dissenting: This case has been considered with great deliberation by the Court, but I find that my mind cannot reach the conclusion set forth in the opinion nor approve the reasoning through which the result is achieved. The Constitution of North Carolina, Article I, sec. 16, provides “that there shall be no imprisonment for debt in this State, except in cases of fraud.” The reverse of the proposition is that there can be imprisonment for debt in this State “in cases of fraud.” At the outset, therefore, the inquiry is, what is the meaning of the constitutional expression “in cases of fraud”; or to state the proposition differently, what is the meaning of fraud as contemplated by the Constitution, which will warrant and justify depriving a citizen of his liberty ?
Fraud, as contemplated by the Constitution, has not been left to conjecture or supposition. Shortly after the instrument was forged and while hot and fresh, this Court interpreted and set in legal concrete the meaning of fraud .as contemplated therein. Pearson, C. J., writing in Moore v. Mullen, 77 N. C., 328, says: “And it is clear that the words 'except in cases of fraud’ are evidently used in a very restricted sense, such as fraud in procuring a contract to be made; or fraud in attempting to evade performance — as' by concealing property, or by attempting to run it out of the State, or by making a fraudulent disposition of it.” The same definition was given by Chief Justice Peairson in Melvin v. Melvin, 72 N. C., 384.
Let it be observed that the definition of fraud as contemplated by the Constitution is not a mere sugar-coated and emasculated misrepresentation, but fraud “in a very restricted” sense in either procuring a contract or evading performance in the manner specifically pointed out by *514Chief Justice Pearson. If, tben, these decisions correctly state the law and are to be considered binding, then the absence of such fraud is fatal to imprisonment for debt.
As I conceive the law, the identical proposition, in principle, was decided in S. v. Griffin, 154 N. C., 611. The statute under consideration in that case carried the words “with intent to cheat and defraud another . . . shall obtain any money, etc., from any other person . . . by color of any promise or agreement that the person making the same will begin any work, etc., and shall unlawfully and wilfully fail to commence or complete said work according to the contract, without a lawful excuse, he shall be guilty of a misdemeanor.” The statute was amended to provide: “And evidence of such promise or agreement to work, the obtaining of such advances thereon and the failure to comply with such promise or agreement shall be presumptive evidence of the intent to cheat and defraud,” etc. The opinion of the Court declares: “It is a part of the organic law of this State that there shall be no imprisonment for debt except in cases of fraud. The bald fact that a person contracted a debt and promised to pay it in work, standing alone, does not justify a presumption of fraud in contracting the original debt, any more than it would if he had promised to pay it in money. It is beyond the power of the Legislature to create such a rule of evidence and enforce it in the State’s own courts. It is but an arbitrary mandate, there being no rational connection, tending to prove fraud, between the fact proved and the ultimate fact presumed. Such an arbitrary rule of evidence takes away from the defendant his constitutional rights and interferes with his guaranteed equality before the law, and, as the Supreme Court of the United States says, Violates those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law.’ ” To the same effect is the utterance of Uolce, J., in Minton v. Early, 183 N. C., 199. “But, in our opinion, the statute referred to, imposing as it does punishment of fine and imprisonment for abandoning a tenancy .or crop, without paying for the advances made by the landlord, and without requiring any allegation or proof of fraud, either in the inception or breach of the contract, is in violation of our constitutional provision, Art. I, sec. 16, which inhibits ‘imprisonment for debt except in eases of fraud.’ ”
However, the opinion of the Court says: “The offense consists not in presently obtaining something of value by deceit, but in putting in circulation worthless commercial paper which will ultimately result in financial loss. If we close our eyes to this significant fact, we shall fall into the patent error of trying to apply to the case before us the law as announced upon an entirely different state of facts in such Cases as *515S. v. Griffin, 154 N. C., 611, and Minton v. Early, 183 N. C., 199.” According to tbis proposition, the crime consists of two elements, to wit: (1) Issuing and delivering a worthless check; (2) ultimate financial loss.
A check by its very nature is an evidence of indebtedness and as between the drawer and payee, the equivalent of the drawer’s promise to pay. A worthless cheek is then at most a false promise or a false representation. Now what was the gist of the offense in the Griffin casef (1) Procuring something of value. (2) By a false promise or false representation, to wit, to begin work for the promisee, and (3) immediate financial loss. Although there was a false promise or false representation resulting in immediate financial loss, this Court held the legislation unconstitutional. Yet in the present ease a false promise or false representation resulting in hypothetical financial loss, even though nothing of value was procured or received at the time of the uttering thereof, is held valid and constitutional.
I am inclined to think that the “patent error” referred to in the opinion of the Court consists in the failure to recognize what the politicians might term, the “deadly parallel” between the Griffin case and the case at bar.
But says the Court: “Can it be said that the issuance of a check or draft under these circumstances is not a false representation of a subsisting fact — the wrong which the statute condemns?” “False representation of a subsisting fact” is false pretense. If so, the statute is a useless legislative performance because 0. S., 4277, defining and punishing that crime, is already in full force and effect. Again, if false pretense is “the wrong which the statute condemns” then it must be an essential element of the crime, and, if so, it ought to be alleged in the .indictment and proved at the trial. The statute itself, however, contains no language specifying either false pretense or fraud. Is it not therefore apparent that the Court by construction and interpretation is thrusting into the statute the necessary legal elements, and thereby forging and fashioning a totally new law?
If the bad-check law really means that a person who issues and delivers a worthless check is actually guilty of false pretense, then why not so declare and require the State to allege and prove the commission of the real crime for which a defendant is to be tried ? Ought a citizen of this State to be.convicted of a false pretense without requiring the essential elements of the crime to be established? If so, the law itself sets the example of subterfuge in its own tribunals.
However, it is contended that the bad check law can be upheld upon two grounds:
1. That imprisonment for debt is not involved, but the giving of a worthless check, which is a separate and distinct criminal act.
*5162. Tbat sucb legislation can be supported and justified under tbe police power.
In discussing tbe first contention, it must be borne in mind tbat tbe facts in tbis case sbow that the check for $100 was given to pay a debt then existing. Nothing of value, so far as tbe record discloses, passed to tbe defendant at tbe time of giving tbe $100 check. 'While it is debatable in my mind, under our decisions, as to whether tbe receiving of value at tbe time of giving tbe check and upon tbe faith of tbe check, is not essential to uphold conviction, still it must be apparent tbat in tbis particular case tbe debt lies upon tbe threshold of tbe indictment.
What is tbe meaning of tbe expression “for debt”? Tbe word “for” is generally understood in law to mean “on account of;” or “growing out of.” Words and Phrases, Second Series, Y'ol. 2. In tbe light of tbis definition, Art. I, see. 16, of tbe Constitution would read substantially as follows: “There shall be no imprisonment on account of or growing out of a debt in tbis State, except in cases of fraud.”
Does tbe transaction for which tbe defendant is indicted “grow out of” a debt or arise “on account of” a debt? Suppose tbe defendant bad written a dozen checks and passed them out to bis friends to whom be was under no legal obligation, would anybody contend tbat tbe mere drawing and delivering of these checks constituted a crime for which be would be imprisoned? I think not. What is it then tbat creates tbe crime? Obviously tbe drawing and delivering of tbe check to a creditor. Tbe debt, therefore, becomes tbe foundation of tbe offense. It is tbe breath of life to tbe crime, and without it tbe crime could not exist. Tbe debt and tbe crime are as closely associated as bone and marrow or lungs and breathing. Neither can function without tbe other. So tbat tbe effort to insert tbe judicial operating knife between these two inseparable facts, each giving life and vitality to tbe other, is to my mind, simply “dividing a hair twixt South and Southwest side.” Let it be borne in mind, too, tbat as a result of tbis infinitesimal division, a citizen can be deprived of bis constitutional liberty, which, under all established principles of law, is entitled to every reasonable inference in its favor.
It could have been argued with equal, if not greater force, in tbe Minton case tbat tbe penal statute was not intended to make a tenant pay for advances, but to punish an entirely separate and distinct offense, to wit, tbat of abandoning a crop and subjecting tbe landlord to financial injury through tbe probable loss of tbe crop. Moreover, tbe same reasoning could have been applied with greater force to tbe Griffin case upon tbe theory tbat tbe statute was not intended to imprison a tenant for debt, but to punish bis gypsy propensities in wandering about tbe *517country, abandoning crops to tbe mercy of wind and weather and thus subjecting the landlord to probable financial loss, and establishing á practice destructive of agriculture.
The principle of scienter cannot save the day. Scienter is a technical term denoting in the law of fraud a guilty knowledge, and so far as I can discover, is confined to the field of civil actions for fraud and has never been used as a substitute for that evil intent of the mind upon which all crime rests. Indeed in a civil action for fraud the fraudulent intent is an essential to liability. In the very last utterance of this Court upon the subject in Corley Co. v. Griggs, 192 N. C., 173, Clarkson, J., writing for the Court, quoting from Pollock on Torts, says: “To create a right of action for deceit there must be a statement made by the defendant, or for which he is answerable as principal, and with regard to that statement all the following conditions must concur (italics mine) : (a) It is untrue in fact, (b) The person making the statement, or the person responsible for it, either knows it to be untrue, or is culpably ignorant (that is, recklessly and consciously ignorant) whether it be true or not. (c) It is made to the intent that the plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it. (d) The plaintiff does act in reliance on the statement in the manner contemplated or manifestly probable, and thereby suffers damage.” Thus it appears that scienter alone without the fraudulent intent does not even establish a cause of action in a civil case, and yet it is held to be sound law in the case at bar that mere scienter without the intent to deceive is sufficient to establish a crime. In other words, the natural order of the law is reversed and a crime can be established upon less proof than a cause of action in a civil case.
Nor will the analogy of the “clipped coin of the realm” avail. Clipping the coinage or counterfeiting is not now and never has been a crime growing out of or connected with a debt or in anywise possessing any relationship whatever to a contractual obligation. Neither can the doctrine of malum prohibitum control, for the plain reason that the Legislature has no power to declare the failure to pay a debt malum pro-hibitum, and thus by indirection nullify the plain guarantee of the Constitution.
Again, the bad check law, as drawn, does not even establish a tort. If the prosecuting witness in this case had sued the defendant upon the check, alleging in the words of the statute that the defendant gave him the check “knowing at the time that he had no funds in bank to pay the same upon presentation,” and then should submit an issue to the jury in the words of the statute, “did the defendant give said check ‘knowing at the time’ that he did not have sufficient funds on deposit to pay *518same”? and tbe jury should answer this issue yes, I assume that there is not a judge in the State who would sign a judgment in the action, decreeing the arrest of the person of the defendant. And yet, by the simple device of turning the guns of the criminal law upon either a crooked or unfortunate debtor, irrespective of good faith, he can be sent to the chain-gang for a transaction for which he could not even be arrested in a civil case. This result sweeps away all the landmarks set by our fathers establishing the boundaries of constitutional liberty, and I cannot believe that it is sound law.
The second ground upon which this legislation is sought to be upheld is through the exercise of police power. It must be conceded that the police power is an indefinable, intangible, illusive and elusive, all-covering mother-hubbard of the law. Under the complex conditions of modern society, where rights and duties overlap and interlock the police power is an essential attribute and function of sovereignty, subordinating individual convenience and individual rights to the dominant welfare of the public. But, however potent the police power may be, it is not superior to the Constitution, and when the Constitution speaks it must hold its peace. If the bad check law is unconstitutional, that ends the controversy and there can be no police power involved. Obviously the police power cannot push the Constitution from its throne as the supreme authority in this State, because the police power must be treated as the handmaid of the Constitution and not an indirect device, undermining and overthrowing the highest expression of the organic law.
It is to be noted that the opinion of the Court declares that “we recognize the principle that the police power may not be exercised in breach of rights which are guaranteed by the Constitution.” But a perusal of the opinion will clearly disclose that while the principle may be recognized it is not applied because one of the main theories for upholding conviction rests upon the exercise of police power in suppressing a practice- which is supposed to corrupt the morals of the State.
Of course the preamble of the act contains a galaxy of descriptive adjectives, but these mean nothing as the body of the act is plain and unambiguous. These adjectives simply constitute the baby-ribbon, tissue-paper and sprigs of holly which conceal the “Christmas present” contained in section 1 of the act.
The question which we are considering has been considered in many other jurisdictions, notably South Carolina, Vermont, Georgia, California, Ohio, Arizona, Kansas, Florida, Washington, Louisiana, Maryland, Oklahoma, New York and South Dakota. S. v. Moore (S. C.), 122 S. E., 672; Lowell v. Eaton (Vt.), 122 Atl., 742; Berry v. State (Ga.), 111 S. E., 669; People v. Khan (Cal.), 182 Pac., 803; S. v. *519Lowenstein (Ohio), 142 N. E., 897; S. v. Meeks (Ariz.), 247 Pac., 1099; S. v. Avery (Kansas), 207 Pac., 888; Wolfe v. State (Fla.), 79 Southern, 449; S. v. Pilling (Wash.), 102 Pac., 230; S. v. Alphonse (La.), 98 Southern, 430; Lyman v. State (Md.), 109 Atlantic, 548; Kilgore v. State (Okla.), 219 Pac., 160; People v. Siman (N. Y.), 197 N. Y. S., 713; S. v. Taylor, 44 S. Dak, 335. There is also an interesting note on the subject in the N. C. Law Eeview of December, 1926, and also an article on imprisonment for debt in North Carolina, 1 N. C. L. Eev., 229. The statutes of all the States referred to, except Kansas, Vermont and South Dakota, contain the words “with intent to defraud” or similar language.
The South Dakota statute contains the words “every person who designedly by color or aid of any false token or writing . . . obtains . . . any money or property is punishable,” etc. This statute, of course rests upon the theory of false pretense and applies only to securing something of value at the time the check is given.
In S. v. Alphonse, supra, the Louisiana Court said: “In prosecutions under this statute, one of the essential ingredients of the crime is fraudulent intent. It is sacramental that an intent to defraud be alleged and 'proved.” In the note upon the subject, 23 A. L. E., 459, the author says: “But in Neidlinger v. State, 17 Ga. App., 811, 88 S. E., 887, it was expressly held, in direct conflict with S. v. Avery, that unless the statute did require such an intent it would be invalid, since it would be an instrument for the collection of debt by the processes of the criminal law, in contravention of sound public policy and of the constitutional provision against imprisonment for debt.” Proceeding further the author says: “The cases of Hollis v. State (cited in the opinion of the Court) and S. v. Pilling do not expressly declare what would be the effect of failure upon the part of the Legislature to make criminal intent an element of the offense, but the inference clearly is that it is the element of fraudulent intent which relieves the statutes of the constitutional objection that they authorize imprisonment for debt.”
The South Carolina statute originally did not require the presence of fraudulent intent, but this was added in 1923.
The Georgia Court in Berry v. State, supra, referring to the statute in force in that State says: “This act still makes the intent to defraud an essential element of crime defined in this section thereof. Without such intent no crime is committed, and where the evidence introduced by the State negatives the presumption created by this section, there can be no conviction. . . . The evidence for the State disclosing that there was no intent to defraud the payee of any right, property, money, *520or other thing of value, the defendant should not have been convicted, although he falsely stated before he gave his check that he had put funds in the bank to meet the same. The court erred in not granting a new trial.”
The Vermont statute provides that if a person shall issue a check. “knowing at the time of such making” he has not sufficient funds to pay the check upon presentation shall be liable in action for tort . . . to the person injured thereby and for want of property, the body of the person making . . . such check may be attached.”
The Kansas statute is set out in S. v. Avery, supra. This case is cited in the opinion of the Court as the controlling authority upon the question. But the Kansas statute also provides that in case a prosecution is begun under the act the defendant may have the action abated by showing that he had an account in the bank thirty days prior to the time the check was drawn, “and that said check or draft was drawn upon said bank without intent to defraud the party receiving same.”
So far as my investigation discloses, there is not a statute in the country upon the subject that does not recognize the intent to defraud as an essential element of the crime, and therefore our act stands alone and unsupported in so far as it purports to deprive a citizen of this State of his liberty upon a bald, bare breach of a simple contract.
Under our bad check law, if a person should give a check for $1,000, which he knew would overdraw his account at the bank five cents, and the payee of the check should present it to the bank, and the bank should decline to pay it, he would be a criminal and a candidate for the chain-gang, even though he intended to make a deposit within five minutes to cover the check and actually had the money to make such deposit.
Again, under this law as written, if the drawer of the check should notify the payee that the check was not good, but that he, the drawer, would make it good within a few minutes, and the payee should present it to the bank for payment and payment should be refused, the drawer would be a criminal under the law of his State. If the check should be post-dated, the same result would follow, for the reason that the opinion of the Court in this case declares in substance that the gist of the offense is giving the check which is dishonored by the bank, irrespective of the circumstances, good faith, or present ability of the drawer of the check to make it good by a deposit in the bank.
Undoubtedly the bad check evil is grievous. But the curbing thereof should be accomplished in obedience to the law of the land. While these evils, like the debased coinage referred to by McCauley, may smite industry “as with a palsy,” yet I think that a due recognition and ap*521plication of tbe constitutional safeguard, in tbe words of Shakespeare, “makes us rather bear those ills we hare than fly to others that we know not of.”
I think the act is unconstitutional and therefore a nullity.
If the constitutional provision obstructs the free course of commerce and undermines business confidence and integrity, and is no longer adequate to meet the expanding needs of modern life, then it ought to be repealed and nullified, but this should be done in accordance with law and not by mere judicial construction and interpretation.