State Ex Rel. Osage County Savings & Loan Ass'n v. Worten , 167 Okla. 187 ( 1933 )

This is an original proceeding in this court for a writ of mandamus by the Osage County Savings Loan Association against Jesse J. Worten, judge of the district court of Osage county, state of Oklahoma.

It appears from the record that the plaintiff herein instituted an action in the district court of Osage county against Albert Holder and other persons for the recovery of a money judgment on a certain promissory note and for the foreclosure of a real estate mortgage given as security for the amount evidenced by that note; that summons was regularly served upon the defendants therein, notifying them to answer on or before the 17th day of February, 1933; that no answers were filed and no appearances made by any of those defendants; that on March 7, 1933, Senate Bill No. 76 of the Fourteenth Legislature (chapter 16, Session Laws of 1933) became effective; that on May 8, 1933, the plaintiff therein filed in the district court a written motion for judgment by default and offered to produce evidence in support of his petition, and that the defendant herein, the judge of the district court of Osage county, Okla., refused to hear said evidence and to render judgment by default on account of the act of the Legislature, supra.

There are many contentions made herein. However, it is necessary herein to decide only one question, which is whether or not the procedure provided by the legislative enactment, supra, is applicable to a proceeding pending at the time of the effective date thereof.

The action in the district court of Osage county was commenced by the filing of a petition and service of a valid summons, and that action was pending at the time of the effective date of the legislative enactment, supra.

The provisions of section 54, art. 5, of the Constitution are as follows:

"The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute."

That constitutional provision is in derogation of common law. In State ex rel. Atty. Gen. v. McCafferty, Co. Treas.,25 Okla. 2, 105 P. 992, this court said:

"To mitigate this harsh rule of the common law this general saving clause was preserved in our Constitution, and is a part of every act passed by our Legislature, as much so as if expressly written in the act. The part of it under discussion simply means that 'proceedings begun by virtue of such repealed statute,' instead of being dismissed by the court for want of jurisdiction after the repeal of that law, as under the common law, shall be by the court retained, and pass to judgment unaffected by the repealing act so far as the 'proceedings are concerned; that is, the 'proceedings', which are defined to mean 'all the steps or measures adopted in the prosecution or defense of an action', shall not be affected, but, as stated, the court shall continue to entertain jurisdiction and proceed to judgment in the cause. John C. Gordon, Probate Judge, v. State of Kan. ex rel. Henry Boder, 4 Kan. 421; Main Street, etc., Co. of Horton v. Horton Hardware Co., 56 Kan. 448, 43 P. 769; Joseph L. Crawford v. David P. Shaft, 35 Kan. 478, 11 P. 334; Charles Jockers v. Mary Borgman, 29 Kan. 78, 44 Am. Rep. 625."

It will be noted that therein "proceedings" were defined as "all steps or measures adopted in the prosecution or defense of an action." In Harlow v. Board of Co. Com'rs of Payne County,33 Okla. 353, 125 P. 449, the constitutional provision was applied to a pending proceeding. The decision of this court in that case was summarized in a decision of this court in Gayman, Co. Treas., v. Mullen, 58 Okla. 477, 161 P. 1055, in which it was said:

"In Black's Law Dictionary the word 'proceeding' is defined as follows:

" 'In a general sense, the form and manner of conducting judicial business before a court or judicial officer;regular and orderly progress in form of law,' etc. (The emphasis is ours.)

"And, although the question does not appear to have been heretofore discussed by this court, in the case of Harlow v. Board of Commissioners of Payne County, 33 Okla. 356,125 P. 449, this court held that a proceeding to construct a bridge nearer than six miles to another bridge in contravention of the act of March 11, 1903 (Laws 1903, p. 246), as amended by the Act of March 10, 1905 (Laws 1905, p. 354, being section 7885, Comp. Laws 1909), in respect to the distance between bridges, being without authority and subject to be enjoined, was not legalized nor affected by the Act of February 17, 1911 (Laws of 1911, p. 41), repealing the provision of prior laws so contravened because of this provision of our Constitution. In that case a temporary injunction was granted to prevent the county commissioners from entering into and carrying out a contract of construction of a certain bridge over a river within six miles of another bridge upon the erroneous view that such bridges were farther apart; and from an order dissolving that injunction, before the Act of February 17, 1911, this case was brought to this court for review, where it was reversed upon the grounds that the distance between the bridges was less than six miles and the proposed bridge was within the inhibition of the prior statute, with the statement in the body of the opinion that the proceeding was not affected by the Act of February 17, 1911, repealing the inhibition because of the provision of the Constitution now under consideration."

The issue in Gayman, Co. Treas., v. Mullen, supra, was whether or not viewers had been properly appointed in a drainage proceeding. With reference thereto this court said:

"We think this change in the method and manner of selecting viewers, being in a mere matter of procedure and not in any matter of rights, does not affect the proceeding begun by virtue of the repealed statute in this respect, and that the report of the viewers appointed and acting under the old statute on the fourth day after the new statute went into effect was as valid as if there had been no change in the former statute."

In Green v. Board of Com'rs of Lincoln County, 126 Okla. 300,259 P. 635, the record showed that the board of county commissioners, by resolution and notice, had caused an election to be called at which county bonds for road improvements were to be voted upon.

On the afternoon of the day on which the election was held, after most of the votes in question had been cast, the Governor approved an emergency measure passed by the Legislature which, in the language of this court, "amends or repeals the law under which the bonds are voted." This court held that the proceedings had been commenced prior to the enactment of the new statute and that the proceedings having been commenced under the law as it existed prior to the new statute, those proceedings were governed entirely by the law existing prior to the effective date of the new statute. That decision was based on the decision in Gayman, Co. Treas., v. Mullen, supra, and the decision of this court in Re Application of State to Issue Bonds, 40 Okla. 145, 136 P. 1104. In the latter case it was held:

"The omission of sections 372 to 381 Compiled Laws of 1909, from the Revised Laws of 1910, does not operate to abate a proceeding pending under said sections prior to the date when said Revised Laws of 1910 went into effect."

It was therein held that a proceeding to fund outstanding indebtedness was a proceeding within the meaning of the constitutional provision. The court said:

"This proceeding being one begun prior to the date when the act of adoption went into effect, and being for the purpose of procuring an issue of bonds, it comes within the letter of the statute, as a proceeding begun and pending, as a necessary step in a bond issue authorized by the omitted act. The bond issue can only be saved by saving the proceeding provided for that purpose. It follows that the proceeding did not abate or become invalid by reason of the repeal of the statute under which it was begun prior to such repeal."

In Turk v. Mayberry, 32 Okla. 66, 121 P. 665, the issue was whether the Arkansas statute providing an exemption period of one year for redemption of real estate sold under execution was applicable after statehood. The case was filed on May 28, 1907. Judgment was rendered on June 30, 1907. It is evident that the change of law occurred while the proceeding was pending. This court held that the confirmation of sale prior to the expiration of the twelve months period was ineffective and void.

In Rolater v. Strain, 31 Okla. 58, 119 P. 992, the judgment had been rendered while the statute providing one year for appeal was in force, and after the judgment was rendered the provision for appeal was changed to provide for six months. The appeal was not perfected within six months from the date of judgment and a motion was filed in this court to dismiss the appeal. This court said:

"The same question which is presented here has been frequently presented in other states, and the almost uniform holding of the courts has been in accord with the conclusion to which we have come, and the rule may be stated generally to be that a statute reducing the time for taking an appeal does not apply to proceedings in which a judgment has been previously rendered, and that the right of appeal is governed by the provisions of law applicable thereto in force at the time when the judgment was rendered"

— and cited a number of decisions from that jurisdiction in support thereof. It held that the right of appeal was governed by the law applicable thereto in force when final judgment was rendered, and the constitutional provision therein referred to evidently was applied.

In his preface to his "Constitution and Enabling Act of Oklahoma", Mr. Justice Williams, formerly a member of the Constitutional Convention, while a justice of this court, said:

"Whilst we have been impressed that the many restrictions imposed upon the Legislature by matters of detail inserted in Constitutions are indicative of the people's distrust of their representatives, yet it is obvious that when such provisions are incorporated in a Constitution, the people understand that they then become fixed and unalterable except in the manner and form provided for its amendment. This is not an evidence that the people in their sovereign capacity desire to have the commonwealth other than a government of law, for, as a rule, a Constitution and its provisions are adopted after representatives have been especially elected and commissioned to frame its provisions, which are thereafter to be approved by the electors. When such organic law is ratified, though much of it is purely legislation, it is with the solemn realization that it then and there becomes a fixed organic law, subject to be changed only in the manner and form provided in the Constitution, and that the Legislature, by enactment, except where specially provided, the executive by administrative power, or the courts by construction, may not alter, modify or repeal same by the excessive use of power, though supported by public sentiment."

We call attention to the statement of that eminent authority for the reason that we do not think that this court should be swayed by public sentiment to alter, modify, or repeal any provision of the Constitution by the mere use of its power so to do. In the language of Mr. Justice Osborn, in Independent School Dist. No. 39, Creek County, v. Exchange National Co.,164 Okla. 176, 23 P.2d 210:

"We do not believe that our courts should base their decisions involving the fundamental rights of citizens on proprieties and exigencies of the occasion."

In the language of Mr. Justice Turner, in State ex rel. West, Atty. Gen., v. McCafferty, Co. Treas., supra, the constitutional provision is a part of every act passed by our Legislature as much so as if expressly written in the act. The attempt on the part of the Legislature to make the provisions of the act in question apply to a proceeding pending at the time of the effective date of that enactment was ineffective by reason of the constitutional provision, supra. The Legislature had no such authority. In so far as the legislative enactment, supra, purports to change the procedure in a proceeding pending at the time of the effective date thereof, it is ineffective, unconstitutional, and void.

It appears from the record that the trial court refused to hear evidence and to render a judgment by reason of the provisions of the legislative enactment, supra. In so doing the trial court was in error.

The writ of mandamus is ordered to issue, directing the trial court to proceed with the cause in question without regard to the provisions of Senate Bill No. 76 of the Fourteenth Legislature, and to apply the law and follow the procedure existing at the time of the commencement of the action in that court.

RILEY, C. J., CULLISON, V. C. J., and BAYLESS, BUSBY, and WELCH, JJ., concur. SWINDALL, McNEILL, and OSBORN, JJ., dissent.