Heller v. Lutz

• Citation: 164 S.W. 123,254 Mo. 704
• Parties: E. B. HELLER and S. LINGSTON, Doing Business as GOODWILL CLOTHING COMPANY, Appellants, v. JOHN LUTZ, Doing Business as JOHN LUTZ & COMPANY
• Decision Date: 10 February 1914
• Court: United States State Supreme Court of Missouri

164 S.W. 123

254 Mo. 704

E. B. HELLER and S. LINGSTON, Doing Business as GOODWILL CLOTHING COMPANY, Appellants, v. JOHN LUTZ, Doing Business as JOHN LUTZ & COMPANY

Supreme Court of Missouri

February 10, 1914

Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.

Affirmed.

Collins Barker & Britton, Carl Otto and William F. Fahey for appellants.

(1) The right to assign wages, earned and unearned out of existing employment, has long been recognized as a right and privilege inherent to citizenship. Such right is a property right within the constitutional meaning of that term. Loan Assn. v. Railroad, 124 Mass. 584; Frorer v People, 141 Ill. 171, 16 L. R. A. 492; Massie v. Cesna, 239 Ill. 352; Rodijkeit v. Andrews, 5 L. R. A. (N. S.) 564; Bell v. Mulholland, 90 Mo.App. 612; State v. Julow, 129 Mo. 173; Allgyre v. Louisiana, 165 U.S. 578; State v. Tie & Timber Company, 181 Mo. 536. (2) The action in question is invalid, being in violation of the Fourteenth Amendment of the Constitution of the United States and section 30 of article two of the Constitution of Missouri. State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163; State v. Tie & Timber Co., 181 Mo. 536; Commonwealth v. Perry, 155 Mass. 517; Godcharles v. Wigeman, 113 Pa. St. 431; State v. Coal & Coke Co., 33 W.Va. 188; Cooley on Constitutional Limitations (6 Ed.), 430-434. (3) The act in question is invalid, being in violation of section 4 of article 2 of the Constitution of Missouri. State v. Tie Co., 181 Mo. 536; State v. Loomis, 115 Mo. 307; State v. Coal & Coke Co., 33 W.Va. 188; Cooley on Constitutional Limitations (6 Ed.), 430-434; Godcharles v. Wigeman, 113 Pa. St. 431; Massie v. Cessna, 239 Ill. 352. (4) The act in question is invalid, being in violation of section 28 of article 4 of the Constitution of Missouri. State v. Clark, 54 Mo. 34; State v. DeBar, 58 Mo. 375; St. Louis v. Wortman, 213 Mo. 139; St. Louis v. Quarry Co., 244 Mo. 479; Miller v. Jones, 80 Ala. 89; Bronson v. Oberlin, 41 Ohio St. 476; McConnel v. Jersey City, 39 N. J. L. 38; In re Hauck, 70 Mich. 396. (5) The citizen can be deprived of his right to assign his wages, salaries and earnings -- the gains of his own industry -- only by the valid exercise of the police power of the State, and the act in question is not a proper exercise of such power. The right to contract by assignment with reference to the gains of one's own industry may be regulated or restricted under the police power, but such right cannot in its entirety be taken from the citizen under the guise of the police power. State v. Tie & Timber Co., 181 Mo. 536; State v. Julow, 129 Mo. 163; Gundling v. Chicago, 177 U.S. 183; Eubank v. Richmond, 226 U.S. 137; State v. Martell, 226 U.S. 225; State v. Miksicek, 225 Mo. 561; State v. Railroad, 242 Mo. 356.

George Eigel for respondent.

(1) The act in question is valid and not in violation of the Fourteenth Amendment of the Constitution of the United States, on section 30 of article two of the Constitution of Missouri. Textbook Co. v. Weissinger, 160 Ind. 34, 65 L. R. A. 599; Railroad v. Ebersole, 87 N.E. 1090; Hancock v. Yaden, 6 L. R. A. 576; Iron Co. v. Harbison, 103 U.S. 14; Holden v. Hardy, 169 U.S. 366; Railroad v. Mottley, 219 U.S. 467. (2) The act in question is valid, and not in violation of section 4 of article two of the Constitution of Missouri. Railroad v. Matthews, 174 U.S. 96; Textbook Co. v. Weissinger, 160 Ind. 34, 65 L. R. A. 599; Railroad v. Ebersole, 87 N.E. 1090; Hancock v. Yaden, 6 L. R. A. 576; Iron Co. v. Harbinson, 103 U.S. 14; Holden v. Hardy, 169 U.S. 366; Shaffer v. Mining Co., 55 Md. 74. (3) The act in question is valid and not in violation of section 28 of article four of the Constitution of Missouri. O'Connor v. Transit Co., 198 Mo. 623; State v. Hamlett, 212 Mo. 80; Cox v. Railroad, 174 Mo. 588; State v. Jockey Club, 200 Mo. 34; Coffey v. Carthage, 200 Mo. 616; Osborne v. Charlevaux, 114 Mich. 655; Williams v. State, 48 Ind. 306.

WALKER, J. Brown and Faris, JJ., concur; Lamm, C. J., and Graves, J., concur in result; Woodson and Bond, JJ., concur in paragraph IV and the result.

OPINION

In Banc.

WALKER J.

Appellants and respondent are separately engaged in the mercantile business in the city of St. Louis, under the firm names set forth in the title. On the 16th day of August, 1911, one Patrick Hannigan was in the employ of the respondent; prior thereto he became indebted to appellants, and to secure the payment of such indebtedness, on the date above mentioned gave appellants an assignment of all money or wages due or to become due to him from respondent within a period of six months from the date of the execution of said assignment. No money or wages were due to him from respondent at said date. Appellants, upon the execution of said assignment, notified respondent of same, who five days thereafter returned the notice, stating, in effect, in his reply, that he would ignore same as in violation of the statute prohibiting the assignment of unearned wages, and that he, theretofore, had paid Hannigan the wages due him.

No further communication was had between the appellants and respondent in regard to this matter. On the 23d day of September, 1911, appellants brought suit against respondent to recover the amount of Hannigan's debt to them. The case was tried upon an agreed statement of facts, the material portions of which we have set forth above. The trial court rendered judgment for the defendant.

Plaintiffs filed a motion for a new trial, in which, among other averments purely formal, they allege that:

"The court erred in finding, as a matter of law, that the Act of the General Assembly of Missouri of 1911 (Laws 1911, p. 143), relating to contracts and promises, and providing that all assignments of wages, salaries and earnings not earned at the time the assignment is made, shall be null and void, is not in violation of the Fourteenth Amendment of the Constitution of the United States, and invalid because thereof.

"The court erred in finding, as a matter of law, that said act is not in violation of section 4 of article 2 of the Constitution of Missouri, and is not invalid for that reason.

"The court erred in finding, as a matter of law, that said act is not in violation of section 30 of article 2 of [164 S.W. 124] the Constitution of Missouri, and is not invalid for that reason.

"The court erred in finding, as a matter of law, that said act is not in violation of section 28, article 4, of the Constitution of Missouri, and is not invalid for that reason."

Upon the overruling of this motion, an appeal was applied for and granted to this court.

Omitting the address and signature, the notice given by the appellants to respondent, is as follows:

"You are hereby notified that Patrick Hannigan did sell and assign, transfer, and set over to the undersigned, all money and wages due or to become due from you to the said Patrick Hannigan in accordance with the terms of a certain written-printed instrument, which will be shown you on application. There is now due us from the said Patrick Hannigan the sum of twenty-two dollars and fifty cents ($ 22.50).

"You will therefore, either pay all of the said wages to the undersigned or retain out of any money or funds now due, or to become due from you to the said Patrick Hannigan, sufficient of said money or funds, to satisfy the amount to be paid under the terms of said written-printed instrument, and you will pay such over to the undersigned.

"St. Louis, Mo., August 16, 1911."

The statute is in the following language:

"All assignments of wages, salaries or earnings must be in writing, with the correct date of the assignment and the amount assigned and the name or names of the party or parties owing the wages, salaries and earnings so assigned; and all assignments of wages, salaries and earnings, not earned at the time the assignment is made, shall be null and void." [Approved April 7, 1911, Laws 1911, p. 143.]

I. Notice of Assignment. We question the sufficiency of the notice of the assignment. The statute is mandatory in its terms and its express purpose is to limit the right of creditors and the power of debtors in the assignment of wages, salaries and earnings. The notice, therefore, should have been drawn in strict conformity with the statute in that it should have stated the date of the assignment and have set forth its purport. This is true regardless of the validity of the latter part of the statute, of which appellants complain, and which is not involved in the question of notice.

The appellants were seeking to bind respondent for the debt of another. Their notice should have informed him of all the facts necessary to have enabled him to determine the extent to which he was sought to be bound, instead of referring him to a "certain written-printed instrument" which appellants with ironic generosity proposed would be "shown him on application."

II. Is the Assignment a Property Right? The construction of the statute in its relation to the constitutional provisions which it is claimed to violate, will suffice under appellants' contention to dispose of this case; but we are inclined to doubt the correctness of the conclusion reached in cases wherein it is held that such assignments are valid as constituting property rights. This we regard as a fallacy. It may be admitted that the term "property" includes everything which is the subject of ownership, corporeal, or incorporeal, tangible or intangible, visible or invisible (32 Cyc. 648, and cases) that no corporeal, tangible or visible property right exists in cases involving the assignment of unearned wages, is beyond question; these classes, therefore, may be dismissed from the discussion, leaving for our...