It is void as to every person whose rights would be in any manner involved if it were legal.'

A contract to sell letters written by persons afflicted with diseases to one advertising to cure such diseases is contra bonos mores, and void upon grounds of public policy."

The right to recover back money paid to a real estate broker who has concealed the fact that he was acting for both parties rests upon grounds of public policy, and not upon the advantageous or disadvantageous character of the sale.'

A contract that one selected to give his best judgment between two adverse parties shall be paid in proportion to the sum awarded by him against one of the parties, is void as against public policy.*

The rules that declare certain contracts are void as against public policy, are not to be arbitrarily extended; for if there is one thing more than another that public policy requires it is that persons of full age and competent understanding shall have the utmost liberty, at all consistent with the public good, of contracting, and that their contracts when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice. This freedom of contract is not lightly to be interfered with. Nor will the illegal contract defeat an action for an injury, disconnected with the transaction itself. Thus the rule that courts will not enforce immoral or illegal claims cannot affect the liability of a railroad company for constructing and operating an elevated railway in the street, in front of a house used as a place of prostitution, when such elevated railway depreciates the rental value of the house for ordinary purposes. The occupation of the house for purposes of prostitution does not justify the injury to its value generally. The particular use of the house has nothing to do with the injury suffered by its owner from the elevated roadway, but the injury is wholly independent of such use. The claim for damages does not rest upon the occupation for the special purpose, nor does its enforcement sanction nor encourage such use.*

'Kellogg v. Howes, 81 Cal. 170.

'Rice v. Williams, 32 Fed. Rep. 437. Cannell v. Smith (Pa.) 12 L. R. A. 395.

Thomas v. Caulkett, 57 Mich. 392.

Egerton v. Brownlow, 4 H. L. Cas. 1-250; Sir G. Jessel, M. R. in Printing & Numerical Registering Co. v. Sampson, 19 Eq. 462, 465.

Lawrance v. Metropolitan Elevated R. Co. 13 L. R. A. 102, 126 N. Y. 483; Ely v. Niagara County Supers. 36 N. Y. 297.

CHAPTER II.

CONTRACTS AS AFFECTED BY STATUTE.

§ 4. Contracts to Contravene a Statute Void.

5. Contract Void though Object not Expressly Prohibited by Statute. when.

6. Statutes simply Directory do not Invalidate Contracts.

7. Statutes Protecting the Public from Imposition and Empiricism; Exercise of Police Power.

a. Statutes Requiring Inspection, etc,, of Goods.

b. License to Practice Medicine.

c. Solicitation to Purchase Liquors-Illegal Sale.
d. Violating Foreign Laws.

e. Sunday Laws.

8. Subject Matter and Purpose of Legislation Determine Effect on Contracts.

a. Intent of Legislators must Control; Homestead Laws.

b. Penalty for Performing Marriage Ceremony.

c. Usury Laws.

d. Internal Revenue Laws.

e. Excessive Loans by Banks.

f. Offering Unbranded Goods.

g. Unlicensed Peddler, Commercial Fertilizers.

§ 4. Contracts to Contravene a Statute Void.-The rule that a contract made for the purpose of furthering any matter or thing prohibited by the statute, or to aid or assist any party therein, is void, applies to every contract founded on a transaction malum in se, or which is prohibited by statute on the ground of public policy.'

A contract founded on an act which is prohibited by statute, under a penalty, is void."

Wherever the consideration which is the ground of the prom

1Gardner v. Tatum, 81 Cal. 370.

Milton v. Hayden, 32 Ala. 30.

isc, or the promise which is the consequence or effect of the consideration, be unlawful, the whole contract is void. '

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A contract for the accomplishment of something forbidden by a statute, in the sense of making it unlawful for anyone to enter into such a contract, is void. Contracts which have in contemplation any act contrary to the statute, are void. A contract which contemplates the performance of acts against public policy, or which are forbidden by statute, is absolutely void. A promise made in consideration of an act which is forbidden by the United States Constitution is void,' and no contract can be enforced if it is in violation of the laws of the United States, or is in contravention of the public policy of the government, or in conflict with subsisting treaties."

When a contract is forbidden by the common or statute law, no court, either of law or equity, will lend its assistance to give it effect. "

That which the law prohibits, either in terms or by affixing a penalty to it, is unlawful; and it will not promote in one form that which it declares wrong in another. *

8

Contracts to do an illegal act or to omit a legal public duty are void. '

1 Wolverton v. Davis, 1 Bulst. 38; Bank of United States v. Owens, 27 U. S. 2 Pet. 527, 7 L. ed. 508.

'Griffith v. Wells, 3 Denio, 226; Burkholder v. Beetem, 65 Pa. 496; Sumner v. Summers, 54 Mo. 340; Adams v. Bartlett, 5 Ga. 404; Ashburner v. Parrish, 81 Pa. 52; Coppell v. Hall, 74 U. S. 7 Wall. 558, 19 L. ed. 248; Brown v. Tarkington, 70 U. S. 3 Wall. 381, 18 L. ed. 257; Hodsdon v. Wilkins, 7 Me. 113; Stebbins v. Leowolf, 3 Cush. 137.

Caldwell v. Bridal, 48 Iowa, 15; Tenney v. Foote, 4 Ill. App. 594; Prescott v. Battersby, 119 Mass. 285; Woods v. Armstrong, 54 Ala. 150; Grell v. Levy, 16 C. B. N. S. 79; Re Cork & Y. R. Co. L. R. 4 Ch. App. 748. "Greenhood, Pub. Pol. Rule 2, etc.; Metcalf, Cont. (Heard's ed. 1888,) pp. 301, 302; Oscanyan v. Winchester Rep. Arms Co. 103 U. S. 267, 26 L. ed. 542; Wight v. Rindskopf, 43 Wis. 344; De Wit v. Lander, 72 Wis. 120; Arnot v. Pittston & E. Coal Co. 68 N. Y. 558; Burlington, C. R. & N. R. Co. v. Northwestern Fuel Co. 31 Fed. Rep. 652; Dunham v. Presby, 120 Mass. 285; Valentine v. Stewart, 15 Cal. 387, 388; Bixby v. Moor, 51 N. H. 402; Solomon v. Dreschler, 4 Minn. 278; Ingersoll v. Randall, 14 Minn. 400.

'Craig v. Mo. 29 U. S. 4 Pet. 410, 7 L. ed. 903.

Kennett v. Chambers, 55 U. S. 14 How. 38, 14 L. ed. 316.

'Indianapolis, D. & 8. R. Co. v. Ervin, 6 West. Rep. 104, 118 Ill. 250. • Waugh v. Beck, 5 Cent. Rep. 540, 114 Pa. 422.

'Pearsoll v. Chapin, 44 Pa. 9.

If one promises to do a thing that is unlawful, such promise is void.'

Every act is now regarded as unlawful which the law forbids to be done; and every contract is declared void which contravenes any legal principle or enactment.'

Any act forbidden by the common law cannot be the foundation of a valid contract."

§ 5. Contract Void though Object not Expressly Prohibited by Statute, when. This rule declaring such contracts illegal applies if necessary to accomplish the purpose of the statute whether the statute contains an express prohibition of an attempt

to contravene it or not.*

Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself does not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there were no prohibitory words in the statute."

It cannot be the foundation of a right as between the immediate parties." And cannot be enforced in any court sitting in the State.R

1 Bank of U. S. v. Owens, 27 U. S. 2 Pet. 527, 7 L. ed. 508.

Aubert v. Maze, 2 Bos. & P. 374; Cannan v. Bryce, 3 Barn. & Ald. 183;
Greenough v. Balch, 7 Me. 462; White v. Buss, 3 Cush. 450; Cranson v.
Goss, 107 Mass. 440, 441; Tyler v. Larimore, 19 Mo. App. 445; Suits v.
Taylor, 20 Mo. App. 166, 2 West. Rep. 579.

Reynolds v. Nichols, 12 Iowa, 398; Wheeler v. Russell, 17 Mass. 282.

4 Seidenbender v. Charles, 4 Serg. & R. 156; Larned v. Andrews, 106 Mass. 435; Myers v. States, 1 Conn. 502; Stanley v. Nelson, 28 Ala. 514; Biddis v. James, 6 Binn. 321; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173; Barton v. Hughes, 2 Brown (Pa) 48; Woods v. Armstrong, 54 Ala. 150; Wilson v. Spencer, 1 Rand. 76; Prescott v. Battersby, 119 Mass. 285; Tuxbury v. Miller, 19 Johns. 311; People v. Corporation of Albany, 11 Wend. 539; Sharp v. Teese, 9 N. J. C. 438; Elkins v. Parkhurst, 17 Vt._105; Bank of United States v. Owens, 27 U. S. 2 Pet. 527, 7 L. ed. 508; Pierce v. Evans, 61 Pa. 415; Waite v. Harper, 2 Johns. 386; Booth v. Bank of England, 7 Clark & F. 509; Ex parte Mackay, L. R. 8 Ch. 643; Fuller v. Dame, 18 Pick. 472; Wiggins v. Bush, 12 Johns. 306. Jones v. Surprise, 64 N. H. 243, 4 New Eng. Rep. 292; Bartlett v. Vinor, Carth. 252, Skin. 322; Bliss v. Brainard, 41 N. H. 256, 268; Smith v. Godfrey, 28 N. H. 384; Caldwell v. Wentworth, 14 N. H. 431; Lewis v. Welch, 14 N. H. 294; Pray v. Burbank, 10 N. H. 377; Martin v. Hodge, 47 Ark. 378; Waugh v. Beck, 5 Cent. Rep. 540, 114 Pa. 422.

• New v.

Walker, 6 West. Rep. 872, 108 Ind. 365.

Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 28 L. ed. 1137.

Contracts to secure the vote of a creditor for the discharge of a bankrupt are void, as are all contracts tending to evade the bankrupt law. An agreement by which the creditor of an insolvent is to receive money, by which his vote for the assignee is affected, is illegal.' Whether the contract is with the debtor or a stranger, it is equally void,' and whether paid from debtor's assets or elsewhere."

But a promise to prefer a creditor in case of insolvency is not invalid where the statutes permit preferences by insolvents. And the validity of a mortgage executed by a wife personally, and not through the agency of her husband, will not be affected by his intention to give unlawful preference to the mortgagee and have the wife go into insolvency in fraud of the insolvent laws, if the mortgagee had no knowledge of the wife's insolvency or of the husband's intention. "

Where a debtor and his general creditors enter into a contract of settlement, to which all are understood to be parties, a secret agreement made by the debtor, or on his behalf, favoring a particular creditor, to secure his assent, is void. '

§ 6. Statutes Simply Directory do not Invalidate Contracts. -The rule is universally accepted, that if a statute prohibits a contract in the sense of making it unlawful for anyone to enter into it, such a contract, if made, is wholly void and cannot be enforced.

1

6

Thimning v. Miller, 13 Ill. App. 595; Blasdel v. Fowle, 120 Mass. 447; Wilson v. Jordan, 3 Woods, 642; Wilson v. Prewett, 3 Woods, 631; Claflin v. Torlina, 56 Mo. 369; Austin v. Markham, 44 Ga. 161; M'Kewan v. Sanderson, L. R. 20 Eq. 65; Ex parte McKay, L. R. 8 Ch. 643; Elliott v. Richardson, L. R. 5 C. P. 744.

Eaton v. Littlefield, 6 New Eng. Rep. 341, 147 Mass. 122; Marble v. Grant, 73 Me. 423; Blasdel v. Fowle, 120 Mass. 447; Payne v. Eden, 3 Cai. 213; Rice v. Maxwell, 13 Smedes & M. 289; Austin v. Markham, 44 Ga. 161; Sharp v. Teese, 9 N. J. L. 438.

Bank of Commerce v. Hoeber, 11 Mo. App. 475; Bell v. Leggett, 7 N. Y. 176; Higgins v. Pitt, 4 Exch. 312.

Feldman v. Gamble, 26 N. J. Eq. 494; Lawrence v. Clark, 36 N. Y. 128; Clarke v. White, 37 U. S. 12 Pet. 178, 199, 9 L. ed. 1046; Huckins v. Hunt, 138 Mass. 366; Smith v. Owens, 21 Cal. 11; Biiss v. Matteson, 45 N. Y. 22; Stuart v. Blum, 28 Pa. 225; Lee v. Sellers, 81 *Pa. 473; Sternburg v. Bowman, 103 Mass. 325.