State Ex Rel. v. Waterfield , 167 Okla. 209 ( 1933 )

I dissent. This is an appeal from the district court of Tulsa county involving the Mortgage Moratorium Law, which became effective on March 7, 1933, being Senate Bill No. 76, of the Fourteenth Legislature, chapter 16, Session Laws 1933. Plaintiff filed a mandamus action subsequent to the effective date of said legislatiive enactment, to compel the court clerk to sign and issue a summons in the foreclosure of a mortgage so as to have said summons show that the answer must be filed within 20 days after the date in which the summons was returnable as provided by section 284, C. O. S. 1921, instead of nine months after the date of service of summons on the defendant as provided by said Moratorium Law.

This court reverses the action of the trial court, and it is my opinion that a rehearing should be granted in this case and that the judgment of the trial court should be affirmed.

The majority opinion holds that section I of the Moratorium Law is unconstitutional for the reason that it arbitrarily delays mortgage foreclosure actions without adequate provision for compensation to the mortgagee; that said section goes beyond the reasonable demands of the occasion; and that it violates section 6, article 2 of the Constitution of Oklahoma, to wit:

"The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay or prejudice."

Section I of said, act relates to all actions for the foreclosure of mortgages or other liens upon real estate. Paragraph 1, in substance, provides that in all actions now pending, wherein the answer of the defendant has not been filed, such defendant shall not be required to answer in said case until nine months after the date of the service of summons upon such defendant; paragraph 2, that the defendant shall not be held to answer in any action hereinafter filed for the foreclosure of a mortgage until nine months after the date of service upon such defendant; paragraph 3, that no court of this state shall render judgment in any action pending in the courts of this state for the foreclosure of a mortgage in which the answer of the defendant has been filed, and no trial shall be had and no judgment rendered in such action until the expiration of nine months after the passage and approval of this act.

The majority opinion also concludes that case No. 24681, State ex rel. Osage Savings Loan Association v. Jesse J. Worten, District Judge, 167 Okla. 187, 29 P.2d 1, delivered at the same time as the instant opinion, disposes of and totally annuls paragraphs I and 3, supra, because said paragraphs relate to actions pending at the time the act became effective on the theory that the Moratorium Act undertook to change the procedure in actions pending at the time of its enactment in direct conflict with section 54 of article 5 of the state Constitution. The majority opinion then concludes that the discussion in the instant case is to narrow the constitutionality of the act, as applied to actions commenced subsequent to the effective date of the act.

The majority opinion strikes down the legislative enactment as to actions pending at the time of the enactment upon the theory of a change of procedure, and then, in effect, ignores such holding by concluding that each of the three paragraphs of section 1 is unconstitutional. Such theories offend each other.

It is my opinion that confusion has entered into an analysis of the Moratorium Act. The real and apparent difficulty, as it appears to me, seems to be the failure on the part of the court to arrive at a proper application and limitation of the police powers of this state. A gloam of uncertainty seems to prevail as to whether the police power is supreme, equal to, or inferior to the constitutional provisions of this state; whether this source of power was inherently within the Constitution, or whether it was separate and apart from the Constitution. In fact, this phase of academic discussion was immaterial in considering the constitutionality of the Moratorium Law. It was unnecessary to trace and determine the source from which the Legislature may have derived its power to pass this specific enactment under the guise of its police powers. It was sufficient if the act was designed to accomplish a purpose within the proper exercise of the police power of the state. 6 R. C. L. 197; Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 28 L.Ed. 923. The Legislature is the sole judge as to when and how the police power of the state is to be exercised, 6 R. C. L. 240. However, the power is always subject to the supervision of the courts. 6 R. C. L. 241; People v. Elerding,254 Ill. 597, 98 N.E. 982, 40 L. R. A. (N. S.) 893.

The majority opinion, after a discussion of the economic depression, says:

"Section 1 of the act in question and each of its three provisions are not so limited in their application, and by their terms they extend to cases in which there may be no necessity at all for an application of the police power of the state."

It was the view of the Legislature that there was occasion and necessity existing for the instant law by reason of the economic depression. It was the duty and function of the Legislature to discern and correct evils involving the general tranquility, repose, and well-being of the citizens of the state, and to protect their property rights and their general prosperity. It is not within the competency of this court to weigh the strength of the different views as to whether there were sufficient facts to justify the enactment of such law in the exercise of reasonable and legitimate police power, but this question of public policy was exclusively within the province of the Legislature. We must assume as a court that such a state of facts did exist. In fact, this court takes judicial knowledge that an economic depression of such magnitude, state, national and world-wide, has not existed since the foundation of this government. The Legislature was empowered with authority to enact a remedial law as applied to foreclosures affecting real estate in the exercise of its reasonable and legitimate police power, provided such an enactment did not offend some provisions of the state and federal Constitutions. The judiciary in the performance of its constitutional functions affords complete protection and an efficacious curb to the police power.

In the case of Mid-West Petroleum Corp. v. State Board of Tax Commissioners, 187 N.E. 882, the Supreme Court of Indiana said:

"The authority of the Legislature to determine what things are injurious to the interest and welfare of the public and what measures are necessary for the safety, comfort and well-being of the citizens of the state, is extensive and far-reaching, and, as has often been said, is incapable of strict definition or limitation. A legislative declaration that an evil exists or that injury is likely to result to the public from particular trades or occupations unless restrained or regulated by law, is entitled to the highest respect by the courts, and should never be disregarded unless clearly in conflict with some provision of the Constitution."

The majority opinion expressly holds that each of said paragraphs of said section 1 grants an arbitrary and capricious extension of time amounting to a taking of private property without any provision whatever for compensation to or protection of the rights of the mortgagee, which is nothing more than impairment of contract obligations. In my opinion, the remedial rights of the mortgagee have not been impaired, but, on the other hand, have been fully and carefully taken care of and a benefit has been bestowed upon both of the litigants mortgagor and mortgagee, by the provisions of the act. There was a general domestic commotion prevailing throughout the state at the time the act was passed by the Legislature. In view of the universal economic depression which was on every hand, there was no actual sale of property through competitive bidding under an execution.

The majority opinion also states: "That the real difficulty in this case is the extremely questionable right to extend the police power to the class of contract under consideration." This contention falls far short of the basic reasoning for the Moratorium Law. The opinion concludes that sections 2 and 3 of the act may be sustained as a fair and reasonable exercise of police power of the state, and that an arbitrary interference with private contracts concerning a subject-matter not affecting the public peace, health or safety cannot be justified.

To say that mortgage contracts at this hour do not affect the public peace or safety is to completely ignore the general depressed conditions which are being witnessed on every hand. A statement in the petition for rehearing, to the effect that between October 17th and November 1st, a period of 14 days, 57 foreclosure actions were filed in Oklahoma City alone, stands unchallenged. We have the right to assume that like deplorable conditions exist in other portions of the state.

The Fourteenth Amendment to the Constitution of the United States does not restrain the states in the exercise of their legitimate police power. Pacific Gas E. Co. v. Police Court, 64 L.Ed. 112, 251 U.S. 22. In short, the real question is whether or not the Moratorium Act is within the legitimate exercise of the police power of this state. Under all the authorities which I have reviewed, and those are many, I conclude that the moratorium enactment was embraced within the police power of the state, and interdicts no provisions of the state or federal Constitutions; that it was a reasonable and legitimate exercise of police power and was not destructive of any rights secured by the state or federal Constitutions, and that its provisions were not so unreasonable and oppressive as to amount to a deprivation of property without due process of law or impairing any obligation of a contractual nature, including the remedy provided by law.

I first consider authorities dealing in general with the police powers of the state.

6 R. C. L. section 182, p. 183:

"The police power is an attribute of sovereignty, possessed by every sovereign state. * * * It is inherent in the states of the American Union and is not a grant derived from or under any written Constitution." Citing State v. Gerhardt, 145 Ind. 439, 44 N.E. 469, 33 L. R. A. 313; Wenham v. State. 65 Neb. 394, 91 N.W. 421, 58 L. R. A. 825; State v. Superior Court for King County, 67 Wn. 37, 120 P. 861, Ann. Cas. 1913d 78.

6 R. C. L. p. 191:

"The only limit to its exercise in the en actment of laws is that they shall not prove repugnant to the provisions of the state or national Constitution." Citing State v. Moore,104 N.C. 714, 10 S.E. 143. 17 A. S. R. 696.

6 R. C. L. section 193, p. 195:

"While there are no precise limits to the police power." Citing Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L. Ed. 1002. "It is not, however, without its limitations, since it may not unreasonably invade private rights." Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937, 3 Ann. Cas. 1133; Haller Sign Works v. Physical Culture Training School,249 Ill. 436, 94 N.E. 920, 34 L. R. A. (N. S.) 998; Ex parte Boyce, 27 Nev. 299, 75 P. 1, 1 Ann. Cas. 66, 65 L. R. A. 47; State v. Smith, 42 Wn. 237, 84 P. 851, 114 A. S. R. 114, 7 Ann. Cas. 577, 5 L. R. A. (N. S.) 674.

Mott on Due Process of Law, page 300, states:

"The power of police is probably as old as government itself, but as a separate classification of a distinct group of the powers of the state, it probably originated in the Seventeenth Century with the concept of sovereignty, to which it is so clearly related. Blackstone spoke of 'public police economy' as one of the attributes of sovereignty, and under this heading discussed many regulations now well recognized as exertions of the police power. The idea has a firm basis in the English common law, being closely associated with such ancient maxims as 'Sic utere tuo ut alienum non laedas,' and 'Salus populi suprema lex,' from which it derived its original legal authority. The concept was not unknown in the American colonies, and there were references to it in the Constitutional Convention of 1787, in the Federalist, and in many of the earlier American law treatises. Many of these may be traced to Montesquieu's Spirit of the Laws. It is also very closely related to the 'domestic tranquility' of the Preamble to the Constitution.

"Like many other important phrases of American constitutional law, the term 'police power' was first used by Chief Justice Marshall. In a number of important decisions during the first quarter of the Nineteenth Century he spoke of the 'power of a state to regulate its police,' but the first time in which the single phrase 'police power' was used seems to have been in his opinion in Brown v. Maryland [12 Wheat. 419, 6 L.Ed. 678] (1827). In this case he only employed it in an offhand way, and it did not come into general legal use until nearly a quarter of a century later. At that time it became politically important in the efforts of the states to resist the encroachments of federal power under the commerce clause. It was not, indeed, until after the full discussion of this power in the License Cases, that the term was taken up by the slate courts. The term was not listed in the Standard American Law Dictionary (Bouvier's) until 1883, although this work had gone through thirteen earlier editions."

Mr. Chief Justice Taney, speaking for the Supreme Court of the United States in License Cases (U.S. 1847), 5 How. 504, at 583, 12 L.Ed. 291, said:

"What are the police powers of a state? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. That is to say * * * the power to govern men and things within the limits of its dominion."

In 1851, Mr. Chief Justice Shaw, in Commonwealth v. Alger, 7 Cush, (Mass.) 53, on page 85, defined the police powers as follows:

"The power vested in the Legislature by the Constitution to make, ordain and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same."

Mr. Justice Marshall in the case of State of Wisconsin v. John Redmon, 114 N.W. 137, 14 L. R. A. (N. S.) 229, in discussing the police power, said:

"It were better to always say that the police power extends to and permits legislation regulating, reasonably, matters appertaining to the public welfare, since anything beyond that must necessarily fall at the threshold of some constitutional defense. It is a great power having more to do with the well-being of society than any other, yet one which, if exercised autocratically, would supersede some of the most cherished principles of constitutional freedom. It may be extended disastrously, or restrained and administered beneficially, according as the judiciary shall perform its constitutional functions. Confined within its legitimate field of reasonable regulation, it is essential, as we have heretofore indicated, to the full accomplishment of the purposes of civil government. * * *

"The inquiries to be solved in testing an enactment purporting to be for the promotion of the public health, as to whether it is fairly within the field of police power, are well stated at sec. 143, Freund, Police Power, thus: 'Does a danger exist? Is it of sufficient magnitude? Does it concern the public? Does the proposed measure tend to remove it? Is the restraint or requirement in proportion to the danger? Is it possible to secure the object sought without impairing essential rights and principles?' The judgment of the Legislature, of course, as to all of them, is to be taken as correct, unless it appear to be clearly wrong; and also it is to be taken as true that its ostensible is its actual purpose, unless the contrary clearly appears."

In the recent case of Walker v. Bedford, State Treasurer,26 P.2d 1051, Mr. Justice Butler, in considering the police power involving the act of the Legislature of Colorado providing for additional emergency relief funds by the imposition of additional fees upon the registration of motor vehicles, etc., and the disposition of the proceeds thereof, in a dissenting opinion, said:

"* * * The police power, which, according to the highest court in the land, 'is inherent in every sovereignty' (Lake Shore M. S. Ry. Co. v. Smith, 173 U.S. 684, 19 S.Ct. 565, 567, 43 L.Ed. 858), and 'is the least limitable of the exercises of government' (Hall v. Geiger-Jones Co.,242 U.S. 539, 37 S.Ct. 217, 220, 61 L.Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643; Sligh v. Kirkwood, 237 U.S. 52, 35 S. Ct. 501, 59 L.Ed. 835). Indeed, that great court has said that 'it is elementary that the due process clause of the Fourteenth Amendment does not restrain the states in the exercise of their legitimate police power.' Pacific Gas E. Co. v. Police Court,251 U.S. 22, 40 S.Ct. 79, 81, 64 L.Ed. 112. And, see Barbier v Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923, and Jones v. City of Portland, 245 U.S. 217, 38 S.Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660."

In the case of Jones v. Portland, supra, Mr. Justice Day, of the Supreme Court of the United States, said:

"* * * It is not the function of this court, under the authority of the 14th Amendment, to supervise the legislation of the states in the exercise of the police power beyond protecting against exertions of such authority in the enactment and enforcement of laws of an arbitrary character, having no reasonable relation to the execution of lawful purposes. * * *"

In the case of Sligh v. Kirkwood, supra, Mr. Justice Day said:

"The limitations upon the police power are hard to define, and its far-reaching scope has been recognized in many decisions of this court. At an early day it was held to embrace every law or statute which concerns the whole or any part of the people, whether it related to their rights or duties, whether it respected them as men or citizens of the state, whether in their public or private relations, whether it related to the rights of persons or property of the public or any individual within the state. New York v. Miln, 11 Pet. 102, 139, 9 L.Ed. 648, 662. The police power, in its broadest sense, includes all legislation and almost every function of civil government. Barbier v. Connolly, 113 U.S. 27, 28 L.Ed. 923, 5 Sup. Ct. Rep. 357. It is not subject to definite limitations, but is coextensive with the necessities of the case and the safeguards of public interest. Camfield v. United States, 167 U.S. 518, 524, 42 L.Ed. 260, 262, 17 Sup. Ct. Rep. 864. It embraces regulations designed to promote public convenience or the general prosperity or welfare, as well as those specifically intended to promote the public safety or the public health. Chicago, B. Q. R. Co. v. Illinois, 200 U. 561, 592, 50 L.Ed. 596, 609, 26 Sup. Ct. Rep. 341, 4 Ann. Cas. 1175. In one of the latest utterances of this court upon the subject, it was said: 'Whether it is a valid exercise of the police power is the question in the case, and that power we have defined, as far as it is capable of being defined by general words, a number of times. It is not susceptible of circumstantial precision. It extends, we have said, not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity. * * * And further, "It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government".' Eubanks v. Richmond, 226 U.S. 137, 57 L.Ed. 156, 42 L. R. A. (N. S.) 1123, 33 Sup. Ct. Rep. 76, Ann. Cas. 1914 B, 192."

In the case of Dobbins v. Los Angeles, 195 U.S. 223, 49 L. Ed. 169, Mr. Justice Day, in speaking for the Supreme Court of the United States, said:

"The question of constitutional law to which we have referred (the equal protection of the laws) cannot be disposed of by saying that the statute in question may be referred to what are called the police powers of the state, which, as often stated by this court, were not included in the grants of power to the general government, and therefore were reserved to the states when the Constitution was ordained. But, as the Constitution of the United States is the supreme law of the land, anything in the Constitution or statutes of the states to the contrary notwithstanding, a statute of a state, even when avowedly enacted in the exercise of its police powers, must yield to that law. 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 the case of Manigault v. Springs (1905) 199 U.S. 473, 50 L.Ed. 274:

"While this power is subject to limitations in certain cases, there is wide discretion on the part of the Legislature in determining what is and what is not necessary, — a discretion which courts ordinarily will not interfere with. The leading case upon this point is that of Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L.Ed. 773, in which a franchise to maintain a ferry between Cambridge and Boston, under which a bridge was subsequently erected, was held to be subject to the power of the Legislature to establish a parallel bridge between the same points."

In the case of C. B. Q. R. Co. v. McGuire, 219 U.S. 549, 55 L.Ed. 328, Mr. Justice Hughes, now Chief Justice of the United States, in considering the constitutionality of a law defining liability of railroad corporations, the freedom of contract, as being infringed by such legislative enactment, and the police power of the state, after quoting from the case of Allgeyer v. Louisiana, 165 U.S. 578, 41 L.Ed. 832, wherein it was said that the freedom of contract was a qualified and not an absolute right, said:

"The right to make contracts is subject * * * in the field of state action, to the essential authority of government to maintain peace and security, and to enact laws for the promotion of the health, safety, morals, and welfare of those subject to its jurisdiction."

After a discussion of the limitation of contracts under a variety of circumstances, Mr. Justice Hughes said:

"The Legislature, provided it acts within its constitutional authority, is the arbiter of the public policy of the state. While the court, unaided by legislative declaration, and applying the principles of the common law, may uphold or condemn contracts in the light of what is conceived to be public policy, its determination as a rule for future action must yield to the legislative will when expressed in accordance with the organic law. * * *

"The principle involved in these decisions is that where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legislature transcends the limits of its power in interfering with liberty of contract; but where there is reasonable relation to an object within the governmental authority, the exercise of the legislative discretion is not subject to judicial review. 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 the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the Legislature, and the earnest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance."

See, also, Mid-Western Petroleum Corp. v. State Board of Tax Commissioners, supra.

I next consider the impairment of any rights of the mortgagee by reason of permitting the mortgagor to file an answer within the period of nine months from the date of the service of summons upon him as provided by the Moratorium Law. Under the early practice of the common law, it was the office of the judges to direct and control the oral contentions made by the litigants. The disputants were obliged to come finally to some specific fact, affirmed by one and denied by the other, or required to submit their disputes upon a disputed point of law. The parties were then said to be ad exitum, at the end of their pleadings. There is no apparent reason why the Legislature in its discretion could not abolish all rules and regulations heretofore prescribed by the Legislature for the conduct of procedure in civil actions, provided the same did not contravene any provisions of the state or federal Constitution and require the courts to pursue the common-law procedure. It hardly seems arguable that if the Legislature should change an answer day from 20 days from the return date of service of summons to 30 or 60 days, that the plaintiff could even be heard to suggest to a court that his rights, if any, had been impaired. This change from 20 days to nine months is nothing but a change in one of the successive steps provided by law to enforce the remedy. It simply acts upon the remedy provided by law. Plaintiff had no vested right in any particular remedy (Berry v. Clary, 77 Me. 482), so long as his right of action is not abolished, and substantive right remains. Hewitt Logging Co. v. Northern Pacific Ry. Co. (Wash.) 166 P. 1153. Plaintiff does not even have an unrestricted right to institute an action in a particular forum. The remedy of the mortgagee to enforce the lien of his mortgage by foreclosure proceedings through a judicial sale is a remedy provided by law. Pomeroy, Equitable Jurisprudence (3d Ed.) sec. 1228. A remedy is the judicial means for enforcing a right or redressible wrong; and this procedure for such enforcement includes pleadings, evidence, and practice. People ex rel. Foote et al. v. Clark, 283 Ill. 221, 119 N.E. 329.

Mr. Chief Justice Taney in Bronson v. Kinzie, 1 How. (January term, 1843) 311, speaking of changing the remedy upon contracts, said:

"For, undoubtedly, a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy, to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every state to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community. And, although a new remedy may be deemed less convenient than the old one, and may in some degree render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution."

In this same case, Mr. Justice McLean, in his dissenting opinion to the views expressed by the majority opinion of the Supreme Court of the United States, said:

"Every contract is entered into with a supposed knowledge by the parties, that the law-making power may modify the remedy. And this it may do, at its discretion, so far as it acts only on the remedy. It may regulate the mode in which process shall be issued and served; how the pleadings shall be filed, and at what term judgment shall or may be entered. And it may also regulate final process. It may require that the personal property of the defendant shall be levied on and sold, before land shall be taken in execution. It may say what notice shall be given on the sale of real estate on execution; and also require that it shall sell for one-half or two-thirds of its value. A valuation law in those states where it has been adopted has been found salutary in guarding the rights of debtor and creditor. A debtor, under this law, cannot defeat the claim of his creditor, by purchasing the real estate levied on, through the agency of a friend, at a nominal price; and this protects the rights of the creditors of the defendant generally. There may be some cases of hardship to creditors under such a law, but they must be few and unimportant in comparison with the benefits secured by the law both to creditors and debtors. Some restriction on the sale of land on execution is required by a sound policy, especially in new and rising states, where real property can scarcely be said to have a final value."

Mr. Justice McLean, in that case, discussed the case of Satterlee v. Matthewson, 2 Peters, 407, wherein the plaintiff at the time of the trial had set up a title under a warrant dated January 10, 1812, founded upon an improvement in the year 1785, which it was admitted was under a Connecticut title, and a patent dated February 19, 1813. The defendant claimed title by reason of the patent issued in 1781, and a conveyance to one Satterlee in 1812. In that case the Supreme Court of Pennsylvania held that: "The relation of landlord and tenant could not subsist under a Connecticut title. * * *" That judgment was reversed, and thereafter, in 1826, the Legislature of that state passed a law declaring, "that the relation of landlord and tenant shall exist, and be held as fully and effectually between Connecticut settlers and Pennsylvania claimants, as between other citizens of this commonwealth, on the trial of any cause now pending or hereafter to be brought within this commonwealth, any law or usage to the contrary notwithstanding." On discussing this question of the impairment of the obligation of the contract and the vested right of the holder of a contract to a particular remedy for its enforcement, Mr. Justice McLean in forcible logic said:

"And again, 'The objection is urged that the effect of this act was to divest rights which were vested by law in Satterlee. There is certainly no part of the Constitution of the United States which applies to a state law of this description; nor are we aware of any decision of this, or of any circuit court, which condemned such a law upon this ground.' Here was a direct legislation not only on existing rights growing out of contracts, but such an effect was given to the law as to divest vested rights. And yet this act was held not to be in violation of the Constitution of the United States.

"What vested right is there or can there be, in the nature of things, in the holder of a contract to the particular remedy for its enforcement which existed at its date? But if there were such a vested right as to the remedy, which there is not, it may under the above authority, be divested by law. * * *

"A state Legislature cannot impair the contract by changing the time or manner of its performance. By the contract, the parties have fixed their rights and obligations; and these are guarded by the Constitution. But the remedy for the enforcement of the contract being established by the law-making power, may be modified at its discretion. This is admitted as regards subsequent contracts, but the same rule applies to prior ones. So far as the mere remedy is concerned, in my judgment, no sound and practical distinction can be drawn between prior and future contracts."

The case of Johnson v. Duncan (La.) 3 Martin, 530, 6 Am. Dec. 675, is one of the outstanding cases on constitutional law. The annotator has this worthy note:

"In the history of our jurisprudence, there cannot be found a more able and lucid exposition of constitutional law than is contained in this case. It admirably expounds and elucidates the distinction between moral and legal obligations, and shows how far legal remedies may be considered as legal rights necessarily incident to contracts. This case, in connection with Jones v. Crittenden, ante, 531, will be therefore instructive."

In that case the Supreme Court of Louisiana considered an act of the Legislature, approved on December 18, 1814, which suspended all proceedings in civil cases until the 1st of May next. It was contended that this section of the legislative enactment was unconstitutional and void inasmuch as it violated the Constitution of the United States which provides that no state shall pass any law impairing the obligation of contracts, and that this law delayed for upwards of four months the recovery of sums due on contracts. The court held in reference to the constitutionality of the suspension law as follows:

"Where there is some public necessity, as in case of war, or invasion, an act suspending legal proceedings, for a limited period, is not unconstitutional; for a statute of this kind rather conduces to the due administration of justice, and is beneficial to parties litigant."

Mr. Justice Martin, in that case, said:

"In making a contract each party must know that his legal remedy must depend on the laws of the country in which he may institute his suit; that the lex loci as to his remedy, even in the states that compose the federal union, is susceptible of judicial improvement; that the number of courts of original and appellate jurisdiction, the nature and extent of the respective jurisdiction of these, the number, time and duration of their sessions, must from time to time, especially in new and growing settlements, be regulated by the Legislature, according to the wants and exigencies of the country.

"If, for example, the sessions of the district courts, which in Louisiana are now held in each parish three times a year, were found too frequent, too inconvenient to jurors, witnesses and suitors, and too expensive to the state, no one can say that the Legislature could not enact that the sessions of these tribunals should be semiannual only. * * *

"I presume that in any time obnoxious to the due administration of justice, it is the duty and within the power of the Leigislature to pass laws to avert or diminish the consequences of the general calamity; and a law called for by such circumstances, and fairly intended to meet the exigency of the day, could not be properly classed among those which impair the obligations of contracts, though one of its consequences would be some delay in the recovery of debts. * * *

"It does not appear to me, that the suspension was for a longer time than the courts themselves would have taken, if they had been left to the exercise of their own discretion, unaided by a legislative provision. I am not, therefore, prepared to say that the interference of the Legislature was anything else than the exercise of legitimate authority. The suspension of civil proceedings, under some authority or other, for a short time, was a measure imperiously called for; it has been beneficial to plaintiffs as well as to defendants, in several cases; and although it may create a little delay in the collection of debts, I do not find myself led by duty or inclination to consider the act as impairing the obligations of contracts, and I think it the duty of the court to comply with the object by enforcing the law. * * *

"But the manner in which the authority of enforcing the execution of contracts shall be exercised, and the proper time for exercising it, must be at the discretion of the Legislature, to undergo modifications according to circumstances."

Estes, Pleading (3d Ed.) page 1:

"Remedies for wrongs are secured by proper application by the party or parties entitled thereto, in an action or proceeding against the proper parties in the form prescribed by law."

In the case of The People ex rel. v. Tibbetts, 4 Cowan's Reports, page 384, the Supreme Court of the state of New York considered a statute altering the mode of proceeding in point of form, in a suit pending when the act was passed in reference to whether it interfered with vested rights when it altered the form of remedy merely. In that case the proceeding was commenced before the statute passed. The act sought to hasten the proceedings so as to make the remedy as speedy as possible. The act declared it was lawful for the Supreme Court —

"To make order for prescribing and limiting the time for the parties to plead and proceed therein, for giving preference to the issues, and for expediting the ulterior proceedings, so as to cause the same to be proceeded upon, and the final determination thereof to be had with the best and most convenient speed that may be and to cause the same to be expedited by all such ways and means as a due regard to the ends of justice will admit, and the case may require."

In speaking of vested rights, the court said:

"If it were true that the statute interfered with vested rights, the court would feel bound to give it the very strictest construction; but there is no such thing. What right is taken away? Are the defendants divested of their defense upon the merits? Their saying that the proceeding is hastened in point of form makes nothing for them. They have no right to complain of this. It is complaining that he is put upon his defense today, whereas he had a right to delay till tomorrow; a singular head of vested right; a right to delay justice. Are not the Legislature competent to take away, or abridge such an evil? It is most important that they should possess this power. The pretence of the defendants does not merit the name of right. It relates to the remedy. The act merely says that, under its regulations, the questions between the parties may, peradventure, be brought to trial six months earlier than they otherwise would have been. This is a very usual subject of legislative interference. Indeed, as was said at the bar, the court might do the same thing independent of the Legislature. Suppose they were to make an order that all rules to plead should be 10 days instead of 20, would it lie with the parties interested to gainsay this? The Legislature are in the habit of changing the form of proceeding, to try rights, in various ways. Take a single instance. Ejectment may now be brought for the people instead of the former more dilatory form of a writ of escheat or intrusion. The former is much the more summary remedy, and was itself instituted by the courts, and applied to various cases where a more dilatory form prevailed according to the ancient practice. This remedy was given to the people by an act of the Legislature (1 R. L. 485, s. 5), which act, too, sanctioned ejectments pending at the time of its passage. Would it be competent for defendants in possession, or against whom ejectments were brought, when that act passed, to object that the remedy against them was thus made too speedy, and demand to be proceeded against by the old writ? To complain that the alteration hurrying them on to trial was a violation of the Constitution, or of vested rights? At this rate, every statute by which the collection of debts or the trial of rights is rendered more speedy, or effectual, would be inapplicable and void in reference to subsisting rights. We are clear that short rules for pleading should be granted."

In the case of Von Baumbach v. Bade, 9 Wis. 559, the Supreme Court of Wisconsin considered a mortgage stay law enacted by the general laws of 1858 prior to the passage of this law. The foreclosure of a mortgage by action was subjected to all the ordinary rules and regularities of other actions in courts in that state. The defendant had to answer the complaint within 20 days after the service of the complaint upon him. Judgment followed in the usual course of proceeding, and, by rule and practice of court, the mortgaged premises were sold on six weeks' advertisement. In that case it appears from the facts as stated in the opinion that the defendant defaulted in the payment of principal, and payment of interest on the bond given to the plaintiff secured by a mortgage, and an action was instituted by service of summons on the defendant to foreclose the mortgage after the making of the mortgage and before commencement of the action. "The Mortgage Stay Law" provided, in part, as follows:

"In all actions and proceedings at law thereafter commenced under that portion of chapter 34 of the Revised Statutes of 1849, entitled, 'of the powers and proceedings of courts in chancery on bills for the foreclosure or satisfaction of mortgages,' the defendant or defendants in such actions or proceedings should have six months' time to answer the bill of complaint filed therein after service of summons or publication of notice, as then required by law; and that no default should be entered in any such action, until after the expiration of such time, any law to the contrary notwithstanding."

Judgment was rendered against said defendant before the expiration of six months after service had been made of the summons. Defendant appealed from said judgment, because judgment by default was entered against him before the expiration of six months after service upon him of the summons. Defendant claimed the right not to answer the complaint because the mortgaged premises were ordered to be sold upon six weeks' instead of six months' notice as provided by the Act of 1858. It was contended that the act was unconstitutional and void because it violated the first subdivision of section 10, article I of the Constitution of the United States, and section 12 of the first article of the Constitution of the state of Wisconsin, which prohibited the passing of any law impairing the obligation of contracts. The mortgagee in that case contended that when he took the mortgage, he had a right in case of default in the payment of the mortgage to use the regular course of judicial proceedings to procure a sale of the mortgaged premises to satisfy his claim of indebtedness. In the argument it was also contended as follows:

"The law professes to take a certain class of contracts, and among them this respondent's mortgage, out of the usual, ordinary and regular course of judicial proceedings, and gives the defendant or defendants six months' time to answer. The Legislature, in enacting the law, did not even trouble themselves to prescribe a change in the summons, which, as in all other cases, yet requires the defendant to answer within 20 days. The class of cases thus taken out of the usual course giving the defendant nine times the time to prepare and put in an answer, that he has in all other cases, is the class of cases in which practically the fewest answers are ever received. In all other litigated matters, no matter how complicated or important, the defendant has to answer within 20 days; here, where there exists hardly ever any defense, he shall have six months to prepare and serve an answer. * * *

"It clearly appears from the face of this law, from every line in it, as plainly as if it had been there written in words, that its only object was to give an additional indulgence to the debtor, an additional delay to the creditor, to reach that indirectly which could not be reached in a direct way, to impair the obligation of all mortgage contracts then in existence by giving time to the defaulting debtors. * * *"

The court held that the act was valid, and that it did not violate the provisions of the Constitution of the United States nor any provisions of the Constitution of Wisconsin which provided that no laws shall be passed impairing the obligation of contracts.

In the third, fourth, and fifth paragraphs of the syllabus, it was said:

"The Legislature may alter or vary existing remedies as they please, provided that in so doing their nature and extent is not so changed as materially to impair the rights and interests of the parties (Knox v. Hundhausen, 23 Wis. 508; and 24 Id. 196).

"By the Act of the 15th of May, 1858, the remedy of mortgagees, as it previously existed, is substantially continued. No new conditions are engrafted on the remedy, the form and mode of proceedings in the action, the nature and extent of the judgment, and the rights under it are the same as before, except only in the matter of the time which is required for these purposes; and that such a change does not infringe or materially impair the obligation of the contract.

"The Legislature may regulate at pleasure the modes of proceeding in the courts in relation to past contracts as well as future ones. It may limit or extend the time for answering, or taking any other step in an action in the courts. The only limit or qualification to this power is, that the Legislature must confine their action within the bounds of reason and justice, and not so prolong the time in which legal proceedings are to be had, as to render them futile and useless in the hands of the creditor, or to seriously impair his rights or securities (Hasbrouck v. Shipman, 16 Wis. 296).

"Although changes in remedies are in general unwise and unjust, yet if for any cause the public good demands a relaxation of them, it becomes the duty of the Legislature, by proper and reasonable modifications, so to change them as to meet the wants of community and afford the relief which the public good demands."

The court, in the body of the opinion, said:

"* * * The remedy of the mortgagee, as it previously existed, is in all its parts substantially continued.

"No new conditions are engrafted. The form and mode of proceeding in his action, the nature and extent of his judgment, and of his rights under it remain the very same. It can be carried into as full and complete execution as at any former period. No clogs or impediments are thrown in the way, either of obtaining or finally executing the judgment, except in the matter of the time which is required for those purposes. * * *

"A complete and substantial remedy was left them, according to the course of justice, as it was administered before its passage, the only difference being that it was less expeditious, but not so much so as materially to affect or diminish their rights. All must admit, I think, that its unconstitutionality is doubtful, and in such cases it is a well-settled rule of courts to resolve doubts in favor of * * * the laws."

The Supreme Court of Nebraska, in the case of Jones v. Davis,6 Neb. 33, considered the confirmation of a sale of real estate by a sheriff under a decree of foreclosure. It appears that, after the mortgage was executed and default made, a suit was prosecuted to final decree before the passage of a Legislative enactment which provided a more equitable appraisement of property under judicial sale. At the time the contract was made, the law allowed sales of this character to be had for two-thirds of the appraised value. It was contended that this law was a part of the contract entered into between the mortgagor and mortgagee. The decree directed lands to be appraised advertised, and sold as directed by law. At the time of the sale, the Legislature had enacted a law directing that all liens and incumbrances were to be deducted from the appraised value, and the sale to take place for two-thirds of the remaining sum.

It was insisted that this subsequent Legislative enactment was obnoxious to the provisions of the Constitution of that state, as well as the provisions of section 10, article 1, of the Constitution of the United States, in that it impaired the obligation of the mortgage contract. The Supreme Court of Nebraska said:

"But it is further contended that the act in question violates both the Constitution of this state and the Constitution of the United States in this, that it has the effect to impair the obligation of the contract. It is true that the act was passed after the execution of the mortgage; and it is also true that it materially changes the mode of ascertaining the value of the property prior to its sale. Under the law as it stood when the contract was executed the appraisement was required to be made regardless of any incumbrances that might be resting upon it, and the sale must have been for at least two-thirds of the value of the property thus ascertained, while now, the sheriff is directed to ascertain all incumbrances of record, and, after deducting them, to return the remainder as the real value for the purposes of the sale. This we regard as in no sense impairing the obligation of the contract, but merely as a change of the remedy or mode of enforcing the contract, which is clearly within the control of the Legislature. Morse v. Gould, 1 Kern. 281; Von Baumbach v. Bade, 9 Wis. 559; Walter v. Bacon,8 Mass. 468."

The Supreme Court of the United States in the case of Crane v. Hahlo et al., 258 U.S. 142, 42 Sup. Ct. 214, in speaking of vested right in reference to any given mode of procedure, said:

"No one has a vested right in any given mode of procedure (Railroad Co. v. Grant, 98 U.S. 398, 401, 25 L.Ed. 231; Gwin v. United States, 184 U.S. 669, 674, 22 Sup. Ct. 526, 46 L. Ed. 741), and so long as a substantial and efficient remedy remains or is provided, due process of law is not denied by a legislative change. (Oshkosh Waterworks Co. v. Oshkosh,187 U.S. 437, 439, 23 Sup. Ct. 234, 47 L.Ed. 249)."

In the case of Kerckhoff-Cuzner M. L. Co. v. Olmstead,85 Cal. 80, 24 P. 648, the Supreme Court of California considered an enactment by the Legislature amending a former section of the Code of Civil Procedure wherein the amendment added that cessation from labor for 30 days on an unfinished building "shall be deemed equivalent to completion. * * *

"We do not think that the amendment, when applied to the case in hand, is retroactive in effect. It is true it shortened the time which the respondent would otherwise have had to file its claim, and thus seek its remedy. But the authorities are numerous to the effect that a change of remedy, or in the time within which it must be sought, does not impair the obligation of a contract, provided an adequate and available remedy be left. Thus it has been held that an enactment reducing the time prescribed by the statute of limitations in force when the right of action accrued is not unconstitutional, provided a reasonable time be given for the commencement of an action before the bar takes effect. Terry v. Anderson, 95 U.S. 628. In that case the court, by Waite, C. J., said 'The parties to a contract have no more a vested interest in a particular limitation which has been fixed than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and as to the forms of action or modes of remedy, it is well settled that the Legislature may change them at its discretion, provided adequate means of enforcing the right remains.' "

If plaintiff could not have an unrestricted right to sue, and a vested interest in the time for the commencement of an action for the foreclosure of a mortgagee, how can it be said that plaintiff has a vested right in requiring a defendant whom plaintiff alleges has defaulted in the payment of a note and mortgage to answer his petition within 20 days from the date of service of summons upon the defendant, so long as adequate means of enforcing his remedy remains.

In Potter, Dwarr, Stat. page 471, this language is used:

"But it is well-established law that the individual citizen, with all his rights to protection, has no vested right in what is known in the law as remedies, nor in any particular existing remedy. He has no such vested interest in the existing laws of the state as precludes their amendment or repeal by the Legislature, nor is there any implied obligation on the part of the state to protect its citizens against incidental injury occasioned by changes in the law. * * * If the remedy does not impair the right of property itself, if it still leaves the party a substantial remedy according to the course of justice as the right existed at the time of the passage of the statute, it does not impair the obligation of the contract, nor will it be held to do so merely because the new remedy is less efficient, less speedy, or less convenient than the old one."

See, also, Lewis' Sutherland on Stat. Const. (2d Ed.) sec. 284; People ex rel. Foote v. Clark,283 Ill. 221, 119 N.E. 329; Milbourne v. Kelly, 93 Kan. 753, 145 P. 816; Keith v. Keith, 26 Kan. 26; Shepard v. Gibson,88 Kan. 305, 128 P. 371; Boucofski v. Jacobsen, 36 Utah, 165, 104 P. 117; Kring v. State of Missouri, 107 U.S. 221, 27 L.Ed. 506; Endlich, Interpretation of Statutes, p. 387; Black, Constr. Interpretation of Laws, page 265; Cooley, Const. Lim. p. 326; Hewitt Logging Co. v. Northern Pacific Ry. Co., 97 Wn. 597, 166 P. 1153, 3 A. L. R. 198; and Frary v. Roxana Petroleum Corp. (Kan.) 297 P. 668.

The majority opinion in the case of Osage County Savings Loan Ass'n v. Worten (No. 24681), supra, construes the act in question as violating the provisions of section 54, article 5, of the Constitution of Oklahoma. In my opinion this section of the Constitution has no application to the provisions of the Moratorium Law. The Moratorium Law does not repeal any statute. At least no statute has been pointed out by the majority opinion.

In the case of State ex rel. West v. McCafferty, 25 Okla. 2,105 P. 992, this court considered an express amendment to another section of the statute. In that case the court held, in an original proceeding in mandamus involving a tax ferret contract with the board of county commissioners, that "where a section, expressly amendatory to another section of a statute, purports to set out in full all that it is intended to contain, any matter which was in the original section, but not in the amendatory section, is repealed by the omission." The main question for determination was whether the act approved May 29, 1908, was repealed in whole or in part by the act approved March 8, 1909 (Laws 1909, p. 626, ch. 38, art. 3), and if so, what effect said repealing act had on said contract of employment by the county commissioners with the tax ferret. In that case the court in discussing the term proceedings said that proceedings mean "All steps or measures adopted in the prosecution or defense of an action."

In the case of Claussen v. Chappin, Sheriff, et al., 221 P. 1073, the Supreme Court of Montana held that "The term 'proceeding,' in its general use, comprehends every step taken or measure adopted in prosecution or defense of an action," and as used in Rev. Codes, 1921, sec. 9187, authorizing amendments of any pleading or proceeding in furtherance of justice, contemplates every paper which may be properly employed in an action other than the pleadings. In the body of the opinion the court said:

"While in its more general sense the term 'proceeding' comprehends every step taken or measure adopted in the prosecution or defense of an action (State ex rel. West v. McCafferty, 25 Okla. 2, 105 P. 992, L. R. A. 1915A, 639; Sherman v. Southern Pac. Co., 31 Nev. 285, 102 P. 257; 3 Words and Phrases, Second Series, 1233), in the more restricted sense in which it is used in section 9187, it refers to every paper which may be employed properly in an action, other than the pleadings. Wilson v. Allen, 3 How. Pr. (N.Y.) 369; Hopewell v. State, 22 Ind. App. 489, 54 N.E. 127; Johnson v. Jones,2 Neb. 126.

"In State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 P. 244, this court said: 'A motion is but a step in a case, or proceeding in a case'."

Our Constitution provides that the repeal of a statute shall not affect proceedings begun. This language is not synonymous with the statement that the repeal of a statute shall not change the procedure in a proceeding pending. Procedure is not synonymous with the term "proceeding" or "proceedings." It is my theory that no litigant has any vested right in procedure or in any particular remedy when the same does not substantially affect the obligation of any contract or the substantial rights of the parties. See Youst et al. v. Willis Bradford,5 Okla. 413, 49 P. 1014; Independent Cotton Oil Co. v. Beacham,31 Okla. 384, 120 P. 969; American National Ins. Co. v. Donahue,54 Okla. 294, 153 P. 819; Adams v. Iten Biscuit Co.,63 Okla. 52, 162 P. 938; Shelby Downard Asphalt Co. v. Enyart,67 Okla. 237, 170 P. 708; Fry v. Wolf, 106 Okla. 289, 234 P. 191; and Billy v. Burnett, 137 Okla. 175, 278 P. 637.

In Ensley v. State, 4 Okla. Cr. 49, 109 P. 250, the Criminal Court of Appeals, speaking through Mr. Justice Richardson, held:

"Section 54 of article 5 of the Constitution of Oklahoma, providing that the repeal of a statute shall not 'affect any accrued right; or penalty incurred, or proceedings begun by virtue of such repealed statute,' has no reference to changes in the law of procedure merely."

The many able counsel in their exhaustive briefs in their search for offending constitutional clauses did not present section 54, article 5 of the state Constitution. The sections applicable presented in their brief were section 57, article 5; section 6, article 2; and section 15, article 2 of the Constitution of Oklahoma, and section 10 of article 1 of the Constitution of the United States.

As I view this legislative enactment, it deals only with the remedy provided for the enforcement of the right of the mortgagee. When the mortgagor defaults, then the mortgagee has no way of collecting the indebtedness due him on the defaulted note except the remedy provided by law. The remedy is to institute an action in foreclosure. A petition is filed. A summons is issued and the same statute which authorizes the filing of the action to enforce his remedy also grants to the defendant, the defaulting mortgagor or his assigns, the right to file an answer to contest the action of the plaintiff. The statutes prior to the enactment of the Moratorium Act granted the defendant in a foreclosure action 20 days after the date on which summons was returnable to file a demurrer or answer. There is no provision in the statute which prohibits the court from enlarging this time within which to file an answer; on the contrary, section 218, O. S. 1931, specifically provides for such enlargement. In an answer the defendant may interpose his defenses, including set-offs and counterclaims. These are all statutory provisions which authorize the seeking of the relief by the mortgagee. There is no vested right in these subsequent steps in the proceedings after the institution of an action seeking to obtain remedial relief. The change from 20 days to nine months is only a change in the successive steps in the procedure to obtain the remedy provided by law, the remedy being enforced by a compulsory process by reason of the fact that the mortgagee is unable to obtain voluntarily the relief he is entitled to have.

The whole sense and import of the Moratorium Law is that the courts were directed to enlarge upon the answer date in foreclosure proceedings. By reason of the general commotion existing by virtue of the economic depression, the Legislature sought to apply a uniform rule to steps in foreclosure actions so that all persons, temporarily at least, might have an opportunity to stay an enforced sale of secured real property in the hope that economic conditions would readjust themselves, whereby real property given as security for an indebtedness might be offered for sale and command a price commensurate with former values in order to liquidate the secured indebtedness, and thereby secure to the people of the state a more wholesome condition and a better sense of tranquility. Courts will not and should not overthrow acts of the legislative body in the exercise of its police power unless it clearly appears that this determination has been arbitrarily or unreasonably exercised. Ex parte Nash (Nev.) 26 P.2d 353.

In the instant case, it is my opinion that no substantial rights have been interfered with, no contractual obligations have been impaired, and no destruction of any rights granted by state or federal Constitutions have been offended; that the act should be upheld.

I am authorized to state that Mr. Justice SWINDALL and Mr. Justice OSBORN concur in the views herein expressed.

Since reading the above and foregoing views to the conference of this court, January 8, 1934, the day that the Chief Justice of the United States delivered the Blaisdell opinion, supra, an official copy of the Blaisdell opinion has been received, and this court has delivered a supplemental opinion on rehearing.

It is my judgment that the majority opinion and the supplemental opinion can find no shelter under the opinion of Mr. Chief Justice Hughes. The same broad principles involved in the Minnesota case are present in the Oklahoma Moratorium Law. In the Blaisdell Case the Minnesota mortgage moratorium was questioned as being repugnant to the contract clause, article 1, section 10, and the due process and equal protection clauses of the Fourteenth Amendment of the federal Constitution. In the Blaisdell opinion it is said:

"The state court upheld the statute as an emergency measure. Although conceding that the obligations of the mortgage contract were impaired, the court decided that what it thus described as an impairment was, notwithstanding the contract clause of the federal Constitution, within the police power of the state as that power was called into exercise by the public economic emergency which the Legislature had found to exist."

Mr. Chief Justice Hughes specifically held that the Minnesota Moratorium Law "does not impair the integrity of mortgage indebtedness." In the body of the opinion he said:

"The argument is pressed that in the cases we have cited the obligation of contracts was affected only incidentally. This argument proceeds upon a misconception. The question is not whether the legislative action affects contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end."

On this question the Chief Justice said:

"Whatever doubt there may have been that the protective power of the state, its police power, may be exercised — without violating the true intent of the provision of the federal Constitution — in directly preventing the immediate and literal enforcement of contractual obligations by a temporary and conditional restraint, where vital public interests would otherwise suffer, was removed by our decisions relating to the enforcement of provisions of leases during a period of scarcity of housing. Block v. Hirsh, 256 U.S. 135; Marcus Brown Holding Co. v. Feldman, 256 U.S. 170; Edgar A. Levy Leasing Co. v. Siegel, 256 U.S. 242."

This language is a direct answer to the holding of the majority of the court on our Moratorium Law. Mr. Chief Justice Hughes also said:

"It is always open to judicial inquiry whether the exigency still exists upon which the continued operation of the law depends. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547, 548. * * *

"We are of the opinion that the Minnesota statute as here applied does not violate the contract clause of the federal Constitution. Whether the legislation is wise or unwise as a matter of policy is a question with which we are not concerned.

"What has been said on that point is also applicable to the contention presented under the due process clause. Block v. Hirsh. supra.

"Nor do we think that the statute denies to the appellant the equal protection of the laws. The classification which the statute makes cannot be said to be an arbitrary one. Magoun v. Illinois Trust Savings Bank, 170 U.S. 283; Clark v. Titusville, 184 U.S. 329; Quong Wing v. Kirkendall.223 U.S. 59; Ohio Oil Co. v. Conway, 281 U.S. 146; Sproles v. Binford,286 U.S. 374."