alty is imposed, the transaction may nevertheless be invalidated.70 § 1764. Mala prohibita and mala in se. No distinction is now made between things which are merely mala prohibita and things which are mala in se. Courts cannot go behind the legislative prohibition when the prohibition itself is clear. But in determining what validity, if any, a forbidden contract has, it is often important to consider how far and for what reason the prohibited transaction is wrongful, since the courts will endeavor so to deal with the transaction as to give effect to the fundamental purpose of the Legislature and to a wise public policy.72 Rep. 145; Durgin v. Dyer, 68 Me. 143; Roby v. West, 4 N. H. 285, 17 Am. Dec. 423; Brackett v. Hoyt, 29 N. H. 264; Gregory v. Wilson, 36 N. J. L. 315, 13 Am. Rep. 448; Covington v. Threadgill, 88 N. C. 186; Bloom v. Richards, 2 Ohio St. 387, 395; Pennsylvania Co. v. Wentz, 37 Ohio St. 333, 338; McConnell v. Kitchens, 20 S. C. 430; Elkins v. Parkhurst, 17 Vt. 105; Bancroft v. Dumas, 21 Vt. 456. 70 In Norbeck & N. Co. v. State, 32 S. Dak. 189, 142 N. W. 847, 849, the court said: "A contract founded on a statute making an act penal is void, although the statute does not pronounce it void or expressly prohibit it. A contract that is declared and pronounced to be null and void by express law is just as null and void as if made penal. The effect on the contract is the same in either case. Berka v. Woodward, 125 Cal. 119, 57 Pac. 777, 45 L. R. A. 420, 73 Am. St. Rep. 31; Brooks v. Cooper, 50 N. J. Eq. 761, 26 Atl. 978, 21 L. R. A. 617, 35 Am. St. Rep. 793; Seidenbender v. Charles, 4 Serg. & R. 151, 8 Am. Dec. 682." In Dodson v. McCurnin, 178 Iowa, 1211, 160 N. W. 927, 929, L. R. A. 1917 C. 1084, the court said: "It is not necessary that a prohibited evil should be made criminal or even penalized to vitiate contracts made in furtherance of that evil. Jemison v. Birmingham, 125 Ala. 378, 28 So. 51; McGehee v. Lindsay, 6 Ala. 16; Moog v. Hannon's Ad'r, 93 Ala. 503, 9 So. 596. And a contract which in its execution contravenes the policy and spirit of a statute is equally void as if made against the positive provisions. Hunt v. Knickerbacker, 5 Johns. 327; Wetmore v. Brien, 3 Head. 723." A contract to make a settlement which would violate a statutory rule against perpetuities is unenforceable. Carrier v. Carrier, 226 N. Y. 114, 123 N. E. 135. 71 Bank v. Owens, 2 Pet. 527, 539, 7 L. Ed. 508; Gibbs v. Consolidated Gas Co., 130 U. S. 396, 9 S. Ct. 553, 32 L. Ed. 979; Penn v. Bornman, 102 Ill. 523, 530; Greenough v. Balch, 7 Me. 461; White v. Buss, 3 Cush. 448; Downing v. Ringer, 7 Mo. 585; Hill v. Spear, 50 N. H. 253, 277, 9 Am. Rep. 205; Pratt v. Short, 79 N. Y. 437, 35 Am. Rep. 531; Puckett v. Alexander, 102 N. C. 95, 8 S. E. 767, 3 L. R. A. 43; Rossman v. McFarland, 9 Ohio St. 369, 379; Holt v. Green, 73 Pa. St. 198, 13 Am. Rep. 737; Melchoir v. McCarty, 31 Wis. 252, 11 Am Rep. 605. 72 In Dunlop v. Mercer, 156 Fed. § 1765. Illustrations of prohibitory statutes. Where a statute prohibits altogether the sale of certain goods, not only an agreement for such a sale is invalid, but if a sale is made in violation of law the agreed price cannot be recovered.73 Where a statute requires a broker to obtain a license before sales of the kind in question can be negotiated by him, there is no doubt that if such a sale is made by one acting as a broker without the required license, he can recover no compensation for 545, 555, 86 C. C. A. 435, the court said: "The general rule that an illegal contract is void and unenforceable is, however, not without exception. It is not universal in its application. It is qualified by the exception that where a contract is not evil in itself, and its validity is not denounced as a penalty by the express terms of or by rational implication from the language of the statute which it violates, and that statute prescribes other specific penalties, it is not the province of the courts to do so, and they will not thus affix an additional penalty not directed by the lawmaking power. Fritts v. Palmer, 132 U. S. 282, 289, 293, 10 S. Ct. 93, 33 L. Ed. 317; National Bank v. Matthews, 98 U. S. 621, 629, 25 L. Ed. 188; Logan County Bank V. Townsend, 139 U. S. 67, 76, 11 S. Ct. 496, 35 L. Ed. 107; Thompson v. St. Nicholas Nat. Bank, 146 U. S. 240, 13 S. Ct. 66, 36 L. Ed. 956; Blodgett v. Lanyon Zinc Co., 120 Fed. 893, 896, 897, 58 C. C. A. 79, 82, 83; Sioux City etc., Co. v. Trust Co., 82 Fed. 124, 134, 49 U. S. App. 523, 27 C. G. A. 73, 83; Hanover Bank v. First Nat. Bank of Burlingame, 109 Fed. 421, 426, 48 C. C. A. 482, 487; Speer v. Board of County Commrs., 88 Fed. 749, 758, 60 U. S. App. 38, 32 C. C. A. 101, 110; National Bank of Xenia v. Stewart, 107 U. S. 676, 2 S. Ct. 778, 27 L. Ed. 592; Gold Mining Co. v. National Bank, 96 U. S. 640, 24 L. Ed. 648; O'Hare v. Bank, 77 Pa. St. 96; Pangborn v. Westlake, 36 Iowa, 546; Chattanooga R. & C. R. Co. v. Evans, 14 C. C. A. 116, 121, 122, 66 Fed. 809, 815, 31 U. S. App. 432." 73 Thus in Massachusetts a sale of milk below a certain standard is an illegal sale. Miller v. Post, 1 Allen, 434; Copeland v. Boston Dairy Co., 184 Mass. 207, 68 N. E. 201. In Maine the seller of cattle infected with tuberculosis cannot recover the price, though ignorant that the cattle were diseased. Church v. Knowles, 101 Me. 264, 63 Atl. 1042. The sale of animals afflicted with glanders is prohibited in Arkansas. Compagionette v. McArmick, 91 Ark. 69, 120 S. W. 400. The sale of imported second-hand clothing is prohibited in Georgia. Smith v. Evans, 125 Ga. 109, 53 S. E. 589. In Law v. Hodson, 11 East, 300, recovery was denied the seller of bricks because of the statute requiring bricks to be of certain dimensions to which the bricks sold did not conform. In Wheeler v. Russell, 17 Mass. 258, a note calling for shingles of illegal size was similarly unenforceable. In Eaton v. Kegan, 114 Mass. 433, the price of oats sold by the bag was held not recoverable because of a statute requiring such goods to be sold by the bushel; but in Eldredge v. McDermott, 178 Mass. 256, 59 N. E. 806, the court held that if a custom was proved that a bag of oats contained two bushels, the price of oats sold in bags could be recovered, being in effect a sale by the bushel. See also Durgin v. Dyer, 68 Me. 143. his services. And even though sale of particular goods is not illegal in itself, if the seller is violating the law in selling them without complying with some statutory prerequisite, the policy of the law generally denies recovery of the price. This has been held even when the only illegality is breach of a requirement under statutory penalty that the seller shall take out a license, if the purpose of the statute is, in part at least, for the protection of the public and not solely for purposes of revenue.75 It may be observed, however, that a statute which requires a license to be paid for by a traveling salesman is void, at least so far as concerns salesmen from another State, as violating the provision of the Federal Constitution giving Congress exclusive control over interstate and foreign commerce.76 § 1766. Further illustrations of prohibitory statutes. The price of liquor sold in violation of a liquor license law, cannot be recovered," nor the price of goods sold in violation 74 Cope v. Rowlands, 2 M. & W. 149; Hustis v. Picklands, 27 Ill. App. 270 (paper); Richardson v. Brix, 94 Iowa, 626, 63 N. W. 325; Black v. Security Mutual Assn., 95 Me. 35, 49 Atl. 51, 54 L. R. A. 999, Buckley v. Humason, 50 Minn. 195, 52 N. W. 385, 16 L. R. A. 423, 36 Am. St. Rep. 437; Holt v. Green, 73 Pa. St. 198, 13 Am. Rep. 737; Johnson v. Hulings, 103 Pa. St. 498, 49 Am. Rep. 131; Stevenson v. Ewing, 87 Tenn. 46, 9 S. W. 230. The rule is the same in regard to other occupations for which a similar requirement is made; see the following section. 75 Bull v. Harragan, 17 B. Mon. 349 (peddler). And see decisions cited infra, n. 77, of unlicensed sales of liquor. In Mabry v. Bullock, 7 Dana, 337, it appears that the statute expressly provided that all contracts for the sale of clocks should be void unless the seller has a license. See also Rash v. Farley, 91 Ky. 344, 15 S. W. 862, 34 Am. St. 233; Best v. Bauder, 29 How. Pr. 489; Stevenson v. Ewing, 87 Tenn. 46, 9 S. W. 230. But compare Banks v. McCosker, 82 Md. 518, 34 Atl. 539, 51 Am. St. 478; Mandlebaum v. Gregovich, 17 Nev. 87, 28 Pac. 121, 45 Am. Rep. 433; Jones v. Berry, 33 N. H. 209; Eberstadt v. Jones, 19 Tex. Civ. App. 480, 48 S. W. 558. See also Smith v. Lindo, 4 C. B. (N. S.) 395, where an unlicensed broker was allowed to recover from his principal money paid in executing a purchase for him. In Levison v. Boas, 150 Cal. 185, 88 Pac. 825, 12 L. R. A. (N. S.) 575, an unlicensed pawnbroker was held to have no lien on goods on which he had made a loan. See also Ferguson v. Norman, 5 Bing. (N. C.) 76; Victorian Daylesford Syndicate v. Dott, [1905] 2 Ch. 624; Bonnard v. Dott, 1906] 1 Ch. 740; Lodge v. National Union Inv. Co., [1907] 1 Ch. 300. 76 Coldwell v. North Carolina, 187 U. S. 622, 47 L. Ed. 336, 23 S. Ct. 229, and cases cited; Crenshaw v. Arkansas, 227 U. S. 389, 33 S. Ct. 294, 57 L. Ed. 565, and cases cited. 77 Miller v. Ammon, 145 U. S. 421, 12 S. Ct. 844, 36 L. Ed. 759; Lang v. Lynch, 38 Fed. 489; O'Bryan v. Fitz of a law requiring weights and measures to be sealed,78 or of a law requiring coal or lumber 80 to be weighed or surveyed by a public officer, or requiring goods to be marked to indicate their character or composition.81 A physician without the license to practice required by law cannot recover for his services, nor can a lawyer, steamboat en patrick, 48 Ark. 487, 3 S. W. 527; Dolson v. Hope, 7 Kans. 161; Vannoy v. Patton, 5 B. Mon. 248; Cobb v. Billings, 23 Me. 470; Bondy v. Hardina, 216 Mass. 44, 102 N. E. 935; Loranger v. Jardine, 56 Mich. 518, 23 N. W. 203; Niagara Falls Brewing Co. v. Wall, 98 Mich. 158, 57 N. W. 99; Solomon v. Dreschler, 4 Minn. 278; Lewis v. Welch, 14 N. H. 294; Coldwell v. Wentworth, 14 N. H. 431; Covington v. Threadgill, 88 N. C. 186; Griffith v. Wells, 3 Denio, 226; Bancroft v. Dumas, 21 Vt. 456; Aiken v. Blaisdell, 41 Vt. 655; Bach v. Smith, 2 Wash. Terr. 145, 3 Pac. 831; Gorsuth v. Butterfield, 2 Wis. 237; Melchoir v. McCarty, 31 Wis. 252, 11 Am. Rep. 605. 78 Miller v. Post, 1 Allen, 434; Bisbee v. McAllen, 39 Minn. 143, 39 N. W. 299; Finch v. Barclay, 87 Ga. 393, 13 S. E. 566; Smith v. Arnold, 106 Mass. 269; Sawyer v. Smith, 109 Mass. 220; Eaton v. Kegan, 114 Mass. 433. 79 Little v. Poole, 9 B. & C. 192; Libby v. Downey, 5 Allen, 299. 80 Richmond v. Foss, 77 Me. 590, 1 Atl. 830; Prescott v. Battersby, 119 Mass. 285; Pray v. Burbank, 10 N. H. 377. 81 The following cases relate to fertilizers: Pacific Guano Co. v. Mullen, 66 Ala. 582; Merriman v. Knox, 99 Ala. 93, 11 So. 741; Brown v. Adair, 104 Ala. 652, 16 So. 439; Brown v. Raisin Fertilizer Co., 124 Ala. 221, 26 So. 891; Bowdoin v. Alabama Chemical Co., (Ala. 1918), 79 So. 4; Kleckley v. Leyden, 63 Ga. 215; Johnston v. McConnell, 65 Ga. 129; Lorentz v. Conner, 69 Ga. 761; Vanmeter v. Spurier, 94 Ky. 22, 21 S. W. 337; McConnell v. Kitchens, 20 S. C. 430. But see Niemeyer v. Wright, 75 Va. 239, 40 Am. Rep. 720. The same rule was applied where the statute in question related to other goods. Forster v. Taylor, 5 B. & Ad. 887 (butter); Buxton v. Hamblen, 32 Me. 448 (hay). 82 D'Allex v. Jones, 2 Jur. (N. S.) 979; Harrison v. Jones, 80 Cal. 412; Taliaferro v. Moffett, 54 Ga. 150; Gardner v. Tatum, 81 Cal. 370, 22 Pac. 880; Quarles v. Evans, 7 La. Ann. 543; Fox v. Dixon, 58 Hun, 605, 12 N. Y. S. 267; Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879, 2 L. R. A. (N. S.) 392, 111 Am. St. 922. Cf. Prietto v. Lewis, 11 Mo. App. 600; Smythe v. Hanson, 61 Mo. App. 285. 820 Taylor v. Crowland Gas & Coke Co., 10 Exch. 293; Hittson v. Browne, 3 Colo. 304; Tedrick v. Hiner, 61 Ill. 189; East St. Louis v. Freels, 17 Ill. App. 339; Parkins v. McDuffee, 63 Me. 181; Browne v. Phelps, 211 Mass. 379, 97 N. E. 762; McIver v. Clarke, 69 Miss. 408, 10 So. 581; Westcott v. Baker, 83 N. J. L. 460, 85 Atl. 315; Goldenberg v. Law, 17 N. Mex. 546, 131 Pac. 499; Buxton v. Lietz, 139 N. Y. S. 46; Hall v. Bishop, 3 Daly, 109. Cf. In re Horton, 8 Q. B. D. 434; Miller v. Ballerino, 135 Cal. 566, 67 Pac. 1046, 68 Pac. 600; Brooks v. Volunteer Harbor Assoc., 233 Mass. 168, 123 N. E. 511, 4 A. L. R. 1086; Harland v. Lilienthal, 53 N. Y. 438, 440. A corporation cannot engage in the practice of law, even though it employs, as agents for the purpose, members of the bar. Application of Coöperative Co., 198 N. Y. 479, 92 N. E. 15, 32 L. R. A. gineer, 83 teacher,84 architect,85 plumber,86 or a scavenger 87 for whom the law makes a similar requirement. An innkeeper without a required license cannot recover for board and lodging. 88 Agreements for the conveyance of homestead property entered into by one only of a married couple have been held not only to afford no ground for specific enforcement to the extent of the right of the party contracting, but to give no right to recover damages against him.90 The object of the homestead statute it is thought would be defeated if such a liability were permitted, since it might be used as a means of wringing consent from an unwilling spouse. Whether the failure of a vendor of land to comply with a law requiring a plat first to be recorded deprives him of a right to recover the price has been differently decided.o1 Recovery of rent has been denied to a landlord who failed to comply with a statute requiring the erection of fire-escapes on the leased building; 92 and somewhat similarly, a plaintiff who had done threshing for the plaintiff with a machine not provided with appliances which the law required has been denied recovery for his services.93 Some of the cases cited in this section are not always easy to distinguish from decisions (N. S.) 551, 139 Am. St. Rep. 839, 19 83 The Pioneer, Deady, 72. 85 Fitzhugh v. Mason, 2 Cal. App. 220, 83 Pac. 282. The court held that a valid contract might be made before a professional certificate was obtained though the services might not legally be rendered till it was obtained. 88 Johnston v. Dahlgren, 31 N. Y. App. D. 204, 52 N. Y. S. 555. 87 De Wit v. Lander, 72 Wis. 120, 39 N. W. 349. 88 Stanwood v. Woodward, 38 Me. 192. 89 Mundy v. Shellaberger, 161 Fed. 503, 88 C. C. A. 445; Clark v. Bird, 158 Ala. 278, 48 So. 359, 132 Am. St. Rep. 25; Wheelock v. Countryman, 133 Iowa, 289, 110 N. W. 598; Thompson v. Foken, 81 Nev. 261, 115 N. W. 770. 90 Mundy v. Shellaberger, 161 Fed. 503, 88 C. C. A. 445; Wheelock v. Countryman, 133 Iowa, 289, 110 N. W. 598; Lichty v. Beale, 75 Neb. 770, 106 N. W. 1018; Silander v. Gronna, 15 N. Dak. 552, 108 N. W. 544, 125 Am. St. 616; Rosenthal v. Pleck, 166 Wis. 598, 166 N. W. 445. Cf. White v. Bates, 234 Ill. 276, 84 N. E. 906. 91 That it does, see Downing v. Ringer, 7 Mo. 585; Mason v. Pitt, 21 Mo. 391. See also Bemis v. Becker, 1 Kan. 226. That it does not, Pangborn v. Westlake, 36 Ia. 546; Strong v. Darling, 9 Ohio, 201. 92 Leuthold v. Stickney, 116 Minn. 299, 133 N. W. 856, 39 L. R. A. (N. S.) 231, Ann. Cas. 1913 B. 405. The case is criticised in 74 Cent. L. J. 196. 93 Ingersoll v. Randall, 14 Minn. 400. |