(dissenting): I decline to give my consent to the view that the decree of a court in a foreclosure action, as to the period of redemption named therein, is so immovable and unchangeable (whether on the ground of res judicata, or any other ground) as to prevent the court, by a later order, from extending the time for redemption if a situation (an emergency) arose which, as the court views it, makes such action equitable between the parties; or so as to prevent the legislature (because of an emergency it finds to exist) from enacting a statute authorizing the courts to give further consideration to periods of redemption in a foreclosure action, if a party applies for it, and to extend the period for a limited time upon terms which are equitable between the parties. This is all chapter 226 of the Laws of 1935 attempts to do.
Neither can I give my consent to the view, which appears to dominate the opinion as written, that judicial action is so much superior to legislative action. Just as sometimes . happens with persons who occupy other governmental units, those of the court occasionally acquire an exaggerated opinion of their own authority or power. Statements embodying such views have been written in the law books, some of which are cited and relied upon in the opinion of the court in this case. However, there is an abundance of other authorities setting forth another, and to my mind, a sounder view. Our government is founded on the view that judicial and legislative powers are coordinate. This equality'of authority should be maintained unless the doing so would of itself disrupt our governmental structure — the fundamental reason justifying courts in holding a particular legislative act not to be authorized by the constitution. The financial depression has caused the legislatures of many states to enact moratorium statutes pertaining to a variety of subjects. The validity of many of these never was questioned-in the courts, and most of those questioned have been sustained by the courts, even when they affected prior judicial decrees.
More than that, so far as our state is concerned, all governmental power was originally vested in the people, and is still vested in them, except that a part of it has been surrendered to the federal government, and in part they have restricted its exercise by their own constitution. But neither the state nor federal constitution places the judicial branch of the government on a higher plane than the legislative; they are coordinate. If in time of an emergency or catastrophe, local or extended over a wide area, temporary ór other*685wise in duration, in order to maintain the lives or health of the people, or to enable them to engage in useful industry, the people find it necessary to suspend for a time the operation of some branch or unit of the government, I have no doubt there is fundamental power and authority to do so, unless such power has been given away to the federal government, or been restricted by their own constitution. The act we have under consideration (Laws 1935, ch. 226) does not attempt to go anything like this far. All it attempts to do is to give authority to the courts of the state, in that class of foreclosure actions of which they still have jurisdiction because sheriff’s deeds have not been issued, to consider the question of further extending the period of redemption for a limited time, but requiring the court, if that is done, to do so upon terms equitable between the parties. I see nothing seriously wrong in that. There are some details of this statute which might render it invalid, but since they have not been treated in the opinion of the court I shall not discuss them here.
It is my opinion that each of the five cases disposed of by this opinion should be treated separately instead of being grouped as one (the same should be done as to other cases submitted at the same session of the court); that the statute in question (Laws 1935, ch. 226) should be treated as a valid exercise of legislative power, unless the court can say as a matter of law that legislative declaration of an emergency is not in accord with existing conditions, and that the question which should be considered and determined in each case separately is whether the order made by the trial court, in view'of the facts of that case, is equitable as between the parties.
The press of other work makes it impossible for me to write more extensively upon the subject, even if I thought it would serve any useful purpose to do so.
Burch, C. J., dissenting.MEMORANDUM
The cases listed below involve validity of the 1935 moratorium law. While the facts differ in details from the facts in case No. 32,440, Kansas City Life Insurance Co. v. Theodore Anthony et al., and companion cases this day decided, the controlling legal questions are the same in all the cases. Therefore, pursuant to the decision in case No. 32,440, judgments of reversal are entered in the •following appealed cases:
*686No. 32,437. The Mutual Building and Loan Association v. Roy E. Davis, Sheriff of Lyon County, Kansas. (Charles B. Taylor, Intervener.) Original proceeding in mandamus. Writ allowed.
No. 32,459. The Prudential Insurance Company of America v. Henry Sallee and Nancy I. Sallee. Appeal from Marion county.
No. 32,465. Phoenix Joint Stock Land Bank of Kansas City v. Matthew E. Brown et al. Appeal from Edwards county.
No. 32,474. Phoenix Joint Stock Land Bank of Kansas City v. James Hosford and Anna L. Hosford. Appeal from Brown county.
No. 32,475. Phoenix Joint Stock Land Bank of Kansas City v. John F. Oltjen, as Sheriff of Brown County. Appeal from Brown county.
No. 32,506. Phoenix Joint Stock Land Bank of Kansas City v. George Roggendorff et al. Appeal from Dickinson county.
No. 32,510. Prudential Insurance Company of America v. James Vaughan et al. Appeal from Jackson county.
No. 32,511. Citizens Building and Loan Association v. Robert Stanton et al. Appeal from Lyon county.
No. 32,515. Union Central Life Insurance Company v. Robert E. Ward et al. Appeal from Leavenworth county.
No. 32,516. Phoenix Joint Stock Land Bank of Kansas City v. James A. Belden et al. Appeal from Smith county.
No. 32,526. Farm Mortgage Holding Company v. E. B. Robert- • son et al. Appeal from Cheyenne county.
No. 32,554. Farm Mortgage Holding Company v. Cleve W. Carter et al. Appeal from Comanche county.
No. 32,556. Equitable Life Assurance Society of New York v. Charley Sickelbower et al. Appeal from Butler county.
No. 32,557. Ancient Order of United Workmen of Kansas et al. v. Orrin E. Rippetoe et al. Appeal from Coffey county.
No. 32,564. Union Central Life Insurance Company v. Harry C. Sturdivan et al. Appeal from Woodson county.
No. 32,566. Farm Mortgage Holding Company v. James L. Blodgett et al. Appeal from Mitchell county.
No. 32,567. Farm Mortgage Holding Company v. James E. Irvine, as Sheriff of Leavenworth County, Kansas. Appeal from Leavenworth county.
No. 32,568. Farm Mortgage Holding Company v. Stella M. Wingrove and Roy A. Wingrove et al. Appeal from Leavenworth county.
*687No. 32,583. Farm Mortgage Holding Company v. Samuel C. Diggle et al. Appeal from Kearny county.
No. 32,587. John Hancock Mutual Life Insurance Company v. Audrey D. Reid et al. Appeal from Lyon county.
No. 32,588. Mutual Building and Loan Association v. Frances C. Taylor et al. Appeal from Lyon county.
No. 32,591. Citizens Building and Loan Association v. G. C. Foster et al. Appeal from Lyon county.
No. 32,596. Phoenix Joint Stock Land Bank of Kansas City v. Martin King et al. Appeal from Phillips county.
No. 32,733. Phoenix Joint Stock Land Bank of Kansas City v. Edgar L. Runyan et al. Appeal from Montgomery county.