Young v. Lemieux

• Decision Date: 11 February 1907
• Citation: 65 A. 600,79 Conn. 434
• Court: Connecticut Supreme Court
• Parties: YOUNG v. LEMIEUX.

65 A. 600

79 Conn. 434

YOUNG

v. LEMIEUX.

Supreme Court of Errors of Connecticut.

Feb. 11, 1907.

Dissenting opinion.

For majority opinion, see 65 Atl. 430.

HAMERSLEY, J. (dissenting). Chapter 72, p. 49, of the Public Acts of 1903, whose validity is challenged in this action, is in form an amendment of chapter 161, p. 1356, of the Public Acts of 1901 (Revision 1902, §§ 4868-4870), but is, in substance and legal effect, a repeal of the act of 1901 and the enactment of a new statute of a radically different character. The former act required a sale of his stock in trade by a retail dealer to be made in writing and recorded within one day after the time of sale, under penalty of an unrecorded sale being void as against existing creditors of the vendor. The regulation as to what sales shall be made in writing and recorded is plainly a legislative power. The act did not affect the property of the vendor, nor restrict his freedom of action in his selling that property, and the penalty Imposed for its disobedience, in view of the actual or constructive fraud against creditors, possible to be more easily accomplished through such sale if not in writing and immediately recorded, was sufficiently appropriate to the legitimate purpose of the regulation to make its wisdom and justness a purely legislative, and not a judicial, question. We therefore held that the act was not unconstitutional. Walp v. Mooar, 76 Conn. 515, 521, 57 Atl. 277. The act of 1903, read in connection with its amendment by chapter 211, p. 408, of the Public Acts of 1905, requires every retail dealer, before making a sale of his stock in trade, to come to an agreement with his vendee as to all the conditions of the sale; to state these conditions in writing, together with a description of the property to be sold and the parties to the sale; and to cause this writing, signed by him, to be recorded at least seven days previous to making such sale, under penalty, in case of disobedience, of the sale being void as against existing creditors.

Do these limitations upon the owner's right to sell his property necessarily involve a substantial impairment of the value of that property? If they do, then the act takes private property without compensation, and it is immaterial under what form of words or pretense the result is accomplished. "The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty—indeed, are under a solemn duty—to look at the substance of things whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority." Mugler v. Kansas, 123 U. S. 623, 661, 8 Sup. Ct. 273, 297, 31 L. Ed. 205. The validity of the act of 1903 turns upon the answer to this question. If the limitations upon sale involve no substantial impairment of the value of the owner's property, then the justification of the incidental annoyance to the owner may be regarded as a legislative rather than a judicial question; but, if the necessary effect of the act is destruction of private property without compensation, then the principles of the law applicable to such a case involve the invalidity of the act. As to these principles there is little, if any, controversy. They are settled by our own decisions in accordance with the weight of authority in other jurisdictions. The protection of the citizen in the equal enjoyment of personal freedom and private property are secured by our Constitution in terms as broad as those which vest the legislative power in the General Assembly. The power to destroy or substantially impair these rights is not included in the grant of legislative power, and a law purporting to be the exercise of legislative power, whether of the power of taxation or of trade regulation, or of protective legislation (often called police power), or of any other legislative power, is void if in effect it is a substantial impairment of those rights secured by the Constitution against the operation of every manifestation of legislative power. State v. Conlon, 65 Conn. 478, 489, 33 Atl. 519, 31 L. R. A. 55, 48 Am. St. Rep. 227; State v. Travelers' Ins. Co., 73 Conn. 255, 265, 47 Atl. 299, 57 L. R. A. 481; McKeon v. New York, N. H. & H. R. Co., 75 Conn. 343, 347, 53 Atl. 656, 61 L. R. A. 730; State v. McMahon, 76 Conn. 97, 102, 55 Atl. 591; State v. Feingold, 77 Conn. 326, 331, 59 Atl. 211.

In State v. Travelers' Ins. Co. we say: "The legislative power in all its manifestations is limited. If any exaction in the form of taxation is a seizure of the property of one for the benefit of another, or is an uncompensated confiscation of property, the law authorizing such exaction violates the Constitution, and is void." In McKeon v. New York, N. H. & H. R. Co. we say that a law authorizing acts which in effect constitute the taking of property without compensation is void, notwithstanding such acts are authorized in the exercise of the police power; that the phrase "police power" does not denote some transcendant form of legislative authority, but that the police powers of a state are simply the powers of government inherent in every sovereignty, and, if exercised by legislation which violates any right guarantied by the state Constitution, they are to that extent invalid; and that "the legislation on which the defendant relies in the case at bar makes no direct provision for compensation for property taken. The Constitution does; and that is enough." In State v. McMahon, 76 Conn. 97, 102, 55 Atl. 591, 593, we say: Legislation is not exempt from...