48 So. 510 | Ala. | 1909
In determining whether an agreement is prohibited by statute, the intention of the Legislature must be ascertained and must govern. “When conditions prescribed for the conduct of a business, trade or profession are not complied with, agreements in the course of such business, trade, or profession are (1)
Subdivision 26 of section 2361 of the Code of 1907, requiring a license of all domestic corporations, is a part of the general revenue law, and is intended solely to raise revenue, and not to restrain or regulate business. Section 7712 provides a penalty for doing business without a license. But neither section prohibits doing business, and it is merely penalized under certain conditions. Section 2401 does not make any specific act a violation of the law, but makes it so only in case it is done without a license. The business is lawful, but the failure to procure the license be'fore doing the act is what the law intends to penalize. The section is intend-, ed merely to define the doing of business as mentioned in section 2361. This law being a mere fiscal expedient, and not intended as a regulation or protection for the benefit of the public, and there being no statute invalidating contracts made by unlicensed corporations, they should be enforced, unless there was a clear legislative intent to prohibit the thing itself, rather than to merely punish for engaging in business without the license. We are not willing to impugn the motives of the lawmakers by charging them with an intention to encourage bad faith on the part of debtors by permitting them to avoid honest obligations, because of the noncompliance with
The foregoing views are not in conflict with former decisions of this court, as they related to contracts specially prohibited by law, or the enforcement of which was specifically prohibited, or the making of which violated a law, not enacted for revenue purposes only, but for regulation and protection. We shall not attempt to differentiate them all in detail, but will discuss some of the leading cases, and especially those cited in brief of counsel for appellant. In the case of Western Union Co. v. Young, 138 Ala. 243, 36 South. 374, the act of Congress made the specific thing for which the defendant was sued for not doing a violation of the law. The statute considered in the Youngblood, Case, 95 Ala. 523, 12 South, 579, 20 L. R. A. 58, 36 Am. St. Rep. 245, was one for regulation or protection, and made the very act done a violation of law. The Moog Case, 93 Ala. 503, 9 South. 596, involved a sale of liquor without a license, and the statute expressly prohibited a recovery for such sales. — Code 1907, § 5764, bein section 1323 of the Code
The special plea was bad, in that it did not aver that the contract sued upon was specially prohibited by law, or was made nonenforceable by the statute, or that entering into same amounted to the violation of any law other- than one enacted solely for revenue. The demurrer, hoAvever, did not point out the defect or comply with the requirements of Code 1907, § 5340, and the trial court erred in sustaining same. — Turner Coal Co. v. Glover, 101 Ala. 290, 13 South. 478; Broslin v. K. C. M. & B. R. R. Co., 114 Ala. 398, 21 South. 475. It plainly appears, however, that this plea could not be amended, so as to make it a good plea, without departing entirely from the defense therein attempted, and the technical error of the court in sustaining a demurrer on general or inapt grounds was without legal injury to the defendant. — Ryall v. Allen, 143 Ala. 222, 38 South. 851.
The judgment of the law and equity court is affirmed.
Affirmed.