Appel Mercantile Company v. Barker

• Decision Date: 18 December 1912
• Docket Number: 16,865
• Citation: 138 N.W. 1133,92 Neb. 669
• Parties: APPEL MERCANTILE COMPANY, APPELLEE, v. PEARL BARKER, APPELLEE; GRAND DRY GOODS COMPANY, APPELLANT
• Court: Nebraska Supreme Court

138 N.W. 1133

92 Neb. 669

APPEL MERCANTILE COMPANY, APPELLEE, v. PEARL BARKER, APPELLEE;

GRAND DRY GOODS COMPANY, APPELLANT

No. 16,865

Supreme Court of Nebraska

December 18, 1912

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed.

AFFIRMED.

Stewart Williams & Brown, for appellant.

R. H Hagelin, Baldrige, De Bord & Fradenburg and McGilton, Gaines & Smith, contra.

OPINION

SEDGWICK, J.

The plaintiff, having a judgment against the defendant, Pearl Barker, in the district court for Lancaster county, and an execution thereon having been returned wholly unsatisfied, caused the appellant, the Grand Dry Goods Company, to be summoned as garnishee. Mr. Dearsdorf, the president and general manager of the company, appeared and answered in the garnishment proceedings. Upon his answer the court ordered the garnishee to pay into court, to be applied upon plaintiff's judgment, the sum of $ 831.89. From this order the garnishee has appealed.

It appeared from the answer of Mr. Dearsdorf that a few days before the garnishment proceeding the defendant, Pearl Barker, was carrying on a retail millinery business in Lincoln, and made a contract of exchange of her stock of millinery goods to this appellant for a quarter section of land in Lincoln county. The value of the stock of goods was stated in the exchange as $ 2,200, and was in fact something over $ 1,000. The appellant took possession of the goods and disposed of them. The land exchanged was not conveyed by the appellant, but the title was held until such time as the defendant, Pearl Barker, should pay her commercial indebtedness. The provisions of the statute, commonly known as the "Bulk Sales Law" (Comp. St. 1911, ch. 32, secs. 31, 32), were not complied with in making the exchange, and the court held that the transfer of the stock of goods was void as against creditors, and ordered the garnishee to pay the value thereof into court to be applied on the judgment. The garnishee insists that this order is erroneous, because the bulk sales law is unconstitutional for several reasons, and because the garnishee was entitled to trial by jury, and the summary order of the court was erroneous. The statute in question was before this court in Lee v. Gillen & Boney, 90 Neb. 730, 134 N.W. 278, and it was assumed to be constitutional and valid. The question of its constitutionality, however, was not determined or considered, and, the property transferred not being merchandise, within the meaning of the statute, it was held that the statute had no application to the transaction then being considered. It was therefore unnecessary to consider the constitutionality of the act.

1. The first objection made in this case to the constitutionality of the statute is that the statute is broader than the title; that is, that the subject of legislation is not clearly expressed in the title, as required by section 11, art. III of the constitution. The title of the act is "An act to declare void sales, trades or other disposition of stocks of merchandise or portions thereof in bulk, otherwise than in the ordinary and regular course of the seller's business." Laws 1907, ch. 62. The act consists of two sections, and is as follows:

"Section 31. The sale, trade or other disposition in bulk of any part or the whole of a stock of merchandise, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the seller's business, shall be void as against the creditors of the seller, unless the seller and purchaser, at least five days before the sale, trade or other disposition, make a full detailed inventory, showing the quantity and, so far as possible with exercise of reasonable diligence, the cost price to the seller of each article to be included in the sale, trade or other disposition; and unless the purchaser demands and receives from the seller a written list of names and addresses of creditors of the seller, with the amount of indebtedness due or owing to each and certified by the seller, under oath, to be, to the best of his knowledge and belief, a full, accurate and complete list of his creditors and of his indebtedness; and unless the purchaser shall, at least five days before taking possession of such merchandise, or paying therefor, notify personally, or by registered mail, every creditor whose name and address are stated in said list, of the proposed sale, trade or other disposition and of the price, terms and conditions thereof; provided, that at least five (5) days before the sale, trade or other disposition, the seller may file with the county clerk in the county in which the stock is located, an agreement with all his creditors waiving the inventory and notice above required.

"Section 32. Nothing contained in this act shall apply to sales by executors, administrators, receivers or by any public officer under judicial process."

The purpose of the constitutional provision in question is to prevent surreptitious legislation. The title of an act of the legislature must be such as to give reasonable notice to the members of the legislature, and others interested, of the general subject upon which it is proposed to legislate. Some of the earlier decisions of this court which are cited in the brief construed this constitutional provision very strictly. We do not consider it necessary to go further in that direction than this court has already gone. The presumption in favor of the validity of an act of the legislature is very strong, and, unless the conclusion is unavoidable that the subject of legislati...