Chapter 72 of the Public Acts of 1903, whose validity is challenged in this action, is in form an amendment of chapter 161 of the Public Acts of 1901 (Rev. 1902, §§ 4868, 4869, 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 A. 277.
The Act of 1903, read in connection with its amendment by chapter 211 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. Rep. 273. 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 A. 519; State v. Travelers Ins. Co., 73 Conn. 255,265, 47 A. 299; McKeon v. New York, N. H. H.R.Co., 75 Conn. 343, 347, 53 A. 656; State v. McMahon,76 Conn. 97, 102, 55 A. 591; State v. Feingold, 77 Conn. 326,331, 59 A. 211.
In State v. Travelers Ins. Co., 73 Conn. 255, 265,47 A. 299, 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., 75 Conn. 343,347, 53 A. 656, 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 transcendent 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 guaranteed 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 A. 591, we say: Legislation is not exempt from constitutional guaranties because it relates to subjects commonly classed under the phrase "police power." The whole legislative power is committed to the General Assembly subject to the constitutional
restrictions, and no manifestation of that power is exempt from these limitations. A law which takes private property without compensation is equally void, whether classed as an exercise of educational power in building a schoolhouse, or of police power in the destruction of property dangerous to health. "Clothing infected with disease may be destroyed without compensation to its owner, not because the law authorizing it is a police regulation and so exempt from constitutional limitation, but because no right of property is invaded by such destruction." No law can authorize the taking of property without compensation, either for private or public use, because such legislation is outside the field of legislation included in the grant of legislative power of any nature. But the rights of property thus protected do not include a right to the possession or use of anything which is either in itself, or a particular use, inherently dangerous to others. The power to protect its citizens from such dangers is included in the grant of legislative power, and when anything which may be the subject of private ownership thus becomes dangerous, menacing the health, peace, or morals of the public, the legislature may authorize unlimited restrictions in its use, or even the destruction of the thing itself without compensation, and the law may be within the constitutional limits of this power of protective legislation, because the thing destroyed, when thus dangerous to the public, ceases to that extent to be the subject of ownership, and its destruction is not the taking of property but the destruction of a thing which no man has a right to own. The loose phrase "police power" is sometimes limited to this particular exercise of the power of protective legislation in respect to things which, by reason of their danger to the public, have to that extent ceased to be the lawful subject of private ownership; but more frequently its use covers as well the power of trade regulations and all regulations appropriate to promote public quiet, comfort and prosperity. Referring to such regulations we say, in State v.Reynolds, 77 Conn. 131, 134, 58 A. 755: "Every citizen
holds his rights subject to the exercise, within constitutional limits, of this power." Among the constitutional limits are those provisions which except from the grant of all legislative power the power to take property without compensation. The legislature has full power in promotion of general public interests to enact laws regulating the use of property which do not substantially affect the protected rights of property and person; it has the power to regulate the use of, and even to destroy, anything which may be the subject of ownership and which has become a menacing danger to the public; each kind of regulation is an exercise of that legislative power often called police power, but the principles by which the two kinds of regulation must be governed are very different.
In the former case the controlling question relates to the wisdom and justice of the regulation, and this is a legislative question; in the latter, the question is, has the protected right of property been lost by reason of the inherent danger to the public of the thing owned, and this is a judicial question. The distinction is vital. The efficacy of any limitation of legislative power in respect to property rights protected by the Constitution, depends upon the conception and maintenance of this distinction. Such limitation must inevitably become a mockery if the courts hesitate to determine in each case as a purely judicial question whether or not the protected right of property exists. In determining this judicial question the courts ordinarily follow the legislative finding as to the dangerous nature of the property, but not when they are satisfied that there exists no reason for such a finding. For instance, when the legislature finds that the liquor distilled from wheat is a menacing danger to public peace and morals which deprives the owner of any absolute right to sell such property and thereupon prohibits its sale, the courts accept the finding even if there may be room for some difference of opinion. But should the legislature find that wheat from which the dangerous liquor may be distilled is a menacing danger to public order and thereupon
upon prohibit its sale, it will hardly be contended that the strongest desire to maintain the validity of a legislative Act could justify the court in accepting the finding and declaring the legislation valid. No more can it be seriously contended that the stock in trade of all retail dealers, whether used for sale in small quantities or in bulk, is in its nature such a menacing danger to the public that the owner has no right of property in such a dangerous use, so that a law destroying the stock in trade or substantially impairing its value does not appropriate property without compensation.
If, therefore, the restrictions of the Act of 1903 do substantially impair the value of the property affected, there is no serious question as to its invalidity. Acts imposing somewhat similar restrictions and apparently intended to accomplish a similar purpose were in the same year (1903), through a strange coincidence, enacted by the legislatures of a large number of States. The courts of New York, Ohio and Utah have held such legislation invalid. Wright
v. Hart, 182 N.Y. 330, 75 N.E. 404; Miller v. Crawford,70 Ohio St. 207, 71 N.E. 631; Block v. Schwartz,27 Utah, 387, 76 P. 22. The courts of Massachusetts, Tennessee and Washington have supported their validity. Squire Co. v. Tellier, 185 Mass. 18, 69 N.E. 312; Neas v. Borches,109 Tenn. 398, 71 S.W. 50; McDaniels v. Connelly ShoeCo., 30 Wash. 549, 71 P. 37.
In this class of cases the primary question is, Does the law in its necessary practical effect appropriate property not dangerous to the public either inherently or in its particular use? This question determined, the application of the settled principles defining the limitation of legislative power is comparatively simple. As was said in State v.Feingold, 77 Conn. 326, 333, 59 A. 211: "In drawing the line which separates the field of arbitrary interference with protected rights of property and freedom in personal action, from that of protective legislation in behalf of public safety, each case must fall on one or the other side in accordance with its particular circumstances." The Act of
1903 prohibits all retail dealers from selling their property which is palpably not dangerous to public safety either inherently or in its particular use, without complying with certain antecedent requirements. Applying the rule of common sense to the commonly known conditions of trade, it seems to me that the necessary practical effect of these requirements is a substantial impairment of the value of the property affected, and for this reason (without reference to the question whether the Act also violates that equality under the law in the enjoyment of civil rights which is guaranteed by our Constitution) I am unable to concur in the decision of the court.