94 Ky. 22 | Ky. Ct. App. | 1893
DELIVERED THE OPINION OP THE COURT.
Appellees Spurrier & Bading, assignees, brought this action on a note given October, 1888, to the Thompson & Edwards Fertilizer Company, by appellants, Vanmeter and others, the consideration being commercial fertilizer, sold and delivered in sacks to the purchasers. Two distinct grounds of defense are stated in the answer, which is also made a counter-claim:
1. That plaintiffs represented the commodity to be valuable and good for wheat, but that it turned out to be, after being properly applied, and was, in fact, worthless as a commercial fertilizer, and consequently the note is without consideration.
2. That by reason of non-compliance of the sellers
As an issue of fact in respect to the first alleged ground of defense was made by the pleadings, and submitted to and determined by the jury in favor of the plaintiffs, we will not here consider it.
The statute mentioned is substantially as follows:
Seo. 1. On or before the first day of May of each year, before any person or company shall sell, offer or expose-for sale in this State, any commercial fertilizer whose retail price is more than ten dollars per ton, said person or company shall furnish to the director of the Agricultural Experiment Station, inaugurated by the Agricultural and Mechanical College of Kentucky (which Station is here recognized as the “Kentucky Agricultural Station”), a quantity of such commercial fertilizer, not less than one pound, sufficient for analysis, accompanied by an affidavit that the substance so furnished is a fair and true sample of a commercial fertilizer which said person or company desires to sell within this State.
Sec. 2. It shall be the duty of said director to make or cause made a chemical analysis of every sample of commercial fertilizer so furnished him, and he shall print the result of such analysis in the form of a label; such label shall set forth the name of the manufacturer, the place of manufacture, the brand of the fertilizer and the essential ingredients contained in said fertilizer, expressed in terms and manner approved
Sec. 3. Every package of any commercial fertilizer whose retail price is over ten dollars per ton, sold or offered for sale in this State, shall have attached to it in a conspicuous place a label having a certified analysis of a sample of such fertilizer from said director as provided in the foregoing sections.
. Sec. 4. Any manufacturer or vendor of any commercial fertilizer who shall sell, offer or expose for sale, any fertilizer without having previously complied with the provisions of this act hereinbefore set forth shall, upon indictment and conviction, be fined one hundred dollars for each violation or evasion of this act, which fines shall be paid into the State Treasury.
Sec. 5. The director shall receive for analyzing and affixing his certificate the sum of fifteen dollars; for labels furnished, one dollar per hundred.
Section 6 requires the director to pay all such fees into the treasury of the Agricultural and Mechanical College of Kentucky, to be used “in meeting the legitimate expenses of the Station, in making analysis of fertilizers, in experimental tests of the same, and in such other experimental work and purchases
Counsel for appellees contends, for various reasons we will now consider, that the statute is unconstitutional.
1. YYe do not see wherein the statute violates that clause of the Constitution requiring' each law to relate to but one subject, and that to be expressed in the title; for there is no provision that we are able to discover which does not have a natural connection with the subject of the title, and relate, directly or indirectly, to it.
2. Equally groundless is the objection that it imposes double taxation-; for the fees authorized to be collected from a person or company selling, or offering to'sell, a commercial fertilizer are intended to be used for the single purpose of supporting and maintaining the Experimental Station, and are not, in proper meaning of the term, taxes at all.
3. The statute can not be fairly construed to authorize, in the language of counsel,' a levy of an impost on interstate commerce beyond what is necessary to insure inspection; nor is the language of section 6 susceptible of the meaning counsel gives it. The statute, as its title indicates, was enacted for protection of farmers of this Commonwealth against fraud and imposition of
It is admitted that the retail price of the fertilizers sold to appellants was worth over ten dollars per ton, and that no one of the packages had attached to it when sold the label required by section 3 of the statute ; and the main question, therefore, is, whether the contract sued on is, by reason of such non-compliance with and disregard of the statute, void and unenforceable.
It is too well settled for argument that a contract prohibited by statute will not, nor should be, enforced by the court. But whether a contract has been prohibited sometimes depends upon construction of such statute when not clear in meaning, and we will at present assume such is this case.
In Benjamin on Sales, volume 2, 712, the following two propositions are stated to be fairly deducible from the authorities:
’■'■First. That when 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,*29 .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.
" Second. 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 dealings. In the latter case the statute is intended to prevent the dealings, 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.”
Tested by either one of these rules, the statute in question would have to be construed as intended to prohibit the contract in case of non-compliance with or breach of its provisions. For the Legislature -had in view, when enacting it, not the security and. collection of the revenue even partly, but had in view the protection of the public from fraud in contracts for sale of fertilizers; and it is expressly provided in section 4 the fine shall be imposed for each violation or evasion of the act.
In Lindley v. Rutherford, 17 B. M., 248, the following proposition, stated in Chitty on Contracts,, was referred to with approval: “A contract is void if prohibited by statute, though the statute only inflicts a penalty, because such penalty implies a prohibition. If the contract be illegal, it makes no difference, in point of law, whether the statute which makes it so has in v,iew the protection of the revenue or any
But neither the conclusion in that case nor reason for it affects the question before us; for there is a marked difference between a statute, the prime or sole purpose of which is to secure or raise revenue by a license tax, and one enacted to protect the public against fraudulent sale of goods, or for other reason of public policy. To prohibit a contract in one case when the business is known- and recognized to be otherwise lawful and legitimate, is not essential to the main purpose, which is to raise revenue by a license tax. But to do so in the other class of cases is essential to the main purpose, whether it be to prevent fraudulent sale of spurious and hurtful commodities, to secure the public health or protect public-morals.
That a penalty implies prohibition in such case as-this, though there be no prohibitory words in the statute, has been decided not only by this court, in Lindley v. Rutherford, but by numerous courts in England as well as in this country. In Woods v. Armstrong, 54 Ala., 150, 25 Am. Rep., 671, the same-question arose as the one before us, and as to construction of a statute enacted for the same purpose and in all respects like the one we are now considering,
In McConnell v. Kitchen, 20 S. C., 430 (47 Am. Rep., 845), was determined the proper construction and meaning of a statute like the one in question, and it was held that “when a merchant sold a fertilizer without a tag stating its chemical composition, &c., as required by the statute under penalty, and took a note for the purchase money, he could maintain no action on the note.”
Under a similar statute in Georgia it was likewise held an action could not be maintained for purchase price of a fertilizer sold by a merchant who had violated provisions of the statute; and such must be the logical conclusion from the legal propositions referred to, which are sustained by courts and text-writers generally.
Counsel for appellee call our attention to the cases of Harris v. Runnels, 12 Howard, 79, and Niemeyer v. Wright, 75 Va., 239. But in the first case it was said that “where the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void;” and in the other it was conceded “that as a general rule a contract founded on an act forbidden by a statute under a penalty is void, although it be not ex
It appears from the • evidence that a sample of the fertilizer was analyzed by the Kentucky Agricultural Experimental* Station in January, 1888, and it is contended the statute was thereby substantially complied with. But no record of the analysis is required by the statute to be kept by the director; nor is there any other way provided by which the fact of analysis can be made known to a purchaser, or preserved as a guide or check, except by means of the label upon which a certified analysis is required to be placed. ' It seems to us the attaching of the label to each package is essential to accomplish the purposes of the statute, and its provisions can not be regarded as complied with without the label being so attached.
The defendants, in their counter-claim, ask for dam
Wherefore tbe judgment is reversed, and cause remanded for a new trial consistent witb tbis opinion.