In the petition for rehearing filed herein it is contended that this court has misconstrued the meaning of the provisions of section 54, article 5, of the Constitution, and that it has given to that section a construction different from that given to it in a number of former decisions of this court. In view of the fact that in a number of those cases this court held: *Page 203
"No person has a vested right in any particular mode of procedure, and if, before the trial of the cause, a new law of procedure goes into effect, it governs, unless the statute itself provides otherwise"
— we deem it advisable to review the cases cited.
The quoted statement was made in Independent Cotton Oil Co. v. Beacham, 31 Okla. 384, 120 P. 969. The rule stated was the correct rule in that case, for therein the proceeding was not pending at the time the law was changed. That change in the law was the transition to statehood. Therein the court recognized the rule announced herein when it said:
"There is nothing in the Constitution or the Schedule indicating a purpose to restrict the power of the state to change modes of procedure as to causes of action arising prior to the admission thereof, except as to actions that were pending at that time, unless it is section 1 of the Schedule to the Constitution * * *"
— by using the words, "except as to actions that were pending at that time." In that case the facts shown by the record were that an injury occurred prior to statehood and that the action to recover a money judgment for damages therefor was not commenced until after statehood. There is nothing in the record to show that there was any change in the procedure after that action was commenced. While the rule stated in that case was a correct one in that case, it is shown by that opinion that the rule was not intended to destroy the effect of the constitutional provision in question.
In American Nat. Ins. Co. v. Donahue et al., 54 Okla. 294,153 P. 819, the record showed that the insurance policy sued on was issued on November 5, 1908; that the law was changed in 1909, and that the death occurred July 13, 1911. No proceeding was pending at the time of the changing of that law.
In Adams v. Iten Biscuit Co., 63 Okla. 52, 162 P. 938, the only petition shown by the record in this court was the amended petition which was filed on January 22, 1916. The change in the law shown by the record in that case was effective September 1, 1915. There was no change in the law after the proceeding was commenced.
In Shelby-Downard Asphalt Co. v. Enyart, 67 Okla. 237,170 P. 708, an action was commenced in Osage county and dismissed for want of venue in that court. Thereafter the law was changed to fix the venue in such cases in that court. Thereafter a new action was instituted. The change of law was not made while the proceeding was pending.
In Fry et al. v. Wolfe, 106 Okla. 289, 234 P. 191, this court said:
"In these circumstances we think plaintiffs in error should be precluded from raising the question of procedure for the first time in the Supreme Court."
That quotation is a sufficient answer to the contention.
In Billy et al. v. Burnett, 137 Okla. 175, 278 P. 635, the record showed that the action was commenced May 20, 1927. The congressional act in question was the Act of Congress of April 12, 1926. Not only was that act effective prior to the commencement of the proceedings, but it specifically provided that it should not affect and that it might not be pleaded in any suit brought before the approval thereof.
The decision in Anderson v. Ritterbusch, Co. Treas.,22 Okla. 761, 98 P. 1002, is in no wise in point.
The provisions of section 54, article 5, supra, were not applicable in any of the cases cited in the petition for rehearing. The provisions of that section were not discussed in any of those cases. In no wise can they be construed to support the contention of the petitioner for rehearing.
The rule stated in the second paragraph of the syllabus of the decision in Independent Cotton Oil Co. v. Beacham, supra, was the rule at common law and is the general rule in this state. There are many exceptions thereto. One of them is that there may not be such a change in the procedure as to impair the obligations of contract. Oklahoma decisions to that effect are cited in Nelson v. Pitts, Co. Treas., 126 Okla. 191,259 P. 533. Section 54, article 5, of the Constitution of Oklahoma provides another exception thereto. We do not think it necessary further to discuss the provisions of that section.
Herein it is contended that this court should disregard the constitutional provision in question in order that relief might be afforded to certain persons who are in distress. As a part of the argument in support of that contention it is said that the Legislature has attempted to afford such relief. The disregarding of a constitutional provision for the purpose of enabling distressed persons to be relieved is no more authorized than the disregarding of constitutional provisions for the purpose of imposing burdens upon distressed persons. If there was a power to do the one thing, that *Page 204 power would authorize the doing of the other.
Constitutional provisions are not to be disregarded. We deem it necessary to go no further than to cite two statements from the farewell address of George Washington, President of the United States, on September 17, 1796. Therein he said:
"The basis of our political systems is the right of the people to make and to alter their Constitutions of government. — But the Constitution which at any time exists, until changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power, and the right of the people to establish government, presuppose the duty of every individual to obey the established government."
And:
"It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominate in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions of the others, has been evinced by experiments ancient and modern: some of them in our country and under our own eyes. — To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. — But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil, any partial or transient benefit which the use can at any time yield." Washington's Fare-well Address, Government Printing Office.
In the language of that eminent authority if there is a necessity for the legislation enacted by the Legislature, the people have within their control the power to so amend the Constitution as to permit valid legislation to that effect. Since the need arose for the legislation as enacted, there has been ample time for an amendment of the Constitution. Indeed, since the enactment of the legislative enactment in question, the Constitution has been amended in another respect by a vote of the people. We make this statement for the purpose of showing that the people are not without a remedy. That remedy is by an amendment of the Constitution which they created. That remedy is not by an appeal to the Legislature for the enactment of legislation in conflict with constitutional provisions, and it is not by appeal to this court to refuse to apply constitutional provisions. This court must and does realize that the precedent which would be established by its adoption of the theory contended for would greatly overbalance in permanent evil any partial or transient benefit which would be derived therefrom.
RILEY, C. J., CULLISON, V. C. J., and BAYLESS, BUSBY, and WELCH, JJ., concur. SWINDALL, McNEILL, and OSBORN, JJ., dissent.