In dissenting from the majority opinion, I desire to express my views.
Let us take a brief glance at the act and note its purpose and effects as disclosed by its salient provisions. It purports to be aimed at a temporary situation, in that, by its express terms, it is to be in force for only a period of two years after its passage and approval. It does not purport to amend any existing law, nor to repeal the same, but is supplementary thereof. Its terms apply to actions heretofore and hereafter filed, thus attaching itself to contracts and obligations theretofore existing. It does not purport to take away the ultimate enforcement of any right existing under the terms of the contract of the parties, but retards the procedure of the courts, and gives legislative sanction to the various courts, on their own motion or on application of any interested party, to retard the existing procedure, in so far as same affects the right of foreclosure of real estate as security for the obligation sought to be enforced. It does not purport to deprive a creditor of his right, under the terms of his contract, to sue and recover a personal judgment for money, and to enforce the same by the ordinary processes of the law. It purports to vest in the courts power and discretion to postpone the rendition of judgments foreclosing mortgages, and under certain circumstances in the exercise of said discretion it gives to the court power to require certain conditions to be complied with as a concomitant of the exercise of said discretion, such as the payment of accruing interest and all taxes, the payment of a reasonable rental during the time said cause is continued under the provisions of said act, and the appointment of a receiver, except where the property constitutes a homestead, to preserve, rent and operate said property, and apply the receipts as the court may direct, and to prevent waste or wilful injury or destruction of the property.
The general social and economic conditions which pressed the legislative department of government to promulgate the policy embraced in the act under consideration are within the general knowledge of all. From the crest of an unprecedented wave of prosperity, superinduced by national and international extensions of credit to foreign nations and to their citizens, the people of this state and nation found themselves almost four years ago suddenly thrust into the trough of depression and deflation, likewise unprecedented, in that it became practically world-wide in its direful consequences. The financial structure of various nations almost completely collapsed to such an extent that the ancient media of exchange were abandoned, and this nation, contrary to a long tradition, suspended payment of obligations in gold. International obligations matured to our government from various nations and default occurred in payment thereof. In short, the economic basis of trade relations throughout the world became so unstable that foreign trade practically ceased. It is a matter of general knowledge also that an overwhelming percentage of farms and residences and buildings in the cities, towns, and villages of the state are mortgaged, and therefore thousands of our citizens could be classed as mortgagors of real estate. In a great percentage of such cases the mortgaged real estate constituted the family homestead. During the inflation period of 1918-1929, the burden of taxation had enormously increased. For four years the prices of farm commodities had been far below the cost of production. Industries, in which thousands of home owners had theretofore been employed, had curtailed, or wholly ceased, their operations, resulting in millions of unemployed workers, many of whom were owners of homes which had been mortgaged, and who, by the cessation of the operation of industry and trade, were unable not only to pay the high and exorbitant taxes upon their property, but also who were unable to procure the bare necessities of food for themselves and their families. Through no direct fault of their own, but largely by reason of the economic catastrophe, these owners of mortgaged real estate were unable to pay the interest charges on their mortgages. Default in the payment of taxes and interest was inevitable. Competitive bidding at foreclosure sales of real property virtually disappeared, *Page 191 and, in countless instances, valuable property sold for a small percentage of the present cost of replacement thereof and wholly without regard to the annual income thereof, and for much less than the judgment indebtedness against the same, thereby leaving unsatisfied large deficiency judgments against the judgment debtors, many of whom were the owners of other real and personal property, which likewise, by reason of the economic conditions and financial chaos, was without utility as a basis of credit with which to procure funds to pay the delinquent taxes and interest or mortgage indebtedness already matured, which occasioned the foreclosure action.
In addition, thousands of banks, the arteries of our financial and credit system, in which were trustfully deposited the surplus moneys of the people, in many instances the savings of a lifetime, failed frequently, supplanting wealth and affluence with poverty and want, and taking away from thousands of depositors the ability to pay obligations, and the basis of credit to borrow money to discharge obligations.
The alleviation of the conditions above briefly outlined has been a matter of grave concern to the state and national governments. Millions of dollars have been expended by both the state and national governments, not only to provide honorable employment, but also in direct charitable donations. Billions of dollars of public funds have been loaned, through governmental instrumentalities, to various insurance companies, railroad companies, banking institutions, building and loan organizations and other public and quasi public corporations. We have witnessed unprecedented governmental actions, such as a national banking holiday, the granting and exercise of extraordinary powers by virtue of the National Emergency Banking Act and by the National Industrial Recovery Act, and we have seen vast and unprecedented powers delegated by Congress to the President of the United States to act for the public welfare in a calamitous peace-time emergency, which, in the language of the President of the United States himself, "has rocked the very foundation of our government."
This tremendous cataclysm was heroically met by many forbearing creditors by a kindly spirit of co-operation. To stay the hand of the unforbearing creditor, and to require him by law to yield his contractual rights for a limited time in favor of the distressed owner of mortgaged property in the interest of the general welfare of the citizens of the state, in view of the great economic emergency, the Legislature saw fit to declare the public policy as contained in said enactment.
It is contended by petitioners that said act contravenes section 10, art. 1, of the Constitution of the United States, in that it impairs the obligation of contracts, and the Fifth Amendment to the Constitution of the United States in that it deprives plaintiffs of property without due process of law, and takes private property for public use without just compensation, and the Fourteenth Amendment to the Constitution, prohibiting any state from depriving any person of life, liberty or property, without due process of law, or denying to any person within its jurisdiction equal protection of the laws. It is further contended that it violates section 15, art. 2, of the state Constitution, which provides in part as follows:
"No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed."
Whether the act impairs the obligation of contracts, takes property without due process of law, takes private property without just compensation, and is therefore void and ineffective, requires a consideration of other basic fundamentals of our form of government, superior to any limitation contained in any constitutional provision. The very foundation of the Constitution itself, on which our government rests, is recognized in the Preamble to the Constitution of the United States. Herein the founders solemnly proclaimed the supreme purpose to "promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The issue presented is whether or not such extreme emergency exists that the general welfare is so affected as to justify, under the inherent police power of the state, an enactment of law which temporarily suspends for a reasonable time certain rights of individuals in the interest of the general welfare and general prosperity. If such great emergency exists, and if in recognition thereof the Legislature has by said act not transcended its authority to act reasonably to promote the general welfare of the people, and if said act reasonably tends to promote the public peace, health, morals, safety, general welfare, and prosperity of the citizens of the state, the act in question must be held valid and effective. *Page 192
In approaching a discussion of this momentous question, we are not unmindful, not only of a great contrariety of judicial opinion by the highest courts of the various states, but also of divergence of opinion among the Justices of the Supreme Court of the United States. To enter into a comprehensive academic discussion of the fundamental theories of our government as applied to legislation of the character under consideration would, we think, serve no useful purpose in reaching the ultimate correct result. We shall endeavor to confine our observations within the signposts placed along the way by eminent courts and eminent jurists who have heretofore been called upon as pioneers to blaze the trail of the ceaseless surge of civilization. The interpretations placed upon the various provisions of the Constitution of our nation, by the highest judicial tribunal, are solemnly binding upon this court, and whether or not we may abstractly differ in our views from those interpretations, a proper respect for constituted judicial authority compels and requires that we follow in the footsteps of that tribunal to whom has been delegated by the people the supreme right to lay out the path that shall be trod by generations yet to come.
Courts will never declare unconstitutional and void an act of legislation passed with all the forms and solemnities requisite to give it the force of law, unless the nullity and invalidity of the act are placed in its judgment beyond a reasonable doubt. It is only where the act is clearly, palpably and plainly inconsistent with the terms and provisions of the Constitution that the courts will interfere and declare such act invalid and void. All doubt, where there is doubt, will be resolved in favor of its constitutionality. City of Pond Creek v. Haskell, 21 Okla. 711, 97 P. 338; Monroe v. McNeill,122 Okla. 297, 255 P. 150; State Board of Dental Examiners v. Pollock, 125 Okla. 170, 256 P. 927; Dies v. Bank of Commerce,100 Okla. 205, 229 P. 474; Wallace v. Gassaway, 148 Okla. 265,298 P. 867; McCullock v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Sweet v. Rechel, 159 U.S. 380, 40 L. Ed. 188, 16 Sup. Ct. 43.
Let us allude, therefore, to the expressions of the courts relating to acts of this character, and let us apply the fundamental principles gleaned therefrom to the act in question.
In the case of Atlantic Coast Line Ry. Co. v. City of Goldsboro, 58 L. Ed. 721 (decided February 24, 1914) the Supreme Court of the United States, speaking through Mr. Justice Pitney, said:
"For it is settled that neither the 'contract' clause nor the 'due process' clause has the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise. Slaughter House Cases, 16 Wall. 36, 62, 21 L. Ed. 394-404; Munn v. Illinois,94 U.S. 113, 125, 24 L. Ed. 77, 84; Boston Beer Co. v. Massachusetts,97 U.S. 25, 33, 24 L. Ed. 989, 992; Mugler v. Kansas,123 U.S. 623, 665, 31 L. Ed. 205, 211, 8 Sup. Ct. Rep. 273; Crowley v. Christensen, 137 U.S. 86, 89, 34 L. Ed. 620, 621, 11 Sup. Ct. Rep. 13; New York N.E. R. Co. v. Bristol, 151 U.S. 556, 567, 38 L. Ed. 269, 272, 14 Sup. Ct. Rep. 437; Texas N. O. R. Co. v. Miller, 221 U.S. 408, 414, 55 L. Ed. 789, 795, 796, 31 Sup. Ct. Rep. 534. And the enforcement of uncompensated obedience to a regulation established under this power for the public health or safety is not an unconstitutional taking of property without compensation or without due process of law. Chicago, B. Q. R. Co. v. Chicago, 166 U.S. 226, 255, 41 L. Ed. 979, 991, 17 Sup. Ct. Rep. 581; New Orleans Gas-light Co. v. Drainage Commission, 197 U.S. 453, 462, 49 L. Ed. 831, 835, 25 Sup. Ct. Rep. 471; Chicago, B. Q. R. Co. v. Illinois,200 U.S. 561, 591, 592, 50 L. Ed. 596, 608, 609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175.
"Of course, if it appear that the regulation under criticism is not in any way designed to promote the health, comfort, safety, or welfare of the community, or that the means employed have no real and substantial relation to the avowed or ostensible purpose, or that there is wanton or arbitrary interference with private rights, the question arises whether the law-making body has exceeded the legitimate bounds of the police power."
In the case of Block v. Hirsh, 65 L. Ed. 865 (decided April 18, 1921), the Supreme Court of the United States had under consideration an act passed by Congress relating to the renting of property in the District of Columbia, which act provided that a tenant occupying certain property, and after the expiration of the term of his contract, should be permitted to continue to occupy the same, notwithstanding the objection of the owner of said premises, so long as he paid rent theretofore fixed by his expired contract, and subject to regulation by a certain commission. Under the terms of the act it was to remain in force for two years. Said act contained a section setting forth that an emergency existed whereby *Page 193 the public business was being hampered by the eviction of tenants. We quote portions of the opinion, announced by Mr. Justice Holmes, as follows:
"No doubt it is true that a legislative declaration of facts, that are material only as the ground for enacting a rule of law, for instance, that a certain use is a public one, may not be held conclusive by the courts. Shoemaker v. United States,147 U.S. 282, 298, 37 L. Ed. 170, 184, 13 Sup. Ct. Rep. 361; Hairston v. Danville W. R. Co., 208 U.S. 598, 606, 52 L. Ed. 637, 640, 28 Sup. Ct. Rep. 331, 13 Ann. Cas. 1008; Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 227, 53 L. Ed. 150, 159, 29 Sup. Ct. Rep. 67; Producers Transp. Co. v. Railroad Commission, 251 U.S. 228, 230, 64 L. Ed. 239, 241, P. U. R., 1920C. 574, 40 Sup. Ct. Rep. 121. But a declaration by a legislature concerning public conditions that, by necessity and duty, it must know, is entitled at least to great respect. In this instance Congress stated a publicly notorious and almost world-wide fact. That the emergency declared by the statute did exist must be assumed, and the question is whether Congress was incompetent to meet it in the way which it has been met by most of the civilized countries of the world.
"The general proposition to be maintained is that circumstances have clothed the letting of buildings in the District of Columbia with a public interest so great as to justify regulation by law. Plainly, circumstances may so change in time or so differ in space as to clothe with such an interest what at other times or in other places would be a matter of purely private concern. It is enough to refer to the decisions as to insurance, in German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 58 L. Ed. 1011, L. R. A. 1915C, 1189, 34 Sup. Ct. Rep. 612; irrigation, in Clark v. Nash, 198 U.S. 361, 49 L. Ed. 1085, 25 Sup. Ct. Rep. 676, 4 Ann. Cas. 1171; and mining, in Strickley v. Highland Boy Gold Min. Co.,200 U.S. 527, 50 L. Ed. 581, 26 Sup. Ct. Rep. 301, 4 Ann. Cas. 1174. They sufficiently illustrate what hardly would be denied. They illustrate also that the use by the public generally of each specific thing affected cannot be made the test of public interest (Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama InterState Power Co., 240 U.S. 30, 32, 60 L. Ed. 507, 511, 36 Sup. Ct. Rep. 234.), and that the public interest may extend to the use of land. They dispel the notion that what in its immediate aspect may be only a private transaction may not be raised by its class or character to a public affair. See also Noble State Bank v. Haskell, 219 U.S. 104, 110, 111, 55 L. Ed. 112, 116, 117, 32 L. R. A. (N. S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487.
"* * * The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying, unless modified by the commission established by the act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. But if the public interest be established, the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled since Munn v. Illinois,94 U.S. 113, 24 L. Ed. 77. It is said that a grain elevator may go out of business, whereas here the use is fastened upon the land. The power to go out of business, when it exists, is an illusory answer to gas companies and waterworks, but we need not stop at that. The regulation is put and justified only as a temporary measure. See Wilson v. New, 243 U.S. 332, 345, 346, 61 L. Ed. 755, 772, L. R. A. 1917E, 938, 37 Sup. Ct. Rep. 298, Ann. Cas. 1918A, 1024; Ft. Smith W. R. Co. v. Mills, 25 U.S. 206, 64 L. Ed. 862. 40 Sup. Ct. Rep. 526. A limit in time to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change. * * *
"Assuming that the end in view otherwise justified the means adopted by Congress, we have no concern, of course, with the question whether those means were the wisest, whether they may not cost more than they come to, or will effect the result desired. It is enough that we are not warranted in saying that legislation that has been resorted to for the same purpose all over the world is futile, or has no reasonable relation to the relief sought. Chicago, B. Q. R. Co. v. McGuire,219 U.S. 549, 569, 55 L. Ed. 328, 339, 31 Sup. Ct. Rep. 259."
It is to be noted that Chief Justice White and Justices McKenna, Van Devanter, and McReynolds dissented, and Mr. Justice McKenna wrote a very interesting and instructive dissenting opinion.
In the case of Marcus Brown Holding Co. v. Feldman, 65 L. Ed. 877 (decided April 18, 1921), the Supreme Court of the United States had under consideration certain statutes of New York similar to the District of Columbia rent laws, considered in the last above-cited case. In this case the term of the tenant had expired by contract, and the owner of the premises had rented the property to another tenant. The tenant refused to surrender possession and justified his action by the act of the Legislature of the state of New York, providing that for a period of two years no action should be maintainable to recover the possession of real property, except under certain conditions relating to the use of the property by the owner. A great public emergency was declared in the act as the basis for the passage thereof. Mr. Justice Holmes, *Page 194 in delivering the opinion of the court, used the following language:
"The chief objections to these acts have been dealt with in Block v. Hirsh, supra. In the present case more emphasis is laid upon the impairment of the obligation of the contract of the lessees to surrender possession, and of the new lease, which was to have gone into effect upon October 1, last year. But contracts are made subject to this exercise of the power of the state when otherwise justified, as we have held this to be. Manigault v. Springs, 199 U.S. 473, 480, 50 L. Ed. 274, 278, 26 Sup. Ct. Rep. 127; Louisville N. R. Co. v. Mottley.219 U.S. 467, 482, 55 L. Ed. 297, 303, 34 L. R. A. (N. S.) 671, 31 Sup. Ct. Rep. 265; Chicago A. R. Co. v. Tranbarger,238 U.S. 67, 76, 77, 59 L. Ed. 1204, 1210, 1211. 35 Sup. Ct. Rep. 678; Union Dry Goods Co. v. Georgia Pub. Service Corp.,248 U.S. 372, 375, 63 L. Ed. 309, 311, 9 A. L. R. 1420, P. U. R. 1920C, 574, 39 S. Ct. 117; Producers' Transportation Co. v. Railroad Commission of California, 251 U.S. 228, 232, 40 Sup. Ct. Rep. 131, 64 L. Ed. 239."
It is noted that four of the Justices dissented therefrom.
The same legislative acts received consideration by the Court of Appeals of New York, in the case of People ex rel. Durham Realty Corp. v. La Fetra, 130 N.E. 601. The opinion of the court, by Mr. Justice Pound, presents a very able and exhaustive discussion of various questions. We quote therefrom as follows:
"The landlord is a purveyor of a commodity, the vendor of space in which to shelter one's self and family. He has heretofore been permitted to make his own terms with his tenants, but that consideration is not conclusive. Unquestionably some taking of private property for the benefit of a class of individuals is the result of the housing laws. The free choice of tenants; the unlimited right to bargain — these are property rights which may not be affected unless a public advantage over and beyond such rights justifies legislative interference, but 'an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use.' Noble State Bank v. Haskell, 219 U.S. 104, 110, 31 Sup. Ct. Rep. 186, 187, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487 [Id., 219, U.S. 575, 580, 31 S. Ct. 299, 55 L. Ed. 341]. While in theory it may be said that the building of houses is not a monopolistic privilege; that houses are not public utilities like railroads and that if the landlord turns one off another may take him in; that rents are fixed by economic rules and the market value is the reasonable value; that people often move from one city to another to secure better advantages; that no one is compelled to have a home in New York; that no crisis exists; that to call the legislation an exercise of the police power, when it is plainly a taking of private property for private use and without compensation, is a mere transfer of labels, which does not affect the nature of the legislation — yet the Legislature has found that in practice the state of demand and supply is at present abnormal; that no one builds because it is unprofitable to build; that those who own seek the uttermost farthing from those who choose to live in New York and pay for the privilege rather than go elsewhere; and that profiteering and oppression have become general. It is with this condition, and not with economic theory, that the state has to deal in the existing emergency. The distinction between the power of eminent domain and the police power is often fine. In the main it depends on whether the thing is destroyed or is taken over for the public use. If property rights are here invaded, in a degree, compensation therefor has been provided, and possession is to be regained when such compensation remains unpaid. What is taken is the right to use one's property oppressively, and it is the destruction of that right that is contemplated, and not the transfer thereof to the public use. The taking is therefore analogous to the abatement of a nuisance or to the establishment of building restrictions, and it is within the police power.
"Emergency laws in time of peace are uncommon but not unknown. Wholesale disaster, financial panic, the aftermath of war (Hamilton v. Kentucky Distilleries W. Co., 251 U.S. 146, 161, 40 Sup. Ct. 106, 64 L. Ed. 194) earthquake, pestilence, famine, and fire, a combination of men or the force of circumstances may, as the alternative of confusion or chaos, demand the enactment of laws that would be thought arbitrary under normal conditions (Bowditch v. Boston, 101 U.S. 16, 18, 19, 25 L. Ed. 980; American Land Co. v. Zeiss, 219 U.S. 47. 31 Sup. Ct. Rep. 200, 55 L. Ed. 82). Although emergency cannot become the source of power, and although the Constitution cannot be suspended in any complication of peace or war (Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281), an emergency may afford a reason for putting forth a latent governmental power already enjoyed but not previously exercised. Thus it has been held that, although the relation between employer and employee is essentially private so far as the right to fix a standard of wages by agreement is concerned. Congress may establish a standard of wages for railroad employees to be in force for a reasonable time in an emergency to avert the calamity of a nation-wide strike. Wilson v. New, 243 U.S. 332, 348, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024; Ft. Smith W. R. Co. v. Mills. 253 U.S. 206, 40 Sup. Ct. 526, 64 L. Ed. 862. *Page 195
"Even in the absence of an emergency, the state may pass wholesome and proper laws to regulate the use of private property. Lincoln Trust Co. v. Williams Bldg. Corp., 229 N.Y. 313,128 N.E. 209; St. Louis Poster Advertising Co. v. City of St. Louis, 249 U.S. 269, 39 Sup. Ct. 274, 63 L. Ed. 599. * * *
"The next question is whether such laws impair the obligation of contracts, as applied to existing leases and tenancies which contain an express or implied obligation to surrender possession at the expiration of the term, or as applied to a case where it is claimed that the parties had contracted or stipulated between themselves in dispossess proceedings that the warrant should be issued on October 1st. The provision of the Federal Constitution that no state shall pass any law impairing the obligation of contracts puts no limit on any lawful exercise of legitimate governmental power. Legal Tender Cases, 12 Wall. 457, 551, 20 L. Ed. 287. The rule alike for state and nation is that private contract rights must yield to the public welfare, when the latter is appropriately declared and defined and the two conflict. Manigault v. Springs,199 U.S. 473, 480, 26 Sup. Ct. 127, 50 L. Ed. 274; Louisville and Nashville R. R. Co. v. Mottley, 219 U.S. 467, 486, 31 Sup. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Producers Transportation Co. v. R. R. Com., supra; Atlantic Coast Line R. R. Co. v. City of Goldsboro, 232 U.S. 548, 558, 34 Sup. Ct. 364, 58 L. Ed. 721; Union Dry Goods Co. v. Georgia P. S. Corp.,248 U.S. 372, 375, 39 Sup. Ct. 117, 63 L. Ed. 309, 9 A. L. R. 1420. But if the law is 'arbitrary, unreasonable, and not designed to accomplish a legitimate public purpose' (Mutual Loan Co. v. Martell, 222 U.S. 225, 234, 32 Sup. Ct. 74, 56 L. Ed. 175, Ann. Cas. 1913B, 529), the courts will declare it invalid."
In Edgar A. Levy Leasing Co., Inc., v. Siegel, 258 U.S. 242, 42 Sup. Ct. 289, 66 L. Ed. 595, the Supreme Court of the United States had under consideration the New York emergency housing laws, considered in the last above cited case. In announcing the opinion of the court, Mr. Justice Clarke used the following language:
"In terms the acts involved are 'emergency' statutes, and designed as they were by the Legislature to promote the health, morality, comfort, and peace of the people of the state, they are obviously a resort to the police power to promote the public welfare. They are a consistent inter-related group of acts essential to accomplish their professed purposes.
"The warrant for this legislative resort to the police power was the conviction on the part of the state legislators that there existed in the larger cities of the state a social emergency, caused by an insufficient supply of dwelling houses and apartments, so grave that it constituted a serious menace to the health, morality, comfort, and even to the peace of a large part of the people of the state. That such an emergency, if it really existed, would sustain a resort, otherwise valid, to the police power for the purpose of dealing with it cannot be doubted, for, unless relieved, the public welfare would suffer in respects which constitute the primary and undisputed, as well as the most usual basis and justification, for exercise of that power. * * *
"Given a constitutional substantive statute, enacted to give effect to a constitutional purpose, the states have a wide discretion as to the remedies which may be deemed necessary to achieve such a result, and it is very clear that that discretion has not been exceeded in this instance by the state of New York."
See, also, Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 Sup. Ct. 405, 68 L. Ed. 841.
In the case of Union Dry Goods Co. v. Georgia Public Service Corp., 248 U.S. 372, 63 L. Ed. 309, 39 Sup. Ct. Rep. 117, 9 A. L. R. 1420, the Supreme Court of the United States, speaking through Mr. Justice Clarke, said:
"That private contract rights must yield to the public welfare, where the latter is declared and defined and the two conflict, has been often decided by this court."
To the same substantial effect, see the following cases: Manigault v. Springs, 199 U.S. 473, 480, 50 L. Ed. 274, 278, 26 Sup. Ct. Rep. 127; Hudson County Water Co. v. McCarter,209 U.S. 349, 357, 52 L. Ed. 828, 832, 28 Sup. Ct. Rep. 529, 14 Ann. Cas. 560; Louisville N. R. Co. v. Mottley,219 U.S. 467, 482, 55 L. Ed. 297, 303, 34 L. R. A. (N. S.) 671, 31 Sup. Ct. Rep. 265; Chicago B. Q. R. Co. v. McGuire, 219 U.S. 567, 55 L. Ed. 338, 31 Sup. Ct. 259; Rail River Coal Co. v. Yaple,236 U.S. 338, 35 Sup. Ct. 359; Aetna Ins. Co. v. Chicago Great Western Ry. Co. (Iowa) 180 N.W. 649, 16 A. L. R. 249; Loring v. Commissioners of Public Works (Mass.) 163 N.E. 82; City of Pasadena v. Charleville (Cal.) 10 P.2d 745; City of Dayton v. City Ry. Co., 16 F.2d 401; Hartland Law v. Railroad Comm. (Cal.) 195 P. 423; Liles v. Creveling (Tenn.) 268 S.W. 625; Ex parte White (Tex. Cr.) 198 S.W. 583; Noble State Bank v. Haskell, 219 U.S. 104, 31 Sup. Ct. 186, 32 L. R. A. (N. S.) 1062; and Bratberg v. Advance Rumley Thresher Co. (N.D.)238 N.W. 552. *Page 196
Following and conforming to the principles enunciated above by the highest court of the nation, this court, in the case of C., R.I. P. Ry. Co. v. Taylor, 79 Okla. 142, 192 P. 349, announced the following syllabus:
"The police power of the state can neither be abrogated, bargained away, nor alienated, even by express grant, and all contracts and property rights are acquired subject to its fair exercise, and neither the contract clause nor the due process clause in the federal Constitution overrides the power of the state to establish necessary and reasonable regulations under its police power. * * *
"While no court has undertaken to specifically define the outlying boundary lines of that inherent power of the government to enact, within constitutional limitations, laws to promote the order, safety, health, morals, and general welfare of society, denominated, for want of a better name, the police power, of the state, it is firmly settled that such power is an attribute of sovereignty and exists without reservations in the Constitution."
In the case of Ex parte Tindall, 102 Okla. 192, 229 P. 125, this court, in the syllabus, said:
The police power is an attribute of sovereignty, inherent in every sovereign state, and not derived from any written Constitution, nor vested by grant of any superior power.
"The term 'police power' comprehends the power to make and enforce all wholesome and reasonable laws and regulations necessary to the maintenance, upbuilding, and advancement of the public weal, and protection of the public interests.
"It is plastic in its nature and will expand to meet the actual requirements of an advancing civilization and adjust itself to the necessities of moral, sanitary, economic, and political conditions.
"No principle in our system of government will limit the right of government to respond to public needs and protect the public welfare.
"The Fourteenth Amendment to the Constitution of the United States does not interfere with the proper exercise of the police power of the several states."
The fair import of the above decisions is, we believe, that if the state has properly exercised its police power in relation to the subject of legislation, no provision of the Constitution precludes the validity thereof if the enactment is reasonable in its terms and is reasonably adapted to meet the conditions calling forth this exercise of sovereign power.
We shall briefly consider, therefore, the nature and derivation of this power.
Every court of last resort has been called upon to consider this elusive attribute of sovereignty. It "is not granted by or derived from the federal Constitution, but exists independently of it, by reason of its never having been surrendered by the state to the general government; that among the powers of the state, not surrendered, — which power therefore remains with the state, — is the power to so regulate the relative rights and duties of all within its jurisdiction as to guard the public morals, the public safety, and the public health, as well as to promote the public convenience and the common good; and that it is with the state to devise the means to be employed to such end, taking care always that the means devised do not go beyond the necessities of the case, have some real or substantial relation to the objects to be accomplished, and are not inconsistent with its own Constitution or the Constitution of the United States." House v. Mays, 55 L. Ed. 213.
In the case of Chicago, B. Q. R. Co. v. Illinois, 50 L. Ed. 596, it is said:
"We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals or the public safety. * * * (citing cases) And the validity of a police regulation whether established directly by the state or by some public body acting under its sanction, must depend upon the circumstances of each case and the character of the regulation, whether arbitrary or reasonable, and whether really designed to accomplish a legitimate public purpose. * * *
"If the means employed have no real, substantial relation to public objects which government may legally accomplish — if they are arbitrary or unreasonable, beyond the necessities of the case — the judiciary will disregard mere forms, and interfere for the protection of rights injuriously affected by such illegal action. The authority of the courts to interfere in such cases is beyond all doubt. * * * If the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good then there is no taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution."
"It may be said in a general way that the police power extends to all the great public needs. Camfield v. U.S.,167 U.S. 518, 17 S. Ct. 865, 42 L. Ed. 260." Noble State Bank v. Haskell, 219 U.S. 104, 31 S. Ct. 186. *Page 197
See, also, District of Columbia v. Brooke, 214 U.S. 138, 29 Sup. Ct. 560, 53 L. Ed. 941.
"It (the police power) is to the public what the law of necessity is to the individual." State v. Mountain Timber Co.,75 Wash. 581, 135 P. 645.
"It is known when and where it begins, but not when and where it terminates." Champer v. City of Greencastle, 138 Ind. 339, 35 N.E. 14, 24 L. R. A. 768, 46 Am. State Rep. 390.
"It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion, to be greatly and immediately necessary to the public welfare." Noble State Bank v. Haskell, 219 U.S. 104, 31 Sup. Ct. Rep. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062.
"Incapability of definition, however, does not destroy the right of the public to safeguard property, insure the general health, protect the morals, preserve the peace, or compel the use of property consistent with surrounding conditions by the exercise of arbitrary power, and in disregard of the primary right of the individual. A subject when measured by other conditions may warrant its exercise; whereas, if the relative condition be lacking, the power will be denied. Its exercise in proper cases marks the growth and development of the law rather than, as some assert, a tyrannical assertion of governmental powers denied by our written Constitutions. Although the fundamental truths must from their very nature remain unchanged, the right of property is a legal right and not a natural right, and it must be measured always by reference to the rights of others and of the public. Neither an individual nor the public has the right to take the property of another and put it to a private use. But it would be manifestly destructive to the advancement or development of organized communities to put the public to the burden of rendering compensation to one, or to many, when the individual use is, or might be, a menace to the health, morals, or peace of the whole community." Bowes v. Aberdeen, 58 Wash. 542, 109 P. 369, 30 L. R. A. (N. S.) 709.
"The Constitution of the United States was framed on the theory that all power resides in the people, and in promulgating an instrument the people of the several states reserved to themselves all powers, except those expressly delegated to the federal Government by the Constitution. Among the powers so reserved to the people was that which has come to be known as the police power of the several states and it has been appropriately said that the police power is inherent in all government. It is, so to speak, a weapon for self-defense which must necessarily be possessed by all governments. It is that power by which the greatest good may be secured to the greatest number. From this principle has arisen the maxim 'salus populi suprema est lex'." Sterrett Oberle Packing Co. v. City of Portland, 79 Or. 260, 154 P. 410.
"Police power is power inherent in government to enact laws within the constitutional limits to promote order, safety, health, morals, and general welfare of society, and is elastic, stretching out to meet progress of age." State v. Lockey (N. C.) 152 S.E. 693.
From the above expressions of the various courts, it is noted that the police power reserved to the people of the various states is the very foundation on which our government and social system rest. It has been extended and widened in its scope as the problems of government, occasioned by the changing economic and social conditions, become more complex. We would not in any wise minimize the importance of holding fast to the well established and fundamental principles safeguarded by our national and state Constitutions; yet this attribute of sovereignty, this prerequisite of life to the state as an organized instrumentality of the people themselves, to promote their general welfare and insure their domestic tranquility, must not be so circumscribed as to prevent the attainment of the fundamental objects of society. The common weal, the general welfare, must ever, in times of stress and storm, be paramount to the private rights of the individual, when public necessity and public welfare require; but this paramount right of society must be reasonably asserted and exercised to the end that individual liberty of action shall be preserved to the citizen, whose rights, except for the great public necessity, are safeguarded to him by the Constitution.
The judiciary is prohibited from concerning itself or inquiring into the wisdom of legislation, for that question has been expressly committed to the legislative department of government. As was said in the case of Chicago, B. Q. R. Co. v. McGuire, 219 U.S. 549, 31 Sup. Ct. 259, 263, 55 L. Ed. 328:
"The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative considerations in dealing with a matter of policy."
In the case of People ex rel. Durham Realty Corp. v. La Fetra, supra, the court said:
"Whether or not a public emergency existed was a question of fact debated, and debatable, which addressed itself primarily to the Legislature. That it existed, promised not to be presently self-curative, *Page 198 and called for action, appeared from public documents and from common knowledge and observation. If the lawmaking power on such evidence has determined the existence of the emergency and has, in the main, dealt with it in a manner permitted by the constitutional limitations on legislative powers, so far as the same affects the class of landlords now challenging the statutes, the legislation should be upheld."
In the case of Bryne v. Maryland Realty Co., 129 Md. 210, 98 A. 549, it is said:
"It does not follow that because a statute has been enacted for the ostensible purpose of guarding the safety, health, comfort, or promoting the general welfare, it must be accepted as a proper exercise of the police power of the state; nor can a statute which is, in fact, a proper exercise of such power, be declared void merely because it results in circumscribing limits of individual conduct to narrower bounds. Necessarily there are limits beyond which legislation cannot constitutionally go in depriving individuals of their natural rights and liberties. To determine where the rights of the individual end and those of the public begin, is a question which must be determined by the courts. The Constitution is the highest written law of the state. The courts must obey both the Constitution and the statutes, but, in case of conflict between the two, the Constitution must control, and the statute must give way. When there has been an attempt to exercise the police power of the state by the lawmaking department of the government, and the validity of such act is challenged as being an unreasonable invasion of private rights, the courts must, upon their own responsibility, determine whether in the particular case the constitutional limits have been passed."
In the case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 67 L. Ed. 322, 43 Sup. Ct. Rep. 158, 28 A. L. R. 1321, the United States Supreme Court, speaking through Justice Holmes, who announced for the court the decisions in the cases of Block v. Hirsh and Marcus Brown Holding Co. v. Feldman, supra, and who commented concerning those cases that "they went to the verge of the law", used the following language:
"Government could hardly go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the Legislature, but it always is open to interested parties to contend that the Legislature has gone beyond its constitutional power.
"This is the case of a single private house. No doubt there is a public interest even in this, as there is in every purchase and sale and in all that happens within the commonwealth. Some existing rights may be modified even in such a case. * * * But usually in ordinary private affairs the public interest does not warrant much of this kind of interference. A source of damage to such a house is not a public nuisance, even if similar damage is inflicted on others in different places. The damage is not common or public * * * the extent of the public interest is shown by the statute to be limited, since the statute ordinarily does not apply to land when the surface is owned by the owner of the coal. Furthermore, it is not justified as a protection of personal safety. That could be provided for by notice. Indeed the very foundation of this bill is that the defendant gave timely notice of its intent to mine under the house. On the other hand, the extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land — a very valuable estate — and what is declared by the court below to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the plaintiff's position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant's constitutionally protected rights."
Keeping in mind the broad power reserved by the state as an incident of its sovereignty, and the limitations thereof as pronounced by the various courts, there remains for determination the question of whether or not said police power has been reasonably exercised for the general welfare of the people by the legislative department of government, and whether the act under consideration reasonably tends to ameliorate the ills sought to be remedied thereby. The inquiry of the courts is restricted to a determination of whether there is a reasonable relation to the purpose competent for the Legislature to effect, and whether it is in any view adapted to the ends intended. Otis v. Parker, 187 U.S. 606. 47 L. Ed. 323, 23 Sup. Ct. Rep. 168; Chicago, B. Q. R. Co. v. McGuire,219 U.S. 549, 55 L. Ed. 328, 31 Sup. Ct. Rep. 259; People v. Griswold, 213 N.Y. 92, 106 N.E. 929; Noble State Bank v. Haskell, 219 U.S. 104, 55 L. Ed. 112; Atlantic Coast Line R. Co. v. Georgia, 234 U.S. 280, 58 L. Ed. 1312, 34 Sup. Ct. Rep. 829. *Page 199
We shall indulge in no fanciful speculations as to a change in economic conditions in the future. But we may take cognizance of the fact that prices of basic farm commodities have trebled since the passage of this act. Unemployment in a considerable degree has been relieved. Industries are beginning to operate. It was not unreasonable for the Legislature to assume that with the lapse of a brief time, during which the creditors' rights would be stayed, the economic conditions would in some degree so change that many owners of mortgaged real estate would be relieved from their financial stress and strain, and that a temporary respite would result in the saving of the homes of many of the citizens. Faced with such an emergency, with the public general welfare committed into its keeping, we think the Legislature was authorized, under the police power inherent in the people of the state, to deal with such emergency, and that the act so passed appears reasonably to be designed to promote the general welfare, and the means employed have a real and substantial relation to the avowed and ostensible purpose of alleviating the conditions sought to be remedied, and to the public objects which government may legally accomplish, and are not arbitrary, unreasonable, or beyond the necessities of the situation, and that said act is reasonably adapted to the end intended, and that same is valid and effective, notwithstanding the fact that private contractual rights may be thereby incidentally limited.
It is our view, therefore, that said act in the main is not invalid by reason of conflict with the provisions of section 10, article 1, or the Fifth or Fourteenth Amendments to the Constitution of the United States, or section 15, art. 2, of the Constitution of the state of Oklahoma.
The conclusion to which we have come in this matter was reached by the Supreme Court of Minnesota in the very recent case of Blaisdell v. Home Building Loan Association,249 N.W. 334 (opinion filed June 7, 1933), and largely the same reasoning was followed by that court in its determination of said case. However, a contrary conclusion was reached by the Supreme Court of North Dakota in the case of State ex rel. Cleveringa v. Klein, 249 N.W. 118, which court discredits the theory announced by the Supreme Court of the United States and hereinabove set forth, that the police power of the state, under certain conditions, and exercised in certain circumstances, is superior to contract rights of individuals. The opinion of said court is based upon a quoted constitutional provision of said state, which specifically provides that certain fields are excluded from legislative invasion.
We have also noted the recent case of Adams v. Spillyards,61 S.W.2d 686 (opinion filed June 19, 1933), wherein the Supreme Court of Arkansas held that a statute having the ultimate effect of abolishing deficiency judgments in foreclosure actions of real estate mortgages, was unconstitutional in that it impaired the obligation of contracts. The decision of the court is not authoritative under the issues presented in this proceeding for the reason that the act of the Arkansas Legislature permanently and effectively deprived persons of substantial rights, instead of merely postponing, for a reasonable time, under certain conditions, the enforcement thereof as provided for by our act. Clearly the act under consideration in Arkansas was violative of the national and state Constitutions.
Our attention has also been called to the case of Life Insurance Co. of Virginia v. Sanders, 62 S.W.2d 348, recently decided by the Court of Civil Appeals of Texas, sitting at El Paso. The opinion in that case lays down the principle that the remedy existing at the time of the making of a contract is annexed to the contract as a part thereof, and that any law impairing said remedy impairs the obligation. This case is based upon the ancient case of Green v. Biddle, 8 Wheat. 17, 5 L. Ed. 547; Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143; McCracken v. Hayward, 2 How. 608, 11 L. Ed. 397; Edwards v. Kearzey, 96 U.S. 595, 24 L. Ed. 793; and Barnitz v. Beverly, 163 U.S. 121, 41 L. Ed. 93. All of these cases were decided by the Supreme Court of the United States many decades ago. While it is undoubtedly true that the lapse of time in no wise changes the eternal and fundamental principles, yet the efflux of time sometimes makes imperative a new application of those eternal principles to the new and changing conditions. Since the decisions above mentioned, the Supreme Court of the United States has itself modified and changed the holdings in those cases, and applied new lights to the new conditions confronted by the people of the nation, and has refused to apply the antiquated keys of the past to the portals of the future. Thus we shall follow in its footsteps, with confidence that reason and justice will light our pathway.
Moratory legislation is by no means new in the world, having been resorted to by *Page 200 many nations in both ancient and modern times. Our nation, and the various states of the Union, have many times adverted to this public policy as a temporary measure to meet unusual conditions. The devices used have been as varied as the acts themselves, and judicial sanction thereof has likewise been wavering and uncertain. Without analyzing the various provisions of the acts, we shall briefly mention some of this legislation and the action of the courts thereon.
In 1841 an act was passed in Alabama allowing a two-year redemption period of all judicial sales, which was held by the state Supreme Court to be constitutional in the case of Iverson v. Shorter, 9 Ala. 713.
In 1808 in Georgia, an act was passed providing for the suspension of all executions and trials of actions except for rights in property until May 23, 1808, which act was held constitutional in the case of Grimball v. Ross, T. U. P. Charlt. (Ga.) 175.
In 1860, in Iowa, the Legislature provided for a nine months stay in actions for foreclosures of mortgages limited to January 1, 1861, which was held constitutional in the case of Holloway v. Sherman, 12 Iowa, 282.
In 1861, in Kentucky, an act was passed closing the courts for seven months except for the trial of criminal cases, which was declared constitutional in the case of Johnson v. Higgins, 3 Metc. 566.
In 1814, an act was passed in Louisiana providing that no actions should be commenced, and all actions should be suspended, and prohibiting judicial sales until May 1, 1815, which was held constitutional in the case of Johnson v. Duncan, 3 Mart. 380.
In 1858, in Minnesota, a legislative act providing for a twelve months' redemption period of foreclosed property was held constitutional in the case of Stone v. Bassett, 4 Minn. 298. In 1860 an act was passed allowing a three years' redemption period on foreclosed property which was declared constitutional in the case of Heyward v. Judd, 4 Minn. 483.
In 1840, in Mississippi, an act was passed providing that no judicial sale should be valid unless two-thirds of the appraised valuation was bid, which was declared constitutional in the case of Woods v. Buie, 6 Miss. 285.
In Pennsylvania, in 1842, an act was passed providing for a one-year stay of judicial sales of real property where less than two-thirds of the appraised value was bid, which was declared constitutional in the case of Chadwick v. Moore (Pa. 1844), 8 W. S. 49.
In Virginia, in 1869, an act was passed providing that judicial sales of personal property were to be made on a credit of twelve months, which was dcelared constitutional in the case of Garland v. Brown, 23 Grat. 173.
In Wisconsin, in 1858, an act was passed allowing a six months' stay of proceedings of mortgage foreclosures and executions. Said act was held constitutional. Von Baumbach v. Bade, 9 Wis. 559; Starkweather v. Hawes, 10 Wis. 125.
Other legislative acts through the same period of time of a moratory nature which have been held unconstitutional are discussed in the following cases: Hudspeth Co. v. Davis,41 Ala. 389; Burt v. Williams, 24 Ark. 91; People ex rel. Thorne v. Hays, 4 Cal. 127; Bronson v. Kinzie (U.S. 1843), 1 How. 311; McCracken v. Hayward (U.S. 1844) 2 How. 608; Blair v. Williams, 4 Litt. 34; Lapsley v. Brashears, 4 Litt, 47. Coffman v. Bank of Kentucky, 40 Miss. 29; Baily v. Gentry, 1 Mo. 164; Jones v. Crittenden, 1 Car. L. Rep. 385; Barnes v. Barnes (N. C. 1861) 8 Jones, 366; Jacobs v. Smallwood, 63 N.C. 112; Johnson v. Winslow, 64 N.C. 27; Bunn v. Raiguel Co. v. Gorgas, 41 Pa. 441; State v. Carew, 13 Rich. L. E. 148; Luter v. Hunter, 30 Tex. 688; Jones v. McMahan, 30 Tex. 719; Earle v. Johnson, 31 Tex. 164; Daniels v. Tearney, 102 U.S. 415; Taylor v. Stearns (Va. 1868) 18 Grat. 244.
Many of the acts discussed in the above cases sought to abrogate entirely certain contractual rights, instead of temporarily postponing the assertion thereof for a limited and reasonable time. Several of said acts postponed enforcement an indefinite period of time, instead of a definite reasonable time, and for said reason judicial sanction thereof was refused.
Let us turn to the specific provisions of the act and construe it in the light of the principles above considered.
While the act, by its title, purports to be a procedural act, and is so determined and in part construed by the majority opinion as such, we cannot agree that it in fact is procedural. It is not amendatory of the previous general law, nor does it purport to repeal the same. It is to continue in force for a period of only two years. It was not the intention of the Legislature to change the established procedure; it intended only to give legislative sanction to the court to retard the processes of the law in order that *Page 201 the owners of mortgaged property might have additional time in which to adjust themselves to the economic situation, or in which the economic and social system should have time to rehabilitate itself to conform to the necessities of the people. The act is an emergency act, supplementary to the general laws, designed, in the opinion of the Legislature, to meet the exigencies of the occasion which called it into being. Its advantages were to be granted only upon application of the owner of mortgaged property, or upon the court's own motion in the exercise of a sound judicial discretion in applying the provisions of the act to the causes of action in the contemplation of the Legislature which called forth the exercise of the police power of the state by that body. Being supplementary of, and not a substitute for, existing laws, the provisions of this act should be construed in connection with existing laws, and effect given to both as far as possible in order to effectuate the beneficent intent.
By the first paragraph of section 1, relating to actions pending at the time of the passage of the act, it is provided that defendants who have not filed an answer in the cause "shall not be held to answer therein until the expiration of nine months after the date of the service of summons upon the defendant who is the record owner of the real estate. * * * "Upon application, it is the duty of the court to give effect to this provision, and the court of its own motion may likewise extend this leniency, but in the absence of request therefor, no mandatory duty rests upon the court in this respect.
The second paragraph of section 1 relates to actions filed after the effective date of the act. By the provisions of section 217, O. S. 1931, the pleadings of defendant shall be filed within 20 days after the return day of the summons. The act provides that the defendants "shall not be held to answer therein until the expiration of nine months after the date of the service of summons upon the defendant who is the record owner of the property at the time of the filing of suit." Giving effect to both acts, it is our opinion that the answer day of the summons to be issued to the defendant or defendants is governed by section 217, supra, and the construction placed upon the first paragraph of said section hereinabove set out is applicable.
Our attention has been directed to paragraph 3 of section 1 of the act, which provides that "in all actions now pending * * * in which the answer of defendant has already been filed, no trial shall be had and no court of this state shall render judgment therein until the expiration of nine months after the passage and approval of this act. * * *"
It is noted that this provision is unqualified and unlimited and purports to deprive the courts, under any circumstances or conditions, of authority to render a judgment in such class of cases even by consent of the parties, and notwithstanding all parties may be desirous of a speedy determination of the issues. There may be instances where delay would not benefit the owner of the property, but would be positively injurious. By the provisions of sections 1 and 10, of article 7, of the Constitution the district courts are invested with judicial power, which power is unalterable and indestructible and cannot be abrogated or abridged by statute. To take away the rights of the courts to exercise their constitutional jurisdiction might operate to defeat the general purposes of the act. Such legislative action, therefore, has no real substantial relation to the purpose sought to be accomplished, and is beyond the necessities of the situation sought to be remedied and is arbitrary and unreasonable, and therefore transcends the limits of the proper exercise of the police power of the state. It is our view, therefore, that said provision is invalid and ineffective. Moreover, it appears that under section 2 of said act, giving legislative sanction to the continuance of causes by the court, the rights of the litigants can be fully safeguarded in the exercise of a wise judicial discretion. Doubtless the courts will follow the spirit of the act, deemed advisable by reason of the emergency recognized by the legislative authority.
By the provisions of section 2 of said act, legislative sanction is given to the court, upon its own motion or upon application of the owner of said property, to grant a continuance of said cause in his discretion; and by section 3 the court is authorized to attach certain conditions to the granting of such continuance. The conditions enumerated in section 3 were placed therein primarily for the benefit of the mortgagee, and are not obligatory to the extent of constituting conditions precedent to the exercise of discretion by the court in continuing said cause. They are legislative signposts marking the way for the exercise of judicial discretion. We shall not indulge in the presumption that the courts will disregard these statutory provisions of the act.
It is contended that section 4 deprives the mortgagee of a valuable right in that it restricts the power of the court to appoint *Page 202 a receiver. On the contrary, the power of the court to appoint a receiver is thereby enlarged, except in cases where the property constitutes a homestead. When the provisions of said act are invoked in a cause. legislative sanction is given to the court to appoint a receiver for the property to husband the property and its income, regardless of the value of the property, and apply the receipts therefrom as the court may direct, during the period of time the cause is stayed. This is a valuable right granted to the mortgagee not theretofore existing, and was wisely granted by the Legislature as a precaution against abuse of the spirit of the act. The granting of a receiver is not mandatory, but the court is invested with a judicial discretion, which is always subject to review for abuse. As to homesteads, the general provisions of the statutes relating to the appointment of receivers (secs. 773-781, O. S. 1931) are neither specifically repealed nor repealed by implication. The power of the court to grant receivers is not limited to the period after the expiration of nine months in which the defendant may answer, but it is the duty of the court to exercise a wise judicial discretion in administering and applying said act to the causes of action wherein the benefits thereof are invoked.
Summarizing, we point out that said act is effective for only a limited reasonable time; it does not diminish or decrease the duty of debtors coming within its terms to discharge in full measure the obligations voluntarily assumed by them; it does not defer, nor purport to defer, the maturity of said obligations, or any part thereof; it defers for a limited, definite time, reasonable in term, the remedies of the mortgagee for the enforcement of his obligation, which, in the judgment of the legislative body, was necessary and proper to meet a temporary emergency, far-reaching in its direful results, grave in its consequences, subversive of the general welfare, peace, happiness, health, prosperity, and convenience of the people of the state. In the exercise of the majesty and sovereignty of the state, it is our view that the act constitutes a proper exercise of the police power of the state, and, except as hereinabove pointed out, is valid and effective.
The questions above discussed constitute the main issues urged in the briefs and upon oral presentation of the group of causes involving the act in question.
We shall allude briefly to the majority opinion and the fundamental error therein.
The majority opinion is predicated upon the conclusion that the act is purely an act amending civil procedure for the foreclosure of real estate mortgages instead of an act passed by virtue of the police power of the state. It is based upon the premise that "the repeal of a statute shall not affect any proceedings begun by virtue of such repealed statute," as provided by section 54, article 5, of the Constitution. But the majority opinion studiously refrains from pointing out what act, if any, is repealed, either expressly or by implication. The act in question repeals, and purports to repeal, no prior act. Hence, there is no field of operation for the constitutional provision relied on.
In the companion case of State of Oklahoma ex rel. v. E.A. Waterfield, 167 Okla. 209, 29 P. [2d] 24, decided on this date in an opinion by Justice Busby, a portion of the act is upheld "if and when construed," as determined in said opinion. The Justice concedes that under the inherent police power of the state, the act is in part valid. By said opinion, the right of the Legislature to fix a time of nine months as a reasonable time in which the court might require a defendant to answer in a mortgage foreclosure case is stricken down, but the right of the court to grant a continuance and postponement of said action for two years is with expressed reluctance upheld. In other words, the Legislature could delegate to a subordinate agency a right which it, by its own act, could not exercise. We cannot agree to such an anomaly. The right of an instrumentality of sovereignty cannot be greater than sovereignty itself. The opinion is inconsistent within itself, and is in conflict with the opinion in the Worten Case. The principles recognized in the opinion are denied application.
The construction placed on said act as to the provisions held valid is not warranted by said act.
I am authorized to say that Justices SWINDALL and McNEILL concur herein.
Supplemental Opinion on Rehearing.