The opinion of the court was delivered by
This was an action on a contract in writing, under seal, dated March.4th, 1880, by which the defendant promised to pay the plaintiff $310.50 on or before November 1st, 1880. The consideration expressed in the writing was eleven and a half tons of Lee’s P. A. lime (meaning Lee’s prepared agricultural lime). The defendant, in his answer, alleged that the contract upon which the action was founded was different in form, and contained other material stipulations from that described in the complaint, and set up two distinct affirmative defenses — one' of failure of consideration, and the other that the contract was illegal, being made in violation of certain statutes hereinafter quoted.
The Circuit judge held that the contract was not illegal and ■could be enforced, to which exception was duly taken. The jury rendered a verdict for the plaintiff for the sum of $250, and judgment being entered thereon, the defendant appeals upon two grounds, substantially as follows : 1. That the Circuit judge erred in holding that the plaintiff was entitled to open and reply. 2. Because the Circuit judge erred in holding that the contract sued upon was not illegal, and could, be enforced by an action at law.
The question as to which, party is entitled to open and reply
For a proper understanding of the question raised by the second ground of appeal, it- will be necessary to consider the terms of the statutes which it is alleged were violated in the contract sued upon. The first statute upon the subject is the act of February 2d, 1872, (15 Stat. 33,) the language of which is as follows: “All commercial fertilizers manufactured, sold or kept for sale in the State of South Carolina, shall have affixed to every bag, barrel or parcel thereof a written or printed label, which shall specify the names of the manufacturer and seller, their respective places of business, and the constituent parts thereof. Section 2. Whoever manufactures, sells or keeps for sale any commercial fertilizer or fertilizers, not labeled in accordance with the provisions of the preceding section, * * * shall be punished by a fine of twenty dollars for the first-offense, and
The next legislation upon the subject will be found in sections 18 and 19 of “An act to create a department of agriculture, defining its purposes and duties, and charging it with inspection of phosphates and regulation of sales of commercial fertilizers,” approved December 23d, 1879, (17 Stat. 72.) The language used in those sections is as follows: “Section 18. That all persons or companies engaged in the manufacture or sale of fertilizers or commercial manures shall pay to the commissioner of agriculture twenty-five cents per ton for every ton of such fertilizer or commercial manure sold or offered for sale in this State, the said amount to be paid into the State treasury for the exclusive use and benefit of the department of agriculture. Any person, or officer or agent of any corporation, neglecting to pay the sum provided in this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in the discretion of the court, which fine shall be paid into the State treasury for the exclusive use and benefit of the department of agriculture. Section 19. That every bag, barrel or other package of such fertilizers or commercial manure, as above designated, offered for sale, or delivered after sale in this State, shall have thereon a plainly printed label or stamp which shall truly set forth the name, location and trade-mark of the manufacturer, also the chemical composition of the contents of such package and the real percentage of any of the following ingredients, asserted to be present, to wit: soluble and precipitated phosphoric acid, soluble potassa, ammonia or its equivalent in nitrogen, together with the date of its analysis, and that the privilege tax, provided for in section 18, has been paid; and any such fertilizer as shall be ascertained by analysis not to contain the ingredients and percentage set forth, as above provided, shall be liable to seizure and condemnation, and when condemned shall be sold by the board of agriculture for the exclusive use and benefit of the department of agriculture. Any merchant, trader, manufacturer, agent or person who shall sell or offer for sale, or deliver after sale, or receive any commercial fertilizer without having such labels and stamps, as hereinbefore provided, attached
It will thus be seen that by the act of 1872, which had not been repealed at the time the cause of action in this case arose, except in so far as any of its provisions conflicted with the subsequent act of 1879 (and the only conflict was as to the amount of the penalty and the mode of its enforcement), it was made a misdemeanor, punishable by fine, for any person to sell or keep for sale any commercial fertilizer which did not have a label affixed to each bag or other'package, specifying three things: (1) The names of the manufacturer and seller; (2) their respective places of business; (3) the constituent elements of such fertilizer. By the subsequent act of 1879, every person engaged in the manufacture or sale of commercial fertilizers was required: First. To pay to the commissioner of agriculture twenty-five cents per ton for every ton sold or offered for sale in this State, under a penalty of being deemed guilty of a misdemeanor and subjected to a fine at the discretion of the court. Second. That every bag or other package of such fertilizer offered for sale or delivered after sale in this State, should have attached thereto a label setting forth five things: (1) The name, location and trademark of the manufacturer; (2) the chemical composition of the contents of such package; (3) the real percentage of certain specified ingredients, if such ingredients are asserted to be present as part of the chemical contents of such package; (4) the date of the analysis; (5) that the privilege tax of twenty-five cents per ton, above provided for, has been paid/ Third. That any person who shall sell or offer for sale, or deliver after sale or receive any commercial fertilizer without having such a label attached thereto, shall be liable to a fine of ten dollars for each separate bag or other package sold or offered for sale, to be sued for and recovered before any trial justice. '
Now, while it is true that the legislature has not, in so many words, declared that it shall not be lawful to sell any commercial
In 2 Benj. Sales, § 825, the writer, after commenting at length upon the cases, deduces the following rules therefrom: “ First. That where a contract is prohibited by statute it is immaterial to inquire whether the statute was passed for revenue purposes only or for any other object. It is enough that parliament has prohibited it, and it is therefore void. Secondly. That where the question is whether a contract has been prohibited by statute, it is material in construing the statute to ascertain whether the legislature had in view solely the security and collection of the revenue, or had in view, in whole or in part, the protection of the public from fraud in contracts or the promotion of some object of public policy. In the former case the inference is that the statute was not intended to prohibit contracts; in the latter that it was. Thirdly. That in seeking for the meaning of the lawgiver, it is material also to inquire whether the penalty is imposed once for all on the offense of failing to comply with the requirements of the statute, or whether it is a recurring penalty, repeated as often as the offending party may have dealing. In the latter case the statute is intended to prevent the dealing, to prohibit the contract, and the contract is therefore void • but in the former case such is not the intention, and the contract will be enforced.”
Testing the legislation in question by these rules, it is obvious that, though the sale of commercial fertilizers without a compliance with the prescribed regulations is not, in express terms, forbidden, the legislature did not have in view “solely the security and collection of the revenue,” but, on the contrary, tffe purpose was to protect the public from fraud in such sales, and therefore
It is equally clear to our minds that the subsequent act of 1879 discloses no such purpose. So far from there being anything in this act which indicates that the sole purpose of the legislature was to secure the collection of revenue, the only thing which even looks that way is the provision in section 18, requiring the payment of twenty-five cents per ton for every ton of commercial fertilizers sold or offered for sale in this State, which, in section 19, is denominated a “privilege tax.” But this was manifestly designed, not as a source of revenue to the State, but simply as a fund to meet the expenses incurred in enforcing the other regulations of the act, for though this tax, if it may be so called, was required to be paid into the State treasury, it was not put there like the other taxes of the State, but was placed there expressly “ for the exclusive use and benefit of the department of agriculture,” which by this act was specially charged with the enforcement of the regulations for the sale of commercial fertilizers.
Again, it will be seen that by the terms of both these acts, the penalty for failing to comply with the requirements of these acts is not imposed once for all, but is a recurring'penalty, repeated as often as the offending party may have dealings. In the act of 1872 the penalty is “a fine of twenty dollars for the first offense, and a fine of forty dollars for the second and every subsequent offense;” and in the act of 1879 the penaltyis“a fine of ten dollars for each separate bag, or barrel, or package sold or offered for sale.” So, that, testing the legislation of this State upon the subject by the rules laid down by that eminent jurist, Mr. Benjamin, the conclusion is unavoidable that the object of the legislature was to prohibit the sale of commercial fertilizers in this State unless the requirements of the statutes are complied with..
The general rule, undoubtedly, is, that a contract to do an act
The cases of Harris v. Runnels, 12 How. 79, and Niemeyer v. Wright, 40 Am. Rep. 720 (75 Va. 239), mainly relied upon by respondent’s counsel, do not, in our judgment, sustain his position. Both those cases recognize the doctrine that a contract founded on an act prohibited by statute is void, and that it makes no difference whether the prohibition is expressed or is to be implied from the imposition of a penalty. They, however, maintainable doctrine that whether a prohibition is to be implied from the imposition of a penalty is a question of legislative intent, to be ascertained by an examination of the various provisions of the statute in question, and where there are any terms in the statute which indicate that the legislature did not intend to avoid a contract made in contravention of it, such a contract may be enforced. But, to use the language of Mr. Justice "Wayne, in Harris v. Runnels, which seems to have been the authority upon which the case of Niemeyer v. Wright was mainly based, “When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void.”
In both of the cases the court went on to show that there were
Indeed, aside from any authority, it would seem to us altogether anomalous, not to use any harsher term, to hold that a court of justice should enforce a contract founded upon an act which is absolutely forbidden by the law-making department of the government. As was well said in Bank v. Owens, 2 Pet. 539, “ No court of justice can,-in its nature, be made the handmaid of iniquity. Courts are instituted to carry into effect the laws of a country ; how can they, then, become auxiliary to the consummation of violations of law ? * * * There can be no civil right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal.” Or, as is said in O’Donnell v. Sweeney, 5 Ala. 468, “ It would indeed be a strange anomaly if a contract, made in violation of a statute, and prohibited by a penalty, could be enforced in the courts of the same country whose laws are thus trampled on and set at defiance.”
The only remaining inquiry is, whether the sale, upon which the contract sued upon in this case was based, was made in vio- ■ lation of the law regulating the sale of commercial fertilizers. The undisputed facts set out in the “ Case,” show beyond all question that it was. It is conceded that the bags in which the fertilizer was put up, “ had on them the name, location and trade
. It is true that the counsel for respondent has contended that the act of 1879 does not require the chemical composition of the contents of the package to be stated, except where certain ingredients specified in the statute are asserted to be present, and that in this case no such ingredients were asserted to be present, but w.e do not so understand the terms of the act. On the contrary, we think the true reading of the act is, that in all cases the label or stamp shall set forth the chemical composition of the contents .of the package, and if any of the particular ingredients mentioned in the statute are set forth as part" of the chemical composition of the contents of a package of fertilizers, then the real percentage of such ingredients, as set forth or asserted to be present, must likewise be stated.
It seems to us that the chemical composition of a fertilizer is the important matter to be known, and to read the statute as. if it dispensed with this important requirement, except where certain specified ingredients were asserted to be present, would not only emasculate the statute, but would pervert its language from its plain meaning. So, that, even if we should hold, as contended for by respondent, that the mere absence of a label showing that the privilege tax had been paid, would not invalidate the sale, (about which, however, we are not now called upon to express any opinion,) we would still be compelled to hold that the sale was illegal, as there was a failure to comply with other fundamental requirements of the law.
Inasmuch as we have seen that the object of the legislation under review was not to secure the collection of revenue, we have not deemed it necessary to consider the question, about which there seems to be some conflict of authority, whether a
"We are therefore of opinion that the contract sued upon in this case is illegal and void, and that the Circuit judge erred in instructing the jury otherwise.
The judgment of this court is that the judgment of the Circuit Court be reversed, and that the complaint be dismissed.