Lewis v. Welch

Gilchrist, J.

The statute applicable to this case was passed on the 4th day of July, 1838, and provides that if any person shall, without license from the selectmen of the town where he resides, sell any spirituous liquors, he shall, on conviction thereof upon an indictment, forfeit and pay a sum not exceeding fifty dollars, &c.

It is contended by the counsel for the plaintiff that there is a distinction between malum prohibitum and malum in se; between things intrinsically and morally wrong, and things which are made so merely by legislation. The inference he would make from this distinction is, that when an act is merely malum prohibitum, it may conscientiously be done, provided only the party be willing to incur the penalty. He considers it optional with the party to do or to refrain from doing the act in question, and that the alternative is presented him by the legislature, to abstain from the act, or to do it and pay the penalty. If these premises and this reasoning be correct, the courts, he says, cannot declare the act to be illegal, for that would be the infliction of a penalty beyond that imposed by the statute. But any person who should attempt to put this theory into practice, and to regu *297 late his conduct by it, would find his path filled with difficulties. In the first place, he must assume to judge for himself what is right and what is wrong, irrespective of the law. He must test his obligation to obey the law, by a standard which exists in his own bosom. His moral sense must be so acute that he would never be in danger of mistaking his duty, and of sacrificing it to considerations of private advantage. Men differ in their views of right and wrong; the moral sense of one man is more obtuse than that of another. And just in proportion to its obtuseness will he be liable to overstep the line that separates right from wrong : and his reasoning may lead him into the commission of a felony when he fancies himself to be merely a trespasser, and that the payment of a fine which the statute might impose in a given case would make the balance even. The subtle casuistry which self-interest teaches us, is a most unsafe guide in questions of morals, and peculiarly so in relation to those things which have been called duties of imperfect obligation, and whose performance might be enforced by penalties. The law would be extremely unequal in its operation, if its prohibitions were imperative on those only who should choose to be bound by it. If obedience to the law should depend entirely on the conscience of the individual, all legal restraints would soon be abolished.

There is also another answer to the position of the plaintiff, that the act of selling is not prohibited by implication. This is derived from the intention of the statute. What was the purpose of the legislature in enacting the law? Was it to deter persons from selling spirituous liquors without a license ? If such were not the object, why was a penalty imposed ? The object certainly was not to raise a revenue from the fees which might be paid the selectmen. Such an idea is preposterous. It would be insulting to the legislature to suppose that their object was to increase the funds of the different counties, by the penalties imposed for infractions of the law. It was not regarded as a matter merely *298 indifferent, for then no penalty -would have been imposed. The sale was certainly not regarded as a praiseworthy act. The purpose was to prohibit it, by as clear a deduction as * can be made. The position, then, that the sale was a legal act, is untenable. Being illegal, it cannot give the plaintiff the right to recover. Allen vs. Deming, ante 133.

In considering cases of this kind, the question must always necessarily arise, whether the statute prohibits the contract which is attempted to be enforced. This must be determined, when the prohibition is not in express terms, from a consideration of the purpose which the legislature had in view. Where the purpose is .to prohibit an act, there is no power in the court to allow the act to be the foundation of a right to recover, for this would be jus dare and not jus dicere. It can make no difference whether the act be morally wrong, or only legally wrong. The simple question is, is it prohibited? The objection that a contract is illegal as between the parties, is never very creditable to him who makes it. But it is not out of favor to him that the objection is sustained, but from regard to the law. The advantage he derives from it is altogether accidental. There is a class of cases in which it has been held that where the object of the law is merely to protect the revenue, and not to protect the public, the imposition of a penalty will not amount to a prohibition of the contract. Holman vs. Johnson, Cowp. 341; Johnson vs. Hudson, 11 East 180; Brown vs. Duncan, 10 B. & C. 98; Hodgson vs. Temple, 5 Taunt. 181; Wetherell vs. Jones, 3 B. & Ad. 221. These cases illustrate the distinction between statutes which avoid the contract, and those which merely impose a penalty for some other purpose than that of making the contract illegal.

In accordance with the principles above stated have been the decisions of this court. We have recognized the doctrine that a penalty implies a prohibition. Roby vs. West, 4 N. H. Rep. 287 . And also that there is a distinction between statutes, whose object is the protection of the public, *299 and provisions which are mere revenue regulations. Favor vs. Philbrick, 7 N. H. Rep. 340.

Judgment for the defendant.