State ex rel. Roth v. Waterfield

• Decision Date: 17 October 1933
• Docket Number: Case Number: 24650
• Parties: STATE ex rel. ROTH v. WATERFIELD
• Court: Oklahoma Supreme Court

1933 OK 546

29 P.2d 24

167 Okla. 209

STATE ex rel. ROTH v. WATERFIELD

Case Number: 24650

Supreme Court of Oklahoma

Decided: October 17, 1933

Syllabus

¶0 1. Constitutional Law--Police Power of States.

The police power is an attribute of sovereignty possessed by every sovereign state and is inherent in states of the American Union. While incapable of exact definition, it is not without its limitation and must be exercised in a manner consistent with constitutional requirements both state and national.

2. Same--Proper Exercise of Police Power by Statute.

In order to be justified as a proper exercise of the police power, a legislative enactment must be neither unreasonable, capricious, nor arbitrary, and it must fairly tend to accomplish the purpose of its enactment, and must not go beyond the reasonable demands of the occasion.

3. Same--Right to Act Under Police Power as Part of Contract in Contemplation of Law.

The right of the Legislature to act under the police power of the state is a part of the existing law at the time of the execution of every contract, and as such becomes in contemplation of law a part of that contract.

4. Same--Extension of Police Power to Remedy Economic Conditions.

Situations may arise which justify an extension of the police power of the state to remedy economic conditions, but when such power is undertaken to be exercised with that object in view to the detriment of one class of persons, appropriate provisions for protecting the rights of that class of persons and providing compensation for rights infringed upon should be provided.

5. Same--Mortgages --."Moratorium Law" Held Unconstitutional in Part.

Senate Bill No. 76 of the 14th Legislature, commonly known as the "Moratorium Law" (Session Laws 1933, chapter 16, page 42), examined with a view of determining whether it constitutes a proper exercise of the police power of the state, held, that section (1) thereof and each provision of that section is invalid and unconstitutional for the reason that it arbitrarily delays mortgage foreclosure actions without adequate provisions for compensation to the mortgagee, and without any provision for protection of the rights of the mortgage during the period of delay; that such section likewise goes beyond the reasonable demands of the occasion, being applicable according to its terms to all classes of mortgage foreclosures without regard to the merits of the particular case, and that such section also violates section 6 of art. 2 of the Constitution of the state of Oklahoma, providing that courts shall be open at all times and speedy remedies afforded for every wrong. Sections 2, 3, and 4 of said act held valid as a reasonable exercise of the police power of the state in so far as such sections vest in the trial courts a judicial discretion to grant continuances in proper cases, upon conditions protecting the rights of the mortgagee, and providing compensation for the delay this afforded.

6. Statutes--When Act Unconstitutional in Part.

The unconstitutionality of a portion of an act of the Legislature does not defeat or affect the validity of the remaining provisions unless it is evident that the Legislature would not have enacted the valid provisions with the invalid provisions removed, if with the invalid provisions removed the rest of the act is fully operative as a law.

7. Same--Effect of Provision in Act That Invalidity of Any Part Shall not Affect Remaining Parts.

The effect of a provision in an act to the effect that the invalidity of any part or portion thereof shall not affect the remaining portions is to create a presumption that, omitting unconstitutional portions, the remaining portions would have been enacted by the Legislature.

Dissenting Opinion January 26, 1934.

Appeal from District Court, Tulsa County; S. J. Clendenning, Judge.

Mandamus by the State ex rel. Edward K. Roth. as trustee for Ray R. Roth, against E. A. Waterfield, Court Clerk of Tulsa County. Writ denied and plaintiff appeals. Reversed and remanded.

Arden E. Ross, Massingale, Duff & Manatt, and Kleinschmidt & Johnson, for plaintiff in error.

Holly L. Anderson, Co. Atty., (Albert H. Bell, Yancy, Spillers & Brown, Hess Crossland, Orr & Rust, Hunt & Eagleton, and William H. Martin, of counsel), for defendant in error E. A. Waterfield.

Maris & Maris, Chas. West, and Conner & Conner, amici curiae.

BUSBY, J.

¶1 This appeal is perfected from a decision of the district court of Tulsa county refusing to issue a writ of mandamus to compel the court clerk of that county to issue a summons in a mortgage foreclosure action.

¶2 The parties appear in this court in the order of their appearance in the trial court, and will be referred to as plaintiff and defendant, respectively.

¶3 The mortgage foreclosure action was filed in the district court of Tulsa county on April 27, 1933. Plaintiff's petition was accompanied by a praecipe for summons requesting that the court clerk issue summons requiring the defendants to answer 20 days after the return date. The clerk of the court refused to issue summons in accordance with the praecipe, asserting that the return day should be fixed at 9 months from date of service. The plaintiff then applied to the district court of Tulsa county for a writ of mandamus to compel the defendant court clerk to issue a summons in the form requested by the praecipe. The defendant in his response urged that his refusal to act was justified by the provisions of Senate Bill No. 76 of the Fourteenth Legislature, commonly known as the "Mortgage Moratorium Act" (Sess. Laws 1933, ch. 16). This act the plaintiff said was unconstitutional.

¶4 The decision of the trial court refusing to issue the writ declared section 1 of the act free from constitutional objections.

¶5 Several cases involving this legislative enactment are now before this court. They have been considered together and the briefs filed in all of them have been consulted in arriving at the conclusions herein announced.

¶6 The only questions involved relate to constitutional law. If section 1 of the act is valid, the defendant should prevail. If invalid, the writ should issue as requested by the plaintiff.

¶7 The act in question provides:

"Section 1. In all actions now pending in the courts of this state, for the foreclosure of mortgages or other liens upon real estate, where the answer of the defendant or defendants has not been filed, such defendant or defendants shall not be held to answer therein until the expiration of nine (9) months after the date of the service of summons upon the defendant who is the record owner of the real estate, at the time of the filing of suit upon which the mortgage or other lien is sought to be foreclosed, and

"In all actions hereafter filed in the courts of this state for the foreclosure of mortgages or other liens upon real estate, the defendant or defendants shall not be held to answer therein until the expiration of nine (9) months after the date of the service of summons upon the defendant who is the record owner of the property at the time of the filing of suit upon which the mortgage or other lien is sought to be foreclosed, and

"In all actions now pending in the courts of the state, for the foreclosure of mortgages or other liens upon real estate, in which the answer of defendant or defendants has already been filed, no trial shall be had, and no court of this state shall render judgment therein, until the expiration of nine (9) months after the passage and approval of this act, upon which the mortgage or other lien is sought to be foreclosed.

"Section 2. For a period of two (2) years from and after the approval of this act, the district judge, or the judge of the superior court of the county in which any real estate mortgage foreclosure of a deed of trust, or other instrument, the security of which is real estate, is hereby vested with the jurisdiction and discretion of granting a continuance of said cause, upon his own motion, or upon application of the owner of said property, in person, or by his attorney, and upon such terms and for such time as said judge may deem best.

"Section 3. The judge of said court shall continue said cause for such time as he may deem best, or when it may be made to appear to the court that:

"(First), The owner shall pay, at any time before confirmation of sale, the accruing interest and all taxes due upon said property; or:

"(Second), At any time before confirmation of sale, where the said owner shall pay or cause to be secured, a reasonable rental for the time or term which said judge shall order said cause to be continued; or:

"(Third), At any time before confirmation of sale, where it shall appear that the value of the property is sufficient to satisfy the lien, together with the cost, and the owner shall pay or otherwise secure the taxes due upon said land.

"Section 4. The court or judge of the district or superior courts or (sic) said state may appoint a receiver of said property, except when the same may be a homestead, to preserve, rent and operate said property, or to prevent waste, where the occupant thereof is wilfully injuring or destroying the improvements on any property sought to be foreclosed, and apply the receipts as the court may direct, during the time for which said cause is continued.

"Section 5. That whenever the record owner of the real estate, at the time of the passage and approval of this act, shall convey or transfer said property at any time hereafter, or in any way incumber the same without the written consent of the mortgagee the provisions of this act shall not apply. Provided, further, any attempt to waive or contract in violation of the provisions of this act are void and are without legal effect.

"Section 6. That the provisions of this act shall not operate to affect the liens or remedies to enforce said liens of labor, mechanic's or material lienholders existing upon the passage and approval of this act.

"Section 7. This act shall be and remain in full force and

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