Sewer Improvement District No. 1 of Wynne v. Delinquent Lands

• Court: Arkansas Supreme Court
• Writing for the Court: JOHNSON, C. J.
• Citation: Sewer Improvement District No. 1 of Wynne v. Delinquent Lands, 68 S.W.2d 80, 188 Ark. 738 (Ark. 1934)
• Decision Date: 05 February 1934
• Docket Number: 4-3343
• Parties: SEWER IMPROVEMENT DISTRICT NO. 1 OF WYNNE v. DELINQUENT LANDS

68 S.W.2d 80

188 Ark. 738

SEWER IMPROVEMENT DISTRICT NO. 1 OF WYNNE v. DELINQUENT LANDS

4-3343

Supreme Court of Arkansas

February 5, 1934

Appeal from Cross Chancery Court; A. L. Hutchins, Chancellor affirmed.

Decree affirmed.

John C. Patterson and Ogan & Shaver, for appellant.

Henry Moore, Jr., Coleman & Gantt and L. H. Southmayd amici curiae.

JOHNSON C. J. MCHANEY, J., dissenting.

OPINION

JOHNSON, C. J.

This appeal brings into question the constitutionality of act 278 of the General Acts of 1933. The trial court held the act constitutional and valid, and this appeal is prosecuted therefrom.

Act 278 of 1933, in effect, provides: Section 1 amends § 5673 of Crawford & Moses' Digest by giving to property owners, within the district, 90 days in which to make payment of past-due assessments instead of 30 days, as provided in § 5673 of Crawford & Moses' Digest; also it reduces the penalty for nonpayment from 20 per cent. to 3 per cent.

Section 2 of said act gives to property owners six months in which to answer the complaint, after suit is instituted, instead of 5 days, as provided in § 5679 of Crawford & Moses' Digest.

Section 3 of said act gives to nonresident landowners six months after publication of notice to file answer, instead of fifteen days, as provided in § 5679 of Crawford & Moses' Digest.

Section 4 of said act gives to the chancery court wherein the suit is pending, power to grant to the property owner twelve months in which to pay the judgment or decree rendered, instead of ten days, as provided in § 5684 of Crawford & Moses' Digest.

Section 5 of said act is the emergency clause, and directly repeals §§ 5686, 5687, 5688 and 5689 of Crawford & Moses' Digest. The sections of Crawford & Moses' Digest directly repealed by said act are to the following effect: § 5686 provides for the advancement of all causes pending in the Supreme Court wherein the foreclosure of assessments of benefits are involved. Section 5687 of Crawford & Moses' Digest gives to any aggrieved owner appealing only twenty days in which to file an authenticated transcript of the proceedings. Section 5688 of Crawford & Moses' Digest restricts the record on appeal to such matters as may affect the property of the one so appealing. Section 5689, Crawford & Moses' Digest, restricts the right of appeal to those who perfect the transcript of the record within twenty days from the date of rendition of the decree.

The contention urged is that act 278 of 1933 violates § 17 of article 2 of the Arkansas Constitution of 1874 and § 10 of article 1 of the Constitution of the United States, which sections provide against impairment of contract. Stated another way, appellant contends that the State Legislature is without authority to amend or repeal the sections of the digest referred to for the reason that they were the law at the time the district bonds were issued and sold.

In considering the important question here presented, it is necessary that we take into consideration the economic conditions existing in this State at the time act 278 of 1933 was enacted. The conditions sought to be alleviated should be considered as a part of the enactment itself. At the time of the enactment, Arkansas was in the midst of the worst depression any member of this court has ever experienced. Thousands of home owners in the State were without employment, and the bare necessities of life, because thereof, were denied them and their families. All real property in this State was without market value, the net result being that in many instances a five or ten thousand dollar home was sacrificed at public sale for from ten per cent. to twenty-five per cent. of its intrinsic value. The charitable spirit of the members of the Legislature must be commended by all, as the gravity of the question considered by them cannot be gainsaid or denied.

It must be remembered that all political power is inherent in the people, and the State Legislature has the absolute right to invoke this power in all cases except in such as may be prohibited by constitutional mandate. Section 1 of article 2 of the Arkansas Constitution of 1874 provides: "All political power is inherent in the people, and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish same in such manner as they may think proper." Section 22 of the same article provides: "The right of property is before and higher than any constitutional sanction." It will thus be seen that, by constitutional mandate, all political power in this State is reserved in the people, except such as may be expressly prohibited by constitutional mandate.

In the State v. Chester Ashley, 1 Ark. 513, this court expressly held: "A State Legislature can exercise all power that is not expressly or impliedly prohibited by the Constitution; for whatever powers are not limited or restricted they inherently possess as a portion of the sovereignty of the State."

The constitutional doctrine thus announced has been consistently followed by this court up to the present time. Bush v. Martineau, 174 Ark. 214, 295 S.W. 9. All legislative enactments are presumed to be constitutional and valid until it is otherwise made to appear. Patterson v. Temple, 27 Ark. 202.

"Neither should a statute be declared unconstitutional unless there is a clear incompatibility between the act and the Constitution." Eason v. State, 11 Ark. 481.

"All doubts should be resolved in favor of the constitutionality of a statute." Duke v. State, 56 Ark. 485, 20 S.W. 600; Graham v. Nix, 102 Ark. 277, 144 S.W. 214.

It is the long established policy of this court to declare no act of the Legislature unconstitutional save with greatest caution. State v. Moore, 76 Ark. 179, 88 S.W. 929.

And "a statute will not be declared unconstitutional unless no doubt exists on the question." Stillwell v. Jackson, 77 Ark. 250, 93 S.W. 71.

There is a line of demarcation between the inherent reserved rights of the people and those prohibited by constitutional mandate. The question always arises upon which side of the line the enactment may fall. The question should be approached with the gravest consideration, and all cases bearing on the question should be most seriously considered. Section 10 of article 1 of the Constitution of the United States and § 17 of art. 2 of this State's Constitution should not be considered as all inclusive. The dignity of these provisions rises no higher than the reserve power in the people.

From the synopsis of the act herein given, it necessarily appears that act 278 of 1933 affects only the remedy in the enforcement of contracts, and has nothing to do with the contract itself. Therefore the question narrows down to one of remedy. The rule seems to be well settled, by all American decisions on the subject, that the remedy of enforcing contracts in existence at the time of its execution cannot be taken away by subsequent legislation. On the other hand, subsequent legislation affecting the remedy only which leaves a valid remedy in effect does not impair the obligations of contract, and is therefore valid. In re Sturges v. Crowninshield, 4 Wheat. 122, 4 L.Ed. 529. In the case just referred to, the Supreme Court of the United States, on the question here under consideration, said: "The distinction between the obligation of a contract and the remedy given by the Legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct."

The same court, in Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403, said: "It is competent for the States to change the form of the remedy, or to modify it otherwise, as they may see fit, provided no substantial right secured by the contract is thereby impaired. No attempt has been made to fix definitely the line between alterations of the remedy, which are to be deemed legitimate, and those which, under the form of modifying the remedy, impair substantial rights."

In Antoni v. Greenhow, 107 U.S. 769, 2 S.Ct. 91, 27 L.Ed. 468, the Supreme Court of the United States said: "In all such cases the question becomes therefore one of reasonableness, and of that the Legislature is primarily the judge."

A number of decisions of the Supreme Court of the United States are urged upon us as decisive of the question here presented. Among them are Bronson v. Kinzie, 1 HOW 311, 11 L.Ed. 143. The act there under consideration required the property to be appraised and to bring not less than two-thirds of its appraised value upon sale. Act 278 of 1933 has no such requirement. This is entirely sufficient to differentiate the Bronson case from the one here under consideration. McCracken v. Hayward, 2 HOW 608, 11 L.Ed. 397; Lessee v. Ewing, 3 HOW 707, 11 L.Ed. 794, and Howard v. Bugbee, 24 HOW 461, 16 L.Ed. 753, may be likewise differentiated. In Penniman's case, 103 U.S. 714, the Supreme Court of the United States drew the line of demarcation as follows: "The general doctrine of this court on the subject may be thus stated: In modes of proceeding and forms to enforce the contract the Legislature has the control, and may enlarge, limit or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right."

The Supreme Court of the United States seems to be unalterably committed to the rule that all sovereign States retain a measure of control over remedial process and legislation, and to safeguard the vital interests of its people. Jackson v. Lamphire, 28 U.S. 280, 3 Peters 280; Hawkins v. Barney, 30 U.S. 457, 5 Peters 457; ...