Thomas v. Sandlin

• Citation: 91 S.E. 1028,173 N.C. 329
• Decision Date: 11 April 1917
• Docket Number: 299.
• Parties: THOMAS v. SANDLIN.
• Court: United States State Supreme Court of North Carolina

91 S.E. 1028

173 N.C. 329

THOMAS v. SANDLIN.

No. 299.

Supreme Court of North Carolina

April 11, 1917

Appeal from Superior Court, New Hanover County; Bond, Judge.

Action by J. H. Thomas against L. E. Sandlin. From a judgment for plaintiff, defendant appeals. Judgment set aside, and action dismissed.

Civil action to recover a piano on which plaintiff held a chattel mortgage, executed by the defendant to secure a debt of $153 due September, 1914. On the hearing, the relevant facts agreed upon by the parties were as follows:

"(1) L. E. Sandlin, defendant, is a married man residing with his wife and daughters. (2) He purchased a piano, and had the same placed in his house to be used by his wife and daughters, and it was used by them. (3) That L. E. Sandlin mortgaged the piano subsequent to the passage of section 1041 of the Revisal of 1905." "(5) That the mortgage was not signed by the wife of the defendant, nor was her privy examination taken as required under section 1041 of the Revisal of 1905. (6) That the defendant was indebted to the plaintiff in the sum of $153, which was secured by said mortgage, less a credit of $21.08, leaving a balance due of $131.92, with interest from June 5 1914."

Upon these facts, the court, reversing the action of the recorder entered judgment for plaintiff, the pertinent portions of said judgment, after reciting that the piano was purchased by defendant subsequent to passage of section 1041, being as follows:

"Upon the foregoing facts, the court being of the opinion that a piano is an article of household and kitchen furniture under section 1041 of the Revisal of 1905, but that said section is an unwarranted interference with defendant's jus disponendi, and that said section is unconstitutional and is void; that the said mortgage is a valid and subsisting lien upon said piano, and it is therefore, upon motion of counsel for plaintiff, ordered, adjudged, and decreed that the said mortgage is a valid and subsisting lien on said piano; that the plaintiff recover of the defendant the said piano, which is hereby condemned for sale," etc.

J. C. King, of Wilmington, for appellant.

L. J. Poisson and J. O. Carr, all of Wilmington, for appellee.

HOKE, J. (after stating the facts as above).

The statute enacted in 1891 and appearing in Revisal 1905, § 1041, provides that a chattel mortgage by the husband on the household and kitchen furniture shall be void unless the wife join therein and her privy examination be taken in the manner prescribed by law as on conveyances of real estate. In the present instance, the wife did not join in the conveyance as required, and unless the statute is unconstitutional or the piano does not come within its descriptive terms, a recovery by plaintiff cannot be sustained. While the jus disponendi is fully recognized with us as a substantial incident of ownership coming under the constitutional guaranties for the protection of private property, it is also established in this jurisdiction that neither this nor any other proprietary right is absolute in its nature, but the same is enjoyed and held subject to legislative regulation in the reasonable exercise of the police power.

It has been properly said that no adequate or satisfactory definition of police power can be given; for, as our civilization and social conditions become more advanced and complex, the extent and inclusive character of this power is being more and more illustrated, and in the later decisions has been held to embrace, not only governmental regulations appertaining to the good order, health, and morals of a community, but also such as are considered promotive of its economic welfare and public convenience and comfort. In reference to the ownership of property, the exercise of this power may be extended to measures affecting its acquisition, use, transfer and devolution, the latter certainly so far as the disposition of property by will is concerned, being, under our decisions, in the absolute control of the Legislature, and, as to all other features of ownership, the legislative will must prevail unless clearly in contravention of some express constitutional provision; the recognized position being that the statute will, in all cases, be upheld unless it has no substantial relation to the purpose sought to be attained and is an arbitrary and manifest invasion of personal and private rights. Speaking to the subject in 6 Ruling Case Law, 193, the author says:

"All property within the jurisdiction of a state, however unqualified may be the title of the owner, is held on the implied condition or obligation that it shall not be injurious to the equal right of others to the use and benefit of their own property. In order words, all property is held subject to the general police power of the state so to regulate and control its use in a proper case as to secure the general safety, the public welfare, and the peace, good order, and morals of the community. Accordingly it is a fundamental principle of the constitutional system of the United States that rights of property, like all other social and conventional rights, are subject to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in it by the Constitution, may think necessary and expedient. And to these ends, the Legislature under its police power may pass laws regulating the acquisition, enjoyment, and disposition of property, even though in some respects these may operate as a restraint on individual freedom or the use of property. The subordination of property rights to the just exercise of the police power has been said to be as complete as is the subjection of these rights to the proper exercise of the taxing power; and it is held that this implied condition is quite irrespective of the source or character of the title. This principle is, in effect, an application of the maxim which underlies the police power, 'Sic utere tuo ut alienum non lædas.' "

And authoritative cases on the subject are in full support of this statement of the principle. Chicago & Alton R. R. v. Tranbarger, 238 U.S. 67, 35 S.Ct. 678, 59 L.Ed. 1204; Reinman v. City of Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900; Atlantic Coast Line v. Goldsboro, 232 U.S. 548-558, 34 S.Ct. 364, 58 L.Ed. 721; Mutual Loan Co. v. Martell, 222 U.S. 225-236, 32 S.Ct. 74, 56 L.Ed. 175, Ann. Cas. 1913B, 529, affirming same case in 200 Mass. 482, 86 N.E. 916, 128 Am. St. Rep. 446; McLean v. Arkansas, 211 U.S. 539-547, 29 S.Ct. 206, 53 L.Ed. 315; Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780; Bushnell v. Loomis, 234 Mo. 371, 137 S.W. 257, 36 L. R. A. (N. S.) 1029; Harbison v. Knoxville Iron Co., 103 Tenn. 421, 53 S.W. 955, 56 L. R. A. 316, 76 Am. St. Rep. 682, affirmed in 183 U.S. 13, 22 S.Ct. 1, 46 L.Ed. 55. In Atlantic Coast Line v. Goldsboro, supra, Associate Justice Pitney, delivering the opinion, said, among other things (232 U.S. 558, 34 S.Ct. 368, 58 L.Ed. 721):

"For it is settled that neither the 'contract' clause nor the 'due process' clause has the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant, and that all contract and property rights are held subject to its fair exercise" (citing Slaughterhouse, 16 Wall. 36, 21 L.Ed. 394, and other cases).

And, in McLean v. Arkansas, Associate Justice Day for the court, said:

"The Legislature, being familiar with local conditions, is primarily the judge of the necessity of such enactments. The mere fact that a court may differ with the Legislature in its views of public policy, or that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act * * * is unmistakably and palpably in excess of legislative power."

Our own decisions are in accord with these cases, chiefly interpretative of the federal Constitution. Board of Health v. Town of Louisburg, 91 S.E. 1019, present term; Skinner v. Thomas, 171 N.C. 99, 87 S.E. 976, L. R. A. 1916E, 338; Glenn v. Express Co., 170 N.C. 286, 87 S.E. 136; State v. Railroad, 169 N.C. 295, 84 S.E. 283.

All the more so that, in this state, under our Constitution, the General Assembly, so far as that instrument is concerned, is possessed of full legislative powers unless restrained by express constitutional provision or necessary implication therefrom. State v. Lewis, 142 N.C. 626, 55 S.E. 600, 7 L. R. A. (N. S.) 669, 9 Ann. Cas. 604; Black on Constitutional Law (3d Ed.) 357. In Lewis Case, supra, it was held:

"The Legislature of North Carolina has full legislative power, which the people of this state can exercise as fully as the Parliament of England or any other legislative body of a free people, save only as there are restrictions imposed by the Legislature by the state and federal Constitutions."

Among the authorities heretofore cited, the case coming nearer probably to the one before us is Mutual Loan v. Martell supra, in which an act of the Legislature of Massachusetts provided that no order for assignment of wages to be earned in amount less than $200, should be valid unless accepted in writing by the employer, and, in case of a married man, no such order should be valid unless the written consent of his wife was attached thereto. The statute was upheld by the Supreme Court of Massachusetts and the decision was sustained by the Supreme Court of the United States (Mutual Loan Co. v. Martell, 222 U.S. 225, 32 S.Ct. 74, 56 L.Ed. 175, Ann. Cas. 1913B, 529), both...