Blackmarr v. City Court of Salt Lake City

The prevailing opinion states the sole question presented by this appeal. The constitutionality of a part of section 3287, Comp. Laws Utah 1917 (sections 43-9-30 and 43-9-31, R.S. Utah 1933, having divided the section as found in the Compiled Laws of 1917), is the question at issue. The part of the section attacked is contained in the proviso of the Comp. Laws Utah 1917 relating to the length of time within which the defendant referred to in the section is required to answer. The facts are set forth at length in the main opinion and need not be repeated here.

Under the general statutes all defendants in the respective courts of justice of this state, be they white or black, native or alien, corporate or otherwise, are required to answer within the same time, the sole exception being "Fraternal Benefit Societies," section 3287, supra (Section 43-9-31, R.S. Utah 1933), being the section which grants to such societies the privilege of a 30-day period before being required to answer. That part of the section granting this special time for answering, in so far as pertinent here, reads:

"Service shall only be made upon such attorney, * * * and shall be deemed sufficient service upon such society; provided, however, that no such service shall be valid or binding against any such society when it is required thereunder to file its answer, pleading, or defense in less than thirty days from the date of mailing the copy of such service to such society. * * * Legal process shall not be served upon any such society except in the manner provided herein."

If this statute does not violate the provisions of article 6, § 26, subd. 6, and part of subdivision 18, it is difficult to conceive a situation that would be violative of the provisions of the Constitution referred to. The provisions referred to read (article 6, § 26):

"The Legislature is prohibited from enacting any private or special laws in the following cases: * * *

"6. Regulating the practice of courts of justice. * *

"18. * * * In all cases where a general law can be applicable, no special law shall be enacted."

It is to be observed that there is a general law relating to the commencement of an action in city courts, district courts, and in courts of justices of the peace. The sections referring to the respective courts as to the manner of commencing an action are:

City courts, section 1714, Comp. Laws Utah 1917, as amended by Laws Utah 1919, c. 34, p. 61:

"The manner of commencing an action in the said city court, the requisites of summons, and the manner of service and return of summons shall, except as otherwise provided in this chapter, conform as nearly as may be to the practice prescribed for district courts; provided, that when the action is commenced by the filing of a complaint a copy of the complaint need not be filed with the clerk of the court, but must be served upon the defendant, at the time of the service of the summons; no extra fee in addition to that allowed for serving the summons shall be allowed the officer for serving this copy. If a copy of the complaint is not served with the summons, the words, `of which a copy is hereto annexed and is herewith served upon you' may be omitted or erased, and in place thereof may be inserted the words, `which within five days after service of this summons upon you, will be filed in said court.' If a copy of the complaint be not served with the summons, and a copy thereof be not deposited with the clerk of said court within five days after service of the summons, the copy of the summons served on the defendant may be filed with the clerk of the court by the defendant, and thereupon the clerk shall docket said action, and the same shall be dismissed by the court, on motion of the defendant, at the cost of plaintiff; provided further, that if the action be upon contract for the payment of money only, the summons shall set out the amount.

"The summons issued out of said court shall be substantially in the following form: Title of court and cause. The State of Utah to said defendant. You are hereby summoned to appear within ten (10) days after the service of this summons upon you, if served within the county in which this action is brought; otherwise within twenty (20) days after this service, and defend the above entitled action; in case of your failure to do so the plaintiff in this action will apply to the court for the relief demanded in the complaint, of which a copy is hereto annexed and herewith served upon you, (and if the action be upon contract for the payment of money only, add substantially the following): and will take judgment against you for the sum of ______ dollars ($ ____), with interest at the rate of ______ per cent per annum since the ______ day of ______ (19__), together with plaintiff's costs and disbursements herein.

"___________________________ "Plaintiff's Attorney.

"Dated _____________, A.D. 19__."

District courts, sections 6538 and 6539, Comp. Laws Utah 1917:

Section 6538: "A civil action shall be commenced by the filing of a complaint with the clerk of the court in which the action is brought or by the service of a summons."

Section 6539: "The summons in a civil action shall be substantially in the following form:

"In the District Court of ____________ County, State of Utah.

"____________, plaintiff, vs. ____________, defendant.

Summons. "The state of Utah to the said defendant:

"You are hereby summoned to appear within twenty days after service of this summons upon you, if served within the county in which this action is brought; otherwise within thirty days after service, and defend the above entitled action; and in case of your failure so to do, judgment will be rendered against you according to the demand of the complaint.

"(Signed by) ____________ "Plaintiff (or plaintiff's attorney).

"P.O. Address: _______________________

"If the complaint be on file at the time of service of the summons, the words `which has been filed with the clerk of said court,' shall be added, following the word `complaint;' otherwise the words, `which, within ten days after service of this summons upon you, will be filed with the clerk of said court,' shall be added, following the word `complaint.' When service of the summons is made by publication, the summons shall also contain a brief statement of the object of the action, as, for example: `This action is brought to recover a judgment — dissolving the marriage contract (or bonds of matrimony) heretofore existing between you and the plaintiff;' or, `quieting plaintiff's title to the land described in said complaint;' or, `foreclosing plaintiff's mortgage upon the land (or other property) described in said complaint,' as the case may be."

Justices' Courts, sections 7435 and 7436, Comp. Laws Utah 1917:

Section 7435: "An action in a justice's court is commenced by filing a complaint. The court must indorse on the complaint the date upon which it was filed, and make an entry of such filing in his docket with the date thereof, and at any time within three months thereafter the plaintiff may have summons issued."

Section 7436: "The summons must be issued and signed by the justice, and shall be substantially in the following form:

"In the Justice's Court, in and for the ____________ precinct, city of ____________, county of ____________, state of Utah.

"Before ____________, Justice of the Peace.

"__________, Plaintiff, vs. __________, Defendant.

Summons. "The state of Utah to the defendant:

"You are hereby summoned to appear before the above entitled court within ten days after the service of this summons upon you, if served within the county in which this action is brought, otherwise within twenty days after this service, and defend the above entitled action, brought against you to recover (stating in general terms the nature of the cause of action), and in case of your failure to do so, judgment will be rendered against you according to the demand of the complaint.

"________________________ "Justice of the Peace."

It will be observed that all of the sections relate to the manner of commencing actions in the respective courts and in each the form of summons is prescribed and the time is fixed within which prescribed time the defendant is required to answer. There is no exception. Every defendant in the particular court in which the action may be commenced is subject to the same law and has the same rights and privileges, and the same duties are imposed.

If it was the intention of the Legislature, assuming without admitting that it had the power, to provide that a particular defendant, or class of defendants, might have more time in which to answer than other defendants, all of the sections of the statutes relating to the manner of commencement of actions should have been amended by inserting an exception such as, "except Fraternal Benefit Societies," otherwise we are driven to the position of amendment of statutes by implication, which may not be done unless the intendment is clear, and even this is not available in the instant case, for the reason that the statute relating to the service of summons on fraternal benefit societies was passed in 1911 (Laws 1911, p. 301), and, although the city courts were created in 1901, the statute prescribing the form of summons and fixing the time within which a defendant must answer was amended and re-enacted in 1919. So, if the last word of the Legislature upon the subject is to be considered as effective, the time for any defendant to answer is as provided by section 1714, as amended by Laws of Utah 1919.

Aside from the constitutionality of the statute attacked, it would seem that, under the ordinary rules applicable to such a case, the last expression of the legislative intent should control and the summons served must comply with the law in force and applicable to the instant case.

When the statutes above quoted are compared it will be observed that in each court every defendant, without exception, in the court in which the action is brought, must answer or plead within the same time. The question is not one of classification of courts, or limitations upon jurisdiction. It is classification, if at all, among defendants. The general law thus provided, not only can be applicable, but the general law is applicable.

"All laws of a general nature shall have uniform operation." Const. Utah, art. 1, § 24.

This law does not operate uniformly upon all defendants in city courts, or otherwise. The difficult and disturbing situation is that a proviso in a law relating to a particular defendant or designated type of defendants based upon the special business, function performed, or type of organization, changes the general court procedure in the courts as to the particular type of defendant.

While chapter 2, tit. 52, Comp. Laws Utah 1917, is devoted entirely to fraternal insurance, section 3274 of that chapter contains the offending proviso — singles out fraternal benefit societies and grants a privilege and establishes a procedure of the courts not applicable to any other defendant. The general law and the subject-matter thereof is the service of summons and the time within which to answer or plead is fixed. The "Fraternal Benefit Societies" referred to in the chapter are by the statute referred to as corporations, societies, orders, or voluntary associations, without capital stock, organized and carried on for the mutual benefit of members, and in addition thereto a variety of forms of organization exemptions, powers, modus operandi, benefits, and regulations, relating thereto are provided.

The exception is dangerous, and once it is made the next exception and complication would probably be an exception based upon a pursuit of aims, purposes, forms, powers, and privileges of a corporation to determine whether or not the particular defendant was within or without the terms of the proviso as to service of summons and time to plead.

The anomoly of the situation is emphasized — should a situation occur — where a corporation for profit and a "Fraternal Benefit Society," or such society and a personal or other natural or corporate entity, were sued in the same action as joint defendants. To allow one of such defendants 30 days to answer or plead, and the other only 10 days, necessitates issuing two forms of summons in the same action and presents a situation, in our opinion, which the framers of the Constitution determined should not be permitted. The provisions of the Constitution should be given the meaning such provisions had in the minds of the voters at the time the provision was adopted.Tintic Standard Min. Co. v. Utah County, 80 Utah 491,15 P.2d 633. The matter of regulating by statute the business, the form or the purposes, or functions of a corporation or society is a very different thing from that of prescribing a special form of court procedure and making an exception as to such an organization or group of organizations when sued in a court of justice. We see no reasonable basis upon which defendants may be classified whereby one may have a privilege accorded to it in a court procedure, not afforded to another. Every defendant is entitled to the same privileges and the same protection of the law. The very conception of such a situation offends the fundamental principles of court action and procedure. No doubt had the same statute limited the time within which such societies were required to answer or plead to 5 days, or immediately upon service of summons, discrimination of an adverse variety would be urged, and argued as offending the same provisions of the Constitution as here under consideration.

As indicated in the main opinion, some of the authorities cited by the respective parties discuss principles of law analogous to those involved in this case, and, while we may not find the identical facts, we do find a discussion of the principles which deal with the problem presented here. The prevailing opinion concedes, and we think it may be conceded, and the authorities support the position that the issuance and service of summons is embraced within that provision of the Constitution with respect to the "practice in the courts of justice." In the case of In re McCormick's Estate, 72 Or. 608,143 P. 915, 144 P. 425, at page 426, the Oregon court, in discussing a clause in the Oregon Constitution relating to the "practice in the courts of justice," quotes:

"Bouvier defines the word `practice' as `the form, manner, and order of conducting and carrying on suits or prosecutions in the courts, through their various stages, according to the principles of law, and the rules laid down by the respective courts.' * * * The word `practice' means those legal rules which direct the course of procedure to bring parties into court, and the course of the court after they are brought in. * * * `Practice' is defined by Burrill, as `the course of procedure in the courts, which, in a general sense, includes pleadings.' Rapalje and Lawrence define `practice' as `the law which regulates the formal steps in an action or other proceeding; which therefore deals with writs, summons, pleadings, affidavits, notices, motions, petitions, orders, trials, judgments, appeals, costs, and executions.' 6 Words and Phrases, First Series, page 5486, and authorities there cited."

The service of summons and particularly that provision which limits the time for answering or otherwise pleading after service clearly relates to the "practice in the courts of justice." The question here is, Does that part of section 3278, supra, now section 43-9-31, supra, offend against the provisions of article 6, § 26, subds. 6 and 18? We think it is clear that it does. And not only that, but we think it also offends against section 24 of article 1, supra.

We are also mindful of the rule that "courts do not lightly interfere with the Legislature in choosing or selecting methods of classification, yet they do not, and may not, shut their eyes to classifications that clearly and manifestly operate unequally, unjustly, and unfairly upon those who come within the same class." Board of Education of Ogden City v. Hunter, 48 Utah 373,159 P. 1019, 1024. Classification for administrative purposes is a different thing than classifications of citizens, individuals, or corporations into privileged and restricted groups as to what must be done by them when served with judicial process.

Arguments and briefs herein on the part of respondent approach the discussion of the provisions under examination from what may be termed the "classification point of view." Many authorities are cited wherein laws have been held to be constitutional where classification for legislative, administrative, economic, or developmental purposes are made. No case has been submitted to us, and we have found none, where a classification of parties to a proceeding at law has found support. A privilege or a burden may or may not be a denial of the equal protection of the laws, and much may depend upon whether the classification or discrimination relates to a matter upon which a proposed classification may be permissible at all, and even then whether such classification is reasonable. A classification may be permissible when, in the nature of things, under the operation of the law, it is necessary for revenue purposes, or in legislation designed to affect operation of industries and as to matters affecting health, general welfare, and prosperity of the state.

Classifications under the equal protection of the law clause of the Constitution have been sustained, based upon "differences between corporations, differences between land dependent on its use for agricultural and other purposes, differences between fire insurance and other insurance, differences in the character of work, differences between hiring persons to labor in the state and hiring persons to labor out of the state, differences between sugar refineries based entirely on whether the sugar refined was purchased or produced by the refiner, as well as various other differences." Hill v. Rae, 52 Mont. 378, 158 P. 826, 828, L.R.A. 1917A, 495, Ann. Cas. 1917E, 210, and cases cited. Classification for such purposes bears no analogy to a classification of defendants before a court of justice into those who are required to answer as provided by the general law and a particular corporation, society, or group of such corporations or societies or individuals as defendants who may have the special privilege of having three times as long to answer depending upon whether one may be engaged in selling insurance without profit or for profit, or selling good will, or matches, or carpet tacks.

Nor are we unmindful of the presumptions in favor of constitutionality. This court has held in the case of Stillman v. Lynch, 56 Utah 540, 192 P. 272, 278, 12 A.L.R. 552, that "every presumption is in favor of the constitutionality of a statute, and in case of a doubt the statute must be held to be valid." The rule is also declared in Highland Boy Gold Min. Co. v. Strickley et al., 28 Utah 215, 78 P. 296, 1 L.R.A. (N.S.) 976, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110, and cases there cited. Constitutional inhibitions laid upon the legislative power by solemn declaration of the fundamental law of the state are there for mandatory and prohibitory purposes (Const. Utah, art. 1, § 26), and presumptions of validity of a law should not be made an instrument to chisel away constitutional principles and to attack and destroy the constitutional foundations laid by the people to guard against special or private laws and privileges and for the prevention of any charge of injustice or inequality of person or party when summoned before a court of justice.

Should it be assumed that a classification of parties to a suit at law could be made at all, still a "classification, to be valid, `must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'" State v. Packer Corporation, 77 Utah 500,297 P. 1013. Likewise, classification must always rest upon some difference bearing a reasonable and just relation to the matter in respect to which the classification is proposed, neither may it always depend on scientific or marked differences in the subject-matter of the proposed classification; but it must be of practical application and not so discriminating as to be arbitrary. Hill v. Rae, 52 Mont. 378, 58 P. 826, L.R.A. 1917A, 495, Ann. Cas. 1917E, 210.

Legally all persons are equal before the law whether natural or corporate. No one is either plaintiff or defendant until by a legal procedure in a court of justice one is made either a plaintiff or a defendant. If any basis can be found upon which one defendant can be classified so as to distinguish him from another, we have failed to appreciate it. Courts of justice are not concerned with the business, purposes, or aims or want of them of corporate defendants, nor the color, creed, or character of personal defendants. All should come before the bar of justice upon the same basis of equality and without distinction as to power, class, or creed.

The language of our Constitution (article 6, § 26, subd. 18) is that, "in all cases where a general law can be applicable, no special law shall be enacted." In the case of State v.Deming, 98 Kan. 420, 158 P. 34, 36, the Supreme Court of Kansas had under consideration a clause of the Constitution of that state which contains the identical wording of the last subdivision of section 26 of article 6 of our Constitution above quoted.

While the Kansas law was attacked upon many grounds, and the particular provision as to a classification of defendants was not before that court, many of the matters that were before it provoked a discussion of principles applicable here. In the discussion the Kansas court asks some questions pertinent here. We quote:

"What reason based on classification of counties can be advanced why a plaintiff in a county governed by this act should be permitted to harass his debtor by garnishment without bond when all other citizens elsewhere in the state must give such assurance to prevent unconscionable demands? Why may a corporation in such a county have ten days to answer in garnishment and an individual have only five? Why, too, may not both corporation and individual garnishees have the time accorded to garnishees elsewhere?"

And we may add, Are corporate debtors because named "Fraternal Benefit Societies" under our statute more or less needy or the particular objects of special legislation than any other corporate debtor? Is there any sound reason why a plaintiff should be required to wait 30 days for an answer because the corporate entity happens to be a "Fraternal Benefit Society" than by that or any other name or engaged in any other business?

The Kansas court in the case of State v. Deming, supra, concludes its discussion of the conflict of the legislative enactment and the State Constitution, one of the clauses of which is identical with our own, with the following pertinent language:

"But uniformity in the administration of justice is imperative if even-handed justice is to be administered in this commonwealth. It was to check the growing mischief of special legislation that the final responsibility of determining the uniformity clause of the Constitution was taken from the Legislature and imposed upon the courts."

And further:

"No justification for this special act is shown, and none can be judicially conceived. It violates the uniformity clause of the state Constitution. It attempts to cover subjects which not onlycan be governed by general laws, but which have been governed bygeneral laws since the foundation of the state, and is clearly at variance with the provisions of section 17 of article 2 of the state Constitution." (Italics added.)

We do not question that the Legislature could by general law create courts and prescribe the procedure therein; or that the Legislature could, as it has done, prescribe a different time within which a defendant may be required to answer in a justice's court or a city court or a district court; but to say that the Legislature may either classify defendants into groups, or permit one defendant a privilege not accorded to others in a court of justice, is a very different matter.

In the case of People v. Budd, 24 Cal. App. 176,140 P. 714, 715, while the question under discussion was not that of length of time in which to answer after service of summons, the question did involve that of a special law where a general law was applicable and also that relating to the regulating of the practice of courts of justice. After holding that the construction of the law as contended for by the state would render it repugnant to those provisions of the Constitution prohibiting the Legislature from passing general laws "regulating the practice of courts of justice" and the passage of a special law "where a general law can be made applicable," also had this to say:

"While it is true that it is within the constitutional power of the Legislature to confer upon the police or justice's courts the jurisdiction to try high grade, or what is commonly termed indictable, misdemeanors, in which case undoubtedly the procedure peculiar to those courts would be appropriate, * * * nowhere has it ever been held that, where jurisdiction is conferred upon the superior courts of a class of misdemeanors, the Legislature may adopt for the prosecution of such cases a procedure materially different from that prescribed by the Constitution and the statute for the prosecution of criminal cases in said courts."

In the case of Bear Lake County v. Budge, 9 Idaho, 703,75 P. 614, 617, 108 Am. St. Rep. 179, the action was one with relation to water rights. The statute provided for the service of summons by publication. It was contended in that case that the "provision for the service of summons by publication is not uniform with the provisions of the statute of the state for service of summons in other actions." The Supreme Court of Idaho held that:

"Said provisions for the service of summons clearly violate the provisions of section 26, art. 5, of our state Constitution, which provides that all laws relating to courts shall be general and of uniform operation throughout the state, and the organized judicial powers, proceedings, and practices of all the courts of the same class or grade shall be uniform; and is in violation of the provisions of paragraph 4 of section 19 of article 3 of our Constitution, which prohibits special or local legislation regulating practice of courts of justice. We have a general law providing how a summons must be served in cases to quiet title or determine adverse interests to private property, and the provisions therefor in the act under consideration provide a different method in cases brought by a water commissioner for that purpose."

May it not be said with equal cogency that we have a statute of general application requiring all defendants to answer a summons served in a given court and in that court in a uniform time, and that such legislation as permits one defendant of the particular corporate character to enjoy a longer period, thereby delaying the operation of the courts as to such particular defendant, falls clearly within the constitutional provision of our State Constitution prohibiting the Legislature "from enacting any private or special law. * * * Regulating the practice of courts of justice," or from enacting a special or private law "where a general law can be applicable"?

It is to be observed that the Legislature is prohibited from enacting a special law when a general law can be made applicable. The prevailing opinion fails to take into consideration the positive duty of the Legislature to pass general laws where applicable. No option is given to the Legislature to pass either a general law or a special law in its discretion if a general law can be made applicable. The presumption of validity of legislative enactments should not be permitted to weigh against the mandatory constitutional provision to pass general laws where applicable. No suggestion or argument or authority is submitted upon the question as to why the general law upon the subject is not uniform, fair, and just in its operation, and fully in accord with the constitutional provisions, nor is there any necessity, requirement, or even convenience suggested for the imposition of the provisions of this special feature in the method and manner of service of summons or the specially provided, added time within which a particular corporate defendant must be singled out, recognized, and favored.

It is argued by respondent and the prevailing opinion mentions the matter without apparently giving weight either way to the question of the right of the Legislature to provide a different time in which to perfect an appeal in forcible entry and unlawful detainer cases. Such weight as might be given to the reference weighs against the validity of the statute under consideration in the instant case.

In relation to matters of appeal, instead of such limitations and restrictions as are imposed upon the Legislature with reference to special laws regulating practice in courts of justice and special laws where a general law can be applicable, we have express authority given by the Constitution to the Legislature so that appeals shall be from "all final judgments * * * under such regulations as may be provided by law." Const. Utah, art. 8, § 9. Even so, could it be said that a law that gave party A 30 days to appeal and party B 15 days to appeal would not offend against the provisions of the Constitution here in question?

Being of the opinion that the part of section 3287, Comp. Laws Utah 1917, attacked, now section 43-9-31, R.S. Utah 1933, is in conflict with subdivisions 6 and 18 of section 26 of article 6 of the Constitution, I cannot concur in the majority opinion of the court.