Federal Farm Mortg. Corp. v. Falk , 67 N.D. 154 ( 1936 )

Appellant has petitioned for a rehearing. In such petition the legal questions raised on the appeal and considered and determined in the former opinion in this case are re-argued. The contentions advanced by the appellant are epitomized in the petition as follows:

"1. That the 1933 amendment to the hail insurance law, in so far as it seeks to make so-called hail indemnity taxes liens prior to pre-existing mortgages taken after the passage of that amendment, is unconstitutional for all the reasons urged above. The legislature may not, merely by fiat, create a situation so that eventually the protection afforded by the fourteenth amendment shall not be available to anyone within that state.

"2. The settled law of the State of North Dakota, at the time the Appellant's mortgage was taken, was such that the Appellant was justified in believing that the mortgages thereafter taken by it would be liens prior to subsequently assessed, levied or determined so-called hail indemnity taxes.

"3. The law as so settled was and is a rule of property entering into the mortgage of the Appellant in this case, and if this Court desires to change the rule as announced in the above cited cases of James River Lumber Co. v. Danner, 3 N.D. 470, 57 N.W. 343, supra, and State v. Johnson, 54 N.D. 184, 208 N.W. 966, supra, it should make such change operate prospectively only and not applicable to mortgages in existence at the time the rule is so changed."

We have again considered the questions involved on this appeal in light of the argument and authorities presented in the petition for rehearing.

1. We adhere to the conclusions announced in our former opinion that the legislative enactment of 1933 does not violate any of the constitutional provisions invoked by the plaintiff. In other words, it is our opinion that such legislative enactment does not operate to deprive the plaintiff of property without due process of law; or deny to it the equal protection of the law; or impair the obligations of its contract.

2. This being so it follows that the "settled law of the state of North Dakota at the time appellant's mortgage was taken" as regards whether the lien of the hail indemnity tax in question here is "prior and superior to a mortgage executed subsequent to the approval" of chapter 137, Laws 1933, was set forth in that statute; and it specifically provided that the lien of a hail indemnity tax "shall be prior and superior to all mortgages, liens and judgments executed subsequent to the approval" of such act. Appellant, as well as all other persons, corporations and concerns doing business in North Dakota, was chargeable with notice of and bound by the provisions of that law.

There was a deliberate legislative purpose to establish the lien of a hail indemnity tax as prior and superior to all mortgages, liens and judgments executed subsequent to the approval of the act. Following the decisions of this court in Davis v. McLean County, 52 N.D. 857, 204 N.W. 459, supra, and State v. Johnson, 54 N.D. 184, 208 N.W. 966, supra, the Commissioner of Insurance recommended to the legislature "that the hail indemnity tax, by legislative action, be made a lien prior and superior to any other lien executed subsequent to the passage and approval of such legislation." Such recommendation was made to the legislative assemblies which convened in 1929, 1931 and 1933. (Annual Report of the Hail Insurance Department for the year 1930, p. 12; Annual Report of the Hail Insurance Department for the year 1932, p. 9.) The legislative assembly in 1933 enacted the statute conformable to the recommendations of the Commissioner of Insurance.

The state hail insurance department is a legislative creation. The department itself and the plan of operation thereof were peculiarly for legislative consideration. And the records of the legislative assembly disclose that the subject was one to which the different legislative assemblies gave much consideration. It was for the legislature to determine the policy of the state hail insurance department. The legislative power in this particular field was limited only by the provisions of the constitution of the state and of the nation. Obviously the court may not substitute its judgment for that of the legislature as regards the wisdom or desirability of legislation.

The function of the court is to ascertain the intent of the lawmakers as expressed in the law and to give effect thereto unless it clearly appears that to give effect to such intent will result in a violation of some provision of the state or Federal constitution.

The language employed by the legislature in the provision under consideration here is clear and specific. There is no room for misunderstanding. The legislature said: "The lien of the tax (hail indemnity tax) herein provided for, shall be prior and superior to all mortgages, liens and judgments executed subsequent to the approval of this act." The act was approved March 7, 1933.

As was said by this court in State v. Rother, 56 N.D. 875, 219 N.W. 575:

"`The legislature must be understood to mean what it has plainly expressed, and this excludes construction. The legislative intent being plainly expressed, so that the act read by itself, or in connection with other statutes pertaining to the same subject, is clear, certain, and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms.' Lewis's Sutherland, Stat. Constr. 2d ed. p. 701. `Courts only determine by construction the scope and intent of a law when the law itself is ambiguous or doubtful. If a law is plain, and within the legislative power, it declares itself and nothing is left for interpretation. It is as binding upon the court as upon every citizen. To allow a court, in such a case, to say that the law must mean something different from the common import of its language, because the court may think that its penalties are unwise or harsh, would make the judicial superior to the legislative branch of the government, and practically invest it with the lawmaking power.' The remedy for a harsh or unwise statute is not in interpretation, but in amendment or repeal. State v. Duggan, 15 R.I. 403, 6 A. 787; 2 Lewis's Sutherland, Stat. Constr. p. 706."

3. The law as it existed prior to the enactment of chapter 137, Laws 1933 was, of course, applicable to mortgages made prior to that date; but mortgages made subsequent to that date are subject to the provisions of that enactment. In the very nature of things this court could not, in James River Lumber Co. v. Danner, 3 N.D. 470, 57 N.W. 343 (decided December 28, 1893) or State v. Johnson,54 N.D. 184, 208 N.W. 966, supra, (decided May, 1926) have made any determination of rights arising under the statute enacted by the legislative assembly in March, 1933. It is, we think, too clear for argument that nothing said in those cases as regards the liens there involved could possibly constitute a rule of property so as to tie the hands of the legislature in 1933 and prevent it from then enacting legislation prospective in its operation.

The question presented in this case is one of legislative power. Either the legislative enactment of 1933, in so far as it provided that hail indemnity taxes levied subsequent to that act should have priority over mortgages executed subsequent to such approval, operated to deprive plaintiff of its property without due process; or deny it the equal protection of the law; or impair the obligations of its contract, or it did not. If it operated so to do, then the statute would be invalid without regard to anything that might have been said in decisions of this court in prior years regarding other liens; if on the other hand the statute did not so operate and it was within legislative power to enact it, then the statute does not become unconstitutional because of something said in former decisions dealing with other and different legislative enactments. Dunbar v. New York,251 U.S. 516, 519, 64 L. ed. 384, 385, 386, 40 S. Ct. 250.

For reasons stated in the former opinion we are all agreed that the legislative assembly, in the enactment of the statutory provision under consideration here, did not contravene the guarantees of the Federal Constitution invoked by the plaintiff. A rehearing is denied.

NUESSLE, BURKE, MORRIS and BURR, JJ., concur.