Bohn v. Lowery

TeRR.au, L, delivered the opinion of the court. By the common law a contract founded upon an illegal consideration, or one made against public policy, is void, and no action can be maintained thereon. And where the doing of an act is prohibited by legislative authority, under a penalty, it cannot constitute a consideration to support a contract. The illegality, whether arising by the common law or from the statute, affects the act or contract with like infirmity. An exception to this rule of law prevails where the penalty is imposed on tliQ offending party merely for the purpose of revenue and not to prohibit the act done, or avoid the contract. In Gremare v. Talon, 2 Camp., 144, Lord Ellenborough refused a new trial in a ease where an unlicensed surgeon had recovered a judgment for his services, solely on the ground that the 'defendant had offered no proof that the plaintiff was unlicensed, clearly implying that if the proof had been in, the plaintiff could not have recovered. [427] In Langton v. Hughes, 1 Maule & Sel., 593, Lord Ellen-borough declared “that what, is done in contravention, of the provisions of an act of parliament cannot be made the subject of an action.” In Bartlett v. Vinor, Carth., 252, Lord Holt- announced the rule that has become the formulary of the text-boolcs: “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 defaulter ; because a penalty implies a prohibition, though there are no prohibitory words in the statute.” ' ■ Smith v. Mawhood, 14 Mees. & W., 452, established the exception that a penalty imposed for the collection of the public revenue merely did not fall under the ban of the law. We find authority in our own state in Deans v. McLendon, 30 Miss., 343, in support of the'general rule, and in the privilege tax law', § 3401, code, we find legislative construction in favor of the exception made by Parke, B., in Smith v. Mawhood. That Dr. Bohn was a graduate of the medical department of Tulane University and a skilful physician is not to the purpose. He had no license when he performed the services upon vliieb the action is founded. His temporary license had expired in May, 1898, and he was disabled by sickness from obtaining a permanent license at'the May meeting of the board, which doubtless he would have done if he had been before it; but that was his misfortune. Looking back it seems that it would have been a reasonable and wise provision of law that it should have authorized the board of health' to extend a temporary license for inability to attend a meeting of the board on account of sickness or other adequate cause. But it is for the legislature to insert such provision, and not for the court to engraft it. Affirmed.