Niemeyer v. Wright

• Citation: 75 Va. 239
• Parties: NIEMEYER AND ALS. v. WRIGHT.
• Decision Date: 27 January 1881
• Court: Supreme Court of Virginia

75 Va. 239

NIEMEYER AND ALS. v. WRIGHT.

Supreme Court of Appeals of Virginia.

January 27, 1881

1. A statute containing a prohibition and a penalty makes the acts which it punishes unlawful; and the same may be implied from a penalty without a prohibition. But it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void.

2. Conceding the general rule to be as above stated, the mere imposition of a penalty by a statute for doing or omitting to do an act, does not of itself, in every case, necessarily imply an intention by the legislature, that every such contract in contravention of the statute shall be void in the sense that it is not to be enforced in a court of justice.

3. The acts of March 29th, 1871, Code of 1873, ch. 227, and of March 29th, 1877, acts of 1876-77, ch. 249, which requires under heavy penalties certain things to be done by persons selling commercial manures, does not avoid the contract for such sale; and a party selling the said manures may recover upon such contracts, in an action at law, though he has not complied with the directions of the statutes.

This was an action of assumpsit in the circuit court of the city of Portsmouth, brought by Niemeyer, Etheridge & Brooks partners doing business in the city of Portsmouth, against V Logan Wright, to recover the amount of an account for fertilizers and of a note for $134, the whole amounting to $833.50. In the account, besides the note, were two items one for $40 and the other for $20, for an article called kainit; the rest of the account was for guano; and the only marks or labels on the bags containing the guano were on some of them, " Warranted genuine No. 1 Peruvian guano purchased from the Peruvian government, imported direct into the United States by J. J. Barrett" ; and on the others, " Peruvian guano, purchased from the Peruvian government, imported by J. J. Barrett." The bags or sacks contained no other marks thereon indicating the contents thereof or the component parts of said contents.

On the trial of the cause, after the evidence had been introduced, the defendant moved the court to give the following instructions to the jury:

" If the jury believe from the evidence, that the substance or material sold to the defendant by the plaintiffs and charged at $60 per ton of two thousand pounds in their account under the name of ‘ guano’ was never labelled with any analysis whatever of its contents, or that none of its component parts were in any manner indicated on the bags or sacks containing said substance; and that said substance was sold as a commercial manure to said defendant; and that no samples thereof were ever submitted to the commissioner of agriculture of this State for analysis, the said plaintiffs cannot recover for said commercial manure in this action."

The court gave the instruction, and the plaintiffs excepted. The jury found a verdict in favor of the plaintiffs for $191.10--the amount of the note and the two parcels of kainit; and the plaintiffs asked for a new trial on the ground of the misdirection of the court in giving the said instruction to the jury; but the court overruled the motion and rendered a judgment upon the verdict; and thereupon the plaintiffs applied to a judge of this court for a writ of error; which was awarded.

Walke and Old, for the appellants.

Ellis and Thom, for the appellee.

OPINION

BURKS, J.

The instruction complained of here, which was given to the jury by the learned judge on the trial of this case in the court below, is based on the assumption, that if the bags or sacks containing the guano sold by the plaintiffs to the defendant were not labelled as required by the act of March 29, 1871, or if before the sale no samples of the fertilizer were submitted to the commissioner of agriculture to be tested by him, as the act of March 29, 1877, enjoins, the contract, which was the ground of the action, was illegal and void, and therefore no recovery could be had upon it.

The first section of the act of 1871 (Acts 1870-71, ch. 227; Code of 1873, ch. 86, § 48) requires that all commercial manures and artificially manufactured or manipulated fertilizers, brought or manufactured in this State for sale, and sold, or kept for sale therein, shall have permanently affixed to every sack, bag, barrel, box or other package thereof, a stamped or printed label, which shall specify legibly the name or names of the manufacturer or manufacturers, his, her, or their place of business, the net weight of such sack, bag, barrel, box, or other package, the component parts of such manure or fertilizer, and the per centage, by weight, which it contains of certain constituents specified.

The second section imposes a fine of one hundred dollars for the first offence, and two hundred dollars for the second and each succeeding offence, on any person who shall sell, or keep for sale, any commercial manures, or artificially manufactured or manipulated fertilizers, not labelled in accordance with the requirements of the act, or shall affix any label to any sack, bag, barrel, box, or other package, not expressing truly the component parts of said manures or fertilizers, or expressing a larger per centage of the constituents, or either of them mentioned in the first section, than is contained therein.

The fourth section declares that the words used in the act, " commercial manures, artificially manufactured, or manipulated fertilizers," shall be taken and construed to include all manures and fertilizers which shall be sold for a greater price than three-fourths of one cent per pound.

The act of March 29, 1877 (acts 1876-77, ch. 249), establishes a department of agriculture, mining, and manufacturing for the State, to be under the control and management of an officer designated " commissioner of agriculture."

Section 4 of the act directs that this officer shall have under his charge the analysis of fertilizers sold to be used for agricultural purposes in this State, and enacts that a fair sample of every brand of fertilizers sold to be used in the State shall be first submittted to him, and when he shall have thoroughly tested the same, which it shall be his duty to do, if he shall find the same to be of no practical value, he shall summon before him the parties interested, and give them a full and sufficient opportunity of correcting any injustice which may have been done to them by mistake, accident, or otherwise; and if it shall still be found that the brand is of no practical value, the sale of the same for use in this State as a fertilizer shall be prohibited. A fine not less than one hundred dollars nor more than one thousand dollars for each offence is imposed on any person violating the provisions of the act, by selling any fertilizer to be used in this State, without first submitting a fair sample of the same to the said commissioner, under rules prescribed by him.

It is not pretended that either of these statutes expressly forbids the sale of guano and other fertilizers, or declares in terms that such sale shall be void unless the provisions concerning the label and analysis shall have been first complied with; but the contention is, that the illegality impliedly results from the penalties imposed.

It is 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 expressly declared to be so (Middleton v. Arnolds, 13 Gratt. 489), but it does not necessarily follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. The question is, in a great measure, one of legislative intent, and its determination depends, as in other cases, on the construction of the statute.

Such was the conclusion of the supreme court of the United States in Harris v. Runnels, 12 How. U. S. R. 79 (decided in 1851), after an examination of the authorities on the subject. In delivering the opinion of the court, Mr. Justice Wayne adverted to the distinction taken in the English cases when the rule which avoids a contract made in contravention of a statute is to be applied to statutes made for the protection of the revenue, and when the same rule is to be applied to those statutes which are made for the protection of the public from moral evils or from those which, it is known by experience, society must be guarded from by preventive legislation; and after stating the rule as laid down by Baron Parke in Cope v. Rowland, 2...