Block v. Schwartz

• Decision Date: 22 March 1904
• Docket Number: 1521
• Citation: 76 P. 22,27 Utah 387
• Parties: SOL BLOCK & GRIFF, A Copartnership Composed of SOL BLOCK and THEO. W. GRIFF, Respondent, v. SAMUEL L. SCHWARTZ, Respondent; JOHN MANN, Intervener and Appellant
• Court: Utah Supreme Court

76 P. 22

27 Utah 387

SOL BLOCK & GRIFF, A Copartnership Composed of SOL BLOCK and THEO. W. GRIFF, Respondent, v. SAMUEL L. SCHWARTZ, Respondent; JOHN MANN, Intervener and Appellant

No. 1521

Supreme Court of Utah

March 22, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. C. W Morse, Judge.

Action to recover the price of goods sold. The opinion states the facts. From a justice's judgment in favor of intervener reversed on appeal to the District Court, the intervener appealed.

REVERSED.

Messrs Zane & Stringfellow for appellant.

So that chapter 67, Sess. Laws, 1901, is violative of the following recognized inherent right:

(1) Deprives man of his liberty.

(2) Deprives one of the right to acquire and possess property.

(3) Deprives one of the right to dispose of his property.

(4) Takes from one his property without due process of law.

(5) Subjects one to unreasonable searches into his private business, papers and effects.

(6) It is class legislation operating only upon particular individuals of the body politic, namely, those in debt.

In conclusion we submit the following propositions of law and authorities.

1. The constitutional rights of the citizen to life, liberty and property are wholly unlimited and unrestricted, except by considerations of the public good; and no abridgment or deprivation of the rights by the legislature will be upheld or enforced except as a regulation of police power operating to the benefit of all individuals of the community equally. People v. Gillson, 109 N.Y. 389; In re Jacobs, 98 N.Y. 98; Watertown v. Mayo, 109 Mass. 315; State v. Looms, 115 Mo. 307 (22 S.W. 350); State v. Julon, 129 Mo. 163 (31 S.W. 781); Millit v. People, 117 Ill. 294 (7 N.E. 631); State v. Goodwill, 33 W.Va. 179 (10 S.E. 285); Lawton v. State, 152 U.S. 133; Exparte v. Whitwell, 32 P. 870 (Cal.); In Butchers' Union Co. v. Crescent City Co., 111 U.S. 746; In Berthoff v. O'Relly, 74 N.Y. 509, 515.

2. The law will not allow rights of property to be invaded under the pretense of prescribing a police regulation; the State can not be permitted to encroach upon the just right secured by the Constitution against abridgment. In re Jacobs, 98 N.Y. 98, 110; Commonwealth v. Alger, 7 Cush. 53, 84; Austin v. Murry, 16 Pick. 121, 126; Watertown v. Mayo, 109 Mass. 315, 319; Slaughter-house cases, 16 Wall. 35, 87; Coe v. Schultz, 47 Barb. 64; Town of Lake View v. Rose Hill Co., 70 Ill. 191; Stuart v. Palmer, 74 N.Y. 103; Rockwell v. Nearing, 35 N.Y. 302; Matter of Townsend, 29 N.Y. 569; Matter of Eureka Basin Warehouse and Manufacturing Co., 96 N.Y. 42; People v. Equitable Trust Co., 96 N.Y. 387; People v. Gillson, 109 N.Y. 389, 400.

3. Where rights of property are admitted to exist the legislature can not say they shall exist no longer and to so contend would be to say that one's property may be taken without due process of law. State v. Julon, 129 Mo. 163 (31 S.W. 781); Pumpelley v. Green Bay Co., 13 Wall. 166-67; In re Jacobs, 98 N.Y. 98; In Wynehamer v. People, 13 N.Y. 378; State v. Goodwill, 33 W.Va. 179 (10 S.E. 285).

4. All men have a right to the secure enjoyment of property and to be protected in their houses, papers, and possessions against unreasonable searches and the sanctity of private business ought not to be invalid. City of Clinton v. Phillips, 58 Ill. 102 (11 Am. R. 52).

5. "The rights of every individual must stand or fall by the same rule of law that governs every other member of the body politic." State v. Goodwill, 33 W.Va. 179 (10 S.E. 285); Civil Rights Cases, 109 U.S. 23; People v. Gillson, 109 N.Y. 398 (17 N.E. 343); In Butchers' Union C. v. Crescent City, etc., 111 U.S. 755; Wally v. Kennedy, 2 Yerg. 554; Yick W. v. Hoopkins, 118 U.S. 356; In Millith v. People, 117 Ill. 294 (7 N.E. 631).

W. R. Huthinson, Esq., for respondent plaintiff.

BARTCH, J. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.

--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 Schwartz. On the same day, at the instance of the plaintiffs, the goods were attached while in the possession of the intervener, John Mann, to whom Schwartz had previously, on March 29, 1902, sold and delivered the same for the sum of $ 550, which was its fair value, the purchase having been made in good faith. After the writ of attachment was levied upon the goods the purchaser filed his complaint in intervention, claiming to own all the property included in the levy, and praying that the attachment be dissolved, and the goods restored to his possession, and for damages and costs. Neither the seller nor the purchaser made an inventory of the merchandise before sale, as required by the act approved March 14, 1901, p. 67, c. 67, Sess. Laws Utah, nor did they in other respects comply with the requirements of that act. The cause was first tried in the justice's court, where judgment was rendered in favor of the intervener, and then appealed to and tried in the district court, where the sale was held fraudulent and void under the statute referred to, and judgment rendered in favor of the plaintiffs. The appeal to this court presents simply the question of the constitutionality of the law relating to the sale of merchandise in bulk, found in that enactment.

The appellant contends that the act is unconstitutional and void, and that, therefore, he can not be punished for a violation of its provisions. He insists that it is repugnant to and in conflict with both Federal and State Constitutions, in that it abridges and interferes with the inherent and inalienable rights which are guaranteed to every subject by both Constitutions. The respondent contends that the act is not in conflict with the supreme law, but is the result of a proper exercise, by the Legislature, of the police power of the State. In determining the question thus presented it behooves us to be mindful of the fact that the enactment in controversy has, in the judgment of both the legislative and executive branches of the State government, been declared a valid exercise of legislative power. Courts will always approach such a judgment with that consideration and respect which is due to the co-ordinate branches of the government, and if, upon an examination and comparison of the enactment with the constitutional provisions which it is claimed to violate, there is a well-grounded doubt of its validity, such doubt must be resolved in favor of its constitutionality. If, however, notwithstanding the enactment was passed with all due deliberation and formalities, it be found to contravene constitutional provisions, or to constitute an infringement upon the rights of individuals guaranteed by the Constitution, then the courts have the conceded power to declare void the enactment, as being a violation of the supreme law of the land. But, although such power is lodged in the courts, they will not declare void a legislative enactment unless there is a substantial conflict between it and the Constitution; and so high a regard do the courts entertain for the judgment of the makers of the law that in determining the validity of an enactment every presumption will be indulged in favor of its constitutionality. The question of the validity of a legislative act can alone be determined by reference to the constitutional inhibitions and restraints. Whenever, as to any subject within the jurisdiction of the State, the Constitutions of the State and of the United States are silent, the Legislature may speak; and when it does speak its enactment will not be declared void simply because, in the opinion of the court, it is unwise, or opposed to justice and equity. The sole question in such case is whether the act violates the supreme law of the State or of the United States. If it does, it is the plain duty of the courts to declare its invalidity. The question under consideration must be determined in the light of these principles, which have been frequently asserted by the courts.

Section 1 of the act in controversy reads: "A sale of any portion 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, or a sale of an entire stock of merchandise in bulk, is fraudulent and void as against the creditors of the seller unless the seller and purchaser shall at least five days before the sale make a full and detailed inventory, showing the quantity, and so far as possible, with the exercise of reasonable diligence, the cost price to the seller of each article to be included in the sale, and unless such purchaser shall at least five days before the sale, in good faith, make full and explicit inquiry of the seller as to the names and places of residence or places of business of each and all of the creditors of the seller, and the amount owing each creditor, and unless the purchaser shall at least five days before the sale, in good faith, notify, or cause to be notified, personally or by registered mail, each of the seller's creditors of whom the purchaser has knowledge or can with the exercise of reasonable diligence acquire knowledge, of said proposed sale, and of the said cost price of the merchandise to be sold and of the price proposed to be paid therefor by the purchaser." Section 2 makes the violation of the provisions of the first section a misdemeanor, and prescribes a penalty therefor. Under the provisions of this act a sale of any portion or all of a stock of merchandise, made out of the ordinary course of trade, by any merchant who has creditors, without a detailed inventory made at least five days before the sale, showing the cost price of each article, and notice of the proposed sale, the cost...