State ex rel. Capital Investment Co. v. Lukens

• Decision Date: 07 November 1929
• Docket Number: 5477
• Parties: STATE, on the Relation of CAPITAL INVESTMENT COMPANY, a Corporation, Plaintiff, v. FRED E. LUKENS, Secretary of State, Defendant
• Court: Idaho Supreme Court

283 P. 527

48 Idaho 357

STATE, on the Relation of CAPITAL INVESTMENT COMPANY, a Corporation, Plaintiff, v. FRED E. LUKENS, Secretary of State, Defendant

No. 5477

Supreme Court of Idaho

November 7, 1929

CHATTEL MORTGAGES-FILING WITH SECRETARY OF STATE-MANDAMUS-SUFFICIENCY OF APPLICATION-LEGISLATIVE POLICY.

1. Motion to dismiss application for mandate, to be directed to Secretary of State, requiring him to receive and file chattel mortgage pursuant to Laws 1929, chap. 250, denied, where application was in form sufficient to authorize issuance under rule 60 of supreme court, and from showing made it satisfactorily appeared that application sought to compel performance of act which law specially enjoined as duty resulting from office, under C. S., sec 7254, and supreme court having original jurisdiction to issue writ, under Const., art. 5, sec. 9.

2. Under Laws 1929, chap. 250, providing for filing of chattel mortgage in office of Secretary of State, but that such filing "shall be of no effect, however, until the mortgage... shall have been filed with a county recorder," Secretary of State held not authorized to refuse to accept and file instrument until it was shown that mortgage had been previously filed with county recorder and had not been satisfied, discharged or released.

3. Policy of legislative enactment is not open to question, and it is duty of official whose action thereunder is prescribed to abide by its terms, as it is for courts to interpret its meaning, without regard to possible results thereof.

APPLICATION for Writ of Mandate. Writ issued.

Writ issued.

Dean Driscoll, for Plaintiff.

In short, our position is that the matters specified in the statute as those which must be shown by affidavit or certificate to the Secretary of State, and no others, are conditions precedent to the filing, irrespective of what the actual facts may be, and irrespective of whether the filing when made, is valid and effective or otherwise.

The reasoning is that the formalities of filing chattel mortgages and the effect of filing are purely statutory, that the statute is plain and unambiguous in its terms, requires none of the conditions attached by the attorney general, and the wisdom or policy of the statute is neither for the courts nor the executive officers but purely a matter of legislative concern.

As is said by the supreme court of the United States in First National Bank v. Keys, 229 U.S. 179, 33 S.Ct. 642, 57 L.Ed. 1140-1142: "Registration laws are of statutory origin and the statute must in each case be examined to determine what instruments are to be recorded, where they are to be recorded and the effect of failure to record."

In further support of our position, this court says in State v. Jutila, 34 Idaho 595, 202 P. 566: "The language used being unambiguous, and clearly expressing this intent there is no occasion for construction of the statute, and arguments based upon the desirability or undesirability of the result are not entitled to consideration."

The only question arises as to status of original instruments. Chattel mortgages like other instruments are often executed in duplicate or in fact in several counterparts. The statute says nothing about any affidavit or certificate on a "chattel mortgage acknowledged or proven," that is, on the original as distinguished from a copy. The question is whether a duplicate rates as an original. The pleadings allege that the instrument in question here is a duplicate, and there is no allegation that there was any affidavit or certificate. The authorities, however, seem to leave no room for argument that as such it is entitled to stand as an original instrument. Webster's New International Dictionary gives as the legal definition of the word "duplicate"--"an original instrument repeated; a document the same as another in essential particulars, differing from a copy in being valid as an original. " (Wright v. Michigan Central Ry. Co., 130 F. 843, 65 C. C. A. 327, see, also, Black's Law Dictionary; Cable Co. v. Rathgeber, 21 S.D. 418, 113 N.W. 88.)

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Defendant.

Mandamus will never be awarded unless the right to the thing sought to be done by it is clearly established. If the right is doubtful the writ will be refused. (State v. Banks, 37 Idaho 27, 215 P. 468; State v. Malcom, 39 Idaho 185, 226 P. 1083; Mobile & Ohio R. Co. v. People, 132 Ill. 559, 22 Am. St. 556, 24 N.E. 643; State v. Buhler, 90 Mo. 560, 3 S.W. 68; Beaman v. Board of Police, 42 Miss. 237; State v. Burnside, 33 S.C. 276, 11 S.E. 787; Puckett v. White, 22 Tex. 559, 560; State v. Wilson, 123 Ala. 259, 26 So. 482, 45 L. R. A. 772.)

In the case of Luther v. Banks, 111 Ga. 374, 36 S.E. 826, at page 829, the supreme court of Georgia used the following language:

". . . . On the subject of an illegal record, Judge Cooley, on page 457 of his work on torts, declares that the recorder may be responsible for recording papers not entitled to record, provided the record, when made, may cause legal injury, and provided, further, that he is aware that the record is unauthorized. . . . "

It would be unfair to the Secretary of State, who, in this instance is the recorder, to force him to accept for filing a mortgage which might be void as to third parties because of not having been filed in the proper county and an effort might be made to show that he had some knowledge of this defect in the mortgage in an attempt to make him responsible under his bond for recording papers not entitled to record.

In the case of Cowden v. Finney, 9 Idaho 619, 75 P. 765, the court held that where a chattel mortgage has not been filed for record with the recorder of the county where such property is located and kept a subsequent purchaser of such property is not bound by the mortgage unless he be shown to have had actual knowledge of the same. This simply follows the general rule which provides for the recordation of the mortgage in the place prescribed by statute.

In 11 C. J., at p. 526, we find the general rule stated: "A chattel mortgage must be filed or recorded at the place prescribed by statute and if the mortgage is recorded in the wrong place the filing is not constructive notice."

BUDGE, C. J. Givens, T. Bailey Lee and Varian, JJ., concur.

OPINION

BUDGE, C. J.

Upon application of the plaintiff an alternative writ of mandate was issued from this court directed to the defendant as Secretary of State requiring him either to receive and file of record in his office a chattel mortgage presented for such purpose pursuant to the provisions of Sess. Laws 1929, chap 250, p. 508 et seq., by the Capital Investment Company, or show cause why he had not done so. The matter was heard upon demurrer of the defendant to the application and motion to dismiss the...