not within aʼmunicAipality shall not be leased for a period ex

1898, now section 7512; Hemingway's Code, it is provided that the board of supervisors may sell the timber on these lands, and no limit of time is placed upon them within which they may allow the purchaser to cut and remove. The burdening of the land with the timber is not similar to any kind of lease the board may make of the land. For this reason we are of the opinion that the 15-year period mentioned in section 7510 of Hemingway's Code is not the maximum limit within which the land may be burdened because of the sale of the timber, but that the only limit which is applicable is the maximum limit of 25 years mentioned in the Constitution.

merchantable timber and wood may be sold., any of the various ways enumerated in the It then provides what is to be done with the proceeds of the sale. This case further decides that the board of supervisors have the right to permit the purchaser to enter upon the land and remove the timber 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." careful consideration of this case, especially ceeding 15 years. In chapter 41, Laws of that portion above quoted, makes it perfectly plain that the support of the timber is an interest in the land, and that in conveying this interest in the land the provisions of section 211 become operative. The sale of the timber is a separate and distinct thing from the leasing of the lands. Section 211 of the Constitution has nothing whatever to do with the terms of the sale of the timber; that is to say, whether the sale be for a gross sum or be for annual payments, because this section does not in any way deal with the sale of the timber. Consequently, the fact that the timber was sold for a gross sum relates in no way to the constitutional inhibition of the leasing or burdening of these lands. The burdening of the land for the growth of the timber is in no sense contemplated in any one of the particular modes specified for the leasing of these lands. Under this section of the Constitution, the long-it, considerably over one-half, was cut beest period of time for which the Legislature may provide for the leasing of the land is a period of 25 years. Section 1, c. 40, Laws of 1898, section 4700, Code of 1906, section 7510, Hemingway's Code, provides that lands not in a municipality may be leased for a term not exceeding 15 years, on the condition of the payment annually of the rent reserved. In the Dantzler Lumber Co. Case, [3] With reference to the order of the supra, and in the Dunnam Case (Miss.) 67 board of supervisors and the grant from the South. 461. and Blodgett Case, 110 Miss. president relating to the additional year, 768, 70 South. 710, the purchaser of the tim-looking through the form to the substance ber was also the lessee of the land. In none of these cases was the purchaser given a longer period of time to remove the timber than the duration of his lease. The effect of these decisions is that the time of the lease was a reasonable time within which to remove the timber. This lease was already burdened with the support of this timber. The lessee leased the land subject to this burden. The question of burdening an unleased school section was not therein before

From the testimony it is not clear how much of the timber was cut before the expiration of the 15-year period. It seems clear, however, from it, that a great deal of

fore this time expired. All of the timber was cut before the expiration of the 1 year granted under the second instrument. For the reasons above set forth, we are of the opinion that there was a valid sale of the timber, and that the board of supervisors had the right to decide that 15 years was a reasonable time to grant for its removal.

we are satisfied that it was the purpose and intention of both the grantor and grantee to convey the grantee all of the timber which he failed to cut during the life of his first contract and granting him all rights and privileges held by him under the first deed. with a period of one year within which to cut and remove the timber. This grant was made in good faith for a valuable and adequate consideration, and is valid and binding under section 7512, Hemingway's Code.

(95 So.)

murrer of the appellant to the first count of use of the land to the buyer of the timber is the declaration should have been sustained. fixed at ten years. Of course, the LegislaThe demurrer to this count is hereby sus-ture may restrict this term by law to such tained. The cause is reversed and remanded less period as in its wisdom may be right upon the second count, which seeks recovery for timber cut not covered by these two conveyances held by the appellant.

Reversed and remanded.

ETHRIDGE, J. I am compelled to dissent from the conclusion of the majority opinion that the board of supervisors of the county acting under section 4702, Code of 1906, chapter 41, Laws of 1898, in selling the timber upon sixteenth section lands, can grant a longer period to the buyer of such timber with the right to burden the land for its support and growth than ten years. The pertinent part of section 211 of the Constitution of Mississippi of 1890 dealing with this subject is as follows:

and proper, but it cannot authorize a longer period of time without exacting an annual payment for the use of the land beyond the 10-year period. The Constitution by express provision authorizes the Legislature to provide for a lease of said land for a term not exceeding 25 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. By the plain words of the Constitution, if the time of use exceeds 10 years, there must be a ground rental payable annually or there must be improvements put upon the land for a short term as a consideration for the use of the land. In the case before us there was nei"The sixteenth section lands reserved for ther the payment of the ground rental anthe support of township schools shall not be nually, nor was there any provision for imsold, nor shall they be leased for a longer proving the land. In fact, it was not imterm than ten years for a gross sum; but the proved in any manner. Therefore neceslegislature may provide for the lease of any of sarily the 10-year limitation should prevail. said lands for a term not exceeding twenty- Prohibitions in the Constitution are mandafive years for a ground rental, payable annual-tory and strike down any attempted legislaly; and, in case of uncleared lands, may lease tion in conflict with them. The provisions of them for such short term as may be deemed the Constitution are generally mandatory proper in consideration of the improvement thereof, with right thereafter to lease for a and certainly prohibitions are both mandaterm or to hold on payment of ground rent." tory and self-executing.

In the case of Dantzler Lumber Co. v. State, 97 Miss. 355, at page 383, 53 South. 1, at page 3, in dealing with this question involving in that case the right to sell the timber growing upon the land, the court said:

"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." (Emphasis mine.)

|

In 6 R. C. L. p. 55, § 50, it is stated:

"In the interpretation of Constitutions questions frequently arise as to whether particular sections are mandatory or directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the tendency of the legislature to disregard provisions which are not said to be mandatory. Accordingly it is the general rule to regard constitutional provisions as mandatory, and not to leave it to the will of a legislature to obey or disregard them. This presumption as to mandatory quality is usually followed unless it is unmistakably manifest that the provisions were intended to be directory merely."

In 6 R. C. L. p. 62, § 58, under heading "Prohibitions," it is stated:

"Prohibitory provisions in a constitution are usually self-executing to the extent that anything done in violation of them is void. Prohibitions against municipal corporations making donations to private corporations and similar limitations upon the indebtedness of municipalities have been held to be self-executing. In similar manner it has been held that a constituhibited a county board from paying money to schools controlled by a church. The same interpretation has been given to prohibitions against foreign corporations doing business within a state without having an authorized agent; to those denying the right of the legislature to authorize corporations to form combinations so as to lessen competition; to provisions directing that no county officer shall recrive to his own use any fees or emoluments other than the annual salary provided by law;

By the express provisions of the Constitutional provision was self-executing which protion above quoted it is provided "nor shall they be leased for a longer term than ten years for a gross sum." In the present case the sum is gross and not payable in annual installments. This gross sum pays for the timber and for the use of the land while it is standing upon the land and comes clearly within tuis provision of the Constitution. The maximum length of time which it is possible for the Legislature to authorize the

and to provisions prohibiting marriages be- when the Constitution enumerated the powtween white and colored persons. It has even ers granted or denied, it must be held to have been held that a self-executing mandate is con- named all of the powers so dealt with and as tained in a constitutional provision that knowl-being with the necessary limitations the sole edge by any employee injured of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to, an action for injury caused thereby."

(95 So.)

with the exclusive right of drilling and operating for oil and gas for a certain number of years, the instrument is more than a mere license. It is a lease of the land for the purpose and period limited therein."

Other definitions and cases applicable are cited therein.

The majority opinion recognizes that section 211 of the Constitution is applicable as a limitation upon the right of the Legislature to burden the land with the growth and support of the timber, but seek by a construction to place it within the latter provision of the Constitution authorizing a lease for as long as 25 years. But inasmuch as the Legislature has only authorized a lease for 15 years, making that time applicable in the present case, this seems to me to be plainly in the face of the unmistakable language of the Constitution. The consideration recited in the deed is a gross sum. No annual payment whatever in any shape or any form is provided, nor does the contract give any separate consideration for the use of the land during the period. It is so manifestly granting the time as a lease for a gross consideration, or else it is a voluntary donation of the land without consideration, which the board clearly had no power to grant. The sum is gross. There is no annual payment and no ground rental. The Legislature had no power to extend the time beyond 10 years except for a ground rental payable annually.

one year in the case of pasturage. The law of 1898 did not undertake to place any period of time in which the buyer of timber could have to remove it. The most favorable view to the appellant is that the board of supervisors had the power implied from the right to sell to grant such reasonable time not in excess of the constitutional period as the peculiar facts and situation confronting them warranted.

The second alleged contract referred to in the majority opinion undertaking to extend the period for removal beyond the original period was clearly unwarranted by law and did not in fact purport to sell any right to the timber whatever. The contract expressly recited that the Nicholas Manufacturing Company is now the owner of the merchantable timber referred to the time at which the contract was made, and proceeded to grant the company an extension of one year of this right to cut and remove its said timber and pine wood from the said land, and 'have its other rights with reference to said timber and wood, referring, of course, to its right under its original contract to enter the land, construct roads, tramways, and railroads, and to do such other things as were necessary under the original contract. It did not intend, nor did the other contracting party expect, any new right to the timber itself. Having granted a longer time in the original contract than they were warranted in grantbeing, they have exhausted their power under the law as to the time. How this order can be construed as a new grant is beyond my comprehension. Both parties were under the impression, according to the contract, that the Nicholas Manufacturing Company was the owner of the timber, and certainly neither contemplated a new sale of the timber and wood.

The cases relied on by the appellants ing companion cases of the Dantzler Lumber Co. Case, 97 Miss. 355, 53 South. 1, and some subsequent thereto, have no bearing upon the question here, as is recognized in the majority opinion, because in all of those cases the purchaser had already acquired a leasehold estate for a longer period in which he was allowed in the contracts to remove the timber, and as a part of the consideration in the contract in each of the cases there was a surrender of a certain number of years, varying somewhat in the different cases, which was yielded back to the county at the end of the period. Also those cases were argued upon the theory that the act of the Legislature was unconstitutional and did not involve the question here presented for decision. The section here involved had never been leased at all. A purchaser of the timber got only such rights as his contract made with the board could lawfully give him and, as I see it, that was only available for a tenyear period. The board of supervisors could have named a less period than 10 years, but they could not exceed the ten years. Ordinarily much less than 10 years would be reasonable, and that is indicated in section 4702, Code of 1906, and its subsequent amendments, because there the power to lease for turpentine and pasturage purposes was limited to three years in the case of turpentine, and for

It is true that the value of the timber between the time of the original contract and the date of the suit had greatly increased, and much is said about the hardship, especially in the amici curiæ brief, that would follow a holding that 10 years' limitation should be applied that would result to people who bought on the faith of the law as it was then understood. We, of course, cannot know what understanding people had of the law; but we must presume that each litigant knew the law. All legal proceedings must proceed upon this idea unless there are fiduciary relations, or some other consideration warranting in particular cases special relief. It seems to me that the law is so plain as to what a lease is that certainly a prudent buyer would have had some test made as to the legality of his contract under section 211 of the Constitution and the common law of this state before investing very heavily. However that may be, the court cannot administer the law upon any basis

SMITH, C. J. This is an appeal from a judgment of the court below approving a paving assessment by the mayor and board of commissioners of the city of Hattiesburg on property owned by the appellant.

The mayor and board of commissioners of the city of Hattiesburg, by an ordinance adopted in October, 1920, have paved a street on which certain property of the appellant abuts and have assessed the entire cost thereof against the abutting property owners, except the cost of paving street intersections, from which assessment the appellant appealed to the court below, and from an order there approving the assessment has appealed to this court.

other than to declare the law to be what it is. If the parties mistake the law and in consequence suffer, the court cannot shrink from its duty on that account. The hardship would result any way, and it would depend entirely upon whose ox was gored, because where one sells and another buys, and prices subsequently soar, some one is bound to lose something. We can only declare rights as we find them upon the record and the law. Our rights and our powers and duties to adjudicate controversies are granted by law and measured by law. We can know no distinction. We must administer justice according to law, without fear, favor, or affection, to the rich and poor alike, to the individual and corporation alike, and we should not shrink from declaring that to be the law which is the law, even though hardship may result and people may suffer thereby. The policy of a state to keep these sixteenth sections for the use of the schools and its pro-owners for any portion thereof. Since the ceeds and rentals available for that use is clearly and unmistakably indicated in section 211 of the Constitution, and whether that policy be wise or otherwise is not for us to consider. We are bound to adhere to the law as we find it.

FIRM LUMBER CO. v. CITY OF HATTIES-
BURG. (No. 23031.)

(Supreme Court of Mississippi, Division A. Feb. 26, 1923.)

(Syllabus by the Court.) Municipal corporations 408(2)—Rule as to assessment of property where paving commenced prior to statute providing for assessment of abutting owners for cost thereof stated.

A municipality which commenced to pave its streets prior to the enactment of section 4, c. 260, Laws of 1912 (Hemingway's Code, § 5944), and to pay therefor with the proceeds of its bonds, cannot, as long as that statute remains in force, assess the cost of street paving thereafter done against the abutting property owners.

Appeal from Circuit Court, Forrest County; R. S. Hall, Judge.

Proceedings by the Mayor and Board of Commissioners of the City of Hattiesburg, assessing the cost of street paving against the abutting property owners.

From an order approving the assessment, the Firm Lumber Company appeals. Reversed, and judgment for appellant.

Prior to the enactment of chapter 260, Laws of 1912, the city of Hattiesburg had paved a number of its streets and had paid bonds issued and sold for that purpose; no therefor with the proceeds of the city's local assessment being made on the property

enactment of that statute the city has paved several of its streets; the cost thereof, except street intersections, being assessed against the abutting property owners.

The contention of the appellant here is that under section 4, c. 260, Laws of 1912, the city must continue to pay for paving its streets in the same manner that it was so doing prior to the enactment of that statute, and that consequently it is without power to assess the cost of the paving here in question against the appellant, which contention must prevail, as it was so ruled in City of Jackson v. Doxey, 128 Miss. 618, 91 South. 348.

Reversed, and judgment here for appellant.

McINNIS v. MANNING. (No. 23072.) (Supreme Court of Mississippi, Division B. Feb. 19, 1923.)

(Syllabus by the Court.) Contracts 245 (2)-Evidence 441(1)— Antecedent agreements merged in writing, which cannot be varied, contradicted, or explained by parol.

Where parties to a contract reduce their agreements to writing which is plain and unambiguous in its terms, parol evidence of antecedent agreements, negotiations, and understandings are not admissible to vary, contradict, or explain their meaning. All antecedent agreements are merged in the written contract, and the contract is the sole exponent of the agreement.

Appeal from Chancery Court, Simpson

Stevens & Heidelberg, of Hattiesburg, for County; D. M. Russell, Chancellor. appellant.

Suit by A. K. McInnis against G. L. ManD. E. & C. W. Sullivan, of Hattiesburg, for ning. From a judgment for plaintiff, deappellee. fendant appeals. Reversed and remanded.