Reiman v. Rawls , 188 Ark. 983 ( 1934 )

Smith, J.,

(concurring). In my opinion § 2 of act 21 is unconstitutional as imposing a condition not previously existing, which, in many cases arising out of mortgages and deeds of trust executed before the passage of the act, will postpone and greatly delay foreclosure proceedings. "While it was no doubt contemplated that foreclosure suits must be prepared for submission before the term of court convened, it must also have been contemplated that a hearing would be had before foreclosure decrees are rendered. It is easily conceivable that, even though the first three days of the term were wholly devoted to hearing such cases — and the act does not require that this be done — all such cases, although ready for submission, might not be reached within the time limited. Not much ingenuity would be required to protract the hearing of a few cases to an extent that many other similar cases could not be heard at all, with the consequent result of a delay which might prove to be indefinite.

However, act 21 and much similar legislation passed at the same session of the General Assembly manifests the purpose to accord the debtor the greatest indulgence which may be granted, and it is, therefore, reasonably certain that the legislation would have been enacted even though § 2 were eliminated. It is well settled that the unconstitutional portion of a statute may be stricken out without impairing the effect of the remainder where the provisions are wholly indepéndent and it can be seen that the lawmakers would have enacted the remaining part of the statute, even though the act does not contain an express declaration of the intention to enact so much of the legislation as may prove to be constitutional. Heinemann v. Sweatt, 130 Ark. 74, 196 S. W. 931; Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77; McClendon v. Board of Health, 141 Ark. 114, 216 S. W. 289; Brooks v. Wilson, 165 Ark. 477, 265 S. W. 53; County Board of Health v. Austin, 169 Ark. 436, 276 S. W. 2. There are many other cases to the same effect.

Section 1 of the act only is here directly involved, and, as it appears to be a reasonable amendment to the practice in foreclosure cases, I see no constitutional objection to its enforcement, and it may be enforced even though § 2 is unconstitutional, as I believe it to be. I therefore concur.

I am authorized to say that Mr. Justice McHaney concurs in the views here expressed.