OPINION
Gillett, J.
Appellee
was the plaintiff below. His complaint was based on the
provisions of an act of the General Assembly approved March
9, 1903 (Acts 1903, p. 276). The record raises the question
as to the constitutionality of that act. All of the essential
provisions thereof are found in the first section, which
omitting the enacting clause, is as follows: "That it
shall be unlawful for any merchant engaged in the buying and
selling of merchandise, while he is indebted to any person
who has in good faith given him credit for merchandise sold
to him and to be used by him in the conduct of his business,
or to any person for money loaned to him to be used in the
conduct of such business, and which has been actually used in
said business, to sell his entire stock of merchandise in
bulk, or to sell the major portion thereof in value in one or
more parcels or to one or more persons for the purpose and
with the intention of ceasing to conduct said business in the
same manner and at the same place as he has theretofore
conducted the same, without first making a full and complete
inventory of the merchandise so proposed to be sold, in which
inventory the values shall be extended at the ruling
wholesale market price thereof; and making a full, true and
correct schedule of all persons to whom he is indebted for
merchandise so sold to him and of all persons to whom he is
indebted for money loaned to him to be used in the conduct of
such business, and which has been used therein, stating
therein the postoffice address of each of said creditors and
the amount owing to each of them; to which inventory and
schedule there shall be attached the oath of
the seller that the same is true and correct; or if the
seller shall assert that he is not indebted to any person of
the classes above designated, he shall make an affidavit to
that effect and deliver the same to the purchaser with the
inventory as hereinafter provided. The seller shall deliver
said inventory and schedule to the proposed purchaser and
shall retain exact copies thereof in his own possession; the
seller and the purchaser shall each preserve such inventory
schedule and affidavit for the period of six months after
such sale and purchase and the same shall be open to the
inspection of the creditors of the seller. Five days before
such sale shall be consummated and before the purchaser shall
take possession of the merchandise so proposed to be sold the
seller and proposed purchaser shall join in giving written or
printed notice of the proposed sale and purchase of such
merchandise to each of the creditors named in such schedule;
such notice may be delivered in person to such creditors or
transmitted to them by registered letter through the United
States mail by being deposited in the United States
postoffice at the place where the seller has heretofore
conducted business, or nearest thereto, properly addressed to
the respective creditors at the postoffice address given in
such schedule, with proper postage affixed; such notice shall
state the aggregate value of the merchandise proposed to be
sold as shown by such inventory, the consideration to be paid
therefor, and the time and manner of making such payment. If
said seller shall fail to make such inventory of such
merchandise; or if such inventory shall fail to state the
true value of said goods as above required; or if said seller
shall fail to make such true schedule of creditors as
hereinbefore provided, and the purchaser shall have knowledge
of the fact; or in event the seller shall assert that there
are no debts of the character above specified; if the
purchaser shall fail to require the affidavit above provided;
or if the seller and purchaser shall fail to
give each of said creditors named in said schedule the notice
above required in the manner above provided; or if such
notice shall not correctly state the amount of such
merchandise proposed to be sold and the consideration to be
paid therefor, and the time and manner of making the same;
then and in either of such events such sale shall be deemed
fraudulent and void as against the creditors of such seller
on account of merchandise sold to him and money loaned to him
to be used in the conduct of said business, and actually used
in said business, and the merchandise in the hands of the
purchaser, or any part thereof, if it shall be found in his
hands, shall be liable to such creditors, and in event the
same or any part thereof shall be withdrawn by said
purchaser, then the purchaser himself, personally, shall also
be liable to said creditors of such seller to the extent of
the value of the merchandise so received by him and thus
withdrawn."
In the
case of Sellers v. Hayes (1904),
ante, 422, we had occasion to consider the
underlying question in this case, but the importance of the
principle involved is, as we believe, a sufficient reason for
a further opinion upon the subject.
We have
little doubt that the act is in violation
of our state Constitution, but, as we are persuaded that it
contravenes the fourteenth amendment to the federal
Constitution, we prefer to consider the case from that
view-point.
After
the opening language relative to national citizenship and its
rights, the amendment contains the following language:
"Nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of
the laws." It is settled that the adoption of said
provisions did not carry into the framework of our government
any new principle. The amendment is merely a check, and, as
its terminology and meaning come from and are revealed by the
past, we may appropriately (and for an
especial reason in this case) refer to history in considering
the question whether the act before us is in contravention of
the amendment.
As was
well said by Mr. Justice Story: "That government can
scarcely be deemed to be free, where the rights of property
are left solely dependent upon the will of a legislative
body, without any restraint. The fundamental maxims of a free
government seem to require that the rights of personal
liberty and private property should be held sacred. At least,
no court of justice in this country would be warranted in
assuming that the power to violate and disregard them--a
power so repugnant to the common principles of justice and
civil liberty--lurked under any general grant of legislative
authority, or ought to be implied from any general
expressions of the will of the people."
Wilkinson v. Leland (1829), 27 U.S. 627, 2
Pet. 627, 658, 7 L.Ed. 542. See State, ex rel., v.
Jameson (1889), 118 Ind. 382, 21 N.E. 252, and
separate opinion by Elliott, C. J., page 400; State,
ex rel., v. Fox (1902), 158 Ind. 126, 63
N.E. 19.
There
is an absence of high-sounding phrases concerning freedom in
Magna Charta, probably for the reason that it was
largely declaratory of the fundamental law of England. 1
Blackstone's Comm., *127; Coke's Inst. (Second part),
Proeme. The significance of the instrument depends
largely upon the fact that its stipulations were wrung from
the hands of an unwilling king, by men with arms in their
hands. Hence it is regarded as an historical monument of
right, and it is called the palladium of English liberty. The
twenty-eighth chapter of Magna Charta, which Blackstone says
"alone would have merited the title it bears of Great
Charter," provides: "No freeman shall be taken, or
imprisoned, or be disseised of his freehold, or liberties, or
free customs, or be outlawed, or exiled, or any otherwise
destroyed; nor we will not pass upon him nor condemn him, but
by lawful judgment of his peers, or by the law of the land.
We will sell to no man, we will not deny or defer to any man, either justice or right." (As it now
appears in the Statutes at Large.) Concerning the expression
"the law of the land," Lord Coke has pointed out
that it was not said in the Great Charter "law and
customs of the king of England, lest it might be thought to
bind the king only, nor of the people of England, lest it
might be thought to bind them only, but that the law might
extend to all, it is said by the law of the land, i.
e., England." 2 Coke's Inst. (Second part),
*51.
In the
old case of Nightingale v. Bridges (1689),
1 Shower *135, it appears that counsel for the plaintiff, in
arguing the cause, said that it was a "fundamental rule,
that in life, liberty, and estate, every man who hath not
forfeited them, hath such a right that the law allows him to
defend, and means for so doing, that if it be violated, it
gives an action to redress the wrong and punish the
wrongdoer. The law is the highest inheritance which the king
hath, for by it the king and all of his subjects are ruled,
and if the law were not, there would be neither king nor
inheritance. The kings of England have always claimed a
monarchy royal, not a monarchy seignoral; 'under the
first the subjects are freemen, and have a propriety in their
goods, and freehold in their lands, but under the latter they
are villains and slaves;' and, my lord, this propriety
was not introduced into our land, as the result of
princes' edicts, concessions and charters, but was the
old fundamental law, springing from the original frame and
constitution of the realm."
As far
back as the year 1819, Mr. Justice Johnson said,...