South Central Dist. of Pentecostal Church of God of America, Inc. v. Bruce-Rogers Co., BRUCE-ROGERS

• Decision Date: 02 June 1980
• Docket Number: No. 79-328,BRUCE-ROGERS,79-328
• Citation: 269 Ark. 130,599 S.W.2d 702
• Parties: SOUTH CENTRAL DISTRICT OF the PENTECOSTAL CHURCH OF GOD OF AMERICA, INC., Appellant, v.COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 702

599 S.W.2d 702

269 Ark. 130

SOUTH CENTRAL DISTRICT OF the PENTECOSTAL CHURCH OF GOD OF AMERICA, INC., Appellant, v. BRUCE-ROGERS COMPANY, Appellee.

No. 79-328.

Supreme Court of Arkansas.

June 2, 1980.

Gean, Gean & Gean, Fort Smith, for appellant.

Warner & Smith, Fort Smith, for appellee.

FOGLEMAN, Chief Justice.

Appellant, South Central District of the Pentecostal Church of God of America, Inc., brings this appeal upon the sole ground that the trial court erred in not holding that Act 146 of the General Assembly of 1895, as amended, digested as Ark.Stat.Ann. § 51-601 et seq (Repl. 1971), is unconstitutional because it violates the due process clause of Amendment 14 of the Constitution of the United States and Article 2, § 8 of the Constitution of Arkansas. Since we do not agree, we affirm the decree of the chancery court.

The particular facts involved are unimportant in our consideration of the issues on this appeal. The chancery court rejected appellant's arguments as to constitutionality of the statutes. Having done so, it entered a decree granting a judgment to appellee Bruce-Rogers Company, a supplier to a contractor engaged by appellant to install heating and air conditioning plants in a building owned by appellant. The judgment included a lien on the real estate improved by installation of the fixtures supplied.

Appellant contends that the pertinent statutes permit a taking of property without procedural due process required by the constitutional provisions invoked by appellant.

We are able to quickly dispose of the federal constitutional question. It seems to us that the matter has been laid to rest by the decision of a three-judge district court in Spielman-Fond, Inc. v. Hanson's, Inc., 379 F.Supp. 977 (D.C., Ariz., 1973), aff'd. summarily 417 U.S. 907, 94 S.Ct. 2596, 41 L.Ed.2d 208. The sole question before the district court was the constitutionality of the Arizona mechanics' and materialmen's lien statutes. There, as here, the attack, in essence, was the assertion that, in effect, the lien provided by the statutes cut off the owner's right to alienate his property, and that, as a result, the owner was deprived of a significant property interest without the benefit of prior notice or hearing. As we view the statutes, there is no material difference from the constitutional point of view. The mere fact that the Arizona statute may make a general contractor the agent of the owner while the Arkansas statute does not, does not afford a basis for distinction, as appellant contends. The Arizona district court did not consider that fact significant enough to mention in its opinion. The district court carefully analyzed the effect of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), reh. den. 409 U.S. 902, 93 S.Ct. 177, 34 L.Ed.2d 165, all of which are relied upon by appellant. After having done so, that court concluded that the lien, by clouding the owner's title, might make it more difficult for the owner to alienate the property, but that there was nothing that would prevent him from making a sale if he could find a willing buyer. The court also pointed out that the owner was not deprived of possession or use of his property, as was the case in Sniadach, Goldberg and Fuentes.

Since, on federal constitutional questions, we are a court inferior to the United States Supreme Court, we are bound by precedents established by that court. We take the summary affirmance of the three-judge court in the Arizona case to be binding precedent. That position has generally been taken by the lower federal courts. See e.g., B & P Development v. Walker, 420 F.Supp. 704 (W.D., Pa., 1976); In re Thomas A. Cary, Inc., 412 F.Supp. 667 (E.D., Va., 1976), aff'd. 562 F.2d 47 (4 Cir., 1977); Matter of Northwest Homes of Chehalis, Inc., 526 F.2d 505 (9 Cir. 1975), cert. den. 425 U.S. 907, 96 S.Ct. 1501, 47 L.Ed.2d 758 (1976); In re Oronoka, 393 F.Supp. 1311 (N.D., Me., 1975). At least one other state court of last resort has recognized that Spielman-Fond is binding precedent on the questions involved here. Connolly Development, Inc. v. Superior Court, 17 Cal.3d 803, 132 Cal.Rptr. 477, 553 P.2d 637 (1976), appeal dismissed for want of substantial federal question, 429 U.S. 1056, 97 S.Ct. 778, 50 L.Ed.2d 773 (1977). The reason this affirmance is binding precedent here is because it affirms a judgment on the identical question in a case within the mandatory appellate jurisdiction of the United States Supreme Court.

Our position that the precedent is binding is supported, rather than weakened, by the action of the United States Supreme Court with reference to Roundhouse Construction Corp. v. Telesco Masons Supplies Co., Inc., 168 Conn. 371, 362 A.2d 778 (1975), relied upon by appellant. In that case, the Connecticut Supreme Court distinguished Spielman-Fond, Inc. v. Hanson's, Inc., supra, on the basis that an action for foreclosure of the lien must be filed within six months and reasoned that this period seemed to offer the bare minimum of due process protection consistent with the extent of deprivation. The United States Supreme Court vacated the judgment and remanded the case to the Connecticut Supreme Court for that court to determine whether the statutory procedure was in violation of the federal constitution or the state constitution or both, at 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975). The Connecticut Supreme Court then held that the procedure violated both constitutions, at 170 Conn. 155, 365 A.2d 393 (1976). The United States Supreme Court then denied certiorari because the judgment rested upon an adequate state ground, at 429 U.S. 889, 97 S.Ct. 246, 50 L.Ed.2d 172 (1976). By its actions in the matter, it is reasonable to conclude that the United States Supreme Court considered its summary affirmance of the decision of the Arizona Supreme Court to be applicable, or the state ground would have been immaterial. The court could not have overlooked its action in Spielman-Fond because it had been specifically distinguished in the Connecticut court's first opinion and held inapplicable. Although a summary affirmance is an affirmance of the judgment only, it does prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided in the action in which the judgment was rendered. Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977).

We now turn to the question whether our mechanics' and materialmen's lien statutes meet the due process requirements of the Arkansas Constitution. In this regard, the decisions of the United States Supreme Court are not controlling but they are persuasive. We find that the statutes in question do not violate the due process clause of the Arkansas Constitution.

In considering this question, we begin with the presumptions which prevail in every consideration of a statute's constitutionality. Every act carries a strong presumption of constitutionality and, before it will be held unconstitutional, the incompatibility between it and the constitution must be clear. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980); Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857; Carter v. State, 255 Ark. 225, 500 S.W.2d 368. Every reasonable doubt must be resolved in favor of constitutionality. Williams v. State, 253 Ark. 973, 490 S.W.2d 117; Davis v. Cox, supra. The fact that a statute has been in effect for a long period of time without its validity having been questioned, while not conclusive, is highly persuasive of its constitutional validity. Williams v. State, supra. Our basic statute was passed in 1895 and amended in 1899, 1923, 1961 and 1969. No attack has been made on it until recently.

Due process of law is a compound of history, reason and the past course of judicial decisions; it is neither an inflexible procedure universally applicable to every imaginable situation nor a technical concept with a fixed content unrelated to time, place and circumstance. Cafeteria & Restaurant Workers v. McElroy,, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). Not only are due process requirements not technical or inflexible, they depend upon the nature of the matter or interest involved. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Hutchison v. Bank of North Carolina, 392 F.Supp. 888 (M.D., N.C., 1975). This concept was given articulate expression by Chief Justice Burger, who spoke for the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). He said:

* * * Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "(C) onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236, 81 S.Ct. 1743 (1961). To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been...