116 Wis. 79 | Wis. | 1902
Tbe necessity of notice of election, by a creditor to bis debtor, to exercise an agreed option to treat an entire indebtedness as due before the date specifically named in the papers evidencing the same and securing its payment, for nonperformance of some stipulation of the contract, as a condition precedent to the use of judicial remedies for collection of the whole debt, is merely a rule of equity. In most jurisdictions no sucb notice is necessary. It is held that if the debtor makes default be is neither legally nor equitably entitled to notice that by reason thereof the creditor will consider the debt all due, before judicial remedies' are resorted to to collect the same, unless sucb a notice is specifically provided for in the contract; that it is not the business of the courts to supply an element in the contract, by an arbitrary rule of construction, which the parties see fit to omit, because, without it, the contract would seem to be a harsh one. This court stands alone, or nearly so, in bolding that notice of election should be given the debtor as a condition of treating the contract as fully matured; but its decision in that regard is not based upon a construction of the contract. 2 Pin-grey, Mortg. § 1539; Jones, Mortg. § 1182a, and cases cited. Pingrey is in error in classing California with this state on the subject. He cites Monroe v. Fohl, 72 Cal. 568, 14 Pac.
“It was competent for them to include in their note or mortgage a provision requiring notice of such election as a condition precedent to instituting the suit; but instead thereof they have agreed that upon the mere fact of the default the plaintiff may, at his option, treat the whole amount as due, and foreclose the mortgage. T'o add to this agreement the requirement that the plaintiff shall give notice of the election would be for the court to add to the agreement of the parties a condition which they have not themselves chosen to make.”
The rule here was first distinctly stated in Basse v. Gallegger, 7 Wis. 442. It was not based upon judicial or other authority. The decision is not in conflict with those we have cited and many other cases that might be mentioned, as regards reading a requirement for notice out of the contract by construction. The rule was declared, as before indicated, as a rule of equity, to be applied where a person seeks its jurisdiction to enforce his mortgage to the full extent, under an option so to do, by reason of some default in the terms thereof. This language was used:
“It seems to us but just and proper to require the mortgagee, in cases like the present, to exercise his election, and give notice thereof to the mortgagor, before bringing suit.”
There is no disposition to recede from a doctrine so long established, or even to criticise it.' The state of the law in general has been referred to merely to show that decisions as to what is sufficient notice of election to exercise the option, in a case where notice thereof is required by the contract either expressly or by implication, are not controlling where
The claim here made is that proper notice of election to treat the entire indebtedness due was not given to the debtors, wholly on the theory that, prior to the time notices were mailed to them at Milwaukee, Wisconsin, their post-office address when the indebtedness was contracted and for a considerable period of time thereafter, — they had changed their place of abode to some unknown point outside the state. Assuming in appellant’s favor, for the purpose of the point under discussion, that the evidence shows all that is claimed for it, we think the debtors, by their conduct, waived the giving of any better notice to them than the one given. - If
Sec. 1, art. XIV, of the United States constitution, providing that, “No state shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws,” does not preclude state legislation applicable only to a particular class of persons, if there is a reasonable ground for treating such class of persons different from the general mass. That constitutional provision was so construed by the supreme court of the United States early after its adoption, and the construction steadfastly adhered to up to the present time. Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357; Missouri P. R. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110; Missouri P. R. Co. v. Mackey, 127 U. S. 205, 3 Sup. Ct. 1161; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232, 10 Sup. Ct. 533. In Barbier v. Connolly, the court, speaking by Mr. Justice Field, said:
“Neither the amendment — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education and good order of the people, and to legislate so as to increase the industries of the state,, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had.”
“The greater part of all legislation is special, either in the object sought to be attained by it or in the extent of its application. . . . When legislation applies to particular bodies or associations . . . it is not open to' objection that it denies to them the equal protection of the laws if all persons brought under its influence are treated alike under the same conditions.”
Legislative discretion to classify persons for the purposes of legislation is substantially the same under the fourteenth amendment of the federal constitution as under the state constitutional provision prohibiting special legislation. The rules on the subject, which generally prevail, and which have received the sanction of this court, are as follows: (1) All classification must be based upon substantial distinctions which make one class really different from another. (2) The classification adopted must be germane to the purposes of the law. (3) The classification must not be based upon existing conditions only; it must not be so constituted as to prevent additions to the number included within the class. (4) To whatever class a law may apply, it must apply equally to each member thereof. Johnson v. Milwaukee, 88 Wis. 383, 60 N. W. 210. Whether any particular classification made by the legislature satisfies those requisites is primarily a legislative question. The field covered by its discretionary power in the matter is very broad. It is, of course, not above judicial control, but is safe from restraint so long as any reasonable ground can be discovered to support it. The court can apply no test to the matter except the constitutional test. That of the mere wisdom of the measure is exclusively for legislative consideration.
If we were called upon to apply the law as above stated, without the aid of judicial authorities, to sec. 2014 — 5, Stats. 1898, giving to mortgages of mutual building and loan associations priority over other liens upon the mortgaged premises
The conclusion reached by courts elsewhere is in harmony with the views above expressed. McLaughlin v. Citizens B., L. & S. Asso. 62 Ind. 264; Shaffrey v. Workingmen’s S., L. & B. Asso. 64 Ind. 600; Holmes v. Smythe, 100 Ill. 413; Freeman v. Ottawa B., H. & S. Asso. 114 Ill. 182, 28 N. E. 611; Winget v. Quincy B. & H. Asso. 128 Ill. 67, 21 N. E. 12; Security L. Asso. v. Lake, 69 Ala. 456; Vermont L. & T. Co. v. Whithed, 2 N. Dak. 82, 49 N. W. 318. In most of the cases cited the question whether it was constitutional to make building and loan associations a class by themselves for legislative regulation of interest charges was the one considered; but certainly classification on that subject would not have better reasop. to support it than classification as regards priority of liens. In the case last cited this language was used:
“Operations of building and loan associations, when confined to their own members, differ so radically from ordinary loan transactions that the legislature was clearly warranted in placing such associations in a separate class for the purposes of such legislation as pertains to interest and usury.”
Counsel for appellant calls attention to some authorities contrary to the views we have expressed, particularly Gordon v. Winchester B. & A. F. Asso. 12 Bush, 110. We have examined them all, and many other authorities, which we do not deem necessary to specially mention here. In our judgment the better reasoning and the greater weight of authority is in harmony with the conclusions we have reached.
The law under which respondent’s mortgage lien was adjudged superior to appellant’s lien under sec. 3314, Stats. 1898, is ch. 368, Laws of 1891. It is entitled “An act regulating building and loan associations.” It is suggested that the term “regulating,” with its context, does not suggest that feature of the body of the act relied on by respondent neces-
A suggestion is made by appellant’s counsel that the provision of see. 3314, making liens of the character of appellant’s date from the time of the commencement of the building regardless of when the work for which the lien is claimed was done or the material furnished, was re-enacted in August.
“The provisions of these revised statutes, so far as they are the same in substance as those of existing laws, shall be construed as a continuation of such laws and not as new enactments.” Sec. 4985, Stats. 1898.
In that the legislature only voiced the unwritten law. Laude v. C. & N. W. R. Co. 33 Wis. 640; Gilkey v. Cook, 60 Wis. 133, 18 N. W. 639; Cox v. North Wis. L. Co. 82 Wis. 141, 511 N. W. 1130. But its action, in connection with the absence of any repealing clause in ch. 380, Laws of 1897, indicates clearly that the enactment of such chapter was not intended to give existing laws which were continued, the character of original legislation; but that the contrary is expressly negatived.
The further claim is made that the law in question is contrary to public policy. We know of no ground upon which a constitutional legislative enactment can be rightly spoken of as contrary to public policy. What is and what is not public policy must obviously be determined by the written and the unwritten law, giving precedence to the former where the two are in conflict. We sometimes say that a contract is void be
‘It is the province of the statesman and not of the lawyer-to discuss, and of the legislature to determine what is best for-the public good, and to provide for it by proper enactments.. It is the province of the judge to expound the law, to declare-public policy as he finds it in the unwritten and written law. Public policy is a proper ground for a decision only in the-sense of the policy of the law, not in the sense of mere judicial notions as to what is best for the public good. An act [speaking of an act inter partes] is properly said to be illegal, when it is contrary to the principles of established law.’
By the Gourt. — The judgment is affirmed.