RODMAN, J.
Dissenting. It is contended that the act of 12th December, 1863, incorporating the plaintiff, is void, by reason of its manifest tendency to aid and encourage the rebellion then existing. All the questions which can be made in this case, arise upon the complaint and the demurrer. There is no plea averring
as a fact, an illegal intent in the Legislature in enacting the act, or in the parties incorporated. No evidence outside of the act, therefore, can be resorted to to establish such intent. If it does not appear
as a legal inferenceon the face of the act, it cannot be found as a fact in the present stages of the case, and when raised by a plea, the question will be for the decision of a jury.
Theintent of the act can be gathered only from the trusts imposed on thecorporation.
The trusts are, to apply donations received or to be received to be expended for "the education of the indigent orphan sons (115) of such soldiers as
have fallen or may hereafter fall or be disabledin the wars of the Confederate States of America, and when no such claimants shall exist, for the education of
other orphan boys, to be selected, as far as practicable, from the counties in proportion to their contributions." Here are three classes of beneficiaries clearly described and distinguished. No distinction is made as to race or color. As the act is intended for the benefit of orphans only, by the words, "fall or be disabled," must be meant either immediately killed, or so disabled that death results from the disability.
The question to be considered may be divided thus:
I. Are any or all of the trusts illegal?
II. If one of them is illegal and the others not, will the act be held void
in toto, or valid for the purpose of supporting those which are not illegal but meritorious?
Since the close of the late civil war, the Courts of the Southern States have had occasion to make a new and somewhat copious chapter in the law of contracts illegal by reason of being in aid of the rebellion. Strange as it may seem when contrasted with our own experience, the civil wars of England and the unsuccessful insurrection and rebellions in our own country, such as Shay's in Massachusetts, the whiskey
Page 102insurrection in Pennsylvania, and the Dorr was in Rhode Island, have not left a single case which I have found cited on this branch of the law.
To decide the cases brought before us, we resorted to the precedents in cases not influenced by any such embittered feeling as every civil war naturally leaves behind it. And I think we have acted wisely in taking the principles of such cases, although the result of our decisions (as it was of those) has been to exempt defendants equally guilty with the plaintiffs, from the payment of debts to which in the forum of morals and conscience, they were unquestionably bound, and sometimes to vest persons with property for which they had given no value, and where they had no moral claim.
(116) Since it pleased divine Providence to visit the "Lost Cause" with defeat, we must regard the unsuccessful effort at independence as a turpitude, and every executory contract, entered into actually or by construction of law, with an intent to promote it
as malum in se, and void. But it is not necessary to go farther.
I now proceed to consider the questions I have stated in their order:
I. In my opinion a fair examination of the act will show that no one of the trusts declared is unlawful, because no one of them tended, except in that merely possible and remotely consequential way which the law disregards to encourage the rebellion.
It is not contended that the trusts for the benefit of the orphans of soldiers
alreadydeceased was illegal. The alleged illegality is found in the trusts for the orphans of those
who shall thereafterfall or be disabled; it is to be noted, not of those who shall
thereafter enter theserviceand fall, etc. It is argued that this tended to encourage men to enter, or adhere to the Confederate service. If encouragement is given to any act, it is to being killed or disabled, which is the condition precedent to the bounty. But to encourage that can hardly be considered disloyal, since it is just what our armies, as we must now call them, were striving to bring about. But apart from that, I agree that every contract and every act of the Legislature, which can be fairly construed as intending to aid and encourage the rebellion then existing, is void. But before that intent can be imputed to it, it must appear that it
naturallyand probablytended to produce that effect. The inducement which it holds out to join in or adhere to the rebellion, must be such as is
usuallyinfluential upon human conduct, and which is therefore regarded as influential by the law. For if the promised benefit be so trivial, remote or contingent that it would not naturally or probably, and does not usually induce to crime, although by possibility, in some rare and exceptional case it may, such a benefit is not considered by the law as being intended to have a criminal effect. It
Page 103is regarded as no inducement at all.
De minimis non curat lex. I know of no direct authority in point to this case, but I think (117) this proposition may be maintained on the analogy of cases in which the law is clear and undisputed.
A man may insure his life for the benefit of his estate or of his family. A husband may insure the life of his wife, or a father that of his child, for his own benefit, and a wife that of her husband for her own. It was held lawful for a master to insure the life of his slave.
Spruill v.Insurance Co.,
46 N.C. 126;
Woodfin v. Insurance Co.,
51 N.C. 558.
In all these cases there is a clear and direct temptation to destroy the insured life, and it is by no means impossible to conceive of circumstances in which it may be done with but little risk of detection and punishment. Cases are not rare in which the temptation has actually proved strong enough to induce the crime. But such is not the usual and therefore not the natural and probable effect, and the law does not consider such policies of insurance void, because of this their feeble and remote inducement to crime. On the contrary, they are lawful and common.
In all such cases the benefit is direct to the individual whom it might be argued was thereby tempted to crime, and is to be enjoyed during his life. But in the present case the supposed temptation is much slighter and more remote; it is a benefit to his children, to be received by them after and through his voluntary death, and is moreover not a benefit of a thing
in esse, but of an education in a school to be established, if the liberality of donors shall supply the funds. Benefits to be received after one's death are proverbially feeble motives; experience shows us that the future happiness which as Christians we believe will follow a Christian life in this world, has but little influence on the conduct of most men. Many murders have been committed to obtain money insured on the life of the deceased wife, child or slave. But I am incredulous that any soldier ever got himself killed or disabled, or ever entered the Confederate or any other service, in time of war, in order that his children might, after his death, receive (118) a free education in a school which had only a possible existence, rather than in the established public schools.
There is a like analogy in the rule of damages in civil actions against
tort feasors;only such are allowed as are the natural and probable result of his wrongful act.
Dale v. Grant, 34 N.J. Law, (5 Vroom,) 142.
In criminal prosecutions, when the criminality of an act depends on the intent to injure another, such intent is only inferred when the injury is the natural and probable result of the act. 2 Stark Ev. 573.
Page 104For example, if a mason in building a house on a frequented street, drops a brick, whereby a passer-by is killed, he will be held guilty of a crime, because in such a place the injury was the natural and probable result of his act; but otherwise, in an unfrequented place where he had no reason to expect any one to be. To hold the trust in question illegal is, it seems to me, to violate all these analogies and to give to the doctrine of constructive crime, where no criminal intent in fact existed, an unprecedented and unreasonable extension.
If we consider the act in the light of the history of the times, the real intent is clear. It was not to induce volunteers to enter the army; volunteering had long ceased and been followed by a rigorous conscription which allowed of no volunteers. The act was intended for the children of these conscripts. At all events, the charity was for the innocent children and not for the parents, whether guilty or innocent, volunteers or conscripts. To defeat it upon the ground contended for would confine charity within the narrowest limits of political orthodoxy and shut not out from it all whose faith was not ours. It is usually esteemed not the less a virtue when it extends to all the children of poverty and misfortune, without restriction from the creeds, the errors, or even the crimes of their parents. Thou shalt not visit the sins of the fathers upon the children, has been accepted as the law of (119) humanity ever since the time of Moses.
But however this may be and assuming that the particular trust for the orphans of soldiers who should
afterwardsbe killed is illegal and will not be sustained, it seems to me that the other trusts which are clearly separable from this and are admittedly free from any objection of turpitude, ought to be sustained and for that purpose the act of incorporation held valid.
In Metcalf on Contracts, P. 246, the law is clearly, and as I conceive, correctly stated. The following are quotations from that work, omitting for the sake of brevity all that can be omitted without injury to the meaning. I avail myself of the authorities collected by the learned author. If the
considerationof a promise be unlawful the promise is void. "When, however, the illegality of a contract is in
the act to be done, and not in
theconsideration, the law is different. If for a legal consideration a party undertakes to do two or more acts and part of them are unlawful, the contract is good for so much as is lawful, and void for the residue. Wherever the unlawful part of a contract can be separated from the rest it will be rejected and the remainder established." "Therefore," says HUTTON, J., (
Bishop of Chester v. Freeland, Leg. 79,) "at the common law, when a good thing and avoid thing are put together in the self same grant, and the same law shall make such a construction that the grant shall be good for
Page 105that which is good and void for that which is void." "So if any part of the condition of a bond be against law it is void for that part and good for the rest; or if a bond be given for the performance of covenants contained in a separate instrument, some of which are lawful and others unlawful."
Chamberlain v. Goldsmith, 2 Brownlow, 282;
Norton v. Lynns, Moore, 856.
"If then any part of a contract is valid, it will avail
pro tanto, although another part of it may be prohibited by statute," etc. See
Moonyv. Leak, 8 Term, 411;
Renison v. Cole, 8 East. 231;
Doe v. Pitcher, 6 Taunt. 369.
"It appears from these cases that when the invalid part of an (120) agreement can be separated from the valid, the latter shall stand, although the former be declared void by statute." To the same effect are the class of cases of which
Mallan v. May, 11 M. W. 653, and
Price v.Green, 13 Mess. Wils. 695, are the leading ones. They decide that in contracts in restraint of trade the reasonable provisions will, if possible, be separated and supported, while the unreasonable, and therefore illegal ones, will be disregarded.
In this State the same principles have been clearly stated and applied to declarations in trust. The leading case is
Brannock v. Brannock,
32 N.C. 428. There one Thompson had made a deed of land in trust to secure several debts, one of which was usurious, and it was contended that the
wholedeed was therefore void. The Court (PEARSON, J., delivering the opinion,) say: "The operation of the deed was to pass the legal estate, with a
separate declaration of trustfor each of the debts therein enumerated. There can be no reason why the declaration of trust in reference to one debt may not stand and the declaration of trust in reference to another be held void." This case has been recently approved and followed in
McNeill v. Riddle,
66 N.C. 290. See also
Darling v. Rogers, 22 Wend. 483;
Van Veckton v. Van Veckton, 8 Paige 104.
Savage v. Burnham,
17 N.Y. 561.
I am unable to see how the present case can be distinguished from these, and I think the demurrer should be overruled.
Justice READE concurs in this dissenting opinion.
Cited: Morris v. Pearson,
79 N.C. 261.
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