McMullen v. Shields , 96 Mont. 191 ( 1934 )

Now that Chapter 120, Laws of 1933, is in force, this case can be of little consequence to any but the litigants; but it should be decided correctly.

The plaintiff is a married woman, operating a farm jointly with her husband. She owns the automobile. It seems that she is the head of a family "within the meaning and provisions of the exemption laws." As stated in the majority opinion, the only question presented is whether, under the facts, the automobile was exempt from execution under section 9428, Revised Codes 1921. The question would be easily answered if we refrained from legislation, which this court has said many times is the exclusive province of the legislature.

Section 9427 exempts from execution "all wearing apparel of the judgment debtor and family; also all chairs, tables, desks, and books to the value of two hundred dollars; and also all necessary household, table, and kitchen furniture of the judgment debtor, including one sewing-machine, stoves, stove-pipes, and stove furniture, heating apparatus, beds, bedding, and bed-steads, and provisions and fuel provided for individual or family use sufficient for three months; and also one horse, saddle, and bridle, two cows and their calves, four hogs and fifty domestic fowls, and feed for such animals for three months, one clock, and all family pictures."

There are certain reservations to the foregoing, but they are not material to this controversy.

Section 9428 provides that, in addition to the property mentioned in section 9427, "there shall be exempt to all judgment debtors who are married, or who are heads of families, the following property: 1. To a farmer: Farming utensils or implements of husbandry, not exceeding in value six hundred dollars; also, two oxen, or two horses or mules, and their harness, one cart or wagon, set of sleds, and food for such oxen, horses, cows, or mules for three months. * * *"

The real question before us is whether a Ford automobile is a cart or a wagon. Of course, it is neither. How can anyone so construe the statute unless he chooses to follow his own notion of what the statute ought to say, rather than what it does say. I conceive it to be my duty to construe the law as it is, not as I might prefer it to be.

In McManus v. Fulton, 85 Mont. 170, 278 P. 126, 134, 67 A.L.R. 690, we observed that justice "is not the fiat of the individual judge following his own philosophy, but is in a legal sense `that end which ought to be reached in a case by the regular administration of the principles of law involved as applied to the facts.' (Meeks v. Carter, 5 Ga. App. 421,63 S.E. 517; City of Sioux Falls v. Marshall, 48 S.D. 378, 45 A.L.R. 447, 204 N.W. 999; Nelson v. Wilson, 81 Mont. 560,264 P. 679.)"

This court, following the statute, has said on numerous occasions that in the construction of a statute the business of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, nor to omit what has been inserted. (Sec. 10519, Rev. Codes 1921.) "`Our duty is not to enact, but to expound, the law, not to legislate, but to construe legislation; to apply the law as we find it, to maintain its integrity as it has been written by a co-ordinate branch of the state government.' (Cooke v.Holland Furnace Co., 200 Mich. 192, 166 N.W. 1013, L.R.A. 1918E, 552.)" (Chmielewska v. Butte Superior Min.Co., 81 Mont. 36, 261 P. 616, 617; State ex rel. Federal LandBank v. Hays, 86 Mont. 58, 282 P. 32.)

The theory upon which it is announced that an automobile is a wagon rests upon the doctrine of liberal construction, resulting in egregious fallacy. Section 4, Revised Codes 1921, provides in part, "The Codes establish the law of this state respecting the subjects to which they relate and their provisions and all proceedings under them are to be liberally construed with a view to effect their objects and to promote justice," and has been a guiding rule of this court in the construction of statutes. The present members of the court are in sympathy with it by inclination and practice. But many courts seem to have lost sight of certain fundamentals of statutory construction in their desire to be "liberal," and have completely overlooked the meaning of the phrase "liberal construction."

It has been the rule from the first in this court that statutes enacted in pursuance of the constitutional mandate which declares that "the legislative assembly shall enact liberal homestead and exemption laws" should be liberally construed. Mr. Chief Justice Pemberton said so in Ferguson v. Speith,13 Mont. 487, 34 P. 1020, 40 Am. St. Rep. 459, and I said so inDayton v. Ewart, 28 Mont. 153, 72 P. 420, 98 Am. St. Rep. 549, and the cases cited in the majority opinion on the point show that the rule has been consistently adhered to.

Liberal construction does not mean an enlargement or a restriction of a plain provision of a written law. If a provision of a statute is plain and unambiguous, it is the duty of the court to enforce it as it is written. (Cruse v. Fischl,55 Mont. 258, 175 P. 878; State ex rel. Public ServiceCommission v. Brannon, 86 Mont. 200, 283 P. 202, 67 A.L.R. 1020.) "If it is ambiguous or doubtful, or susceptible of different constructions or interpretations, then such liberality of construction is to be indulged in as, within the fair interpretation of its language, will effect its apparent object, and promote justice." (In re Jessup's Estate, 81 Cal. 408,21 P. 976, 22 P. 742, 745, 1028, 6 L.R.A. 594.)

In Osterholm v. Boston Montana etc. Min. Co., 40 Mont. 508,107 P. 499, 502, this court, speaking through Mr. Justice Smith, said: "It is not allowable to interpret what has no need of interpretation, or, when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend their meaning. Statutes should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation. (McCluskey v. Cromwell, 11 N.Y. 593; Benton v. Wickwire,54 N.Y. 226.) The supreme court of Mississippi has said: `A primary rule of construction is that the legislature must be assumed to have meant precisely what the words of the law, as commonly understood, import; and this may be said to be the fundamental and controlling rule of construction.' (Lemonius v.Mayer, 71 Miss. 514, 14 So. 33. See, also, Green v. Weller,32 Miss. 650.)"

In Lewis' Sutherland on Statutory Construction, section 589, page 1085, it is said: "A statute extends no further than it expresses the legislative will. When it is held to embrace a case which is within its spirit, though not within its letter, it is not meant that the courts have authority to extend a statute to cases for which it does not by its words provide, or beyond the sense of its language. A statute is a written law, and it cannot be construed to have a sense and a spirit not deducible from its provisions. It is a general rule that courts must find the intent of the legislature in the statute itself. Unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, they must receive a general construction; the courts cannot arbitrarily subtract from or add thereto."

When the legislative assembly said "cart or wagon," it meant just what it said; and, in view of the fact that the cart or wagon could not be drawn without animals, and the animals could not be kept without feed, food for the animals for three months was likewise exempted. It is suggested that, if the majority achieves the judicial metamorphosis which will result from its opinion, it should not stop short of providing gasoline for a period of three months for the automobile now denominated a wagon.

It is idle to cite cases upon statutes dissimilar from ours as authority in construing ours. As was said by Mr. Chief Justice Brown, in Whitney v. Welnitz, 153 Minn. 162, 190 N.W. 57, 58, 28 A.L.R. 68, where the court held that an automobile could not be classified as a "wagon, cart or dray": "The authorities on the subject are not in full harmony, though perhaps no substantial conflict will be found when the decisions of the different courts are viewed in the light and purpose of the particular statutes involved and construed. They are collected and cited in Berry on Automobiles (3d Ed.), section 1439, and Huddy on Automobiles, sections 8-11. We are cited to no case involving an exemption statute like that of this state, wherein it has been held that the automobile comes within the class of vehicles commonly known as wagons; though several of the cited cases classify it with the carriage or vehicle. (Prater v. Riechman, 135 Tenn. 485,187 S.W. 305; United States v. One Automobile, (D.C.) 237 Fed. 891; Mallory v. Saratoga Lake Bridge Co., 53 Misc. 446,104 N Y Supp. 1025.)"

I do not find a single case upon an identical statute that supports the view of the majority, although the Utah statute is close. (Spangler v. Corless, 61 Utah, 88, 211 P. 692, 28 A.L.R. 72.)

Many decisions are cited in the majority opinion construing the word "vehicle." That word is not used in subdivision 1 of the statute we are construing. "Where a specific article of personal property is made exempt, the courts are not authorized to extend the exemption by construction to any other or different article." (25 C.J. 11.)

In Crown Laundry Cleaning Co. v. Cameron, 39 Cal. App. 617,179 P. 525, a launderer claimed a Ford automobile as exempt under a statutory provision which exempted from execution "two horses, two oxen or two mules, and their harness, and one cart or wagon, one dray or truck, one coupe, one hack, or carriage, for one or two horses." The court denied the claim, saying, among other things: "If the legislature intended that a motor vehicle should be exempt from attachment, we think that it would have so declared in plain terms, and that for the courts to add to the statute any articles not enumerated would in effect be judicial legislation. Counsel for respondent cites an Iowa case (Lames v. Armstrong, 162 Iowa, 327,144 N.W. 1, 49 L.R.A. (n.s.) 691, Ann. Cas. 1916B, 511), in which it was held there that an automobile was exempt under the terms of the Iowa statute. It is sufficient to say that the statute there considered contained the general term, `or other vehicle,' which makes it quite different from the California law. The decision, to our mind, is not applicable. While it is the established policy of the law to construe liberally the exemption statute, such construction cannot go to the extent of adding articles which the legislature has omitted to include." (And see Conlin v. Traeger, 84 Cal. App. 730, 258 P. 433; Prater v.Riechman, supra; Huddy's Automobile Law, p. 153; 25 C.J. 58.)

Automobiles have been in use in Montana for thirty years, and the legislature has been conversant with their use upon farms for twenty years at least. We find that section 9427, relating to property exempt from execution, was amended in 1921, and that section 9428 was amended in 1905, re-enacted in 1907, and again re-enacted in 1921. When the legislature got ready to exempt automobiles, it did so. Chapter 120, Laws of 1933, declares: "An unmarried man or woman, over the age of sixty years, shall be allowed the same exemptions as are granted to the head of a family, under the laws of the State of Montana." (Sec. 1.) "In addition to all other exemptions, the following property is exempt from execution, where the debtor is the head of a family, or over sixty years of age: One truck or automobile of the value of not more than Three Hundred Dollars." (Sec. 2.) And in section 3 it is declared that "nothing herein contained shall be interpreted or construed as repealing any provisions of Sections 9427 or 9428 of the Revised Codes of Montana of 1921"; and section 4 provides, "All Acts or parts of Acts in conflict herewith are hereby repealed."

Section 3 obviously applies generally to sections 9427 and 9428, which give exemptions only to those who are married or who are heads of families, and to subdivision 6 of section 9428. It was necessary to enact the saving clause expressed in section 3 in order that innumerable conflicts might be avoided.

The absurdity of construing the wagon mentioned in subdivisions 1 and 6 of section 9428 to mean an automobile now gives to the exemption claimant two automobiles, the first, the metamorphosis, without reference to value, and the other, the one exempted by Chapter 120 of a value not exceeding $300. Thus a man may claim as exempt his Cadillac (Stichter v. SouthwestNational Bank, (Tex.Civ.App.) 258 S.W. 223, 225) as his wagon and his Ford as his automobile.

The important feature of this case is not whether we shall rest the decision upon the untenable theory of "liberal construction," but whether this court shall arrogate to itself power which it does not possess, a power which belongs exclusively to a co-ordinate branch of the government. I propose to allow the legislative assembly to amend statutes if amendment be needed.