# Benedict Bros. v. Davidson County

> Tennessee Supreme Court · December 15, 1901 · 110 Tenn. 183

URL: https://www.frixlaw.com/law-library/cases/8300029

## Case

- **Full name:** Benedict Brothers v. Davidson County
- **Court:** Tennessee Supreme Court
- **Decided:** December 15, 1901
- **Citations:** 110 Tenn. 183
- **Precedential status:** Published
- **Opinion:** Dissent by Beaed
- **Judges:** Beaed, Wilkes
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

DISSENTING OPINION.
Me. Justice Beaed
delivered the following dissenting opinion:
While barely conceding that the majority may be right in their holding that lumber sawed from logs which are the produce of the State may fall within the class of articles exempt from taxation under section 30 *192 of article 2 of the constitution, I altogether dissent from the holding that the logs themselves, though in the hands of the sawyer, can in any proper sense be called “articles manufactured for use,” and thus be given the benefit of the exemption. Burrill defines “'to manufacture” thus: “The process of making a thing by art.” And Abott gives the meaning of the term “manufacture” as “whatever is made by human labor, either directly or through the instrumentality of machinery.” The definition of Webster is: “To make or fabricate from raw materials by the hand, by art, or machinery, and work into forms convenient for use.” Worcester, in effect, gives the term the'same meaning. All these definitions imply that by a combination of skill and labor the raw or crude material has taken on a new form, convenient for use. I think the popular acceptance of the term is the same as that of the lexicographers, and that a layman of ordinary intelligence in the use of words would be surprised to find that one which he had long applied to articles, the outimt of skilled workmanship, also embraces “saw logs,” in whosesoever hands they chanced to be. Upon examination it will be found that the courts have applied to the term the same meaning as have lexicographers and the plain people. In Evening Journal Ass’n v. State Board of Assessors, 47 N. J. Law, 38, 54 Am. Rep., 114 , the court embodies in the text of its opinion, the definition given in Braude’s Encyclopedia, as follows: “Mr. Brande defines “manufacture” as a term employed to designate *193 the changes or modifications made by art or industry in the form or substance of material articles, in the view of mating them capable of satisfying some want or desire of man: and manufacturing industry to consist in the application of art, science, or labor, to bring about certain changes or modifications of already existing material.” In Carlin v. Assurance Co., 57 Md., 526 , 40 Am. Rep., 440 , it is said: “Whilst, from its derivation, the primary meaning of the word ‘manufacture’ is making with the hand, this definition is too narrow for its present use. Its meaning has expanded as workmanship and art have advanced, so that now nearly all artificial products of human industry, nearly all such materials as have acquired changed conditions, or new and specific combinations, whether from the direct action of the human hand, from chemical processes divined and directed by human skill, or by the employment of machinery . . . are now commonly designated as manufactured.” To like effect, are Lawrence v. Allen, 7 How., 794 , 12 L. Ed., 914 ; Rex v. Wheeler, 2 Barn. & Ald., 349; Murphy v. Arnson, 96 U. S., 134 , 24 L. Ed., 773 ; Norris v. Com., 27 Pa., 496 . I think, under no proper rule of construction, can a saw log be brought within these definitions. If it is an article manufae-tured from the produce of the State, then the owner of the trees who felled it and divided it into cuts of suitable' lengths for the use of the sawyer is a “manufacturer,” and yet who would so pervert the meaning of that term? Or who would say that the log as it lay *194 upon the ground was a manufactured article? In what respect has it “acquired changed conditions, of new and specific combinations?” Its form has not been altered from what it was when it was a part of the tree. It has been simply dissevered from the trunk or stock of the tree, and is now prostrate, when, before the ax of the laborer was applied, forming a part of the stock or trunk, it stood upright. But it is said when it is delivered to the sawyer the first step is taken in the manufacturing process, and then, at least, it falls under the protection of this clause of the constitution. That would be so if the protection was given to the manufacturer and his property, as property. While the purpose of this provision is to encourage the conversion of home products into manufactured articles, yet this was not done by exempting either the manufacturer or his property, as such. It is “the article manufactured of the produce of this State,” and not the materials from which the article is made, in their crude and unmodified form or condition, which this clause, by its terms, protects, “an article ready for convenient, immediate and general use.” Carpenter v. Brusle (La.), 12 South., 483 . It is suggested, however, in the opinion of the majority, as a reason for assigning a saw log to the category of manufactured articles, that in this way an indecent race of diligence between the tax gatherer and the manufacturer will be avoided, and that any other view will place the agent of the State on the alert to catch the material this side the finished product, and the manufacturer on *195 bis guard, and to Ms utmost speed, in bis efforts to reach a point where be will be free from taxation. ■ I submit that this peril is imaginary rather than real. For it is to be observed that not only is the finished product — for instance, sideboard or table or window or door — exempt under this clause, but also and equally the finished materials or parts of these various articles which the maufacturer has on hand on the 10th of January, and which simply need adjusting or putting together to complete his perfect work. For these materials or parts have, as the result of skill and labor, acquired changed conditions, and are ready for convenient and immediate use, and so answer, as would the article which they are intended to complete, the requirement of the clause in question. In Correlo v. Lynch, 65 Cal., 273 , 3 Pac., 889 , there was an effort made by a purchaser of firewood to be used by him in burning bricks in his kiln to hold the seller liable for loss incurred by reason of the unfitness of the wood for that purpose, under a section of the California Code which makes the manufacturer of an article “under an order for a particular purpose a warrantor,” by the sale, “that it is reasonably fit for the purpose,” but the court repudiated the claim upon the ground that firewood was not a manufactured article; and yet firewood is no cruder than saw logs, and it has approached nearer the purpose for which it was intended than the former. An article in the constitution of Louisiana exempts from taxation for a period of thirty years “the capital, ma *196 chinery, and other property employed in the manufacture of furniture and other articles of wood.” In Martin v. City of New Orleans, 38 La. Ann., 397 , 58 Am. Rep., 194 , it was held that the capital and machinery employed in the production of dressed lumber, tongued and grooved moldings, sashes, doors, etc., were exempt under this provision, because each of these articles was “manufactured by machinery and of lumber . . . complete in itself, and ready for immediate, convenient and general use.” In Carre v. City of New Orleans, 41 La. Ann., 996 , 6 South., 893 , it was ruled that materials used in the construction of cabins and rough planks were not “articles of wood,” so as to give the plant engaged in their manufacture the benefit of this exemption, because they were not complete, separate articles, intended for immediate and convenient use; and in Carpenter v. Brusle, supra, the same rule was applied to a manufactory of bridge timbers. The authority of the California and Louisiana cases is against the view of the majority as to the exemption of saw logs under section 30 of article 2 of the constitution, and the logic as well as the exact holding of the cases from Louisiana would equally exclude rough lumber in the hands of the sawyer from the benefit of the exemption. In my opinion, it requires a construction of very doubtful liberality of that clause to bring rough lumber within its meaning, as an “article manufactured of the produce of the State,” but that it is straining it beyond all proper limits when it is made to embrace saw logs. I therefore dissent from the view of the majority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8300029. Public record. Not legal advice.