138 Ala. 240 | Ala. | 1902
Lead Opinion
The complaint contains five counts. The first and second count on defendant’s failure to use proper diligence in delivering the telegraphic message; the third and fourth on defendant’s failure to use reasonable diligence in transmitting the message, and the fifth upon the wanton or intentional failure to transmit it. The contract for the transmission and delivery of the message was, it is averred in each of the counts, made with defendant by one Drennen as plaintiff’s agent.
A demurrer to each count of the complaint was interposed assigning a number of grounds, which was overruled. Only one of these grounds is insisted upon here. It is, that it does not appear that the telegram alleged to have been offered to the defendant for transmission and delivery had upon its face or elsewhere the internal revenue stamp required by the act of Congress approved June 13, 1898, entitled “An act to provide ways and means to meet Avar expenditures, and for other purposes.” Whether this defense can be raised in this \Aray AAre need not decide, since substantially the same defense Avas interposed by special pleas. To these pleas, special replications Avére filed, to which a demurrer was interposed and OArerruled-. The first of these is in this language: “Plaintiff for replication to defendant’s pleas 5 and 0 says, that the defendant received said telegram Avhen same was presented to it for transmission and undertook and agreed to transmit said message to Fayetteville, Alabama.”
In Youngblood v. Birmingham Trust & Savings Co., 95 Ala. 526, it is said: “The doctrine is nowhere more firmly established than in Alabama, that no rights can spring from or be rested upon an act in the performance of which a criminal penalty is incurred, and that all contracts which are made in violation of a penal statute, ar'e as absolutely void as if the law had in so many words declared that they should be so.”
In McGehee v. Lindsay, 6 Ala. 16, the court held: “It is not necessary that a statute should impose a penalty for doing or omitting to do something in order to make a contract void which is opjrosed to its operation.”
It is sufficient if the law prohibits the doing of the act and when it does, the court being organized under the law and required to administer it, cannot enforce any supposed rights predicated upon a prohibited act or the omission to perform an act that is prohibited. — 15 Am. & Eng. Ency. Law (2d. ed.), 941; Woods v. Armstrong, 54 Ala. 150; Robertson v. Hayes, 83 Ala. 290.
The defendant being prohibited by the express words Of the statute from transmitting the message without its being stamped, it was under no obligation to do so. It cannot be forced to violate the law, nor can its act of riolafiou, if it attempted to transmit and deliver the message without the requisite stamp, be made the predicate for a liability for its negligent failure to transmit and deliver or for its intentional and wanton failure to transmit it. This is obvious for the reason that it was under no duty to transmit the message at all. It could make no binding contract to transmit and deliver in violation of the statute, and since the duty to do so
In this case, under the pleading, both the plaintiff’s agent and the defendant violated the statute — the one in not affixing the stamp before issuing the message, and the other in transmitting it to Payette without the stamp. If there was an agreement by defendant to transmit the message without the required stamp, as we have said, that agreement is void' and it could not by subsequent acts or agreement ratify or confirm it.— Moog v. Hannon, 93 Ala. 503; Shippey v. Eastwood, 9 Ala. 198. Nor can validity be injected into an illegal contract or act by way of estoppel, or the defense of illegality be held to have been waived. — 15 Am. & Eng. Ency. Law (2d ed.l, pp. 1014, 1015.
The subsequent repeal of the act of June 13, 1898, did not validate the contract. — Pacific Guano Co. v. Dawkins, 57 Ala. 115; Woods v. Armstrong, supra; Mays v. Williams, 27 Ala. 267.
What we have said will suffice for another trial without reviewing in detail the many assignments of error based upon the admission and exclusion of evidence, and the refusal of written charges requested by defendant.
Reversed and remanded.
Dissenting Opinion
dissenting.- — Replication 1 to pleas 5 and 6 is good. It sets up an agreement, not that defendant should transmit the message without stamping the copy, but that it should transmit the message — an agreement which the defendant might lawfully have carried out, by affixing and cancelling the required stamp itself, ancl ihen sending the message. This, the agreement, if made as alleged, bound the defendant to do.
