State Ex Rel. Forks Shingle Co. v. Martin , 196 Wash. 494 ( 1938 )

MILLARD and HOLCOMB, JJ., dissent. This is an original application for a writ of mandate requiring the respondent to receive and file in his office the relator's application for the appraisal and sale of the timber on a forty-acre tract of school land, being the southwest quarter of the southwest quarter of section 16, township 27 north, range 12 west, in Jefferson county.

The relator alleges in its petition that it is a corporation organized under the laws of the state of Washington, and eligible to make application for the purchase of granted lands, or the timber thereon, under the provisions of existing laws; that the described tract is part of the lands granted to the state by the United States for the support of the common schools under the provisions of § 10 of the enabling act, providing for the admission of the state into the Union; that the land is chiefly valuable for its timber, the stand of which is in excess of one million feet per quarter section; and that it is for the best interests of the state to sell the timber apart from the land. It is alleged that the respondent assigns as the ground for his refusal to accept and file the relator's application for the appraisal and sale of the timber the passage by the legislature of chapter 175 of the 1933 Session Laws, p. 682, Rem. Rev. Stat. (Sup.), § 7879-1 [P.C. § 6504-31] et seq.

The respondent has interposed a demurrer to the petition upon the ground that it does not state facts entitling the relator to the relief prayed for.

Chapter 175, Laws of 1933, which the respondent invokes to sustain his refusal to accept the relator's application, and which the relator contends is unconstitutional, is a new departure in the manner of administering the state-owned forests. Section 1, p. 682, of the act follows:

"The area of state lands embraced within townships 24, 25, 26, 27 and 28 north, ranges, 10, 11, 12, 13, and 14 W.W.M., except isolated tracts not contiguous to other tracts therein, are hereby set aside and established as ``state sustained yield forest No. 1.' All of said lands are hereby reserved from sale and the timber thereon shall be sold under the ``sustained yield plan,' which, for the purposes of this act, is defined to mean a plan by which the yield or cut of timber is managed in such way as to permit so far as economically possible, the removal of approximately equal volume of timber annually or periodically equal to the increment. The timber of said forest shall be administered and sold in the same manner as the timber on common school lands of the state, except as otherwise provided herein." Rem. Rev. Stat. (Sup.), § 7879-1 [P.C. § 6504-31].

Section 2, p. 682, Rem. Rev. Stat. (Sup.), § 7879-2 [P.C. § 6504-32], provides for the making of a topographical survey of the forest designated in § 1 and the dividing of it into logging circles or units, with the purpose of management under the sustained yield plan, so that, as the timber on each logging circle or unit is sold and removed, the new growth of forests on the cut-over units will insure a continuous reforestation and permanent supply of timber in the forest area.

Section 3, p. 683, Rem. Rev. Stat. (Sup.), § 7879-3 [P.C. § 6504-33], provides that the timber shall be sold only by logging circles or units, and that, before the timber of any unit is offered for sale, a cruise shall be made, and the amount of timber estimated. Sales are to be made only on a stumpage basis, and after the value has been determined. No sale shall be made for less than the value so determined. Bids at the sale shall be sealed, and the award made to the highest bidder having financial ability to conduct the necessary logging operations and make the payments required. Any and all bids may be rejected. No sale shall be made except pursuant to a call for bids upon such notice as is required by law, and by notice published once a week for eight consecutive weeks in at least two newspapers of general circulation in the state. The call for bids shall state the time, place, and manner of sale; the circle or unit upon which the timber is located; and the estimated amount of stumpage, and such other information as may be desirable.

Section 4, p. 683, Rem. Rev. Stat. (Sup.), § 7879-4 [P.C. § 6504-34], requires a written contract with the successful bidder, which shall fix the time when logging operations are to commence and be concluded and shall provide for monthly payments for the timber removed and the designation of the price per thousand feet to be paid for each species of timber; and for the adjustment of stumpage prices at intervals, though not exceeding three years. The contract is also to provide for supervision of logging operations, the methods of scaling and reporting, and such other provisions as may be deemed advisable.

Section 5, p. 684, Rem. Rev. Stat. (Sup.), § 7879-5 [P.C. § 6504-35], requires a cash deposit by the purchaser equal to ten per cent of the estimated value of the timber on the circle or unit purchased, computed at the stumpage bid.

Section 6, p. 684, Rem. Rev. Stat. (Sup.), § 7879-6 [P.C. § 6504-36], provides that the expense of administering the forest and selling the timber thereon, including the expense of examination and cruising, advertising, and supervision, shall be paid out of the gross proceeds of the timber sales.

Contending that the act is invalid, as being obnoxious upon several enumerated grounds to the provisions of the state constitution governing the management and sale of the state's granted school lands, the relator asserts a right to have its application for purchase accepted by the respondent under the provisions of chapter A, Title 51, Rem. Rev. Stat., §§ 7797-1 to 7797-201 [P.C. §§ 6334-11 to 6334-211], inclusive (chapter 255, Laws of 1927, p. 468).

As the respondent justifies his refusal to accept the application by reference to chapter 175, Laws of 1933, p. 682, it may be assumed that, but for the passage of that act, the application would be accepted and given consideration in due course, in accordance with the practice of the land department.

The relator urges five constitutional objections to the validity of the act. It is urged first that the provision contained in § 2 of the act, for dividing the area into logging circles or units, violates § 4 of Art. XVI of the constitution, which provides that no more than 160 acres of any granted lands of the state shall be offered for sale in one parcel. It is contended that, while the act does not specifically prescribe the extent of the units, they must necessarily be of greater extent than 160 acres; but that, in any event, it is possible under the law to establish units of greater extent, and that this possibility makes the provision unconstitutional.

It is next contended that the provisions of the act regulating the sale of timber are violative of the provision of the constitution requiring all sales to be made at public auction to the highest bidder.

The third objection made to the act is based upon the provision requiring insertion in the contract of sale of a stipulation for the adjustment of stumpage prices at intervals of not less than three years. It is contended that this provision violates the constitutional requirement of a sale to the highest bidder.

The fourth contention is that the provisions of the act for payment of stumpage on monthly estimates is contrary to § 1 of Art. XVI of the constitution, providing that no sale of land shall be made unless its full market value be paid or safely secured to the state.

Finally, it is contended that § 6 of the act, in providing that all expenses of advertising the forest and selling the timber shall first be paid out of the gross proceeds of the sale, violates § 3 of Art. IX of the state constitution, which provides that the proceeds of the sale of timber, minerals, or other property from school and state lands, shall become part of the common school fund, which is to remain permanent and irreducible.

The pertinent provisions of the constitution follow:

"The principal of the common school fund shall remain permanent and irreducible. The said fund shall be derived from the following named sources, to wit: . . . the proceeds of the sale of timber, stone, minerals, or other property from school and state lands, other than those granted for specific purposes;. . . the principal of all funds arising from the sale of lands and other property which have been and hereafter may be granted to the state for the support of the common schools. . . ." § 3, Art. IX.

"All the public lands granted to the state are held in trust for all the people, and none of such lands, nor any estate or interest therein, shall ever be disposed of unless the full market value of the estate or interests disposed of, to be ascertained in such manner as may be provided by law, be paid or safely secured to the state; nor shall any lands which the state holds by grant from the United States (in any case in which the manner of disposal and minimum price are so prescribed) be disposed of except in the manner and for at least the price prescribed in the grant thereof, without the consent of the United States." § 1, Art. XVI.

"None of the lands granted to the state for educational purposes shall be sold otherwise than at public auction to the highest bidder; and the value thereof, less the improvements, shall, before any sale, be appraised by a board of appraisers, to be provided by law, the terms of payment also to be prescribed by law, and no sale shall be valid unless the sum bid be equal to the appraised value of said land. In estimating the value of such lands for disposal, the value of improvements thereon shall be excluded: Provided, that the sale of all school and university land heretofore made by the commissioners of any county or the university commissioners, when the purchase price has been paid in good faith, may be confirmed by the legislature." § 2, Art. XVI.

"No more than one-fourth of the land granted to the state for educational purposes shall be sold prior to January first, eighteen hundred and ninety-five, and not more than one-half prior to January first, nineteen hundred and five; Provided, that nothing herein shall be so construed as to prevent the state from selling the timber or stone off of any of the state lands in such manner and on such terms as may be prescribed by law: And provided further, that no sale of timber lands shall be valid unless the full value of such lands is paid or secured to the state." § 3, Art. XVI.

"No more than one hundred and sixty acres of any granted lands of the state shall be offered for sale in one parcel, and all lands within the limits of any incorporated city, or within two miles of the boundary of any incorporated city, where the valuation of such lands shall be found by appraisement to exceed one hundred dollars per acre shall, before the same be sold, be platted into lots and blocks of not more than five acres in a block, and not more than one block shall be offered for sale in one parcel." § 4, Art. XVI.

[1] Section 3 of Art. XVI, quoted above, answers, we think, all of relator's objections to the act. The section, after limiting the amount of land granted for educational purposes to be sold prior to the year 1905, provides:

". . . nothing herein shall be so construed as to prevent the state from selling the timber or stone off of any of the state lands in such manner and on such terms as may be prescribed by law: . . ." (Italics ours.)

We are unable to agree with the relator that the scope of the proviso is limited to the section in which it is found. The plain import of the proviso is that, while the section limits the amount of land to be sold prior to the year 1905, this limitation is not to be so construed as to prevent the state from selling the timber or stone off any of the state lands on terms to be prescribed by law. It would be a narow and illogical construction of the proviso to hold that it related only to the sale of timber or stone upon the granted lands withheld temporarily from sale.

No particular lands are directed to be withheld from sale, the restriction being that no more than one-quarter of the land should be sold prior to 1895, and no more than one-half prior to 1905. The proviso necessarily affected all of the lands granted for educational purposes.

While the sale of more than one-half of the lands within the designated period is forbidden, there is no provision in the constitution requiring the state to dispose of its granted lands. The state is free to retain title to its timber lands granted for support of the schools and market the timber crop growing on them as it matures. The constitution recognizes the possible sale of timber and other material on granted lands as a source of revenue apart from the sale of the land itself. This is seen in § 3 of Art. IX, which, in enumerating the sources of the permanent school fund, mentions the proceeds of the sale of timber from school and state lands other than those granted for specific purposes, and then specifies as another source the principal of all funds arising from the sale of school lands. It was to make certain that the restriction on the sale of lands granted for educational purposes, contained in § 3 of Art. XVI, should not be held to limit the right of the legislature to provide for the sale of timber or stone, that the proviso was inserted.

The rule that every intendment is to be indulged to sustain the validity of a law passed by the legislature, is applicable here with particular force, where the challenged act is one highly remedial, having for its purpose the conservation of the state's forest resources. We are of the opinion that the legislature did not overstep its constitutional power in the enactment of the challenged legislation.

[2] The refusal of the respondent to accept the relator's application was justified upon another ground. Section 1 of the act, in express terms, reserves from sale the state lands and timber in the five townships specified, and declares that the timber on these lands shall be sold under the sustained yield plan, meaning a plan

". . . by which the yield or cut of timber is managed in such way as to permit, so far as economically possible, the removal of approximately equal volume of timber annually or periodically equal to the increment. . . ."

Now, this is a definite mandate to the land commissioner, which he is required to obey. There is nothing in this mandate that is beyond the power of the legislature. Even if some of the features of the plan embodied in succeeding sections of the act for disposal of the timber were subject to objection on constitutional grounds, this should not defeat the declared policy of the legislature to reserve the timber from present sale, for disposal under some other plan free from constitutional objection.

The writ is denied.

STEINERT, C.J., MAIN, BEALS, BLAKE, ROBINSON, and SIMPSON, JJ., concur.