It was not the intention of the legislature, in making it a penal offence to sell, or offer for sale, within this State, any fertilizer not inspected, stamped, and certified to, as required by the statute, to suspend the sale of such article until the inspectors were duly appointed and qualified! Where a statute affects a community, and requires, as a condition to its validity, that something should be done before it goes into operation, the act has no force or effect until the thing required to be done is performed. In this case, the inspectors were to be appointed, and the chief one was to give bond. Time was necessary for this; and in the mean while, the business of the people was not to stand still. Savage & Darrington v. Walshe & Emanuel, 26 Ala. 619, 629.
By section 3544 of the Revised Code, penal acts do not go into effect until thirty days after the adjournment of the legislature at which such act is passed. The contract, supposed to be vitiated, on the ground of public policy, by the act “ To protect the planters of this State from imposition in the sale of fertilizers,” approved March 8, 1871 (Acts 1870-71, p. 68), was entered into on the 5th of April, 1871, within the thirty days. Until the sale of the fertilizers without inspection became an offence, it cannot be said to be in contravention of public policy. The authority which prescribed the policy directed when it should begin. The charge of the court on this point was erroneous.
2. The rule in respect to the merchantable quality of goods sold, where the buyer has an opportunity of inspecting them, seems to be, that “ the seller may let the buyer cheat himself ad libitum, but must not actively assist him in cheating himself.” 1 Parsons on Contracts, m. p. 535; Barnett v. Stanton & Pollard, 2 Ala. 181; Ricks v. Dillahunty, 8 Port. 133. I think the rule of the civil law is preferable, that a dealer impliedly warrants the merchantable quality of his goods. But our law says the purchaser must buy on his own responsibility, or ask for a warranty.
The judgment is reversed, and the cause remanded.