First Trust Company of Lincoln v. Smith

• Decision Date: 22 February 1938
• Docket Number: 30218
• Parties: FIRST TRUST COMPANY OF LINCOLN, TRUSTEE, APPELLANT, v. WALTER C. SMITH ET AL., APPELLEES
• Court: Nebraska Supreme Court

277 N.W. 762

134 Neb. 84

FIRST TRUST COMPANY OF LINCOLN, TRUSTEE, APPELLANT, v. WALTER C. SMITH ET AL., APPELLEES

No. 30218

Supreme Court of Nebraska

February 22, 1938

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. " The section of an act properly amended should be construed precisely as though it had been originally enacted in its amended form." State v. Hevelone, 92 Neb. 748, 139 N.W. 636.

2. " Where, by amendment and repeal, the words of a former statute or section of a statute are changed in some respects, but it is intended that the statute shall continue to operate, it is not strictly a repeal, but a continuation of the former law as amended." Morgan v. City of Falls City, 103 Neb. 795, 174 N.W. 421.

3. This court will not anticipate a question of constitutional law in advance of the necessity of deciding it, and will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.

4. " Provision expressing legislative intent as to the separability of the various parts of a statute is an aid merely to judicial interpretation." Hubbell Bank v. Bryan, 124 Neb. 51, 245 N.W. 20.

5. " The legislative intent is the cardinal rule in the construction of statutes." Hubbell Bank v. Bryan, supra.

6. Legislation expressly by its terms based upon the existence of a definite emergency therein declared, or other state of facts to uphold it, may never possess validity if an obvious and vital mistake has occurred in the truth of the declaration upon which it is founded, or may cease to operate if the emergency ceases or the facts change, even though valid when passed. And this court, by virtue of its inherent powers constitutionally conferred, in its application of such statute, may ascertain as it sees fit any fact that is merely a ground for laying down a rule of law.

7. The factual and legislative situation existing on the 16th day of February, 1937, and since continuing, examined and held insufficient to constitute a " temporary emergency." Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481.

8. " Decisions of supreme court of United States construing provisions of federal Constitution are not binding on state court in construing similar provisions of state Constitution." Wilson Banking Co. Liquidating Corporation v. Colvard, 172 Miss. 804, 161 So. 123 .

9. " The United States supreme court and the supreme court of this state are peers. The decisions of the former upon the federal Constitution and laws are binding on the latter; the decisions of the latter upon the Constitution and laws of Nebraska are binding on the former." Franklin v. Kelley, 2 Neb. 79.

10. The meaning of a Constitution is fixed when it is adopted. It is not different at any subsequent time when a court has occasion to pass upon it. The court is therefore to declare the law as written, leaving it to the people by constitutional amendment to make such changes as new circumstances may require.

11. In the interpretation of the Bill of Rights of our State Constitution, the court will consider its history, the development of the evil sought to be restrained by its provisions, the established laws, usages and customs of the country at the time of its adoption, and the scope of the remedy its terms imply.

12. This moratorium, it may be said, is a postponement of fulfillment of obligations enumerated therein, decreed by the state through the medium of the Legislature and the courts. Applying to a restricted class of debtors, it is in its nature essentially special, and in its essence is the application of the sovereign power.

13. In the absence of expressed contrary intention, the adoption of a statutory or constitutional provision from another state accepts the meaning of such adopted provision that it carried in the context of which it originally formed a part, and, if it had been previously construed by the courts of such state, the judicial determination thus made.

14. In adopting sections 9 and 12, article 1 of the Nebraska Constitution in 1866, and their readoption as sections 13 and 16, article 1 of the Constitution of 1875 by the electorate of the state, the then settled judicial interpretation and meaning of these clauses were also adopted.

15. Emergency does not create power. It does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The grants of power by the Constitution to the state government and the limitations of the powers thus granted by the restrictions of such Constitution were determined in the light of emergency, and they are not altered by emergency.

16. Sections 13 and 16, article 1 of the Nebraska Constitution, retain their original virility and constitute present binding limitations on the exercise of governmental powers, legislative, executive or judicial, which " emergency" may not impair, destroy or modify.

17. The Nebraska moratorium law, as amended in 1937, Laws 1937, c. 42 (a six-year act), contravenes the spirit and express terms of sections 13 and 16, article 1 of our Constitution, and is wholly invalidated thereby.

Appeal from District Court, Lancaster County; Frost, Judge.

Mortgage foreclosure action by the First Trust Company of Lincoln, Neb., as trustee, against Walter C. Smith and others. From the judgment rendered, plaintiff appeals.

Reversed and remanded.

PAINE, J., dissenting.

Hall, Cline & Williams, for appellant.

J. A. Brown and W. O. Brown, contra.

Perry W. Morton, amicus curiae.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, CARTER and MESSMORE, JJ. CARTER, J., concurring. PAINE, J., dissenting.

OPINION

EBERLY, J.

This is an appeal from the judgment of the district court for Lancaster county, presented here as a case stated, settled and allowed by the trial court.

The appellant contests the validity of chapter 42, Laws 1937, being the last amendment to the Nebraska moratorium law, as being repugnant to the "contract clause," U.S. Const. art. I, sec. 10, to the "due process clause" and the "equal protection clause" of section 1, of the Fourteenth Amendment to the federal Constitution; and also as repugnant to, and in contravention of, the following provisions of the Constitution of the state of Nebraska, viz., the "contract clause," article I, sec. 16; the "due process clause," article I, sec. 3; section 13, art. I in that it deprives appellant of its remedy by due course of law and denies to appellant the administration of justice without denial or delay; and, lastly, that it violates section 21, art. I. The district court sustained the act, and plaintiff appeals.

The record discloses that on May 1, 1929, the defendants, Walter C. Smith et al made, executed and delivered to plaintiff, the First Trust Company of Lincoln, their promissory note, by the terms of which they promised to pay to the order of said company $ 8,000 with interest at 6 per cent. per annum payable semiannually until maturity or default, and at the rate of 10 per cent. thereafter. The principal was payable, $ 2,000 May 1, 1930, $ 3,000 May 1, 1931, and $ 3,000 May 1, 1932. To secure the payment of these sums, and conditioned for the performance of the contract evidenced by such note, the defendants on the said 1st day of May, 1929, duly executed to the plaintiff their mortgage deed and thereby mortgaged to it the premises here in suit; and in addition also in such mortgage they covenanted and agreed to pay any and all taxes or assessments levied upon the aforesaid note or upon the mortgage securing the same, as well as upon the mortgaged premises, and also obligated themselves to procure, deliver and keep in force insurance policies upon the mortgaged premises, "for not less than $ 10,000, loss payable to the mortgagee, its successors or assigns, as their interest may appear." The mortgage further stipulated that "time is of the essence of this contract," and upon a failure to perform the mortgagors' covenants by them, including prompt payment of principal and interest when due, the whole indebtedness secured thereby, at the option of the mortgagee, its successors or assigns, should immediately become due and payable; and that immediately upon commencement of suit in foreclosure, the mortgagee, its successors or assigns, should be entitled to possession of said premises, and all rents and profits derived from said premises should, upon default of any of the provisions of this mortgage, be applied on the debt secured thereby. Said mortgage was duly recorded, as by law provided, and on May 1, 1932, the mortgage indebtedness having been reduced to $ 3,000, by agreement in writing bearing date of May 1, 1932, the time of payment of said indebtedness and the terms of the writing evidencing the same were duly extended so that the amount secured thereby was to be paid as follows: $ 500 May 1, 1933, $ 500 May 1, 1934, $ 500 May 1, 1935, $ 500 May 1, 1936, and $ 1,000 May 1, 1937, and the interest thereon during said extension was to be paid at the rate of 6 per cent. per annum. On account of failure of the mortgagors to pay interest and taxes as covenanted by them, plaintiff exercised its stipulated option and proceedings for foreclosure of the mortgage were commenced in the district court for Lancaster county on February 9, 1934, and a decree of foreclosure and order of sale were entered in this cause on April 12, 1934, adjudging plaintiff's mortgage to be a first lien on the premises in suit, and that there was due thereon $ 3,354.38 with interest at 10 per cent. from April 2, 1934. On April 27, 1934, the statutory written request for nine months' stay was filed by the...