Central Trust Co. v. Temple , 142 Kan. 671 ( 1935 )

Dawson, J.

(concurring): I have no doubt that the state of Kansas enjoys such attributes of sovereignty as authorize it to enact valid moratorium legislation. Our statute of 1893 (R. S. 60-3439), which granted to a judgment debtor in a mortgage foreclosure suit a period of eighteen months in which to redeem his property, from sale in foreclosure is an excellent example of that sort of legislation. And its constitutionality is unassailable in its prospective application, although its retrospective aspects were stricken down by the United States supreme court in Barnitz v. Beverly, 163 U. S. 118, 41 L. Ed. 93, 16 S. Ct. 1042. Indeed, I hold a tentative opinion that a Kansas court of general jurisdiction in a proper case could take judicial cognizance of such an emergency as that mentioned in the preamble to chapter 226 of the Laws of 1935; and under such unusual and distressing circumstances, in the exercise of its broad equity powers, might postpone judgment or the- time in which a judgment should take effect, without the particular sanction of our present moratorium enactments of 1933, 1934, and 1935.

In the fourteenth amendment, however (as well as in our own bill of rights), the constitution of the United States declares that no state shall make or enforce any law which will deprive any person of his property without due process of law.

Due process of law is the regular and orderly procedure prescribed in advance by legislative enactment for the adjudication of the rights and liabilities of litigants. Once adjudicated to a finality, those rights are vested beyond legislative control. In the notable case of McCullough v. Virginia, 172 U. S. 102, 123, 42 L. Ed. 382, 390, 19 S. Ct. 134, the supreme court of the United States said:

“It is not-within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.”

No brief submitted for our perusal — no case cited for our instruction — assails or attempts to overthrow this simple but fundamental principle of American jurisprudence. It clearly governs the disposition of the cases under present review.

Mr. Justice Smith joins in the foregoing special comment of Mr. Justice Dawson.