I have become convinced, upon the rehearing of this case, that we arrived at a wrong conclusion in the opinion written by Mr. Justice BIRD. If we are to give to this statute (Act No. 164, Pub. Acts 1913) the interpretation placed upon it in that opinion, to my mind it will open the door to fraud and serious damages to innocent parties who may have acted in the best of faith. Let us suppose a case where a person desires to have a building constructed. He examines the records and finds that certain contractors whose names are well known to him, have not complied with the statute. He contracts with them, and after the building is completed, calmly announces that he will not pay for the same because the men who have furnished the money, time and skill to complete the structure, have failed to comply with a statute which required the contractors to give him information which he already possesses. Under the decision as made the contractors could not recover. No result leading to such palpable injustice should be arrived at if it can be avoided. That the statute in question need not be given such a construction is now quite clear to me. In Cashin v. Pliter,168 Mich. 386, in construing Act No. 101, Pub. Acts 1907, Mr. Justice STEERE said:
"The general rule is well settled that, where statutes enacted to protect the public against fraud or 199 — Mich. — 34. *Page 530 imposition, or to safeguard the public health or morals, contain a prohibition and impose a penalty, all contracts in violation thereof are void."
Let us examine the statute before us. Its title is:
"An act to require the filing of certificates of copartnership, fixing the liability of copartners and providing a penalty for violation of the provisions of this act."
Section 2 provides:
"In case there shall be at any time after the making and filing of said certificate, any change in the name or style of said firm, or in the time of its existence, then a new certificate, verified as before specified, shall in like manner be filed as required by section one of this act, before such change shall take effect; and until such new certificate shall have been made and filed, as above specified, theindividual members of the firm, as set forth in the certificate on file,shall be held to be the actual members of the firm, and in all respectshold en and liable for any obligation, debt or liability, incurred bythe said copartnership."
This section plainly seems to contemplate that business will be transacted by persons who have not complied with it. A careful examination of the act leads to the irresistible conclusion that it was not passed for the purpose of making null and void contracts entered into by partnerships which have not filed the certificate required by this act, but only to inform the public of the true membership of a firm so as to enable one dealing with said firm to be absolutely advised of the individual responsibility of the members of such firm and under the second section to sue those whose names have been registered and who have not signified their withdrawal by an amended certificate. A study of the case of Cashin v. Pliter, supra, shows that the court bases its conclusion therein upon the ground that the statute therein under discussion was of that class of statutes which are passed to protect *Page 531 the public against fraud or imposition, or to safeguard the public health or morals, and that when such statutes contain a prohibition and impose a penalty, all contracts in violation thereof are void. Before the right of private contract, which is no small part of the liberty of the citizen, is taken away, we should, in the language of the opinion ofCashin v. Pliter, supra, —
"carefully scrutinize the particular statute under advisement, for the purpose of ascertaining, from the subject-matter and language used, the object for which it was enacted and the intent of its makers, to the end that such intent may be rendered effectual and the indicated purpose accomplished."
Clearly the legislature did not intend to hold contracts of the character here involved void, for if they had, in view of the decision in Cashin v. Pliter, which was before them, they could easily have said so. The Michigan cases up to the passage of this act have held a contract prohibited by law as void, in which the thing prohibited was bad in itself. Niagara Falls Brewing Co. v. Wall, 98 Mich. 158; In reReidy's Estate, 164 Mich. 167; and Cashin v. Pliter, supra. The act here prohibited is not malum in se, and I think that counsel were right when they said that this statute —
"is a mere regulation designed to have record evidence of the membership of partnerships; it is nothing more than a convenience, to enable those who are not aware of the names of partners composing a firm, to readily ascertain them."
I am aware that in Sloman v. Bender, 189 Mich. 258, we had this statute under consideration, but an examination of the record and briefs in that case discloses that the point now under discussion with reference thereto was not especially considered. While the court did say in reference to the two acts (Act No. 101, Pub. Acts 1907, and Act No. 164, Pub. Acts *Page 532 1913), "The two acts are along the same lines," the point which was argued in the briefs of counsel and on which the case turned, was that attorneys, when associated as partners, occupied no different position with reference to these statutes than other persons. Counsel for plaintiffs and appellants in that case say in their brief:
"Concisely stated, the only proposition involved in the appeal is: Is the practice of the law a profession or a business?"
The decision in that case is, therefore, not controlling of the question now before us.
The judgment should be reversed and a new trial ordered.
MOORE and BROOKE, JJ., concurred with KUHN, J.
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