Dunbar v. Spratt-Snyder Co.

226 N.W. 22, 208 Iowa 490

• Court: Supreme Court of Iowa
• Decided: June 24, 1929
• Docket: No. 39403.
• Status: Published

Opinions

Kindig, J.

In July, 1926, the defendant-appellant SprattSnyder Company obtained a judgment against the plaintiff-appellee, F. H. Dunbar. Thereafter, execution issued to satisfy the judgment, and the defendant-appellant Anson Barrett, a constable, levied upon appellee’s radio receiving set. Within due time before the sale, appellee served upon the constable a notice to release said receiving set, on the theory that it was a musical instrument, and therefore exempt, under Section 11760 of the 1924 Code. Consequently, the appellant Spratt-Snyder Company furnished the constable the statutory indemnifying bond on which the appellant Eagle Indemnity Company was surety. Then the constable proceeded with the sale. Subsequently, on December 22, 1926, the appellee commenced the present proceedings.

' There is but one question to be determined, and that is whether or not a radio receiving set is a musical instrument, within the contemplation of the Iowa exemption statute. That section is 11760 of the 1924 Code, and reads as follows:

“If the debtor is a resident of this state and,the head of a family, he may hold exempt from execution the following property: * * *

“3. All * * * musical instruments * * * not kept for the purpose ,of sale. ’ ’

It is admitted that appellee is an Iowa resident and the head of a family. Too, it is Conceded that he did not keep his radio receiving set for the purpose of sale. Contention is made upon the part of appellee that the modern radio receiving set is of such a character and so used that it can be said it is a musical instrument, under the exemption statute aforesaid; while appellants urge their cause in the following'words:

“In its last analysis, the receiving set is simply an instrument of communication or transmission, enabling the auditor to catch sounds already present in the atmosphere, which the human ear is not rightly constructed to register. ’ ’

The problem presented, therefore, must be solved upon one basis; and that is whether a radio is a musical instrument, within the purview of that statute. Hence, in the final analysis, if a radio is to be exempt, it must be upon the theory that it is a “musical instrument.” Does the radio, under a liberal construction, come within the fair meaning of said law ? Such is the question.

Manifestly, an exemption statute is to be liberally construed, for the purpose of such a legislative act is humane. Its desirability is founded upon public policy. No doubt it is better that some creditor go unpaid than to take away from the debtor and his family that which the lawmakers believed is essential for their education, culture, and spiritual upbuilding. Cook v. Allee, 119 Iowa 226; Swisher v. Swisher, 157 Iowa 55. Illustration of this thought is found in Cook v. Allee, supra, wherein this language is used:

“Exemption statutes are the product of an enlightened public policy, which seeks to afford some measure of protection to the family of an unfortunate debtor, as well as to the debtor himself, and incidentally to the public, and are always to be liberally construed to effect their intent and purpose.”

Again, the thought is expressed in Swisher v. Swisher, supra, in this way:

“This inquiry [the meaning of the statute] must be answered with due deference to the well established rule that the legislative language must be liberally construed, with a view to promote the beneficent purposes of the enactment. ’ ’

On the other hand, it must be recognized that the exemption arises and exists only because of a statute. Every statute has its limitations. Wherefore, tuider the guise of liberal construction, there cannot be put into the law that which the legislature never intended should be there. Resultantly, if some subject has not been covered by legislation, or if a particular object has not been declared exempt by that body, it is not for the courts to supply that which is lacking, and, through their pronouncements, go beyond the purpose of the government’s judicial department, and. legislate. Many examples of this can be found in our adjudications. Sufficient for a demonstration are the following cases:

“Exemptions of property from the payment of debts is purely statutory, and courts may not enlarge the exemption * * *. ” Morgan & Hunter v. Rountree, 88 Iowa 249.

“If the property in. question is exempt under the law, it must appear that the debtor is one of the classes of persons named in the statute.” Tyler v. Coulthard, 95 Iowa 705.

<<# # # this [liberal construction] does not mean that the court may, by dictum or decision, create a right of exemption where none is found in the statute * * Swisher v. Swisher, supra.

“All exemptions are statutory, and, while it is true that an exemption grant will be liberally construed to effectuate the purpose of the grant, yet we must find the grant in the statute, or no exemption can exist; and it is not for this count to say that the legislature intended a larger grant of exemptions than is given by the plain wording of the statute.” Voris v. West, 180 Iowa 138.

As late as Farmers Elev. & Livestock Co. v. Satre, 196 Iowa 1076, that same thought prevails. Therein this court said:

“Appellee relies, to sustain the judgment, upon the propositions that exemption statutes are liberally construed ® * *. It may be stated as the universal rule that exemption statutes are liberally construed in favor of the debtor. But, as we said in Voris v. West, 180 Iowa 138: # * it is not for this court to say that the legislature intended a larger grant of exemptions than is given by the plain wording of the statute. ’ ’ ’

Ambiguity does not appear in the legislative enactment before us. Can it be said, therefore, that, within the “plain wording” of the exemption statute aforesaid, a musical instrument includes a radio? What is a musical instrument? One definition is: “A contrivance by which musical sounds are produced.'’ 32 Corpus Juris 947. Webster’s New International Dictionary says a musical instrument means “a contrivance by which musical sounds are produced. Musical instruments may be classified, according to the nature of the vibrating body that initiates the sound, as stringed, wind, and those sounded by a vibratory surface.” Beyond peradventure of a doubt, that was the musical instrument the Iowa legislature had in mind when it enacted said exemption statute. Obviously, a catalogue of musical instruments complete at the time the law was passed, might not include the entire list now, because new musical instruments may have been invented during the past years. Plainly, the more recent contrivance would be exempt, under the statute, provided it is a musical instrument. That, however, is quite different from saying that something which does not have the characteristic of a musical instrument is, nevertheless, such, just because modern science perchance has discovered it. Progressiveness permits no court to read into any law that which it cannot fairly be said the legislature put there. Bridge Proprietors v. Hoboken Co., 68 U. S. 116. By this is not meant that new inventions cannot be classified with the old, nor does it suggest that a contrivance not thought of when a law was passed may not, nevertheless, be included within the scope of such ancient enactment. However, this is because the new product is akin to the old and subject to classification therewith.

A fundamental idea is contained within the definition of a musical instrument. This is the capacity of the instrument, in and of itself, when properly operated, to produce or initiate the musical sound. On the other hand, a radio cannot do this. Clearly, the radio would be of no use for musical purposes, wore it not for the fact that, some place in a broadcasting station, there is a musical instrument, or instruments, producing those sounds and harmonics which are pleasing to the human ear. Those musical instruments in that distant station, and not the radio, produce and initiate the music, within the definition before mentioned. Amplification by the radio of the sound called music is not effected because the sound is musical, but rather, because it is a sound. In truth, a radio is no more than an ear trumpet, which enables the human ear to catch the sounds produced by the far-away musical instrument. Some ear trumpets, like the " acoustieon, ” are "no bigger than a dime,” yet, when properly adjusted and attached to the head, aid the deaf in hearing.

Likewise, a radio is an assistance to the human ear which, without such direct attachment to the head, accomplishes an enlarged hearing. Consequently, it is evident that the radio has no more relationship to music than it has to prose, political campaign speeches, sales talks, weather forecasts, descriptions of prize fights, football games, farm talks, and numerous other matters. Mr. Stephen Davis, in his work on The Law of Radio Communication (1927) 116, says:

“His [the listener’s] receiving set is merely an artificial extension of his natural sense of hearing. But by its use, the scope of audition is extended far beyúnd natural range, just as the telescope increases the distance of vision. Man without artificial aid can hear the voice of another only within a few hundred yards, while by radio he hears it a thousand miles or more away. He may use artifice, to aid hearing, just as he may assist sight. A receiving set bears a relation to his ears similar to that of spectacles or a telescope to his eyes. ’ ’

Furthermore, it is explained by appellant:

“If operated by,a competent individual, and if placed within the necessary radius of an operating broadcasting station, the receiving' set may be made to reduce the electrical radio frequency current emanating from the microphone of such station to vibrations capable of being heard by the human ear. ’ ’

To elucidate, there is nothing peculiar about the musical sound and the radio. Forsooth, this invention is susceptible to any sound wave, whether it is musical or not. There is no connection between the radio, as such, and music, as such. The radio cannot produce music. Music never would be produced by a radio.,. In order for there to be music produced by an instrument, some device must exist other and different from a radio. Obviously, the instrument that produces music is not the radio. A human voice can be heard over the radio. Thus, it is not too farfetched to ask: “Is the radio ail instrument of voice? Did the radio produce the human voice ? ’ ’ Certainly it did not produce the spoken words that came from the human lips. Moreover, those words have no more influence upon the radio than does any other sound, however produced, whether musical or not.

Continuing the thought, it may be said that the telephone, telegraph, and the wireless transmission systems are not musical instruments, under any conception of a reasonable definition. They are not far different from the radio.

Of course, statutes upon this subject in the various states vary, and are frequently different, and what might be exempt under one law would not be within the fair purview of another. Our investigation is limited to the Iowa statute. Under it, we cannot fairly say that a radio is a musical instrument. Undoubt edly a debtor and his family obtain enjdyment from the operation of the radio, but that is not enough to settle the present question. No doubt the creditor and his family also enjoy the radio, but perhaps, if the debtor does not pay his obligations, the former cannot listen to the entertainment which comes through the air. Consistently, it was said in In re Adelberger, 280 Fed. 405:

“It is also a well recognized rule of construction that exemption laws should be liberally construed to accomplish * * * [the] end, but not construed so as to impose upon creditors. ’ ’

Evidently it is for the legislature, and not the court, to say that a radio bill may go unpaid under the exemption statute.

Accusation is made by the dissenting opinion that the majority have abandoned or amended their definition of a musical instrument by adding the words ‘1 in and of itself. ’ ’ When properly manipulated or operated, the musical instrument will produce musical sounds “in and of itself.” Amplification and explanation, rather than change, result from such suggestion; for the word “produce” itself, according to Webster’s New International Dictionary, means “to bring forward, beget * * *. 4. To cause to be or to happen; to originate, as an effect or result; to bring about.” “Originate,” according to the same authority, denotes “to give an origin or beginning to; to bring into existence; * * * to take first existence; to have origin or beginning; to begin to exist or act.” Thus the word “produce” includes the thought expressed by the phrase “in and of itself.”

It seems that the sweet harmonies of music lulled the minority into a pleasantness akin to a dream, and while in that attitude, the Muse induced the writing of poetical sentences too general and rhythmic to penetrate the prose-like meaning of a statute and demonstrate a subject so practical as a legislative intent. Hills, mountains, valleys, rivers, and lakes make the echo possible, as indicated by the minority, yet that does not convert a radio into a musical instrument. Possibly the humble bugs, the birds, and the stars all create for man a sensation which, for a better name, sometimes is called music. But that, of course, does not mean a radio, under the Iowa Exemption Statute, is a musical instrument. The minority may operate their radios until the rounds of Jacob’s ladder, to which they refer, are worn out by the angels, and no musical tones will ever be heard by a human ear unless some musical instrument or human voice produces them. If an inexperienced student attempts to play a cornet or stringed instrument, it is true, as the minority state, discords will be heard. Likewise, if those sounds thus lacking harmony are sent out by a broadcasting station and picked up by a radio, they are still discordant; for the radio merely transmits that sound which has already been -produced. By the application of skill, the human voice or a musical instrument can be made to produce music. Such is not true of the radio, because it is unable to originate the sound or the music, but rather, can simply amplify, and thereby assist the human ear in hearing some musical or other sound already produced by the human voice or a musical instrument.

The following, among other suggestions, has been made by appellee:

“A ‘mule’ might be classified as a ‘horse,’ under the exemption statute. * # * A piano stool is a musical instrument, within the statute; # * A bicycle is the full equivalent of a lumber wagon * * *, likewise an automobile. A lawyer’s table has been classified as an ‘instrument;’ and a portable sawmill as a‘tool.’ ”

The difficulty with the appellee’s suggestions is that they are general and do not disclose the reason for those judicial pronouncements. Once more, it is to be remembered that the solution of the problem on each occasion is determined by the peculiar language of a given statute. So, when thus understood, the decisions suggested are not strange, nor do they lend aid to the position of the appellee in this case. Why can it be held that a mule is a horse ¶ Essentially because Subdivision 18 of Section 11760, supra, of the Code, expressly by legislative enactment includes mules. A piano stool is not a musical instrument, within the statute; but it requires no stretch of the imagination to see that a piano stool is part of a musical instrument, and that the musical instrument would not be complete without the stool. We have not held “that a bicycle is the full equivalent of a lumber wagon,” but rather, that it is a “vehicle,” under the exemption statute. Roberts v. Parker, 117 Iowa 389. Intrinsically, it is such. See Webster’s New International Dictionary, wherein a bicycle is defined as “a light vehicle * * Also, an automo bile is not declared to be the equivalent of a horse and wagon by judicial decision alone, but likewise it has been said by us that it is plainly a vehicle. Upon this subject, the same dictionary states: “Ail automobile vehicle or mechanism.” True, in Abraham v. Davenport, 73 Iowa 111, it was said that a lawyer’s table is an instrument, within, the exemption statute. That legislative enactment recognized the instruments of a lawyer. See Subdivision 17, 'Section 11760, supra. Webster’s New International Dictionary defines instrument to mean:

“That by means of which any work is performed or result is effected; one that is made a means, or is caused to serve a purpose; a medium, means, or agent.”

Necessarily, then, a table in a lawyer’s office would be an instrument. Throughout the list of instances where exemption has been permitted, as shown by the cases cited in appellee’s brief, it is possible- to associate the article claimed by the debtor with the object named in the statute.

■ On the contrary, however, the radio has no likeness or kindred relationship with a musical instrument. A musical instrument, if rightly manipulated, produces the harmonious sounds in and of itself, but the radio does not. Father, the radio is an instrument “of communication or transmission, enabling the auditor to catch sounds already present in the atmosphere, which the human ear is not rightly constructed to register. ’ ’ Instrumental music cannot be heard through the radio unless a musical instrument somewhere has produced it. Hearing is aided by the radio, and if music is on the air, it can be brought to the human ear by the radio. Music, however, is not the only sound that can be thus amplified for the human ear; for through the radio that ear just as well may catch the' sound of screeching voices, head-splitting noises, and rasping discords. A radio receiving set and a musical instrument cannot be classified together, because they are different and distinct devices.

This debtor should pay his obligation, even though he must lose the radio receiving set. Such must be so, because the legislature has not yet seen fit to exempt the radio from execution.

The judgment of the district court, therefore, should be, and hereby is, reversed. — Reversed.

Albert, C. J., and De Grape, Wagner, and Grimm, JJ., concur. Morling, J., specially concurs. Evans, Stevens, and Fayille, JJ., dissent.