76 P. 22 | Utah | 1904
This action was originally brought in a. justice’s court on April 2, 1902, to recover $277.47 for merchandise sold and delivered to the defendant
The act appears to be unreasonably restrictive, and is liable to subject individuals to punishment for acts wholly innocent. It seems calculated to inflict upon the seller the loss of an advantageous sale, and cause the purchaser to refrain from making what might to him be an advantageous purchase, because of the risk of delay. It is favorable to one class of merchants and unfavorable to another, and thus places competitors in the same line of business upon different planes. In its operation, as to one class of merchants, it brands as criminals persons perfectly solvent, and abundantly able to discharge their debts and obligations, for making bargains according to customs and usages which have prevailed in the commercial world from time immemorial, while as to the other class the same bargains would be lawful. It holds out advantages to one and denies them to another, both pursuing the same business for a livelihood. As to the debtor class, it prevents a free exchange of lawful commodities, and thus
Neither the Legislature nor the executive can, under the guise óf police regulation or otherwise, arbitrarily or unjustly, without good cause, restrict or infringe upon the property rights or the liberty of any subject within the protection'of the supreme law; and whenever the Legislature undertakes to determine what is a proper exercise of police power, its determination is a subject for judicial scrutiny. The power may be exercised to promote the safety, health, comfort, and welfare of society, and to sustain legislation as a proper exercise of the police power it must have reference to some such end. By virtue of that power the use of property is regulated by enforcing the maxim, “Sic litere tuo ut alienum non laedas.” The enactment in controversy does not appear to have reference to either of the objects here indicated. It can hardly be said that a law which prevents a person, though indebted, who is abundantly able to pay his debts, from selling his property in the same way his neighbors do, and in accordance with a time-honored custom or usage, either promotes the safety, health,, comfort, or welfare of the community or the State. If the act referred generally to insolvent debtors it would present a different question; but it relates simply to debtors and purchasers of debtors of a particular and specified business, whether solvent or insolvent; so that the merchant who is worth a fortune over and above his indebtedness, and who is able to respond instantly to his creditors, who- may be only such because of con
There is another feature which must be deemed quite material in determining the validity or invalidity
Speaking of the regulation of the conduct of corporations whose charters are inviolable, by the Legislature, under the police power, Judge Cooley says: * ‘ The limits to the exercise of the police power in these
The respondents cite and rely upon several cases from the States of Massachusetts, Maryland, Tennessee, and Washington, where enactments upon the same subject were enforced. While enactments of similar character have been upheld in those States, an examination shows that they all differ materially in important features from the one here under consideration. The law in Massachusetts exempts all sales from its provisions made by officers acting in a fiduciary capacity or under judicial process; and, while it declares a sale made in violation of its provisions fraudulent and void as against creditors, it does not subject the seller and buyer acting in disobedience of the law to criminal prosecution. St. (Mass.) 1903, p. 389, c. 415. Notwithstanding this, however, it seems apparent from the’ opinion in Squire & Co. v. Tellier et al., (Mass.) 69 N. E. 312, that the Supreme Court of that State regarded their statute as going to the very limit of constitutional authority, when they said: “Although the requirements of the act are very strict, we can not say that the determination of the Legislature, as between the interests of owners of stocks of merchandise and their creditors, was so far wrong as to render the statute unconstitutional. ” We apprehend, from a perusal of that •opinion, that if there, as here, the determination of the Legislature had gone to the length of applying the provisions of the act to persons acting in a fiduciary or official capacity and under judicial process, and provided
Under the act of the State of Maryland, a sale made in disobedience of the statutory provisions is not absolutely fraudulent and void, as under our enactment, but is simply “presumed to he fraudulent and void as against the creditors of the seller. ’ ’ Laws Md. 1900, p. 907, c. 579. In the ease cited from that State the question of the constitutionality of the act was neither presented nor decided. Hart v. Roney, 93 Md. 432, 49 Atl. 661.
So, under the act of Tennessee, a sale made in disobedience of the provisions thereof is only ‘ ‘ presumed to be fraudulent and void as against creditors of the seller. ’ ’ Acts Tenn. 1901, p. 234, c. 133. The Supreme Court of Tennessee held the act valid, Mr. Justice Wilkes dissenting. Neas v. Borches, (Tenn.) 71 S. W. 50.
It will he noticed that in none of the acts thus far referred to, except in our own, is disobedience of the provisions thereof .by the seller and buyer made a criminal offense. The Supreme Court of Missouri, in State v. Julow, 129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. Rep. 443, determining the validity of an act somewhat similar in character to the one here under consideration, said: “If an owner,” etc., “obeys the law on which this prosecution rests, he is thereby deprived of a right and a liberty to contract or terminate a contract as all others may. If he disobeys it, then he is punished for the performance of an act wholly innocent, unless, indeed, the doing of such act guaranteed by the organic law, the- exercise of a right of which the Legislature is forbidden to deprive him, can, by that body, be conclusively pronounced criminal. We deny the power of the Legislature to do this — to brand as an offense that which the Constitution designates and declares to be a right, and therefore an innocent act; and consequently we hold that the statute which professes to
The provisions of the act of the State of "Washington (Sess. Laws 1901, p. 222, c. 109) are so materially different from those of our enactment that the case of McDaniels v. Connelly Shoe Co., 30 Wash. 549, 71 Pac. 37, 60 L. R. A. 947, 94 Am. St. Rep. 889, cited by respondents, as sustaining the statute of that State, can not be regarded as authority herein. Nor, for the reasons given, can any one of the cases, from the several States referred to, be relied upon as controlling authority in this ease.
While it is within the province of the Legislature to prevent fraudulent sales as a protection tó creditors, still, when it attempts to do this — to remove one evil— it must not so restrict individual rights and disturb industrial pursuits and usages as to cause a score of wrongs.
We are of the opinion that the enactment in controversy abridges some of the inalienable rights of persons guaranteed by the Constitution; that it is not a proper exercise of the police power of the State; that it deprives property of one of its chief attributes, and some persons of the liberty to dispose of property as others may; that it punishes criminally one person for the doing of an act which another person in the. same line of business may lawfully do; that it deprives the persons to whom it applies of a right of property without due process of law; and that, therefore, it is null and void.
The judgment must be reversed, with costs, and remanded, with directions to the court below to proceed in accordance herewith. It is so ordered.