without penalties for non-compliance, whether a contract entered into in disregard of any of them is thereby prohibited, and so illegal, or whether the object of the Act is not sufficiently attained by the imposition of the penalty; and the chief test for its decision seems to be whether the provisions have, or not, some object of general policy, which requires that the contract should be invalidated. [Where a statute prohibits the making of contracts in any but a prescribed nanner, they are, of course, void, if made in any other;" and, in general, if a statute prohibiting something to be done cannot otherwise be made to accomplish the object intended to be effected by it, whatever is done in contravention of its prohibition must be adjudged void and inoperative."] Thus, it has been held that enactments which required, under penalties, that all bricks made for sale should be of at least certain specified dimensions (a); or that persons who sold corn, except by certain measures, should be liable to a penalty (b); or that vendors of coals should, under a penalty, deliver, with the coals sold, a ticket setting forth their weight and the number of sacks in which they are contained (c); or that farmers and others should sell butter in firkins of a certain size, branded with their own and the maker's names (d); [that vendors of artificial fertilizers should cause the same to be branded, tagged and inspected before offering them for sale ;"] prohibited all contracts made

27 Etna Ins. Co. v. Harvey, 11 Wis. 394; e. g., the prohibition against a foreign insurance company's doing business in a state, without a license from the same: Ibid., cit. Williams v. Cheeney, 3 Gray (Mass.) 215; Jones v. Smith, Id. 500. But see Columbus Ins. Co. v. Walsh, 18 Mo. 229; Clark v. Middleton, 19 Id. 53. Comp. post, § 458. Brooklyn Life Ins. Co. v. Bledsoe, 52 Åla. 538.

28 Nelson v. Denison, 17 Vt, 73. (a) Law v. Hodson, 11 East, 300.

(b) Tyson v. Thomas, McCl. & Yo. 119.

(c) Little v. Poole, 9 B. & C. 192 Cundell v. Dawson, 4 C. B. 376.

(d) Forster v. Taylor, 5 B. & Ad. 887.

29 Conley v. Sims, 71 Ga. 161. In this case, it appears, the vendor had three kinds of fertilizers in his warehouse, two of them inspected, the third not inspected, branded or tagged. The bags of these three kinds were cut in the house, and after all the sound bags with tags were sold, the refuse mixture was gathered up and bagged, tags were procured from persons other than inspectors and attached to the bags, and the mixture sold. was held that the sale was illegal and void, and not the basis of an action. Compare Niemeyer v. Wright, 75 Va. 239, where it was said, that, when a statute prohibiting and punishing, or merely

It

in disregard of such provisions, and made them void, so that no action could be maintained for the price of the goods sold. On the same ground, where printers were required to affix their names to the books which they printed, it was held that a printer could not maintain an action for his work and materials in printing a book in which he had omitted to comply with this statutory provision (a). The policy of these Acts was to prevent all such dealings; and it would have been imperfectly attained, if the sellers had been merely subjected to a penalty, while the purchasers remained liable to be sued.

$456. Effect on Contracts of Absence of Statutory Personal Qualification. The same stringent effect has been given to enactments which imposed, under a penalty, regulations relating to personal qualification. Thus, an Act which imposed a penalty on an unqualified person who drew conveyances for reward, would invalidate any contract with him. for such a purpose (b). So, an Act which imposed penalties on persons for acting as brokers in the City of London, who had not been admitted and paid certain fees for the benefit of the city (inasmuch as its object was, not the enrichment of the citizens of London, but the protection of the public by preventing improper persons from acting as brokers), was held to invalidate the dealings of an unqualified broker, so far as to prevent him from recovering payment for his services in that capacity (c). [One who sells liquors without license," or follows the occupation of a peddler

punishing an act is silent and contains nothing from which the contrary can be inferred, a contract in contravention of it is void,-but not always where it merely imposes a penalty for doing or omitting a thing. In this case the act concerning the sale of fertilizers was highly penal, and also gave a remedy to persons injured, by recovery against the seller. It was said, at p. 247, that "the infliction of the forfeiture in one aspect is the exclusion of it in any other." See post, § 458.

(a) Bensley v. Bignold, 5 B. &

A. 335; and see Stephens v. Robinson, 2 C. & J. 209.

(b) 44 Geo. 3. c. 98; Taylor v. Crowland Gas Co., 10 Ex. 293.

(c). 6 Anne, c. 16; Cope v. Row. lands, 2 M. & W. 149. But it would not affect his right to recover from his employer money paid or his behalf to complete the irregular purchase; for this was a transac tion distinct from his character of broker Smith v. Lindo, 5 C. B. N. S. 587. Comp. Steel v. Henley, 1 C. & P. 574; Latham v. Hyde, 1 C. & M. 128.

30 Bach v. Smith, 2 Wash. 145

without license," where the law requires such, and punishes dealings without license, cannot recover the price of the articles so sold, nor sue upon a promissory note given therefor." Nor, where a statute requires engineers on steamboats to be licensed, can one who is not, recover stipulated wages for services as such;" nor can an unlicensed commis. sion broker recover commissions for his services, where a statute requires such persons to be licensed and punishes one acting in that capacity without license."

§ 457. When Contract Contrary to Statute Upheld. Revenue Laws. But where the object of the Act is sufficiently attained without giving the prohibition so stringent an effect, and where it is also collateral to or independent of the contract, the statute is understood as not affecting the validity of the contract. [Indeed, the solution of the question, whether or not a statute is to have the effect of rendering acts and contracts in contravention of it illegal and void, depends upon the intent of the Legislature, as gathered from the entire enactment." It has been said that such an intent is to be presumed unless the contrary can be fairly inferred." On the other hand, it has been asserted, that, if the imposition of the penalty upon, or the prohibition under a penalty of, an act or contract, is simply for the purpose of raising or protecting the revenue, an action may nevertheless be based upon it; i. e., whilst the penalty may be incurred, the act or contract is not itself illegal and void."

of an act which is a mere revenue measure designed to raise revenue from a business esteemed by the Legislature as profitable: Lindsey v. Rutherford, 17 B. Mon. (Ky.) 245. Comp. post. § 457.

see

35 See Bemis v. Becker, 1 Kan. 226; Vining v. Bricker, 14 Ohio St. 331.

36 Bemis v. Becker, supra ; Niemeyer v. Wright, 75 Va. 239. Compare Pratt v. Short, 79 N. Y. 437. § 458.

87 See Swan v. Blair, 3 Cl. & Fin., at p. 632, per Lord Brougham; Lindsey v. Rutherford, 17 B. Mon. (Ky.) 245, 248, ante, § 456, note 34.

But this proposition has been doubted altogether," and it would seem clear that it cannot apply where there is an express prohibition of the act or contract, either for the protection of the revenue or for any other purpose." If, however, there is no express prohibition of the act or contract, but "a penalty is imposed on contracts or dealings for the purpose of protecting the revenue, and of providing for the proper payment of duties, no prohibition is implied by law, and such contracts or dealings, though they render the persons who engage in them liable to a penalty, may be enforced by action.""] Thus, where an Act subjected every licensed distiller to a penalty of 2007., if he sold spirits by retail, or even wholesale, anywhere within two miles of the distillery, and required that every license should state the name and abode of every person licensed; it was held that the omission, in the license, of the name and abode of one of the five partners in a distillery, and the retailing of spirits by him, did not affect the sale, so as to prevent the partnership from recovering the price (a). So, the provisions of an Act which imposed penalties on every dealer in tobacco who omitted to paint his name over the entrance of his premises, or who dealt in tobacco without a license, were understood as not affecting the validity of a contract by a tobacconist who had neglected to comply with them.. They were mere fiscal regulations, the breach of which was unconnected with the contract; their object was to protect the revenue, and this was completely attained by the enforcement of the penalty (b). The Pawnbrokers' Act, 39 & 40 Geo. 3, c. 99, already referred to, affords an illustration of the two classes of cases. It requires a pawnbroker to paint his name and business over his door; and it also requires that before he makes any advance on a pledge, he shall make certain inquiries of the pledgor as to his name, abode, and condition in life, and shall enter the results of them in his

88 See 1 Pars., Contr., p. *459. 39 Wilb.. Stat. L.. p. 84, cit. Cope v. Rowlands, 2 M. & W. at p. 157. per Parke, B.

40 Wilb., Stat. L., pp. 83-84. (a) Brown v. Duncan, 10 B. & C. 93; Hodgson v. Temple, 5

Taunt. 181; Johnson v. Hudson, 11 East, 180; Wetherell v. Jones, 3 B. & Ad. 221; Bailey v. Harris, 12 Q. B. 905.

(b) Smith v. Mawhood, 14 M. & W. 452.

books and on the duplicate. A breach of the former provision would not affect the validity of a pledge; but a breach of the latter would do so, for they are directly and immediately connected with the contract (a). The object of the Legislature by such regulations, which was to guard against abuses, would be but imperfectly attained if the contract were held good.

§ 458. Statute Operating on Particular Party or Declaring Particular Result.-[And it would seem, that, where a statute imposing a penalty upon the doing of an act singles out as the object of its prohibition one of the parties to the transaction, or has in contemplation only one particular person or class of persons as intended to be affected and punished by it, it will not, in the absence of an express declaration that contracts involving a disregard or breach of its provisions shall be affected with illegality, be construed as producing this result, especially where the effect would be to prejudice honest claims and permit dishonest defences. The court will not ignore, in arriving at a conclusion upon this question arising under a particular act, the whole language and subjectmatter of the same, the evil it is intended to remedy or prevent, the purposes it seeks to accomplish ;" and whilst adhering to the rule of refusing its aid to one whose cause of action is founded upon a prohibited transaction," even with the consent of parties," it will not extend that rule "so far as to encourage violations of contracts for payment of honest debts, as between the parties, because they grow out of tainted originals.' Thus, where an act imposed a penalty upon any person selling or leasing any lot in any town, city, or addition thereto, until the plot thereof had been duly acknowledged and recorded, it was held that no prohibition of the sale itself was implied, but only a penalty imposed upon the seller; that, therefore, the purchase of a lot, the plot of which was unrecorded, etc., was valid," and con

9944

(a) Fergusson v. Norman, 5 Bing. N. C. 76, better reported 6 Scott, 794. [Comp. § 453.]

41 Pangborn v. Westlake, 36 Iowa. 546.

42 Ibid.; Watrous v. Blair, 32 Iowa, 58; Bly v. Nat. Bank, 79

Pa. St. 453.

43 Fowler v. Scully, 72 Pa. St. 456. 44 Bly v. Nat. B'k, supra, at p. 456, per Trunkey, P. J., approved, at p. 459, per Cur.

45 Watrous v. Blair, supra ; Strong v. Darling, 9 Ohio, 201.