not recover the price of the same. The case of Tracy v. Talmage, 14 N. Y. 162 (1856), was an action against the receiver of an insolvent bank on time paper issued by the bank in violation of statute, but on a contract otherwise valid. The action was sustained, and in his opinion, Selden, J., rested the decision on the ground' that "the cases in which the courts will give relief to one of the parties on the ground that he is not in pari delicto form an independent class, entirely distinct from those cases which rest upon a disaffirmance of the contract before it is executed. It is essential to both classes that the contract be merely malum prohibitum. If malum in se the courts will in no case interfere to relieve either party from any of its consequences."

In a case decided in the Federal court for the district of Oregon in 1864, (The Pioneer, Deady 72), it was held that a party acting as engineer on a steamboat without a license, contrary to the statute, could not recover his wages. In Shoemaker v. National Mech: Bank, 2 Abbott U. S. 416, (1869), it was held that a loan made by a national bank in excess of the amount allowed by the national banking act, was not void on that account.

In Alabama it is held that a contract founded on an act prohibited by statute is void. Woods v. Armstrong, 54 Ala 150, (1875), was a case where guano had been sold without being inspected and branded by the state inspector, contrary to the statute. The contract was held void and no recovery allowed. A uniform course of decisions in similar cases has firmly established this doctrine in this state.' And in the following English cases, where coal was sold without being weighed by a public weigher, (4 C. B. 375); tobacco, without a license, (14 M. & W. 452) and where a conveyancer was not licensed as required by statute, (10 Ex. 293); in none of these cases was recovery allowed. In Iowa, under a statute requiring certain parts of the tumbling rods etc., of a threshing machine to be boxed, under penalty, it was held, (Dillon v. Allen, 46 Iowa, 299, 1877), that to operate a threshing machine not conforming to these requirements was 15 Ala. 468; 6 id. 16; 10 id. 566; 9 id. 200; 13 id. 406; 30 id. 591; 32 id. 36.

illegal and the owner could not recover for work done. In Ewell v. Daggs, 108 U. S. 143, (1882), on a question arising under a statute of Texas, which provided that all contracts specifying a greater rate of interest than twelve per cent., should be void and of no effect for the whole of the premium or interest only, Mr. Justice Matthews said, "the true construction of the statute is that such a contract is voidable but not absolutely void. A distinction is made between between acts which are mala in se, which are generally regarded as absolutely void, in the sense that no right or claim can be derived them; and acts which are mala prohibita, which are void or voidable according to the nature of the act prohibited."

The most recent decision in which note is taken of a possible distinction, is in the case of Duval v. Wellman, 124 N. Y. 156. This was an action to recover fees paid to a marriage broker. Plaintiff was allowed to recover on the ground, as stated by Story, J., that it is not sufficient for the defendant to show merely that the other contracting party is particeps crimiuis, but it must appear that both are equal in guilt unless the contract be malum in se, in which case the maxim Ex dolo malo non oritur actio, is of universal application."

From the authorities reviewed, it will be seen that it is somewhat difficult to deduce any general principles which shall be always and everywhere applicable. In a general way it may be said that the courts look with disfavor on any attempt to distinguish between acts mala in se and mala prohibita; that in some jurisdictions such a distinction is totally repudiated; and that in those jurisdictions which do recognize it, the instances in which it is allowed are exceptions to the general rule. Those exceptions may be summarized briefly thus:

A contract founded on an act malum in se is void; but

If the act is merely malum prohibitum the contract may or may not be void according to the nature or reason of the statute prohibiting it. Thus if the prohibition is on the ground of public policy the contract is void, but if the pro

hibition is merely for the benefit of a particular, person or class of persons, the contract is not void, but may be avoided by the party for whose benefit the act is prohibited. So where a contract is founded on malum prohibitum and the parties are not in pari delicto, the less culpable party may sometimes obtain relief, but if founded on malum in se the courts will in no way interfere to afford relief to either party.

Where two or more persons have committed a tort for which damages are recovered against one; if the act was malum in se, he cannot sue his joint tort feasor; but if the act was merely malum prohibitum and damages are recovered against one of the parties, he may, if he was less culpable than his joint tort feasor, recover the amount of such damages from him.

One who induces another to commit an act malum in se is guilty of a crime; but he who entices or abets another in the commission of an act malum prohibitum is not necessarily a law breaker, unless the statute plainly so intends.

Finally, it may be remarked that there does not seem to be any sound reason for allowing such a distinction to relieve law breakers from the consequences of their acts. If a thing is prohibibited by statute, it is the duty of law-abiding citizens to refrain from doing that thing. To paraphrase the remark of Lord Ellenborough, "the best way to enforce an observance of the law is to enforce it."

WILLIAM ROTHMANN.

GOVERNMENT BY STATUTE.

Statutes have incorporated a new element into the law; they have hampered its principles with technicalities, have burdened the spirit with an unwielding and insufficient body, and have endeavored to embody legislative intent into accurate maxims. The formulation of statutes is an effort to express in a set form of words the entire principle which it is intended to represent and yet to set forth its teachings so clearly and explicitly as to afford an adequate remedy for each of the specific circumstances that appeal to it for adjustment. No word in our language is co-extensive with the idea for which it is a symbol and, therefore, we must hope in vain if we expect any law-making body to enunciate in a stiff, rigid, formal phrase a broad, elastic, and all-sufficient principle of right and wrong.

This inherent defect in the letter of our legislative enactments has been the direct cause of many evils during the history of our past legislation. It has given rise to the trying task of our judiciaries, whose duty it is to properly interpret the provision and apply the principle to the peculiar and specific circumstances that ask its decision. There is neverending litigation to determine, if possible, just what is within the statute and what is without its provisions. So that, often times, the important question is not so much what is the statute as what is the interpretation the courts have put upon it. This discrepancy which necessitates the interpretation of the adopted rules into the intention of the legislature gives our law a degree of uncertainty and vagueness that it was the designed purpose of our ancestors, who framed our constitution, to prevent.

The difficulty of properly construing and applying our statutes is very forcibly illustrated by the decisions of our Supreme Courts upon this subject. From a few Illinois decisions we learn that they [statutes] must be construed strictly when they are in derogation of the common rights of the citizens'; they will not change the common law to a 1 Rothberger v. Dupuy, 64 Ill. 402.

further degree than they clearly express'; no construction will be given them that contravenes the spirit and policy of our laws 2; nor that imposes an impossibility as a condi. tion to the assertion of an admitted right; they must accord with the paramount law of the constitution *; and must be interpreted with reference to the intention of the legislature heedless of the expression used"; finally, we are informed that when the statute is plain and unambiguous that there is no room for construction.*

Being highly technical in their nature, there has arisen a spirited contest between the skill of legislatures which endeavor to remedy existing evils by means of statutes and the ingenuity of the legal profession who apply every device known to man to eyade its operation by discovering some flaw in the literal expression. The extent and success of these efforts toward evasion are clearly manifest to the close observer. He will notice that though there are statutes in many, perhaps all, the states that are directed against monopolies, trusts, Boards of Trade, etc., and yet he sees them, on every side, flourishing and increasing in number and power. This condition has led well-informed authorities to doubt whether any of the repeated legislation against these gigantic organizations has caused them much more inconvenience than a meeting of the directors, or a dissolution to re-appear in another form and under another guise.

One of the most common methods by which statutes are avoided is by an obedience to the literal requirements and an indirect evasion of its spirit and real intention. A note worthy illustration of this is furnished by an avoidance of the Statute De Donis Conditionalibus, 13 Edw. I c I. This statute decreed that when an estate was given to a man and the heirs of his body, that the heirs took vested remainders, 1 Bank v. McCrea, 106 id 281.

2 Gage v. Smith, 79 id 219.
3 People v. Admire, 39 id 251.

+ People v. Peacock, 98 id 172.

5 Hamilton v. Illinois, 102 id 367.

6 Ottowa, etc., v. Downey, 127 id 201.