Judy v. Thompson

• Citation: 60 N.E. 270,156 Ind. 533
• Decision Date: 26 April 1901
• Docket Number: 19,111
• Parties: Judy v. Thompson
• Court: Supreme Court of Indiana

60 N.E. 270

156 Ind. 533

Judy v. Thompson

No. 19,111

Supreme Court of Indiana

April 26, 1901

From the Fountain Circuit Court.

Affirmed.

Ele Stansbury and C. G. Rossiter, for appellant.

E. F McCabe, for appellee.

OPINION

Dowling, C. J.

This is an action for the recovery of a statutory penalty. The only question presented is that of the constitutionality of the act of February 18, 1893, Acts 1893, p. 64, § 1105 Burns 1894, which reads as follows: "That any person being the owner or holder of any mortgage recorded in the State of Indiana, or the officer of any bank, loan association, or other corporation, being the owner or holder of any mortgage so recorded, or any administrator, executor, guardian, trustee or other person whose duty it shall be to release any mortgage so recorded, who shall refuse, neglect or fail to release such mortgage of record when the debt or obligation which such mortgage was made to secure shall have been paid or discharged, and he shall have been requested to release the same, shall forfeit and pay to the mortgagor or person having the right to demand the release of such mortgage, the sum of $ 25, which sum may be recovered by suit in any court of competent jurisdiction, together with reasonable attorney's fees incurred in the collection of said penalty."

The validity of the act is assailed upon the ground that it authorizes the taking of the property of the citizen without just compensation, in violation of § 21 of the Bill of Rights, article 1, of the Constitution of this State; that it grants to one class of citizens privileges which, upon the same terms, do not equally belong to all citizens, as required by § 23 of the Bill of Rights; that the act diverts the penalty from the school fund, in contravention of § 2 of article 8 of the Constitution; and that the provision in the act for the addition of an attorney's fee renders the amount of the penalty uncertain, and the act void.

The argument in support of these objections is by no means convincing, and none of the authorities referred to sustains it. The first two objections might be urged with equal force against the constitutionality of every penal statute where the penalty, or any part of it, is given to the party injured, and yet we know that similar statutes have everywhere been upheld. The penalty in such cases is imposed upon grounds of public policy. The motives of the legislature are not open to judicial inquiry. That there are substantial reasons for such a statutory requirement is very evident. The record of mortgages is a public record, and is intended for the information of the public generally. It is resorted to by the officers charged with the duty of discovering property subject to taxation, and placing it upon the assessment lists. When the mortgage debt has been paid it is important both to the...