McKinster v. Sager

• Decision Date: 16 December 1904
• Docket Number: No. 20,377.,20,377.
• Citation: 72 N.E. 854,163 Ind. 671
• Parties: McKINSTER v. SAGER.
• Court: Indiana Supreme Court

163 Ind. 671

72 N.E. 854

McKINSTER

v.SAGER.

No. 20,377.

Supreme Court of Indiana.

Dec. 16, 1904.

Appeal from Circuit Court, Bartholomew County; F. T. Hord, Judge.

Action by William D. Sager against Eldridge L. McKinster. From a judgment for plaintiff, defendant appeals. Reversed.Everroad & Cooper, for appellant. John Rynerson, John W. Morgan, and Smith, Duncan, Hornbrook & Smith, for appellee.

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, c. 153). 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 opened 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 (at last term) 72 N. E. 119, 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 violationof 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 when 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 right 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, 2 Pet. 657, 658, 7 L. Ed. 542. See State ex rel. Jameson v. Denny, 118 Ind. 382, and separate opinion by Elliott, C. J., 400, 21 N. E. 252, 258, 4 L. R. A. 79;State ex rel. v. Fox, 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, Com. *127; Coke, Inst., proem. 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 a historical monument of right, and it is called the “palladium of English liberty.” The twenty-ninth 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 otherwise destroyed; nor will we 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 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 “laws 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 Inst. 50. In the old case of Nightingale v. Bridges, as reported in 1 Shower, 138, 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 signoral. 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 villeins 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, in Bank of Columbia v. Okley, 4 Wheat. 235, 244, 4 L. Ed. 559: “As to the words from Magna Charta, incorporated into the Constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to...