State ex rel. Payne v. Walden

• Decision Date: 01 August 1972
• Docket Number: No. 13183,13183
• Citation: 190 S.E.2d 770,156 W.Va. 60
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Daymon PAYNE and Mary Payne, his wife v. Russell R. WALDEN, Constable, etc., et al.

Page 770

190 S.E.2d 770

156 W.Va. 60

STATE ex rel. Daymon PAYNE and Mary Payne, his wife v. Russell R. WALDEN, Constable, etc., et al.

No. 13183.

Supreme Court of Appeals of West Virginia.

Submitted April 26, 1972.

Decided Aug. 1, 1972.

Syllabus by the Court

1. The statutory distress warrant procedure which permits property of a tenant to be levied upon and seized by the levying officer without prior notice and opportunity for hearing deprives the owner of his property without due process of law in contravention of Article III, § 10 of the West Virginia Constitution and the Fourteenth Amendment to the United States Constitution.

2. When one is deprived of a right, it matters not that the deprivation is minimal. A restriction of a property right, temporarily or permanently, is nevertheless a prohibited curtailment of a right protected by the Constitution when such is accomplished without notice or hearing, absent a showing of a special or extraordinary State or creditor interest.

E. Dandridge McDonald, J. David Cecil, Charleston, for relators.

John N. Charnock, Jr., George A. Daugherty, Charleston, for respondents.

HADEN, Judge:

This is an application for an original writ of prohibition by relators, Daymon Payne and Mary Payne, husband and wife, herein referred to as the 'tenants', against respondents, Russell R. Walden, a Constable for Elk District, Kanawha County, West Virginia, Norman R. Buffington, a Justice of the Peace for Elk District, Kanawha County, and Mamie Swiny, a landlord, to test and attack the constitutionality of the procedures authorized under the West Virginia Distress Statute, West Virginia Code, Chapter 37, Article 6, Section 12, (Michie 1931) (hereinafter referred to as 'Code, 37--6--12' etc.), and the West Virginia Forthcoming Bond Statute, Code, 38--6--7 and 12, alleging that the distress statute is void on its face as being violative of the due process provisions of the State and Federal Constitutions and that the Forthcoming Bond Procedure denies the relators the equal protection of the laws guaranteed by the Federal Constitution by discriminating against them as indigents. The relief sought is to prohibit respondents from selling relators' property levied upon without notice of the opportunity to be heard.

On August 20, 1971, the tenants, who are welfare recipients, rented upon a month-to-month oral lease for the sum of $90.00 per month in advance, a dwelling house owned by the landlord Swiny, located on U.S. Route 119, in Elk District, Kanawha County, West Virginia. This dispute arose when the landlord, on December 14, 1971, sought a distress warrant for the sale of tenants' household furnishings and personal property upon the landlord's Ex parte affidavit presented to Squire Buffington alleging that tenants owed her back rent in the amount of $90.00. Subsequently the Justice issued a distress warrant to Constable Walden who entered the premises of the tenants by force during their absence and listed the entire personal property found therein and notified the tenants by posting Notice of Constable's Sale that he had levied on their property which would be sold at public auction on December 31, 1971.

On December 29 and 30, 1971, prior to the Constable's Sale date, the tenants applied first to the Common Pleas Court of Kanawha County and then to the Circuit Court of said county for injunctions to prevent the impending sale and to request a timely hearing to determine the constitutionality of the summary distress sale procedure. Both of the applications for injunction were refused by a final order entered January 17, 1972.

The application for the writ in the instant case was made on January 18, 1972; the rule issued on January 24, 1972, and was made returnable on April 25, 1972 at which time this case was presented upon the pleadings, briefs and oral argument of counsel for the parties.

It is acknowledged that the respondents herein acted under color of law, with the possible exception that the Justice volunteered a hearing on matters of defense to distress to the relators without the necessity of their posting a forthcoming bond as required by Code, 38--6--7. Relators did not avail themselves of the Justice's offer for a hearing. The court in the injunction case found that the tenants failed to sustain the burden of proof of showing the rent in question was not owing. The facts also show that the tenants were deprived of the full use of their property by levy but that the property was not actually taken in custody by seizure.

The questions presented for decision are as follows:

Whether the statutory summary distress procedure which denies a tenant notice and the right to be heard prior to the deprivation of his property is, on its face, unconstitutional as a denial of due process guaranteed by the Fourteenth Amendment to the United States Constitution and Article III, Section 10 of the West Virginia Constitution?

Whether the statutory forthcoming bond procedure which provides that a hearing is preconditioned on the posting by a tenant of a bond in an amount of double the value of the property distrained, constitutes a denial of equal protection of the laws to a tenant who is an indigent, in violation of Article 14 of the United States Constitution?

The relators also briefed and argued, but did not plead, the question of whether the statutory summary distress procedure allowing a forcible entry into the demised premises and seizure of tenants' property is, on its face, unconstitutional as an unreasonable search and seizure prohibited by the Fourth Amendment and Fourteenth Amendment to the United States Constitution.

The West Virginia statute providing for distress for rents permits the issuance of a distress warrant ordering a state agent to levy and seize a tenant's property simply upon an Ex parte affidavit of his landlord claiming rent is due and owing. The warrant need not be predicated upon prior demand for rent alleged to be due nor on authorization other than the landlord's word. The statute neither provides for notice to be given the owner of the property sought nor gives him an opportunity to challenge the levy or seizure at any kind of prior hearing. Code, 37--6--12.

The officer to whom the levy is directed may break and enter the tenant's premises to levy upon the property of the tenant. The levying officer may merely inventory the personal property found on the demised premises and post the same with a Notice of Constable's Sale stating the time and place of the sale, or, in addition he may seize the property found and hold it for the sale. Code, 37--6--14. See also Code, 50--14--19.

A tenant whose property is distrained may contest the taking after it occurs if he posts a forthcoming bond to the levying officer in favor of the landlord in an amount of not more than double the value of the distrained property. The tenant's right to contest the taking of his property or the amount, if any, of the rent due occurs in the first instance, only after he breaches the condition of the forthcoming bond and the landlord brings action thereon. Code, 38--6--7 and 38--6--12. State ex rel. Myers v. Hodge, 129 W.Va. 820, 42 S.E.2d 23 (1947).

The only other remedy available to the tenant after the taking and before the sale of his property is to affirmatively claim his right to hold personal property in the value of $200.00 exempt from execution or other process under Code, 38--8--1. This right is not extended to one who is unmarried and without children who has reached his majority.

Other court actions are available to the tenant, but only after the sale. See Code, 37--6--15 providing a right of action for actual damages arising from unlawful or irregular taking of property, such as an excessive levy. And, if the property was distrained for rent not due, there is an action for wrongful seizure and sale. See Code, 55--7--3, as amended. There is also an undoubted common law right of action for damages. Gurfein v. Howell, 142 Va. 197, 128 S.E. 644 (1925).

Without exhausting the possibilities of the tenant's remedies in regard to the taking of his property under color of law, suffice it to say all methods of recovery are denied him Before the taking provided in the distress for rents procedure.

The statutory distress for rents procedure has been a part of the law of this State since its formation. The use of the writ or distress warrant as an aid to a landlord seeking 'back rent' is an ancient writ available to our English antecedents since the twelfth century. Originally, it was an extrajudicial 'self-help' proceeding used by the feudal lord or his bailiff over his servants and vassals, as a pledge or security for the payment of rent or the rendering of services due by the tenant. 2 Pollock & Maitland, History of English Law, 576 et seq. (2d ed. 1909). In one form or another it has been accorded the dignity of codification by the Parliament, see The Sale of Distress Acts, William and Mary, c. V, (1689); and by the Assembly of our mother state, Virginia, Title 41, Chapter 138, Virginia Codes 1849 and 1860. This State continued to use the laws of Virginia pertaining to distress until the adoption of the Code of West Virginia of 1868, which, in Chapter 93, by and large, ratified preexisting provisions given us by the Virginia Assembly. Though our statute concerning distress has on occasion been amended and reenacted, it has retained its basic form and content to the present day. It gives the landlord a speedy and efficient method of compelling a tenant to pay rent previously due or to give a sufficient amount of property to satisfy that rent.

The statute, however, is attacked in this action as being unconstitutional on its face because it may deprive a tenant of his property or the use of his property for a period of time without notice and without the opportunity to be heard to contest the taking. Once previously this question was presented to this Court....