Harlow v. Ryland

• Decision Date: 06 July 1948
• Docket Number: Civil Action No. 1707.
• Citation: 78 F. Supp. 488
• Parties: HARLOW v. RYLAND.
• Court: U.S. District Court — Eastern District of Arkansas

78 F. Supp. 488

HARLOW v. RYLAND.

Civil Action No. 1707.

District Court, E. D. Arkansas, W. D.

July 6, 1948.

Rowell, Rowell & Dickey and Hendrix Rowell, all of Pine Bluff, Ark., for plaintiff.

Bridges, Bridges, Young & Gregory and Henry W. Gregory, Jr., all of Pine Bluff, Ark., for defendant.

TRIMBLE, District Judge.

It is stipulated by counsel for the parties, that the plaintiff is the aunt of the defendant, related within the third degree of consanguinity, and while riding in a car owned and operated by him on the highway in Arkansas, she was injured in an accident. She was a non-paying guest and the defendant was not a public carrier.

Defendant moves to dismiss the complaint, basing his motion on the provisions of Section 1304 of Pope's Digest of the Statutes of Arkansas. Plaintiff filed a response to this motion, alleging the act unconstitutional as being in violation of Article II, Sections 8 and 13 of the Constitution of Arkansas, and the Fourteenth Amendment to the Constitution of the United States.

After providing, with exceptions not material here, that no guest shall have a cause of action for damages, the statute provides:

"and in no event shall any person related by blood or marriage within the third degree of consanguinity or affinity to such owner or operator, or the husband, widow, legal representatives, or heirs of such person, have a cause of action for personal injury, including death resulting therefrom, against such owner or operator while in, entering, or leaving such motor vehicle, provided this act shall not apply to public carriers."

The Supreme Court of Arkansas has never passed upon the validity of this provision of Section 1304 of Pope's Digest. In the case of Roberson v. Roberson, 193 Ark. 669, 101 S.W.2d 961, 963, the court said:

"The decision of this case must, therefore, depend upon the validity of acts Nos. 61 and 179 of the Acts of 1935. * * * Under the reasoning of these and other cases cited in the note to the text quoted, it might be that Act No. 179 is unconstitutional, whereas Act No. 61 is valid, the difference being that Act No. 179 denies the right of recovery to certain persons under any circumstances, whereas Act No. 61 denies the right of recovery to all persons riding as guests `unless such vehicle was wilfully and wantonly operated in disregard of the rights of others.' * * * But if Act No. 61 is constitutional and is applicable to the facts of this case, it is unnecessary to consider Act No. 179 or to pass upon its constitutionality, for the reason that Act No. 61 defeats a recovery in this case."

From this it is clear that the statement of the court "it might be that Act No. 179 is unconstitutional," and the reasons assigned therefor, are obiter dicta.

Again in Tilghman v. Rightor, 211 Ark. 229, 199 S.W.2d 943, 945, this same statute was under consideration, but not the particular point at issue here. The court there said:

"An exception was saved to the action of the court in reading § 1304, Pope's Digest, but there was no error in doing so. It is the law and is unambiguous, and it was the duty of the court to declare the law, and the reading of the statute was the method employed in doing so."

But the provision of the section under consideration here, not being within the purview of that case, and the court not being required to rule thereon, that holding would not be binding on the court here. Therefore, so far as the Supreme Court of Arkansas is concerned the question is an open one.

It is a well settled principle of law followed by all courts, that there is a presumption in favor of the constitutionality of a statute. When such questions are presented courts give them the most careful consideration, and never declare a statute void unless its invalidity is beyond reasonable doubt. Such invalidity must appear beyond a mere possibility, or beyond even a strong probability. If there is a doubt in the mind of the court as to its constitutionality, the statute must be held valid. Kelso v. Bush, Judge, 191 Ark. 1044, 89 S.W.2d 594, Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419, 51 L.Ed. 696, 10 Ann.Cas. 525; 11 Am.Jur. 718, 719, Secs. 91 and 92, Hines v. Hook, 338 Mo. 114, 89 S.W.2d 52, 11 Am.Jur. 1088, 1089; O'Gorman v. Hartford Ins. Co., 282 U.S. 251, 51 S.Ct. 130, 75 L.Ed. 324, 72 A.L.R. 1163.

In the case of Halter v. Nebraska, supra, Mr. Justice Harlan, speaking for the court, said 205 U.S. 34, 27 S.Ct. 421:

"In our consideration of the questions presented we must not overlook certain principles of constitutional construction, long ago established and steadily adhered to, which preclude a judicial tribunal from holding a legislative enactment, Federal or State, unconstitutional and void, unless it be manifestly so. Another vital principle is that, except as restrained by its own fundamental law, or by the supreme law of the land, a state possesses all legislative power consistent with a republican form of government; therefore each state, when not thus restrained and so far as this court is concerned, may, by legislation, provide not only for the health, morals, and safety of its people, but for the common good, as involved in the well-being, peace, happiness, and prosperity of the people."

Federal courts are slow to hold the statutes of a state in conflict with the state constitution, where there has been no decision of the court of last resort of that state upon that issue. Mr. Justice Hughes, speaking for the Supreme Court in Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 305, 34 S.Ct. 48, 51, 58 L.Ed. 229, said:

"So far as we are advised, the court of appeals of Kentucky has not passed upon the validity of the act in question; and this court has often expressed its reluctance to adjudge a state statute to be in conflict with the constitution of the state before that question has been considered by the state tribunals, — to which it properly belongs, — unless the case imperatively demands such a decision. Pelton v. Commercial National Bank, 101 U.S. 143, 144, 25 L.Ed. 901; Michigan Cent. R. R. v. Powers, 201 U.S. 245, 291, 26 S.Ct. 459, 50 L.Ed. 744."

The court then held that in that case the argument against the statute was not of that compelling character, declining to hold the act in conflict with the state constitution.

Plaintiff earnestly contends that this statute is in contravention of Article II, Section 13, of the Constitution of the State of Arkansas, wherein that section provides:

"Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character * * *."

He assumes that a person has some vested property right in the possibility of an injury at some uncertain future date, and that this Section 1304, takes away from the class of persons named, all remedy for "injuries or wrongs which he may receive in his person * * *." But a person has no vested property right, no vested interest in any rule of the common law. The common law is no sacred institution, and stands in no stronger position than any other law. Rights of property created by the common law which have vested cannot be taken away without due process. But the law itself being but a rule of conduct may be changed at the will of the legislature. The only limitation to prevent such a change would be a constitutional limitation. Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77; Second Employers' Liability Cases, Mondow v. New York, N. H. & H. R. Co., 223 U.S. 51, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.,N.S., 44; Martin v. Pittsburgh & L. E. R. Co., 203 U.S. 284, 294, 27 S.Ct. 100, 51 L.Ed. 184, 8 Ann.Cas. 87; Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406, 31 S.Ct. 59, 54 L.Ed. 1088, 36 L.R.A.,N.S., 220, 21 Ann.Cas. 815; Shea v. Olson, 186 Wash. 700, 59 P.2d 1183, 111 A.L.R. 998. In the case of Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221, 65 A.L.R. 939, the Supreme Court said:

"We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object. See Louis Pizitz Dry Goods Co. v. Yeldell, 274 U.S. 112, 116, 47 S.Ct. 509, 71 L.Ed. 952, 51 A.L.R. 1376; New York Central R. Co. v. White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann. Cas.1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas.1917D, 642; Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 74, 27 S.Ct. 412, 51 L.Ed. 708."

And in 12 Am.Jur. 277, Sec. 580 it is said:

"The fact that one of the tests of due process is the common law as it existed at the time of the establishment of our civil and political institutions does not prevent a change in the law as it then existed. There is no constitutional right to have all general propositions of law once adopted remain unchanged."

"A right of action for a tort to happen in the future is not property, and may be abrogated by the Legislature." Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 583, 74 A.L.R. 1189; Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050.

The legislature of the State has more than once enacted statutes in derogation of and for the outright repeal of common law rules, and the setting aside of common law rights. In the case of State v. Boney, 1922, 156 Ark. 169, 177, 245 S.W. 315, 317, the Supreme Court, in passing upon the validity of an act of the legislature imposing a tax on dower, discusses the legislative power over the right of dower as follows:

"The estate of dower appears to be as old as the common law; but so also is the right of an heir to inherit from an ancestor; and the lawmaking power possesses as plenary control over the one as it has over the other. The Legislature has the right to change the law of dower and has done so more than once, usually by enlarging the common-law right of dower. The Legislature certainly has the right...