Aiken v. Blaisdell

41 Vt. 655

• Court: Supreme Court of Vermont
• Decided: January 15, 1869
• Status: Published

Opinion

The opinion of the court was delivered by

PiERPOiNT, C. J.

The first question I will consider arises upon the fourth request, which was, “ That if the jury should find that, at the time of the purchase of the said liquors by the defendant, the vendors had no United State revenue license, then the contract by which the said liquors were sold to the defendant was void, and the plaintiffs could not recover in this action.” The county court refused to charge according to this request. It may be well to remark that, from the case, it is apparent that there was no intentional violation of the laws of the United States on the part of the plaintiffs. They supposed the necessary steps had been taken to comply with the requirements of the law, and that they were in the legitimate and legal prosecution of their business. The legal effect of what had been done in that respect upon this contract, or their liability for the penalty, I am not now considering. But conceding that, at tbe time of tbe sale of tbe property to tbe defendant, tbe plaintiffs bad not obtained a license for tbe prosecution of tbeir business, as required by tbe laws of tbe United States, wbat is tbe effect of the want of such license upon tbe contract of sale ? Is tbe contract for that reason void ? Tbe general principle is every where recognized that a contract made in violation of law is void, and no action can be maintained to enforce it. The act of congress relating to this subject provides that no person, etc., shall be engaged in, prosecute, or carry on, either of tbe trades or occupations mentioned in section 64 of tbe act, until be or they shall have obtained a license therefor in the manner there-inafter provided. It is conceded that tbe occupation of tbe plaintiffs, in the prosecution of which the contract in question was entered into, was one of those mentioned in section 64.

Tbe act further provides for the manner of procuring such license, and tbe amount to be paid therefor. It further provides, that if any person or persons shall exercise or carry on any trade, etc., for which a license is required by tbe act, without taking out such license, be, she, or they shall, for every such offence, forfeit a penalty equal to three times tbe amount of the duty or sum of money imposed for such license.

That this act is prohibitory, all will agree. It is prohibitory in its terms, and it is also prohibitory because it imposes a penalty for its violation. All tbe authorities agree that where the law imposes a penalty for the commission of an act, the act is thereby prohibited. The law implies a prohibition from the imposition of a penalty.

A distinction is often spoken of in the books, both by judges and text writers, between a law that forbids an act and imposes a penalty for its commission, and a law that imposes a penalty without in terms forbidding the act, in respect to their legal effect. But I have seen no adjudged case where the decision really turned upon that distinction. And I confess I am unable to see what difference there can be in the legal effect of a law that prohibits an act and imposes a penalty, and a law that imposes a penalty and thereby prohibits the act. The act is prohibited in both cases, and how the effect of the prohibition can be influenced by the manner in wbicb it is created, I do not understand. It may be said that where an act of the legislature is in terms prohibitory, it shows the intent of the legislature; but I see no reason why the rule of law should not apply to law-makers as well as to others, that is, that all persons are presumed to intend the legal effect of what they do.

The question recurs: Was this contract made in violation of the act of congress ? Or in other words, did congress, by the act referred to, intend to prohibit such a transaction, so as to invalidate the sale ? This, we think, must be detei'inined by the object, intent and purpose of congress in passing the law under consideration. Did congress intend that the act should operate upon the business of community referred to, or only upon the persons that should engage in the business ? It was manifestly not the intention of congress, by the enactment referred to, to make any kind of business illegal, or to prohibit it. The purpose was not to diminish, restrain, control, or regulate business. The transaction of all kinds of business was just as legal after the passage of the law as beforé. The law is strictly a revenue law, the sole object being to get money into the treasury, and that is accomplished by requiring all persons that engage in certain kinds of business to contribute a certain amount towards paying the liabilities of the government. Its object is to raise money, and not to regulate the business of the country. If a man engages in the kind of business referred to, he is engaged in a legal business, whether he has a license or not. If he has no license, he has no legal right to do it, and subjects himself to the penalty. The law, we think, was intended to operate upon the person, and not upon the business. If the object of the law had been to prohibit certain kinds of business, or to regulate it, with a view to its effect upon public morals or public security, by limiting it in its extent, or the place where it is to be carried on, or the persons who shall conduct it, or otherwise, in all such cases the law operates upon the business as well as the person; revenue mainly in such cases is not the object, it is only incidental, or the means by which the law regulates and controls the business. The act in question imposes no restrictions upon the business; all are at liberty to engage therein where, and when, and to any extent they choose, upon paying for the license.

The case of Smith v. Mawhood, 14 Mees. & Weis., 452, is in point. In that case the action was brought to recover the price of tobacco sold. The act of parliament required that all dealers in fobacco should have a license and put their names over the door of their place of business, or forfeit a penalty. The act had not been complied with. Paek, B., said: “Looking at the act of parliament, I think its object was not to vitiate the contract itself, but only to impose a penalty on the party offending, for the purpose of the revenue.” Alderson, B., says: “Does the legislature mean to prohibit the act done, or not ? If it does, whether for the purposes of revenue or not, then the doing of the act is a breach of the law. But here the legislature has merely said that when the party carries on the trade, etc., he shall be liable to a certain penalty unless he complies with the requirement of the law. He is liable to the penalty, therefore, by carrying on the trade, if the requisites are not complied with. And there is no addition to his criminality if he makes fifty contracts for the sale of tobacco in such a house. It seems to me, therefore, that there is nothing in the act to prohibit every act of sale, but that its only effect is to impose a penalty for the purpose of the revenue, on the carrying on of the trade without complying with its requisites.”

In Johnsonv. Hudson, as referred to in Story’s Conf. of Laws, 748, where a person sold tobacco without previously complying with the statute regulations as to obtaining a license, it was held that he could sue the vendee for the price, since the contract of sale was wholly independent, and collateral to the illegality.

In Wetherell v. Jones, it is said where a contract which a plaintiff seeks to enforce is expressly or impliedly forbidden by the statute or common law, no court will lend its assistance to give it effect. But where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law not contemplated by the contract in the performance of something to be done on his part.

We think this case is distinguishable from those relied upon by the counsel for the defendant, by the fact that in those cases the laws, that were held to render the contracts void that were sought to be enforced, were enacted for the express purpose of prohibiting or regulating the business in the course of which the transactions under consideration arose, and in the disposition of which no question like the present was involved.

This view renders it unnecessary for us to consider the effect of the fact that such part of the property as was delivered before the plaintiffs obtained their license was paid for on its delivery, and that the balance was received by the defendant after the plaintiffs had obtained their license, and had a legal right to prosecute their business without incurring a penalty, or the fact that after the whole had been delivered the notes now in suit were executed upon a general settlement of their accounts.

We think the defendant was not entitled to the charge asked for in the fourth request.

The defendant in the third request asks the court to charge the jury “ that if the plaintiffs, after the sale of said liquors to the defendant, intentionally aided the defendant in evading the prohibitory law of this state in respect to the traffic in intoxicating liquors, in forwarding the liquor to the defendant, the plaintiff's can not recover in this action, even though it was not agreed between said plaintiff and the defendant, at the time or on the occasion of the sale, that he would thus aid the defendant.”

The evidence on the part of the defendant tended to show that, at the time of the sale of the liquors, the plaintiff was informed by the defendant of the existence of the prohibitory law of Vermont, and that the defendant was purchasing the liquor for the purpose of selling it in violation of the law, and that he could not have the liquor come all at once to him, or have it directed to him openly, without risk of seizure, and that the plaintiff agreed to send the liquor to him in a concealed or disguised form, so as to avoid seizure, and that in pursuance of said agreement he did so send it. This the plaintiff denies, but he does not deny that the defendant requested him to send the liquor forward in small quantities, and that he agreed to do so ; he does not deny that he knew of the prohibitory law of this state, although he denies that the defendant told him of it. Now if the plaintiff afterward, in the execution of the contract as originally made, in delivering the property in small quantities for the purpose and with the intent to enable the defendant to evade and violate the prohibitory law of this, state, puts up and forwards the liquor in a concealed or disguised form calculated to accomplish that object, he thereby renders invalid the original contract so that he can not recover upon it. Such act on the part of the plaintiff is not a separate transaction, disconnected from the original contract, but is immediately and directly connected with it. It is done in carrying out and executing the contract, and when in the act of forwarding and delivering the property as required by that contract. Story in his work on Contracts, section 625, says: “If the vendor pack goods in a particular manner by order of the buyer, with the knowledge that they aro to be smuggled, and for the purpose of affording facility for smuggling, the contract is wholly void.”

This principle is expressly decided in Gaylord v. Soragen, 32 Vt., 110. Aldis, J., says: “Although mere knowledge of the unlawful intent of the vendee by the vendor will not bar him from enforcing his contract to recover for the goods in our courts, yet it is well settled ’ that if he in any way aid the vendee in his unlawful design to violate our law, such participation in the illegal enterprise will disqualify him from maintaining an action on his contract in this state. The participation by the vendor must be active to some extent, he must do something, though indirectly, in furtherance of the design of the vendee to violate our laws. Mere omission to act is not enough, but positive acts in aid of the unlawful purpose, however slight, are sufficient.”

But it is said that under the charge of the court below as given, the jury must have found that, at the time of the sale as originally made, there was no agreement that the liquor should be sent forward in a concealed form for an unlawful purpose, and that a subsequent arrangement to that effect would not vitiate the contract. Suppose the contract, as at first concluded, had been reduced to writing, signed by the parties, and nothing said about the manner of its being forwarded; the next day they arrange as to the manner of its being sent on,- and thereupon make a memorandum at the bottom of the writing, in these words: “ The above mentioned liquor to be forwarded in small quantities, as ordered, in a concealed or disguised form, and under false marks, so as to enable the purchaser, to evade the prohibitory law of Vermont,” and sign it. Would not such memorandum modify the original contract ? in fact, become a part of it ? Would any pleader dare to bring an action upon it without embracing that memorandum as a part of it ? And we think it would require quite as much courage to include it, for no intelligent lawyer could hope to stand in court a moment on such a paper; and yet the writing-adds nothing to the nature of the transaction; it only enables us to look at it all at once, which is not so easily done when you have to take the story from the mouths of witnesses.

As the defendant’s evidence tended to show that some arrangement of the kind referred to was entered into and acted upon by the plaintiffs, we think the defendant was entitled to the charge asked for in the third request.

Judgment reversed and case remanded.