On January 12, 1925, appellees executed and delivered to appellant a note secured by mortgage on real property in Boone county, Iowa. Upon default in the performance of the terms of the mortgage, appellant commenced an action on September 8, 1931, in the Boone district court for its foreclosure. On the 25th day of March, 1932, a decree, containing no unusual terms, was entered foreclosing the mortgage. Special execution was issued, and on May 6, 1932, the mortgaged property was sold at sheriff's sale to appellant for a sum substantially less than the amount of the judgment. On the date of sale, a sheriff's certificate of sale was issued to appellant, under the terms of which and the law in force on the date of the execution of the note and the mortgage and the date of sale, appellant was entitled to a sheriff's deed upon the expiration of one year from the date of sale, unless the property was redeemed. Redemption was not made. On April 8, 1933, application was filed by appellee David T. Nordholm, asking that the period of redemption be extended to March 1, 1935, in conformity with the provisions of an act of the legislature (chapter 179, Acts of 45th Gen. Assem.) which had become effective on March 20, 1933. Resistance was made by appellant to this application. On April 21, 1933, the court made an order, the pertinent part of which extended the period of redemption until March 1, 1935. From such order this appeal is prosecuted.
The act of the Forty-fifth General Assembly, to which reference has just been made, reads as follows: *Page 1346
"An Emergency Act relating to the extension of the period of redemption of real estate in all real estate foreclosure actions now pending where deeds of conveyance have not been granted.
"Be it enacted by the General Assembly of the State of Iowa:
"Section 1. In any action, for a real estate foreclosure of a mortgage or a deed of trust, which has been commenced in any of the courts, and in which a decree has been or may hereafter be entered, but the redemption period, as now provided, has not expired, upon application of the owner or owners of such real estate, the court shall, unless upon hearing upon said application good cause is shown to the contrary, order that no sheriff's deed shall be issued until March 1, 1935, and in the meantime the such owner or owners may redeem such property, and are entitled to possession thereof.
"Provided, the court having jurisdiction of such foreclosure action shall order and direct, that there shall be applied from the income of said real estate so much thereof as is just and equitable, toward the payment of taxes accruing thereon during the period of redemption extension as provided by this act, and any balance distributed as the court may direct, and shall make such provision for the preservation of said property as will be just and equitable during the redemption period, and to this end the court may, in his discretion, in order to carry out the foregoing powers, appoint a receiver of said real estate, and invest said receiver with such powers as the court may find will be just and equitable to all parties to the proceeding.
"Providing, that in the event the said owner or owners do not comply with the orders of the court, the order for extension of redemption period as authorized by this act shall, on proper hearing, be set aside by order of the court.
"Sec. 2. During the period of extension of redemption, as herein provided, the owner or owners of said real estate shall have the exclusive right to redeem, and the rights of redemption of subsequent mortgagees, junior lienholders, and creditors shall terminate within the period as by law now provided, the provisions of this act notwithstanding.
"Sec. 3. During the period of extension of redemption, as herein provided, the clerk of the district court of the county in which such foreclosure action is brought, shall receive and disburse the income from said real estate, as the court shall order as just and equitable.
"Sec. 4. Any provision of any law or laws now in force, which *Page 1347 are in conflict with the provisions of this act, are hereby suspended until March 1, 1935.
"Sec. 5. From and after March 1, 1935, this act shall cease to be in force.
"Sec. 6. If any court of competent jurisdiction finds that any word, phrase, clause, sentence, or part of this act is unlawful it shall not invalidate any other part of this act.
"Sec. 7. This act being deemed of immediate importance shall be in full force and effect from and after its publication in the Sioux City Tribune, a newspaper published at Sioux City, Iowa, and the Davenport Democrat, a newspaper published at Davenport, Iowa."
I. Numerous objections were made to the application in the lower court and are urged in this court. The first objection requiring attention is that, as applied to the facts above stated, the act impairs the obligation of contracts and consequently is forbidden by article I, section 10, of the Constitution of the United States.
Notwithstanding the fact that a Minnesota statute extending the period of redemption was sustained by the Supreme Court of the United States against the objection that it contravened the Federal Constitution (Home Building Loan Assn. v. Blaisdell,290 U.S. 398, 78 L. Ed. 255), it does not follow that the law under consideration is not vulnerable to such objection. The Minnesota statute specifically provides compensation in every instance to the mortgagee. Under the Minnesota statute, if redemption is not made at the end of the extended period of redemption, the reasonable rental value of the mortgaged property has been, or is, paid to or for the direct benefit of the mortgagee. Concerning this Mr. Chief Justice Hughes says:
"While the mortgagor remains in possession, he must pay the rental value as that value has been determined, upon notice and hearing, by the court. The rental value so paid is devoted to the carrying of the property by the application of the required payments to taxes, insurance, and interest on the mortgage indebtedness. While the mortgagee-purchaser is debarred from actual possession, he has, so far as rental value is concerned, the equivalent of possession during the extended period."
And again:
"The mortgagor during the extended period is not ousted from *Page 1348 possession, but he must pay the rental value of the premises as ascertained in judicial proceedings and this amount is applied to the carrying of the property and to interest upon the indebtedness. The mortgagee-purchaser during the time that he cannot obtain possession thus is not left without compensation for the withholding of possession."
This is not true of the Iowa statute.
By the Iowa statute, the owner is given the right to possession of the mortgaged premises during the extended period of redemption. The language of the statute is:
"And in the meantime the such owner or owners may redeem such property, and are entitled to possession thereof."
In the first instance the grant of the right of possession to the owner is absolute and unconditional. Whether the owner, if he elects to take or retain possession of the property, can be required to pay anything for the possession of the land, in view of the legislative grant of the right of possession, is at least subject to serious doubt. Still, if it be assumed that he must and does pay something for the possession of the land, does it follow from the language of the law that compensation will be made to the mortgagee? First, so much of the income of the land as is just and equitable shall be applied to the payment of taxes. Second, so much of the income as is just and equitable shall be applied toward the upkeep of the premises. Then, third, the balance, if any, shall be paid as the court may order as just and equitable. The language of the law is:
"Provided, the court * * * shall order and direct, that there shall be applied from the income of said real estate so much thereof as is just and equitable, toward the payment of taxes accruing thereon during the period of redemption extension, * * * and any balance distributed as the court may direct, and shall make such provision for the preservation of said property as will be just and equitable. * * *
"The clerk of the district court * * * shall receive and disburse the income from said real estate, as the court shall order as just and equitable."
It appears to be beyond cavil that the law contemplates that the balance may be ordered paid to the owner. The law does not *Page 1349 require that the taxes on the property be paid, or that the property be kept up. These things may be done. It does not require that the balance of income, remaining after whatever deductions for taxes and upkeep are made, be paid to the mortgagee. It may be paid to the mortgagee, or it may be paid to the mortgagor. It is no answer to say that the statute provides that the balance shall be disbursed as the court may order as just and equitable. To be valid under the Federal Constitution the law must provide compensation to the mortgagee. In the "rent cases" (Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, 41 S. Ct. 465, 65 L. Ed. 877; Block v. Hirsh, 256 U.S. 135, 41 S. Ct. 458, 460, 65 L. Ed. 865, 16 A.L.R. 165; Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 42 S. Ct. 289, 66 L. Ed. 595), Mr. Justice Holmes, speaking for the Supreme Court of the United States, said:
"Machinery is provided to secure to the landlord a reasonable rent."
And in Home Building Loan Association v. Blaisdell, supra, Mr. Chief Justice Hughes said in addition to the language above quoted:
"It will be observed that in the Bronson case, aside from the requirement as to the amount of the bid at the sale, the extension of the period of redemption was unconditional, and there was no provision, as in the instant case, to secure to the mortgagee the rental value of the property during the extended period." And again:
"But in the Barnitz case, the statute contained a provision for the prevention of waste, and authorized the appointment of a receiver of the premises sold. Otherwise the extension of the period of redemption was unconditional, and, in case a receiver was appointed, the income during the period allowed for redemption, except what was necessary for repairs and to prevent waste, was still to go to the mortgagor.
"None of these cases, and we have cited those upon which appellant chiefly relies, is directly applicable to the question now before us in view of the conditions with which the Minnesota statute seeks to safeguard the interests of the mortgagee-purchaser during the extended period."
Under the law in force at the time the mortgage before us was made and at the time of sale under special execution, the mortgagee *Page 1350 was entitled to a sheriff's deed at the expiration of one year from the date of sale and to the possession of the property during the period through which the statute attempts to extend the right of redemption. These rights are taken away by the statute. Under the decisions of the Supreme Court of the United States, from which quotations have been made, compensation for such rights must be provided for in the act or it cannot be sustained. The only inference that can be drawn from the cases is that the reasonable rental of the property must be paid to or for the use of the mortgagee-purchaser. It may be that he cannot be heard to complain if taxes and reasonable cost of upkeep are paid out of income, for such expenditures inure to his benefit, but to be valid the act itself must provide that any remaining balance shall be paid to the mortgagee-purchaser.
It seems clear that the purpose of the law, disguised by the words "just and equitable", is to permit the income from the land to be paid to the mortgagor, whenever it may be made to appear to the court that the value of the premises at the expiration of the extended period of redemption is equal to or greater than the amount due on the judgment, or, if this is not the situation, that the court shall make distribution of the fund between the owner and the mortgagee-purchaser with the idea of adjusting present values and amounts due rather than in accordance with the rights of the parties under the law in force at the time the contract was made and the property sold on execution. If such purpose had been clearly expressed in the law, it would not pass the tests applied by the Supreme Court of the United States before permitting a law to stand against the ban of the Federal Constitution. The recent pronouncements of that court cannot be reconciled with a statute which permits the owner to remain in possession of mortgaged property during an extended period of a year and a half without the payment of rent to the mortgagee-purchaser, provided only the present value of the premises is equal to the amount due on the mortgage or judgment, or with one which provides for the division of the income from the land during the extended period of redemption on a basis of adjusting values and amounts due.
In this connection it cannot be contended logically that the court shall disburse the fund between the owner and the mortgagee-purchaser on the basis of computing interest due on the judgment or on the amount bid at execution sale.
It must be remembered that after execution sale the right of *Page 1351 the purchaser does not rest upon the note and mortgage alone; in fact, the rights of the purchaser spring from his purchase at the sale. It is recognized that when the mortgagee is purchaser at execution sale his rights are somewhat different than those of a purchaser who is a stranger to the mortgage. Bradley v. Lightcap,195 U.S. 1, 24 S. Ct. 748, 49 L. Ed. 65. But so far as the land is concerned his rights after sale arise under the purchase. He has no claim based on a right to interest, unless redemption is made. He has a right to a sheriff's deed and a right to possession upon receipt of the sheriff's deed. Primarily the thing of value which he loses under the act is the right to possession of the land during the extended period of redemption. He does not lose a right to be paid interest. For cutting down his right to possession of the property compensation must be made, and of course the value of this right is not interest on the amount bid by him, but is, rather, the reasonable rental of the land. It has been pointed out that the Supreme Court of the United States has sustained the "rent laws" and the Minnesota moratorium law in view that the "rent laws" provided machinery by which the reasonable rental value of the property was assured to the landlord, and in the view that under the Minnesota statute the reasonable rental of the property is applied to the payment of taxes and upkeep of the premises and in payment for the rights of the purchaser cut down by the law. It is true that Mr. Justice Hughes says that the rental "is applied to the carrying of the property and to interest upon the indebtedness". But he repeatedly asserts that under the Minnesota law the mortgagee-purchaser is compensated to the extent of the rental value of the land for the loss of his right to possession. He says:
"While the mortgagee-purchaser is debarred from actual possession, he has, so far as rental value is concerned, the equivalent of possession during the extended period."
If the Iowa statute contemplates that so much of the income as may remain after the payment of taxes, upkeep, and interest shall be paid to the owner, it cannot be sustained because less than reasonable compensation would be made to the purchaser for the rights taken from him. As a matter of fact the statute contains no suggestion that so much of the income as equals interest on the bid made by the purchaser shall be paid to the purchaser. If such disposition is made of such amount, it is not in virtue of any provision of the statute or of any existing law. *Page 1352
In fact, a most serious objection to the validity of the statute exists in its provisions in relation to the disbursement of the income. The legislature has not declared who shall be entitled to receive the fund. It is for the court to declare who shall have it. Under the law in force when the mortgage was made, the purchaser at execution sale was not entitled to possession of the land during the period of redemption; neither does the act under consideration give him such right during the extended period of redemption. His right to a sheriff's deed to the land does not mature until the expiration of the period of redemption. In this situation it seems clear that the mortgagee-purchaser has no present right to the income of the land, and it is equally clear that he will have no right to the income from the land at the expiration of the period of redemption. Notwithstanding the fact that provision must be made in the law to secure compensation to the mortgagee-purchaser, if the law is to be valid, the act does not provide that such compensation shall be made. The mortgagee-purchaser is not mentioned in the act. He is given nothing by the act. In this situation it is obvious that neither under the act nor under prior law has the mortgagee-purchaser such interest in the land as to give him any right to the fund. It will be said, of course, that since compensation must be made before the rights of the mortgagee-purchaser can be cut down, such fact gives him a right to the fund. The reply is that before the legislature can cut down such rights the legislature must provide that compensation be made to the mortgagee-purchaser. The act under consideration does not provide that compensation shall be made to the mortgagee-purchaser. If the mortgagee-purchaser receives any part of the income of the land, it must come through the court supplying a requisite to the validity of the law omitted by the legislature, namely, compensation to the mortgagee-purchaser. The statute gives the owner the right to possession of the premises during the extended period of redemption, but it must be assumed that this right to possession has been abridged by an obligation to pay rental for the land. If this is true, what right has the owner of the land to the fund which he has paid under the law for the possession of the land? Surely he has no right based on his ownership of the land, because under the law he has been obliged to pay for the right to its possession. It seems clear that the owner has no right to the fund, which is known to, or established by, law. The owner and the purchaser find themselves confronted with a fund which has been *Page 1353 created by the act in cutting down the rights of each in the land without creating in either any right to the fund. There is no way in which this fund can be distributed until new rights are created in it.
It is by the statute — not by its terms but by necessary implication — made the duty of courts to create such rights to the fund. Until a right to the fund is created in the owner, it cannot be paid to him, and the same must be said of the purchaser. The creation of this right is a legislative function. The distribution of the fund can never be achieved through the exercise of judicial functions, for a judicial examination of the rights of the owner and the purchaser would reveal that neither had any claim to it in law or in equity under any conceivable prior right. The district court, and this court, are constitutional tribunals and may never be vested with legislative functions. The legislature cannot endow such courts with legislative functions, nor can such courts assume to exercise legislative powers, even though granted by act of the General Assembly, Const. of Iowa, art. III, sec. 1; In re Appeal of Beasley Bros., 206 Iowa 229, 220 N.W. 306; State ex rel. White v. Barker, 116 Iowa 96, 89 N.W. 204. The determination of claims and rights to property is a proper judicial function but the creation of rights in property is purely a legislative function. The fund in the hands of the receiver can only be disbursed by and through the creation of original rights to it. The legislature has not created such rights. These rights cannot be created by constitutional courts.
It is no answer to say that the power of the court of equity is great. It is true that equity has been adequate in every judicial emergency. Under the Constitution of the State of Iowa, the legislative, executive, and judicial powers of government have been severed from each other and organized into co-ordinate departments of the state. The Constitution forbids the exercise of legislative powers by the judiciary.
The language used by the Supreme Court of the United States in the Home Building Loan Association case and the "rent cases" indicates that the law under consideration cannot be considered an exercise of police power (as Mr. Justice Holmes says in Block v. Hirsh, supra) "in its proper sense, under which property rights may be cut down, and to that extent taken, without pay." That court recognizes that acts of this character take property rights from the mortgagee-purchaser in a manner requiring that compensation be *Page 1354 made. The act takes from appellant two definite property rights: First, the right to possession of the property during the extended period of redemption. Second, the right to a sheriff's deed at the end of one year from the sale on special execution. Carried to their uttermost limit the cases referred to hold no more than that such property rights may be suspended for a reasonable length of time provided reasonable compensation is assured to the mortgagee-purchaser. The act in question does not even once mention the mortgagee or the purchaser at execution sale, or the obligation upon the mortgage or judgment. It makes no provision whatever for the payment of anything to the mortgagee-purchaser. In the absence of judicial legislation nothing can be paid to the mortgagee-purchaser. The failure of the legislature to make provision in the act for compensation to the mortgagee-purchaser leaves the act within the ban of the Federal Constitution under the cases above referred to.
It can be urged that the court may take into consideration the necessity of making compensation to the mortgagee-purchaser to sustain the validity of the act, when ordering the disbursement of the fund, in which event the mortgagee-purchaser would be paid for the rights cut down by the law. The trouble is that the General Assembly has not given heed to this need in framing the law. The validity of a law is determined by what it permits to be done, rather than by what is done under it in a particular instance. In Louisville N.R. Co. v. Central Stock Yards Co.,212 U.S. 132, 29 S. Ct. 246, 248, 53 L. Ed. 441, the court said:
"The want (provisions for due process of law) cannot be cured by inserting them in judgments under it. The law itself must save the parties' rights, and not leave them to the discretion of the courts as such."
In Roller v. Holly, 176 U.S. 398, 20 S. Ct. 410, 44 L. Ed. 520, the court said:
"The right of a citizen to due process of law must rest upon a basis more substantial than favor or discretion."
In Stuart v. Palmer, 74 N.Y. 183, 30 Am. Rep. 289, it is said:
"It matters not, upon the question of the constitutionality of such a law, that the assessment has, in fact, been fairly apportioned. The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done." *Page 1355
See, also, Hathorn v. Natural Carbonic Gas Co. 194 N.Y. 326, 87 N.E. 504, 128 Am. St. Rep. 555; Turner v. Eslick, 146 Tenn. 236, 240 S.W. 786; In re Lambert, 134 Cal. 626, 66 P. 851, 86 Am. St. Rep. 296; Colon v. Lisk, 153 N.Y. 188, 47 N.E. 302, 60 Am. St. Rep. 609; Sterrit v. Young, 14 Wyo. 146, 82 P. 946, 116 Am. St. Rep. 994; Gatch v. City of Des Moines, 63 Iowa 718, 18 N.W. 310; Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 59 L. Ed. 1027.
If a law may be interpreted in two ways, one sustaining the validity and the other making the act invalid, the act must be construed so as to sustain its validity. But the act as written cannot be construed in two ways, one requiring the income to be paid to the mortgagee-purchaser and the other requiring the income to be paid to the owner. The act under consideration cannot be construed to require the payment of the rental or income from the mortgaged premises to the mortgagee-purchaser, for it contains no mention of such matter. As has been said, the conclusion cannot be escaped that the General Assembly contemplated that the fund in the hands of the clerk would in many instances be paid in whole or in part to the mortgagor. The direction in the statute that the fund be disbursed as the court may order as just and equitable can have no other purpose. The validity of the statute cannot be upheld on the theory that the courts will supply elements essential to validity in their execution of the law. The statute must stand or fall on its own terms. The act contains no mention of the mortgagee-purchaser. It has no provision for his protection. If anything is paid to him, it will be in virtue of an order of court and not in virtue of the statute. This will not sustain the act in the light of the most recent pronouncement of the Supreme Court of the United States.
The law cannot be sustained. See Home Building Loan Association v. Blaisdell (290 U.S. 398), supra; Barnitz v. Beverly, 163 U.S. 118, 16 S. Ct. 1042, 41 L. Ed. 93; Howard v. Bugbee, 24 How. (65 U.S.) 461, 16 L. Ed. 753; Bronson v. Kinzie, 1 How. (42 U.S.) 311, 11 L. Ed. 143; Bradley v. Lightcap,195 U.S. 1, 24 S. Ct. 748, 49 L. Ed. 65.
II. It is also contended that the act, as applied to the facts, impairs the obligation of the mortgage contract and, as a consequence, is void under the provisions of the Constitution of the State of Iowa. Article I, section 21, of the state Constitution provides: *Page 1356
"No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed."
This provision protects the obligation of contracts againstimpairment. The questions naturally arise as to the character of the thing protected and the nature of the thing against which protection is afforded. The character of thing protected is fairly well defined by the decisions of this court. In Rosier v. Hale, 10 Iowa 470, reading on page 485, Mr. Justice Lowe, speaking for this court said:
"These authorities define to some extent, but not with entire precision, the distinction between a contract and the obligation of a contract, and they settle the principle that a state legislature cannot pass a law that shall act upon the one or the other; that is, vary or change the terms of a contract, or impair its obligation, referring thereby to the remedy appointed in the law for enforcing through certain prescribed forms the performance of the same, making the word `obligation' mean, not the promise, not the moral duty or honor that binds the contracting party to keep his engagement, but the remedial process or coercive means which may be employed to compel the defaulting party to perform his agreement. It is by overlooking this distinction between the law of the contract and the law of procedure, which gives to contracts their binding force or efficiency, that the legislatures of this country are often betrayed into the enactment of laws striking at the remedy in a manner that threatens the inviolability of the obligations of contracts; and have thereby compelled the courts to interpose their authority, and to limit their operation to cases in futuro." See Leach v. Commercial Savings Bank, 205 Iowa 1154, 213 N.W. 517; Holland v. Dickerson, 41 Iowa 367; McCormick v. Rusch,15 Iowa 127. And see, also, Home Building Loan Association v. Blaisdell (290 U.S. 398), supra, and cases therein cited. The thing against which protection is afforded by the constitutional provision is also well defined. Referring again from Rosier v. Hale, 10 Iowa 470, we find that this court has said:
"The doctrine laid down in the above cases is, that the law in force when the contract is made is necessarily referred to and forms a part of the contract, and fixes the rights and obligations growing out of it; and that any substantial change in the law of the remedy which shall lessen its efficiency, or burden it with new conditions and restrictions, comes within the constitutional prohibition." *Page 1357
In Barnitz v. Beverly, 163 U.S. 118, 16 S. Ct. 1042, 1046, 41 L. Ed. 93, the Supreme Court of the United States said:
"Without pursuing the subject further, we hold that a statute which authorizes the redemption of property sold upon foreclosure of a mortgage, where no right of redemption previously existed, or which extends the period of redemption beyond the timeformerly allowed, cannot constitutionally apply to a sale under a mortgage executed before its passage." (Italics are ours.) In McCracken v. Hayward, 2 How. (43 U.S.) 608, 11 L. Ed. 397, it is said:
"In placing the obligation of contracts under the protection of the Constitution, its framers looked to the essentials of the contract more than to the forms and modes of proceeding by which it was to be carried into execution; annulling all state legislation which impaired the obligation, it was left to the states to prescribe and shape the remedy to enforce it. The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, orto impair the right, it necessarily bears on the obligation ofthe contract, in favor of one party, to the injury of the other; hence any law, which in its operation amounts to a denial or obstruction of the rights accruing by a contract, thoughprofessing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution." (Italics are ours.)
In this situation it is apparent that the holder of the mortgage has certain rights in both the mortgage and the remedy afforded by law for the enforcement of the mortgage, which are protected by this clause of the Constitution of the state. An examination of the decisions of this court reveals that this court has answered the question whether the act under consideration is void under the state Constitution. *Page 1358
As applied to the facts in the case before us, the law under consideration gives to the mortgagor a right of redemption from the 6th day of May, 1933, to March 1, 1935, which he did not have under the law in force at the time the mortgage was made, and takes from the purchaser at execution sale, who in this case is the mortgagee, the right to the possession of the property during such time and defers its right to a deed to the property for such period of time. None of such consequences attached to the remedies in force at the time the mortgage was made. By chapter 103 of the Acts of the 8th Gen. Assem., a right of redemption was given to the mortgagor during a period of one year after sale of mortgaged property on execution, and the right to a sheriff's deed to the property was deferred for such period of time. The question whether, as applied to mortgages executed prior to the adoption of the act, the act impaired the obligation of the mortgage, came before this court in Malony v. Fortune, 14 Iowa 417. It was there held that the act was void as applied to mortgages made before its adoption on account of the fact that it impaired the obligation of such contracts in violation of the Constitution. It will be said that the act then under consideration gave a new right of redemption where none at all had existed prior to the adoption of the act, but it must also be said that the act now under consideration gives a right of redemption during a time when no right existed, and that the consequences of the grant of the new right and the extension of the existing right are exactly the same, save only that the extension under the present act is nearly twice as long as under the act involved in the earlier case. We are concerned with the ultimate effect of the law on the obligation of the contract, and, if the earlier law was void as impairing the obligation of the contract, the present law is also void for the same reason, for the ultimate effect of the two acts upon the obligation of the contracts is the same. See, also, Olmstead v. Kellogg,47 Iowa 460; Jordan v. Wimer, 45 Iowa 65; Burton v. Emerson, Shields Co., 4 G. Greene, 393. And to indicate that the cases have not been overlooked reference is made to Holloway v. Sherman, 12 Iowa 282; Holland v. Dickerson, 41 Iowa 367; McCormick v. Rusch,15 Iowa 127; and Hannahs v. Felt, 15 Iowa 141. Since the adoption of this provision of the Constitution, three major economic disturbances or depressions have passed over this state and nation. The cases have stood unchallenged for over fifty years. During that time the Constitution of the state has been amended by the people on seven *Page 1359 different occasions. The provision has not been amended or altered in any respect. Upon the authority of the decisions of this court it must be held that as applied to the facts in the case at bar the act is a violation of the Constitution of the State of Iowa.
But independent of the authority of such decisions such conclusion cannot be escaped. The prohibition of laws impairing the obligation of contracts is of American origin. The evils against which it was directed were the repudiation of debts and acts which are generally known as debtors relief laws. No one can read history and come to the conclusion that the quoted clause of the Constitution of Iowa was not directed especially against the enactment of laws of the character of the one under consideration. It was with laws of this class that the people of the whole nation had had recent experience. They were known to be laws which impaired the obligation of contracts. Neither can one read history and conclude that the clause was not intended to be an absolute and unqualified prohibition of the enactment of such laws. The utter ruin following their enactment was not then merely a matter of history and tradition. It was a matter with which many then living had had bitter experience. Reading from page 37 of Shambaugh's Iowa Constitutional Debates, we find the following in relation to the Convention of 1844:
"Mr.Davidson moved an addition to the 20th Article (which forbids `laws impairing the obligations of contracts,') in order to make it more comprehensible to the common people. The meaning would be the same, but they could understand it better.
"Mr. Grant thought it better to let it be as it was, as decisions had been had upon these words, and their legal character was ascertained. They forbid every kind of legislative interference with contracts.
"Mr. Davidson withdrew his amendment, but immediately after Mr. Hempstead and Mr. Galbraith each proposed amendments of similar character; but they failed to take effect on the convention."
The case of Bronson v. Kinzie, 1 How. (42 U.S.) 311, 11 L. Ed. 143, had been decided recently by the Supreme Court of the United States, holding invalid a statute of the state of Illinois attempting to afford relief to debtors, harassed by the "depression" of 1837, by extending the right of redemption, had in other causes, to actions for the foreclosure of mortgages, for the reason that the obligation of contracts was thereby impaired. With this background we find that *Page 1360 the Constitutional Convention wrote into the Constitution of the state: "No * * * law impairing the obligation of contracts, shall ever be passed."
And in this situation we find the Constitution adopted by the people of Iowa. It is to be particularly noted that this language is not that no law impairing the obligation of contracts shall ever be passed unless compensation is made to the party whose rights are cut down. The language is simply that no such law shall ever be passed.
This background, and these considerations, are important in determining the question before us. In Halsey Co. v. City of Belle Plaine, 128 Iowa 467, 104 N.W. 494, we said:
"In proceeding to give construction to a provision of the Constitution, it is of importance that we begin by making ascertainment of the particular object intended to be subserved. To this end we are required primarily to look to the words employed, giving to them meaning in their natural sense and as commonly understood. If necessary to a fuller understanding, we may place ourselves in touch with the makers of the instrument, and share in their view of the general subject by reading the constitutional debates; also the contemporary legislation, if any, having relation to the subject-matter. We may take note of the evil as manifestly sought to be remedied or guarded against, and of the conditions to be affected, then existing or reasonably to be apprehended in the future, and as disclosed by the authentic history of the state."
How can the law be sustained? The courts are a unit in holding that such laws impair the obligation of contracts. The parties admit that it does so. A reading of the words of the Constitution lends no comfort, for they forbid the enactment of laws impairing the obligation of contracts. The words themselves cannot be construed to warrant the enactment of the law. What is there in the background to warrant a holding that the language used was not intended to apply to the act in question? It cannot be contended that economic disturbances, with their consequent hardships and "emergencies" were unknown to the people. They had just passed through one shortly before the first Constitution was adopted, and the Constitutional Convention of 1857 was held while another great "depression" was taking its toll of misery and hardship. Laws of *Page 1361 the kind under consideration were known to the people to be laws impairing the obligation of contracts and had been held to be such by the courts. The fact that hard-pressed debtors would cry for relief of this character was well known to them, and the poignancy of their appeal and the inability of men in power to resist such demands and appeals were undoubtedly the considerations which prompted the incorporation of the clause in the Constitution. The more the background is examined the more inevitable becomes the conclusion that the language of the Constitution now under consideration was especially directed against laws like the one before us. If the words, "No * * * law impairing the obligation of contracts shall ever be passed," do not deny the power to pass the act now before us, such denial will never be written by the pen of man. The letter, the spirit, and the intent of the provision all condemn the act. The only wayin which the law can be sustained is by holding that theConstitution does not forbid that which its terms and theintention of its makers forever proscribe.
And in this connection it may be well to note another provision of the Constitution of Iowa. Article XII, section 1, reads:
"This Constitution shall be the supreme law of the State, and any law inconsistent therewith, shall be void." It is not the courts or the General Assembly that have made the Constitution the supreme law of the state. The people have done so. It is not the courts that have forbidden the General Assembly to impair the obligation of contracts. The people have done so. The people have not only ordained that no such a law shall ever be passed, but they have ordained that any such law after being passed shall be void. The judges of this court are bound by oath to support the Constitution of the state. The question before it is whether a law impairing the obligation of a contract is void. The people themselves have answered the question in the language of the Constitution last above quoted. They have said it is void. The answer of the people to the question cannot be set aside by saying that the people have not prohibited that which they have forever forbidden.
The Constitution of the United States provides that:
"No State shall * * * pass any * * * Law impairing the Obligation of Contracts."
It will be said that the provision of the Constitution of the state *Page 1362 of Iowa is but a reaffirmance of the prohibition of the Federal Constitution, under which the state may under some circumstances pass laws similar in some respects to the one under consideration. Home Building Loan Association v. Blaisdell (290 U.S. 398), supra.
Let us examine the matter to ascertain whether this is true. If at the time of the adoption of the Constitution of the state of Iowa it was the understanding of the people of the state that under the Federal Constitution the state of Iowa had no power to enact laws of the kind under consideration, and the limitation so understood was affirmed in the language of the Iowa Constitution above quoted, why should not the language be construed as it was understood by the people who adopted it? If, in the adoption of the state Constitution, the people of the state intended to affirm a prohibition of laws of the kind under consideration, the Constitution should be so construed as to effectuate the intended prohibition. If, on the other hand, the people of the state understood that the state had power to pass laws of this kind under certain circumstances, why did they write into the Constitution, "No * * * law impairing the obligation of contracts, shall ever be passed"? For what purpose could the word "ever" be used except to deny the power at every time and under every circumstance? The people of the state have gone beyond the Federal Constitution. They have ordained that no such law shallever be passed.
It is conceded that the act, as applied to the facts in this case, would be unconstitutional in normal times; but it is contended that the act is a proper exercise of police power in view of the emergency referred to in the act. It is said that the power of government is inherent in the people and that the object of government is the common good. From this it is inferred that there is reserved in the people of the state a power which the legislature may use for the common good in time of emergency, without transgressing the Constitution of the state.
As a background for the discussion of this problem, it will be well to state certain fundamental facts in relation to the source of legislative power. Under our scheme and theory of government the full power of government was originally possessed by the people. By the Constitution of the United States the people of the nation entered into a covenant with each other for the creation of a government. By it the people divided the powers of government into three divisions, namely, legislative, executive, and judicial. Certain *Page 1363 legislative powers were given to Congress. Certain legislative acts were forbidden to Congress. Certain legislative acts were forbidden to the states. All legislative power of government not given to Congress and not denied to the states, and not reserved to the people of the whole nation, was reserved to the people of the states. Under the national Constitution Congress has only such legislative power as is delegated to it by the Constitution. A very materially different situation exists in the state. The covenant of the people of the state of Iowa with each other, by which the state government was created, is the Constitution of the state of Iowa. The people of the state of Iowa also divided their power of government into the legislative, executive, and judicial departments. Through the Constitution of the state the people of Iowa denied certain specified powers to the General Assembly. The passage of acts of designated character was forbidden to the General Assembly. But aside from such prohibited acts the full legislative power of the state was vested in the General Assembly. This was done in the following language:
"The legislative authority of this State shall be vested in a General Assembly."
By the process outlined above we find that the complete and absolute legislative power had in the beginning by the people of the whole nation has been distributed as follows:
1. Certain power has been exclusively granted to the national government by the people of the whole nation, through the Federal Constitution.
2. The exercise of the portion of the residue has been forbidden to the states by the people of the whole nation through the Federal Constitution.
3. A portion of power which was not given to Congress, and which was denied to the states, has been reserved to the people of the nation through the Federal Constitution.
4. All other power has been reserved to the several states.
5. The exercise of a portion of the power reserved to the state has been denied to the General Assembly by the people of the state of Iowa through the Constitution of the state.
6. All legislative power of the state, not denied in terms to the General Assembly, is vested in the General Assembly.
Upon an examination of the enumerated powers granted by the Federal Constitution to the federal government and a consideration of *Page 1364 the functions which should be exercised by the national government, it is evident that in some respects a fundamental deficiency in power exists. To meet this situation it has been held, in effect, that in so far as the people of the United States created their government in the adoption of the Constitution, by its adoption the government of the United States was vested under a general grant with the powers necessary for its existence and the exercise of its proper functions, notwithstanding the absence of an enumerated and specific grant thereof and the reservation of ungranted and undenied power to the states and the people. Such power has no counterpart, in point or source, in the state of Iowa, for as hereinbefore related all legislative power of the state, not in terms denied, has been vested in the General Assembly. Strictly speaking there is no ungranted, undenied, legislative power in the state of Iowa. All legislative power which the people of the state have, has been specifically denied to the legislature or specifically granted to it. The power of the General Assembly can only be enlarged by encroaching on power denied to it.
The exercise of legislative power in the form of regulatory acts is said to be an exercise of "police power". Under the name "police power" the legislative power of the national government has been enlarged beyond the enumerated specific grants of power of the Federal Constitution, but as hereinbefore stated, there can be no such enlargement of the power of the General Assembly of the state, because all power, not delegated to the General Assembly, has been in terms denied to it. This is a controlling consideration, for the quest in this case is for an enlargement of legislative power through exigencies of the emergency.
From the foregoing statement of elementary principles and obvious truths it is apparent that the General Assembly has no latent legislative power that springs into being in times of emergency and that it has at all times the entire legislativepower of the state, excepting only the powers denied to it in terms by the people of the state in the Constitution of the state of Iowa.
It has frequently been held that the public health, public morals, public well-being, and the general good are objectives in behalf of which the police power may be exercised. As applied to these objectives the courts have recognized that the police power is very great. In sustaining the validity of laws crowding closely to the proper limits of police power the courts have painted the police power as being of vague origin and of mighty although indefinite *Page 1365 power. In order to escape the consequence of the conflict between the law under consideration and the Constitution, these expressions of the courts are referred to, not exactly for the purpose of directly assailing the supremacy of the Constitution, but for the purpose of establishing through such language the existence of a power in the General Assembly which can nevertheless override the Constitution. In every instance the thought is expressed that there is a "reserved power" which the General Assembly may use, and the inference to be drawn therefrom is that the act, being passed in the exercise of this "reserved power", is valid even though forbidden by the Constitution, the supreme law of the state. The conception of such reserved power is intriguing, until an examination of the structure of our state government reveals that there is and can be no such reserved power. There can be no such reserved power for the simple reason that the only reserved legislative power existing in the state is legislative power which has been denied to the General Assembly. This power has not been reserved to the legislature. It has been denied to the General Assembly and reserved to the people. The reserved legislative power in the state of Iowa is the power to pass laws which the bill of rights of the Constitution declares shall never be passed. When the theory of "reserved power" is stripped of its verbiage, it is simply an assertion that the General Assembly, in the exercise of powers given to it by the Constitution, can pass laws which the Constitution ordains shall never be passed.
It is argued that the limits recognized as being proper for the exercise of police power were sufficiently extended by the decisions of the Supreme Court of the United States in the "rent cases" (Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, 41 S. Ct. 465, 65 L. Ed. 877; Block v. Hirsh, 256 U.S. 135, 41 S. Ct. 458, 65 L. Ed. 865; Edgar A. Levy Leasing Co. v. Siegel,258 U.S. 242, 42 S. Ct. 289, 66 L. Ed. 595) to warrant the enactment of the law under consideration by the General Assembly, under the theory that the emergency had enlarged its power. In response to this argument it is only necessary to quote the following language from the opinion of Mr. Chief Justice Hughes in the case of Home Building Loan Association v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231:
"Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a *Page 1366 period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency."
This is equally true of the power of the General Assembly under the Constitution of Iowa.
Emergency cannot enable the General Assembly to pass laws which the Constitution forbids. Changing conditions resulting from or in emergencies may extend the fields subject to regulation under police power and make regulations reasonable that under ordinary circumstances would be unreasonable, but this does not mean that emergencies clothe the General Assembly with power to transgress the Constitution, for even in emergencies the Constitution is supreme.
The Constitution of the state of Iowa, like the Constitution of the United States, was intended to endure in the future. It was made and adopted for the purpose of creating a government for a growing commonwealth. It was intended for a progressive and changing social order. The great scope of its grant of legislative power to the General Assembly is evidence, at once, of the intention of its framers that the government created by it should have great and "elastic" powers, in the future, and of the intention that the legislature should not encroach upon forbidden powers. A grant of broad power is not consistent with the thought that denied power shall be lightly encroached upon. The framers of the Constitution and the people of Iowa, who adopted the Constitution not only secured the personal liberties of the people and created a form of government for the state by the Constitution, but by it they gave to their economic structure the incidents which attend upon the secure ownership of property by the citizen and the inviolability of the obligation of contracts. The personal liberties of the people of the state are protected only by the provision of the Constitution that they shall not be invaded, and by the declaration of the Constitution that it is the supreme law of the state and that every law inconsistent with it shall be null and void. The right of the people to have their government operated by executive, legislative, and judicial officers chosen by them is secured to them only by the provisions of the Constitution. In the same Constitution and in the same bill of rights that secures to the citizen his personal liberties are the provisions that his property shall not be taken from him without due process of law and that the obligation of his contracts shall not be impaired. In the *Page 1367 Home Building Loan Association case Mr. Chief Justice Hughes points out that the Federal Constitution cannot be held to have such elasticity as to permit a state to be represented in the national senate by more than two senators. There can be no elasticity in that respect because the Constitution of the United States says that the state shall have but two senators. By the same token the personal liberties of the people of Iowa specifically guaranteed by the Constitution cannot be invaded, because there is no elasticity in the specific guaranty of the Constitution. No personal liberty or right is more specifically guarded by the Constitution than is the obligation of contracts against impairment. No matter how fine spun the reasoning may be, the bald fact remains that whether the assault be made under the guise of "emergency" or "elasticity" the same philosophy which permits the obligation of contracts to be impaired by the enactment of laws, in terms and in intent prohibited by the Constitution, must sustain the destruction of every personal liberty and property right in terms and in intent guaranteed to the individual citizen of the state by the Constitution of Iowa.
Neither personal liberty nor property rights are sacred against the full power of government. They may be cut down and destroyed. But in the creation of the government of Iowa the people of the state, wisely or otherwise, reserved certain power to themselves. Among these are the power to cut down certain personal rights, to take property without due process of law, to impair the obligation of contracts, and to create a new form of government. Right or wrong, it was conceived by the makers of the Constitution that these powers should be denied to the General Assembly, and they were denied, under positive prohibition and ban of invalidity.
The need of power on the part of the General Assembly to encroach upon the power denied to it, the need of adaptability or elasticity in specific prohibitions of the Constitution, is eliminated by its provisions for its amendment. When the development of the commonwealth is being hindered or throttled by the prohibitions of the constitution, it may be amended by the people. Wisely or otherwise, the framers of the Constitution and the people who adopted it set great store in the rights which they reserved in themselves — the rights to be secure in their persons, their property, and their contracts. These rights cannot be taken from the people by the General Assembly or by the courts. They may be surrendered by the people only through the process of amending the Constitution *Page 1368 of the state. They cannot be taken away by the General Assembly because of an emergency, because emergency does not enhance the power of the legislature, nor under the guise of an exercise of police power because police power cannot transgress the Constitution, nor under the pretense that the language used to prohibit their invasion, three-quarters of a century ago, is not still a prohibition, because neither time nor circumstance can change the meaning of a prohibition of a specific thing.
The proper determination of this appeal does not require that the police power be redefined or that it be limited or restricted within new limits. It has always been recognized that the Constitution is the supreme law of the state and that police power cannot exceed the restraints of the Constitution. What was said by Mr. Justice DeGraff in Iowa Motor Vehicle Assn. v. Board of Railroad Commissioners, 207 Iowa 461, 221 N.W. 364, in regard to the Constitution of the United States, is equally applicable to the state Constitution. He said:
"The Constitution of the United States is the supreme law, anything in the Constitution or statutes of the states to the contrary notwithstanding, and a statute of a state, even when avowedly enacted in the exercise of its police powers, must yield to that law. As said in Connolly v. Union Sewer Pipe Co.,184 U.S. 540, 22 S. Ct. 431, 46 L. Ed. 679:
"`No right granted or secured by the Constitution of the United States can be impaired or destroyed by a state enactment, whatever may be the source from which the power to pass such enactment may have been derived.'"
In State v. Hutchinson Ice Cream Co., 168 Iowa 1, 147 N.W. 195, speaking of the police power we said:
"The power is broad, but subordinate to the Constitution."
See, also, Waud v. Crawford, 160 Iowa 432, 141 N.W. 1041; City of Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921; Grand Trunk Western R. Co. v. South Bend,227 U.S. 544, 33 S. Ct. 303, 57 L. Ed. 633; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S. Ct. 431, 46 L. Ed. 679; Mugler v. Kansas, 123 U.S. 623, 8 S. Ct. 273, 31 L. Ed. 205; Dobbins v. Los Angeles, 195 U.S. 223, 25 S. Ct. 18, 49 L. Ed. 169; Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385; Henderson *Page 1369 v. Wickham, 92 U.S. 259, 23 L. Ed. 543; Asbell v. Kansas,209 U.S. 251, 28 S. Ct. 485, 52 L. Ed. 778; Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643; Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S. Ct. 663, 54 L. Ed. 930; Noble State Bank v. Haskell, 219 U.S. 104, 31 S. Ct. 186, 55 L. Ed. 112; Eubank v. Richmond, 226 U.S. 137, 33 S. Ct. 76, 57 L. Ed. 156; International Paper Co. v. Massachusetts,246 U.S. 135, 38 S. Ct. 292, 62 L. Ed. 624.
It is but a subterfuge to say that a specific prohibition contained in the Constitution does not mean today what it meant when the Constitution was adopted. In all fields in which the exercise of governmental functions is invited and limited by necessities, legislative regulation will be an ever changing thing. In such fields the aspect is seldom the same from year to year, and changes are profound from generation to generation. But there has been, and will be, no change in the aspect of governmental functions or problems which can change the meaning of the concept carried by Moses from the mountain top: "Thou shalt not steal." In a nation of 125,000,000 people it means the same as it did to the handful of the "chosen people". No more can it be said that the language, "No * * * law impairing the obligation of contracts, shall ever be passed", does not mean the same today that it did in 1846. We are committed to the rule that flight of time and change in conditions do not alter the meaning of such provisions of the Constitution from that intended and understood by those who framed and adopted the Constitution. In Hunter v. Colfax Consolidated Coal Co., 175 Iowa 245, 154 N.W. 1037, 157 N.W. 145, we said:
"The rules for dealing with the fundamental law that are urged upon us present, in effect, an assertion that the judges of the present day may repeal the Constitution whenever, in their opinion, that instrument is out of harmony with `the light of twentieth century conditions and ideals.' This is akin to the other theory that judges should create law whenever convinced that it is salutary and demanded by the people. The age of the Constitution and the enlightenment and progressiveness of the judge have not the slightest bearing upon whether a Legislature has or has not made some particular thing into law. Nor is the Constitution a public enemy whom judges are charged to disarm whenever possible. It is the protector of the people, placed on guard by them to save the rights *Page 1370 of the people against injury by the people. To hold that attack upon it is for the public good is to commend the soldier for tearing down the rampart which enables him to sleep in safety. The age of the Constitution may develop conditions which make it desirable to amend it; until amended, it is a holy covenant, which judges are not at liberty to emasculate by urging a species of statute of limitations. The oath of the judge to support it has neither an express nor implied exception that the oath shall not be binding after the Constitution has been in existence for a stated, or any, length of time. Unless amended, it will be the duty of the judges who serve a hundred years from now to obey this Constitution. The judge can give no more irrefragable evidence of his utter unfitness for his high trust than that he allows his notions of necessity and justice, or his responsiveness to the public will, to influence him in determining whether a law has been enacted. And in no conceivable case may the just judge give effect to legislation which clearly violates the fundamental law. None but foresworn judges will yield to these to any degree of necessity, or pressure of public opinion, or disregard the Constitution because it was created in the eighteenth or nineteenth century. Those who insist most strongly that the courts shall legislate or set aside the Constitution in a given way and case will be the most clamant in condemning any such action when it interferes with law that they favor."
Before closing the discussion it may be well to bring into juxtaposition the ultimate positions which the parties must take under the state Constitution. The position of appellant is that the enactment of the act is within the letter and intent of the constitutional prohibition. The position of appellee is that the prohibition of the Constitution is not absolute but permits the enactment of such laws when necessity reasonably requires their enactment. The first section of the bill of rights (article I of the Constitution) declares that all men are free and equal and have, among others, the inalienable right "of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness." Section 3 provides: "The General Assembly shall make no law respecting an establishment of religion," etc. Section 7 provides no law shall be passed to "restrain or abridge the liberty of speech, or of the press." Section 9 provides that "the right of trial by jury shall remain inviolate," and that "no *Page 1371 person shall be deprived of life, liberty, or property, without due process of law." By section 21 (the section under consideration) it is provided that "no bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed." Not all the sections of the bill of rights have been enumerated above, but only a sufficient number to indicate the general phraseology of the sections and the general nature of their subject-matter. Personal rights and liberties of one citizen are not held to the exclusion of personal rights and liberties in others. The personal rights and liberties guaranteed to the citizen are such as are consonant with the personal rights and liberties of others. Notwithstanding the constitutional guaranty, in fact to make the guaranty effective, personal rights and liberties are restricted by law from unbridled license to rights and liberties consistent with rights and liberties in others. Property is acquired, possessed, and protected from others and against others. The very guaranty of the right to protect property implies a duty on the part of each owner of property to respect the rights of others in property. And in order that the guaranty may be a living thing the law holds the rights of one property owner within the limits prescribed by the rights of others. And so it is with the other relative and abstract rights reserved to the people in the bill of rights. In the matter of adjusting the rights of one so that another may also have his rights, the interest of each in public health, morals, and well-being is a controlling factor. The true function of police power is the adjustment of these relationships between men. The effective maintenance of the constitutional guaranties makes imperative the use of the police power, and it is in this view that the exercise of police power to maintain the respective rights of men guaranteed by the Constitution has been held to be within the contemplation of the makers of the Constitution and permissible under its terms, even though rights are thereby restrained and the use of property restricted. But the end of the police power is reached when the rights of others have been protected, and when rights are cut down in order that others may profit thereby, the limit of police power has been exceeded, for then the guaranty of the Constitution has been violated.
And so it is with the provision that no law impairing the obligation of contracts shall ever be passed. In the exercise of police power — in the maintenance of that order in which the rights guaranteed by the Constitution are effectively secured to the citizens of *Page 1372 the state — contracts between individuals may become unenforceable. Still the obligation of contracts is not thereby impaired for all contracts are of necessity made subject to the power of the state to maintain such order. The contract fails because its original obligation has in it the contingency of failure. The obligation has not been impaired. It was not adequate in the first instance on account of the fact that the contingency inhered in it. So far as the obligation of contracts, valid when made, may fail as a result of proper legislative exercise of police power, the clause of the Constitution is not violated because the Constitution contemplates, and in fact, as above noted, requires the exercise of police power. Drady v. D.M. Ft. D.R. Co., 57 Iowa 393, 10 N.W. 754; Legal Tender cases (Knox v. Lee), 12 Wall. 457, 20 L. Ed. 287; Louisville N.R. Co. v. Mottley, 219 U.S. 467, 31 S. Ct. 265, 55 L. Ed. 297; Manigault v. Springs, 199 U.S. 473, 26 S. Ct. 127, 50 L. Ed. 274; Scranton v. Wheeler, 179 U.S. 141, 21 S. Ct. 48, 45 L. Ed. 126. But exactly as personal liberty and property rights, guaranteed by the Constitution, cannot be cut down under police power in order that one or many may profit from their destruction, so the obligation of contracts cannot be impaired only that one or many may profit by the impairment. The act in question does no more than impair the obligation of the mortgage contract and take from the mortgagee-purchaser the right to possession and a sheriff's deed at the end of one year from the date of execution sale, in the hope that by the wholesale destruction of like obligations and rights the economic welfare of the state will be enhanced. Such obligations and rights are guaranteed against destruction for that purpose by the Constitution of the state.
Baldly stated, to sustain the law it must be held that the legislature can do with personal liberties, private property rights, and the obligation of contracts whatever it pleases, if the object of its legislative acts is the common good and its acts are reasonably addressed to that end. Then the bill of rights becomes a mere illusion. Then the rights guaranteed by the Constitution need no longer yield only sufficiently to give parity of right to all other citizens of the state, but such rights may be despoiled whenever the common good may demand it. Then the fundamental theory of American government that the private citizen holds his liberties and rights and property secure against the state and its people must be abandoned, and in its stead we must set up the practice that cuts down every liberty *Page 1373 and every personal and private right whenever the common good may demand it. Such practice is not consonant with the declaration of the bill of rights that the right of "enjoying and defending life and liberty, acquiring, possessing and protecting property" is inalienable; that "no person shall be deprived of life, liberty, or property, without due process of law"; that "no bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed"; or with its declarations intended to secure civil and religious freedom. Such practice is not the one established by the Constitution of Iowa. Under it the private citizen must concede equality of right to his fellow citizen in personal freedom and liberties and in "acquiringpossessing and protecting property", but he need not go beyond this in sacrificing his liberty, freedom, or property, in the name of the common good. The people have the right to establish the new order and the new practice by amendment to the Constitution, but the General Assembly cannot do so, for its power cannot destroy the structure of government created by the people.
The courts are agreed that proper exercise of police power does not impair the obligation of contracts, even though thereby the obligation of contracts may fail. They are practically a unit in holding that laws of the kind under consideration do impair the obligation of contracts. State ex rel. Cleveringa v. Klein (N.D.)249 N.W. 118; Wilder v. Campbell, 4 Idaho 695, 43 P. 677; Phinney v. Phinney, 81 Me. 450, 17 A. 405; State ex rel. Thomas Cruse Sav. Bank v. Gilliam, 18 Mont. 94, 44 P. 394, 45 P. 661; Hollister v. Donahoe, 11 S.D. 497, 78 N.W. 959; State ex rel. Akerson, Gooch Co. v. Hurlburt, 93 Or. 34, 182 P. 169; Savings Bank v. Barrett, 126 Cal. 413, 58 P. 914; Paris v. Nordburg,6 Kan. App. 260, 51 P. 799; Murphy v. Phillips (Tex. Civ. App.) 63 S.W.2d 404; Life Ins. Co. v. Sanders (Tex. Civ. App.) 62 S.W.2d 348. The enactment of such a law is prohibited by the Constitution of Iowa under penalty of invalidity.
I would reverse the order of the trial court. I am authorized to say that Mr. Justice ALBERT concurs in this dissent.