In the Matter of Landaal , 273 Mich. 248 ( 1935 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] May 15, 1935, one Claude Baumbach, as plaintiff, recovered a judgment against Arthur J. Landaal, for damages for the alienation of affections of Baumbach's wife. August 6, 1935, a body execution was issued and on August 30, 1935, the Ottawa county sheriff took Landaal into custody. On September 21, 1935, Act No. 127, Pub. Acts 1935, became effective. The title of the act is as follows:

"An act in relation to declaring and carrying into effect the public policy of the State with respect to causes of action for alienation of affections, criminal conversation, seduction and breach of contract to marry, actions thereon, contracts with respect thereto and actions and proceedings in connection therewith; to prescribe penalties for the violation thereof; and to repeal certain acts and parts of acts."

The sections that are pertinent to the issue in the present case are as follows:

"SECTION 1. All civil causes of action for alienation of affections * * * are hereby abolished. * * *

"SEC. 6. The right to issue or enforce executions against the body on any judgment heretofore rendered based on any of the causes of action specified in section one is hereby abolished. * * *

"SEC. 8. Nothing contained in this act shall be held to apply to any civil cause of action for alienation of affections * * * which has accrued prior to the effective date of this act. * * *

"SEC. 9. All causes of action abolished by this act, which have heretofore accrued, shall be commenced within ninety days after this act goes into effect, and if not so commenced shall be completely barred.

"SEC. 10. Each section and provision of this act shall be construed separately. * * * This act shall be liberally construed to effectuate the object thereof."

In the instant case Arthur J. Landaal petitions for a writ ofhabeas corpus, directed to the sheriff of Ottawa county. He claims that, under the above quoted section 6, the right to enforce executions against the body in any judgment theretofore rendered for alienation of affections has been abolished and therefore he is unlawfully imprisoned. While the attorneys for petitioner and respondent differ in the interpretation of the provisions of Act No. 127, they agree that its terms are uncertain and lead to confusion. The issue narrows itself down to the question whether the act prevents the further enforcement of a body execution against the petitioner when both the judgment for alienation of affections was obtained and the body execution had been issued and was being enforced prior to the effective date of the act. Respondent claims that because of section 8 the act, as a whole, including section 6, does not apply to any causes of action that accrued prior to the effective date of the act. Petitioner contends that section 6 is an exception to the other provisions of the act, as it distinctly states that the right to "enforce executions against the body on any judgment heretofore rendered * * * is hereby abolished;" that while section 8 preserves the right to obtain a judgment up to the expiration of the period specified in section 9, it does not preserve the right to enforce a body execution in such cases. Sections 6 and 8, while apparently inconsistent, can be reconciled. In construing statutes, if there is any proper way in which claimed inconsistencies can be reconciled, the court will do so and give meaning to all parts of the act. Lovalo v.Michigan Stamping Co., 202 Mich. 85; Taylor v. Isabella CircuitJudge, 209 Mich. 97; Chicago, D. C. G. T. J. R. Co. v.Simons, 210 Mich. 418; City of Grand Rapids v. Crocker,219 Mich. 178. A provision in the statute is not to be construed so as to render nugatory any other provision if by any reasonable construction it may be unnecessary to do so. Smith v. Jones,15 Mich. 281; Hitchcock v. Hogan, 99 Mich. 124; City of GrandRapids v. Crocker, supra.

In Crane v. Reeder, 22 Mich. 322, 334, the court through Mr. Justice CHRISTIANCY stated the rule which we have frequently referred to:

"That where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision, especially when such general and special acts or provisions are contemporaneous, as the legislature are not to be presumed to have intended a conflict. See, Dwarris on Statutes (2d Ed.), 513, 668; Standen v. University of Oxford, W. Jones, 17, 26 (82 Eng. Rep. 11); Nichols v. Bertram, 3 Pick. (20 Mass.) 342;State v. Rackley, 2 Blackf. (Ind.) 249; Stockett v.Bird, 18 Md. 484; McFarland v. Bank of State, 4 Pike (4 Ark.), 410; Pearce v. Bank of Mobile, 33 Ala. 693; Brown v. CountyCommissioners, 21 Pa. 37; Town of Ottawa v. LaSalle County,11 Ill. 654; State, ex rel. Fosdick, v. Mayor, etc., ofPerrysburg, 14 Ohio St. 472; Black v. Scott, 2 Brock. (U.S.C. C.), 325."

See, also, Woodworth v. City of Kalamazoo, 135 Mich. 233;Edwards v. Auditor General, 161 Mich. 639; Heims v. SchoolDistrict No. 6 of Davison Twp., 253 Mich. 248.

Section 6 specifically provides for an exception to the general provisions of section 8. It abolishes the right to enforce executions on judgments rendered prior to the effective date of the act. It does not, however, render such judgments nugatory; it only takes away one of the remedies for enforcing such judgment. Execution may be issued on such judgment against the goods and chattels of the judgment debtor; he still remains subject to a judgment creditor's bill or proceedings may be brought against him under 3 Comp. Laws 1929, § 15125. A reasonable construction of the act leads to the conclusion that it abolishes the right to further enforce body executions, even when issued prior to the effective date of the act, on judgments for alienation of affections.

Respondent claims that this construction of section 6 of the act would make the act unconstitutional because it would deprive plaintiff Baumbach of a substantial vested right without due process of law,^* that the act is retroactive⁸²²⁴ in affecting execution in the process of enforcement at the time the act became effective. The change in the act is not unconstitutional as it only destroys the remedy and not the judgment, there being other substantial or efficacious remedies left whereby the party can enforce his rights. See C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316,321, and Grand River Avenue Christian Church v. Berkshire LifeIns. Co., 254 Mich. 480, where the question is fully discussed and authorities assembled. The correct rule is stated in Cooley, Constitutional Limitations (8th Ed.), p. 754, as follows:

"And it (the legislature) may abolish old remedies and substitute new; or even without substituting any, if a reasonable remedy still remains. If the statute providing aremedy is repealed while proceedings are pending, suchproceedings will be thereby determined, unless the legislatureshall otherwise provide."

To like effect see John S. Hanes Co. v. Wadey, 73 Mich. 178 (2 L.R.A. 498); Heineman v. Schloss, 83 Mich. 153;Gittings v. Gittings, 197 Mich. 446; Niles Common Council v.DeLand, 219 Mich. 609; Backus v. Fort Street Union Depot Co.,169 U.S. 557 (18 Sup. Ct. 445); Bank of Hamilton v. Dudley, 2 Pet. (27 U.S.) 492.

Further objection is made to the constitutionality of the act on the ground that the title is violative of Constitution 1908, art. 5, § 21, which reads:

"No law shall embrace more than one object which shall be expressed in its title."

Plaintiff's claim is that the object of the legislation is not adequately expressed in the title. We believe that it fairly informs the legislature and public of its purpose as a law, and, therefore, meets the requirements set up by article 5, § 21. People v. Phippin, 70 Mich. 6; Vernor v. Secretary ofState, 179 Mich. 157 (Ann. Cas. 1915 D, 128); People v. WordenGrocer Co., 118 Mich. 604; Mackin v. Detroit-TimkinAxle Co., 187 Mich. 8.

The application for the writ of habeas corpus is granted, but without costs, since the question is a public one and could not be determined prior to a judicial interpretation of the language of the act.

POTTER, C.J., and NORTH, FEAD, WIEST, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.

The late Justice NELSON SHARPE took no part in this decision.

^* See U.S. Const., 14th Am.; Mich. Const. 1908, art. 2, § 16. — REPORTER.

⁸²²⁴ See U.S. Const., art. 1, § 10; Mich. Const. 1908, art. 2, § 9. — REPORTER.