Patton v. Gilmer , 41 Ala. 176 ( 1867 )

BYRD, J.

Without having the aid of an argument at the bar, or of a brief from counsel, we propose to dispose of the questions raised by the assignments of error, on the record in this important cause.

We are not aware of any provision of the State or Federal constitution, which inhibits the manufacture of firearms by the States, or the making a contract therefor. The contract sued on is founded on an act of the general assembly of the State, approved December 7, 1861, (Pamph. Acts, p. 75,) and which was again approved by an ordinance of the State convention of 1865.—Vide Ordinance No. 26. The defendants in the court below sought by a demurrer to raise the question of the illegality of the consideration and obligations of the contract, by substantially averring that they were contracted in aid of the late war against the national government. We suppose that it is contended that the contract was in violation of the public policy of the government of the United States, as the supreme government of this country, and that it is therefore illegal and void.

The illegality of the consideration or obligations of a contract may be raised by way of demurrer, whenever it is dearly apparent on the face of the complaint; but, when it is not, the party is put to his plea.—1 Chitty’s Pleadings, 311, 484a.

We are of opinion that, upon the face of the complaint, and of the act of the 7th December, 1861, it is not clear that the contract was illegal, or that it was entered into with the intention to give aid to the war then being waged between the United States and the belligerent southern States. Neither the law which authorized the contract, nor the contract itself, required that the arms should be made during the war, nor within any specified time. The contracting parties may still have the right to insist on the performance of the stipulations of the original contract, if it were legal; and if performed, the defendants would be discharged from any liability on the bond executed by them.

But upon these questions we express no opinion, further than to say that the question of the illegality of the contract is not so clearly apparent on the face of the complaint as to authorize a court to sustain a demurrer on that ground, or to pass upon the question sought thereby to be raised. The court below should have overruled the demurrer. In so holding, we do not intend to intimate that we consider the complaint good, or that any action can be maintained on the contract set out. We confine ourselves strictly, as the court below was bound to do, to the assignments specifically made by the demurrer. If a contract is made, which, by one construction, would be void for illegality, and by another would be valid, the latter would be adopted, in order to give effect to the contract.

If hereafter, under an appropriate plea, the evidence should satisfy a jury that the intention of the parties was in violation of law, or of public policy, then the court would be called upon to instruct the jury as to the law in such a case; and may be called upon to charge them upon the effect of the evidence introduced on the trial as to such intention, as well as what constitutes such an illegality in a contract as will render it void.

We do not suppose that the power of a State to issue bonds will be questioned; but we do not think that the question of the authority of the governor to issue the bonds of the State, instead of paying the money appropriated by the act of December 7th, 1861, is raised by either of the grounds of demurrer, and we shall not therefore consider it.

For the error pointed out, the judgment of the circuit court is reversed, and the cause remanded.