DISSENTING OPINION.
Mr. Justice Wilkesdelivered the following dissenting opinion.
I do not concur in the opinion of the majority, but *403think, on the contrary, that the act is clearly yicions class legislation, and that it takes away the value of the merchant’s property by trammeling its salé and disposition, and its provisions are not justified or warranted by the exercise of the police power of the State.
It has been said that it is difficult to define what objects fall within the exercise of the police power, and that this is a broad and comprehensive term, and embraces any measure affecting the public health, public morals, public safety, public welfare and other matters. But whenever it is called into exercise it is in aid or regulation of some matter of a public dr quasi public character, or that affects and touches the public as- a body politic, Mayor, etc., of Knoxville v. Knoxville Water Co., 107 Tenn., 647 (64 S. W., 1075).
But I am of opinion that the police power can not be so extended as to prevent the disposition of property in any manner the owner' may see proper, so that such disposition does not endanger the public safety, peace, health or happiness. It is to be observed that this act embraces all sales of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller’s business, no matter whether the seller be solvent or insolvent, and no matter whether done in actual good faith or for a fraudulent purpose, and, unless notice is given to all the creditors of the seller, the sale will *404be presumed to be fraudulent, and held to be void. The practical effect is to compel every merchant, whether - solvent or insolvent, to obtain the consent of all his creditors before he can close out his business for any purpose, or at any price. This, it is evident, must cause in some cases great oppression,, and in every case will hamper and hinder the merchant in the disposition of his property.
The constitution, art. 1, sec. 8, provides that “no-man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, outlawed, or exiled, or in any manner destroyed or deprived .of his life, liberty or property, but by the judgment of his peers or the law of the land.” The effect of this act is not to take away the merchant’s property, it is true, but it is to restrict and burden it in such manner as to prevent its free transfer and the realization of its full value. It takes away one element of its value, to wit, the right to use and legitimately dispose of it. As is said in Third Nat. Bank v. Divine Grocery Co., 97 Tenn., 611 (87 S. W., 390) : “To take from property its chief element of value, and to deny to the citizen the right to use and transfer it in any proper and legitimate manner, is as much depriving him of his property as if the property itself were taken.”
The object and purpose of the act is, no doubt, to prevent fraudulent sales of an insolvent merchant’s property, or such sales, when designed to give preference to one or more creditors; but the act is not con*405fined to such - cases, either in its caption or body. While the equal or equitable distribution of a failing debtor’s property, and especially that of a failing merchant, may be a laudable purpose, and one which the general assembly has by more than one act endeavored to secure, still it can not be done at the expense of a violation of the fundamental law of the land. No good reason can be given why merchants should be trammeled and restricted in the sale of their goods, when farmers, traders, manufacturers and other dealers have the unrestricted right to sell when they please, provided it is done in good faith. Nor is there any good reason why such a sale should, in the case of a merchant, be presumed, to be fraudulent, when in the case of other dealers the presumption is in favor of good faith, and proof is required to show fraud. Nor is there any good reason to restrict the merchant who is solvent from making sale of his goods, as he may deem advisable, in order to prevent the insolvent merchant from exercising the same option and privilege. The sale of merchandise is no more affected by a public use than is the sale of farm products, or manufactured articles, or live stock, or the dealing in any commodity.
The power to regulate contracts made by merchants is not similar to that exercised to prevent nuisances, or the sale of liquors, or sales made in the nighttime under circumstances that indicate crime or evasion of law; nor is it similar to the power exercised to *406prevent extortion by railroads, waterworks, street car companies, elevators, and other enterprises, more or less affected by a public use; but it is simply the regulation of contracts between individuals, throwing a restriction around trade and commerce, which can not be done under the guise or authority of the police powér.
I am of opinion that the act in question is not only vicious class legislation, but that it deprives a man of his property without due process of law, by restricting its free sale and disposition, and is contrary to the law of the land, and is therefore unconstitutional’ and void.