Smith v. Bach, 191 P. 14 (Cal. 1920). · Go Syfert
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Smith v. Bach, 191 P. 14 (Cal. 1920). Cases Citing This Book View Copy Cite
252 citation events (17 in the last 25 years) across 16 distinct courts.
Strongest positive: Luxor Cabs, Inc. v. Applied Underwriters Captive Risk etc. (calctapp, 2019-01-03)
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discussed Cited as authority (rule) Luxor Cabs, Inc. v. Applied Underwriters Captive Risk etc.
Cal. Ct. App. · 2019 · confidence medium
Lexis 89452 at pp. *44–*45, italics added by Country Villa.) On this basis, the federal district court in Country Villa concluded that an unfiled and unapproved collateral agreement to a workers’ compensation policy was “void as a matter of law.” (Ibid.; see Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 70 [“a contract made in violation of a regulatory statute is void”]; Smith v. Bach (1920) 183 Cal. 259, 262 [“[a] statute . . . prohibiting the making of contracts, except in a certain manner, ipso facto makes them void if made in any other way”].) Both the Insura…
discussed Cited as authority (rule) Paul Singh v. Bhupinder Baidwan (2×)
9th Cir. · 2016 · confidence medium
In Asdourian, the California Supreme Court considered three factors in concluding that equitable relief was 1 The dissent cites the general rule that illegal contracts, whether malum prohibitum or malum in se, will not be enforced, but ignores the fact that courts have treated those sorts of contracts differently in equity. “[A]ll the consequences which attend a contract contrary to public morals do not attend one which is purely Malum prohibitum, and that in the latter case courts will take notice of the circumstances, and will give relief, if justice and equity require a restoration of mon…
discussed Cited as authority (rule) Schaffter v. Creative Capital Leasing Group, LLC
Cal. Ct. App. · 2008 · confidence medium
The broker sued for anticipatory breach of contract and unearned commissions, and the court held the agreement was in violation of section 10176, subdivision (f) because the “final termination date can be computed only by reference to the happening of a future event.” (Dale v. Palmer, supra, at p. 667.) The court also held the agreement was void ab initio, citing Smith v. Bach (1920) 183 Cal. 259, 262 [ 191 P. 14 ], for the “ ‘general rule . . . that where a statute prohibits or attaches a penalty to the doing of an act, the act is void.’ ” (Dale v. Palmer, supra, at p. 667 .) Cour…
discussed Cited as authority (rule) ca9 1990
9th Cir. · 1990 · confidence medium
See, e.g., Severance v. Knight-Counihan Co., 29 Cal.2d 561, 568 , 177 P.2d 4, 8 (1947) ("It is settled that a contract must have a lawful object and that a contract for an object prohibited by a penal law is void." (citations omitted)); Smith v. Bach, 183 Cal. 259, 262-63 , 191 P. 14, 15 (1920); Tevis v. Blanchard, 122 Cal.App.2d 731, 737-38 , 266 P.2d 85, 90 (1954).
discussed Cited as authority (rule) Saslow v. Andrew (In re Loretto Winery Ltd.)
9th Cir. · 1990 · confidence medium
See, e.g., Severance v. Knight-Counihan Co., 29 Cal.2d 561, 568 , 177 P.2d 4, 8 (1947) (“It is settled that a contract must have a lawful object and that a contract for an object prohibited by a penal law is void.” (citations omitted)); Smith v. Bach, 183 Cal. 259, 262-63 , 191 P. 14, 15 (1920); Tevis v. Blanchard, 122 Cal. App.2d 731, 737-38 , 266 P.2d 85, 90 (1954).
discussed Cited as authority (rule) R. M. Sherman Co. v. W. R. Thomason, Inc.
Cal. Ct. App. · 1987 · confidence medium
(Reid v. Overland Machined Products (1961) 55 Cal.2d 203, 208 [ 10 Cal.Rptr. 819 , 359 P.2d 251 ]; Smith v. Bach (1920) 183 Cal. 259, 262-263 [ 191 P. 14 ]; Gruzen v. Henry (1978) 84 Cal.App.3d 515, 518 [ 148 Cal.Rptr. 573 ]; Severance v. Knight-Counihan Co., supra, 29 Cal.2d 561, 568 .) In the context of licensing statutes, however, a contrary rule has been said to apply, namely, that when penalties are provided by statute, the courts “will not impose additional penalties for noncompliance with the licensing requirement.” (Vitek, Inc. v. Alvarado Ice Palace, Inc. (1973) 34 Cal.App.3d 586,…
discussed Cited as authority (rule) A-Mark Coin Co. v. General Mills, Inc.
Cal. Ct. App. · 1983 · confidence medium
(Severance v. Knight-Counihan Co. (1947) 29 Cal.2d 561, 569 [ 177 Cal.Rptr. 4 , 172 A.L.R. 1107 ]; Smith v. Bach (1920) 183 Cal. 259, 262 [ 191 P. 14 ]; Shephard v. Lerner (1960) 182 Cal.App.2d 746, 750 [ 6 Cal.Rptr. 433 ].) The trial court properly held that A-Mark could not posit liability for tortious interference with a contractual relationship upon a void contract.
cited Cited as authority (rule) Gruzen v. Henry
Cal. Ct. App. · 1978 · confidence medium
Smith v. Bach [1921] 183 Cal. 259, 262 [ 191 P. 14 ]; Levinson v. Boas [1907] 150 Cal. 185, 193 [ 88 P. 825 ].
discussed Cited as authority (rule) South Tahoe Gas Co. v. Hofmann Land Improvement Co.
Cal. Ct. App. · 1972 · confidence medium
In support of their contention that the entire contract is void and that the utility, therefore, cannot recover any compensation for the extension of the gas main which it has constructed, defendants rely on the following principle: “The general rule is that a void contract, a contract against public policy or against the mandate of a statute, may not be made the foundation of any action, either in law or in equity. [Citations.]” (Hooper v. Barranti (1947) 81 Cal.App.2d 570, 574 [ 184 P.2d 688 ], See also Smith v. Bach (1920) 183 Cal. 259, 262-263 [ 191 P. 14 ]; Berka v. Woodward (1899) 12…
discussed Cited as authority (rule) Buchwald v. Superior Court of S.F.
Cal. Ct. App. · 1967 · confidence medium
Co., 125 Cal.App.2d 126, 131-132 [ 269 P.2d 936 ] ; 1 Witkin, Summary of Cal. Law (1960) Contracts, § 171, p. 185.) Contracts otherwise violative of the Act are void (see Severance v. KnightCounihan Co., 29 Cal.2d 561, 568 [ 177 P.2d 4 , 172 A.L.R. 1107 ] ; Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ] ; 1 Witkin, op. cit., § 157, p. 167).
discussed Cited as authority (rule) Reid v. Overland Machined Products
Cal. · 1961 · confidence medium
The imposition by statute of a penalty implies a prohibition of the act referred to and a contract founded upon such act is void. ’ ’ (Stonehocker v. Cassano, 154 Cal.App.2d 732, 736 [ 316 P.2d 717 ]; accord: Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ].) It has long been settled that a claim will not be discharged when the purported accord and satisfaction violates the state law.
discussed Cited as authority (rule) City of Garden Grove v. City of Santa Ana
Cal. Ct. App. · 1960 · confidence medium
The governing statute prohibits the initiation of a subsequent conflicting annexation proceeding, and the rule declaring the subsequently initiated action void is based on the “well settled principle that an act is void if specifically prohibited by statute. ’ ’ (City of Costa Mesa v. City of Newport Beach, supra, 165 Cal. App.2d 553, 559 ; Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14]; People v. Town of Corte Madera, supra, 115 Cal.App.2d 32, 38 ; Bourke v. Frisk, 92 Cal.App.2d 23, 28 [ 206 P.2d 407 ] ; Herkner v. Rubin, 126 Cal.App. 677, 681 [ 14 P.2d 1043 ].) The relevant statutory pr…
discussed Cited as authority (rule) Nichols v. Boswell-AlliAnce Construction Corp.
Cal. Ct. App. · 1960 · confidence medium
In Dale the court at page 667 quoted with approval an earlier Supreme Court case, Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ], as follows: ‘‘A statute . . . prohibiting the making of contracts, except in a certain manner, ipso facto makes them void if made in any other way. ” Citing this authority, appellant contends that the agreement herein, which was made in violation of section 10176, subdivision (f) of the Business and Professions Code, is void.
cited Cited as authority (rule) Lund v. Cooper
Cal. Ct. App. · 1958 · confidence medium
We therefore feel that the rule of law which governs in such a case is, as stated in Smith v. Bach, 183 Cal. 259, 263 [ 191 P. 14 ]: “. . .
discussed Cited as authority (rule) Stonehocker v. Cassano
Cal. Ct. App. · 1957 · confidence medium
(Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ]; Duntley v. Kagarise, 10 Cal.App.2d 394, 397 [ 52 P.2d 560 ].) The imposition by statute of a penalty implies a prohibition of the act referred to and a contract founded upon such act is void.
cited Cited as authority (rule) Munns v. Stenman
Cal. Ct. App. · 1957 · confidence medium
(Smith v. Bach, 183 Cal. 259, 263 [ 191 P. 14 ]; Murphy v. San Gabriel Mfg.
discussed Cited as authority (rule) Tiedje v. Aluminum Taper Milling Co.
Cal. · 1956 · confidence medium
(Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ]; Mindenberg v. Carmel Film Productions, Inc., 132 Cal.App.2d 598, 607 [ 282 P.2d 1024 ].) Ordinarily, a party to an illegal contract can neither recover damages for breach nor, by rescinding, recover the performance that he has rendered or its value.
discussed Cited as authority (rule) Mindenberg v. Carmel Film Productions, Inc.
Cal. Ct. App. · 1955 · confidence medium
It falls within the doctrine of Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ] “that where a statute prohibits or attaches a penalty to the doing of an act, the act is void, and this, notwithstanding that the statute does not expressly pronounce it so, and it is immaterial whether the thing forbidden is malum in se or merely malum prohibitum.” Stevens v. Boyes Hot Springs Co., 113 Cal.App. 479 [ 298 P. 508 ], applies this principle to contracts such as the one under discussion here.
discussed Cited as authority (rule) Bartholomew v. Heyman Properties, Inc.
Cal. Ct. App. · 1955 · confidence medium
Our conclusion in this respect is fully supported by several California cases, including the following: Smith v. Bach, 183 Cal. 259, 263-264 [ 191 P. 14 ]; McAllister v. Drapeau, 14 Cal.2d 102, 112 [ 92 P.2d 911 , 125 A.L.R. 800 ]; Carter v. Seaboard Finance Co., 33 Cal.2d 564, 574 [ 203 P.2d 758 ]; Miller v. California Roofing Co., 55 Cal.App.2d 136, 143-144 [ 130 P.2d 740 ]; Norwood v. Judd, 93 Cal.App.2d 276, 289 [ 209 P.2d 24 ]. *Supp. 896 While none of the above cited cases involved a violation of the Labor Code, the pari delicto rule as announced in them clearly shows that such rule shou…
cited Cited as authority (rule) Holt v. Morgan
Cal. Ct. App. · 1954 · confidence medium
Code, § 1667, subd. 2) and void (Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ] ; City of Oakland v. California Const. Co., 15 Cal.2d 573, 576-577 [ 104 P.2d 30 ]).
discussed Cited as authority (rule) Tevis v. Blanchard
Cal. Ct. App. · 1954 · confidence medium
(People v. Sidwell, 27 Cal.2d 121, 127 [ 162 P.2d 913 ].) “The imposition by statute of a penalty implies a prohibition of the act to which the penalty is attached, and a contract founded upon such act is void.” (Smith v. Bach, 183 Cal. 259, 262-263 [ 191 P. 14 ].
discussed Cited as authority (rule) Dale v. Palmer
Cal. Ct. App. · 1951 · confidence medium
In Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ], the applicable rule is stated as follows: “The general rule controlling cases of this character is that where a statute prohibits or attaches a penalty to the doing of an act, the act is void, and this, notwithstanding that the statute does not expressly pronounce it so, and it is immaterial whether the thing forbidden is malum in se or merely malum prohibitum.
discussed Cited as authority (rule) Hocking v. Title Insurance & Trust Co. (2×)
Cal. · 1951 · confidence medium
(See Smith v. Bach (1920), 183 Cal. 259, 262 [ 191 P. 14 ].) She therefore urges application of the general rule stated in 50 American Jurisprudence 43, 44, section 20, as follows: “There are numerous instances of instruments or proceedings held to be void because of the failure to comply with a statutory provision relating thereto.
discussed Cited as authority (rule) King v. Mortimer (2×)
Cal. · 1951 · confidence medium
(See Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ] ; Stevens v. Boyes Hot Springs Co., 113 Cal.App. 479, 482-484 [ 298 P. 508 ], for statement of the general rule.) The act of 1931 was a continuation of prior law (§14.03) with additions including saving clauses (§14.04).
discussed Cited as authority (rule) Clemons v. City of Los Angeles (2×)
Cal. · 1950 · confidence medium
(Smith v. Bach, 183 Cal. 259, 262-264 [ 191 P. 14 ].) We conclude that plaintiff’s transactions in violation of the ordinance were not void ai initio but were voidable at the option of the other parties to said transactions as provided in the state act.
discussed Cited as authority (rule) Murphy v. San Gabriel Manufacturing Co.
Cal. Ct. App. · 1950 · confidence medium
The rule of law which governs in such a case was stated in Smith v. Bach, 183 Cal. 259, 263 [ 191 P. 14 ], as follows: ‘‘By the weight of authority where money has been paid in consideration of an executory contract which is illegal, the party who has paid it may repudiate the agreement at any *369 time before it is executed and reclaim the money.
discussed Cited as authority (rule) Bourke v. Frisk
Cal. Ct. App. · 1949 · confidence medium
Laws [1937], Act 3814, §§ 17 and 18.) This violation of the Corporate Securities Act rendered void the transaction consummated on February 18, 1938. ... ‘. . . where a statute prohibits or attaches a penalty to the doing of an act, the act is void, and this, notwithstanding that the statute does not expressly pronounce it so, and it is immaterial whether the thing forbidden is malum in se or merely malum prohibitum.’ This rule stated by our Supreme Court in the oft-cited case of Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ], has been adopted and consistently applied in situations involv…
discussed Cited as authority (rule) Orlinoff v. Campbell
Cal. Ct. App. · 1949 · confidence medium
(Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ]; Davis v. Chipman, 210 Cal. 609, 621 [ 293 P. 40 ].) The primary purpose of the rule of nonenforeeability being the discouragement of practices forbidden by law, no reason exists for declining to apply it to the contracts of unlicensed highway carriers, as it has been consistently applied to the contracts of unlicensed architects, brokers, and others for the rendition of personal services.
examined Cited as authority (rule) Severance v. Knight-Counihan Co. (8×)
Cal. · 1947 · confidence medium
The imposition by statute of a penalty implies a prohibition of the act to which the penalty is attached, and a contract founded upon such act is void." (Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ]; City of Oakland v. California Const. Co., 15 Cal.2d 573, 577 [ 104 P.2d 30 ]; Duntley v. Kagarise, 10 Cal.App.2d 394, 397 [ 52 P.2d 560 ]; see Kyne v. Kyne, 16 Cal.2d 436, 438 [ 106 P.2d 620 ]; Restatement, Contracts, 598; 4 Cal.Jur. 10.-Yr.
discussed Cited as authority (rule) Moon v. Goldstein
Cal. Ct. App. · 1945 · confidence medium
This was a conclusion we expressed in a memorandum opinion on a former appeal, citing Berka v. Woodward (1899), 125 Cal. 119, 127 [ 57 P. 777 , 73 Am.St.Rep. 31 , 45 L.R.A. 420 ]; Levinson v. Boas (1907), 150 Cal. 185, 193 [ 88 P. 825 , 11 Ann.Cas. 661, 12 L.R.A.N.S. 575 ]; Smith v. Bach (1920), 183 Cal. 259, 262 [ 191 P. 14 ]; Alvarado v. Davis (1931), 115 Cal.App.Supp. 782 [ 6 P.2d 121 ]; Holm v. Bramwell (1937), 20 Cal.App.2d 332, 335 [ 67 P.2d 114 ], and we see no reason to doubt its correctness. [2] Moreover, it is the law of the case and its correctness may not now be questioned.
discussed Cited as authority (rule) Miller v. California Roofing Co.
Cal. Ct. App. · 1942 · confidence medium
Laws [1937], Act 3814, §§ 17 and 18.) This violation of the Corporate Securities Act rendered void the transaction consummated on February 18,1938. ”... where a statute prohibits or attaches a penalty to the doing of an act, the act is void, and this, notwithstanding that the statute does not expressly pronounce it so, and it is immaterial whether the thing forbidden is malum in se or merely malum prohibitum.” This rule stated by our Supreme Court in the oft-cited case of Smith v. Bach, 183 Cal. 259, 262 [ 191 P. 14 ], has been adopted and consistently applied in situations involving vio…
discussed Cited as authority (rule) Lewis v. Ferrari
Cal. Ct. App. · 1939 · confidence medium
Tillman Co., however, and the particular facts there involved, it is true, as laid down in general terms in Smith v. Bach, 183 Cal. 259, 263, 264 [ 191 P. 14 ], that: "There are authorities which, while not denying the general rule that an illegal contract cannot be enforced whether malum in se or malum prohibitum, hold that all the consequences which attend a contract contrary to public morals do not attend one which is purely malum prohibitum, and that in the latter case courts will take notice of the circumstances and will give relief if justice and equity require a restoration of money rec…
discussed Cited as authority (rule) Lewis v. Ferrari
Cal. App. Dep’t Super. Ct. · 1939 · confidence medium
Tillman Co., however, and the particular facts there involved, it is true, as laid down in general terms in Smith v. Bach, 183 Cal. 259, 263, 264 [ 191 Pac. 14 ], that: “There are authorities which, while not denying the general rule that an illegal contract cannot be enforced whether malum in se or malum prohibitum, hold that all the consequences which attend a contract contrary to public morals do not attend one which is purely malum prohibitum, and that in the latter case courts will take notice of the circumstances and will give relief if justice and equity require a restoration of money…
discussed Cited as authority (rule) Olds v. Simmons
Cal. Ct. App. · 1932 · confidence medium
(Smith v. Bach, 183 Cal. 259, 263 [ 191 Pac. 14 ]; Smith v. Bach, 53 Cal. App. 63 [199 Pac. 1106]; Smith v. Bach, 54 Cal. App. 236 [ 201 Pac. 611 ]; People v. Oliver, 102 Cal. App. 29, 37 [282 Pac. 813]; Tatterson v. Kehrlein, 88 Cal. App. 34, 48 [ 263 Pac. 285 ].) For the reasons just stated the rule in the Detroit Edison ease is not applicable. (13 C.
cited Cited as authority (rule) Galeppi v. C. Swanston & Son
Cal. Ct. App. · 1930 · confidence medium
R. 1341, 254 Pac. 946 ], and Smith v. Bach, 183 Cal. 259, 262 [ 191 Pac. 14 ].
discussed Cited as authority (rule) Silvey v. Fink
Cal. Ct. App. · 1929 · confidence medium
In either ease there was a failure of consideration for the amount paid by plaintiffs; and unless they are estopped from making the claim, or the .asserted illegality of the transaction forbids relief, that amount, less the sum which they had received, should be refunded (Smith v. Bach, 183 Cal. 259, 263 [ 191 Pac. 14 ]).
cited Cited as authority (rule) California Delta Farms, Inc v. Chinese American Farms, Inc.
Cal. · 1929 · confidence medium
A. 420, 57 Pac. 777, 780 ]; Smith v. Bach, 183 Cal. 259, 262 [ 191 Pac. 14 ]; Wallace v. Zinman, 200 Cal. 585, 588 [ 254 Pac. 946 ]).
discussed Cited as authority (rule) Hartzell v. Doolittle
Cal. · 1928 · confidence medium
The effect of the provisions of this act upon the agreement assigned to respondent was to render said agreement unenforceable ,and void (Smith v. Bach, 183 Cal. 259, 262 [ 191 Pac. 14 ]; Wallace v. Zinman, 200 Cal. 585, 588 [ 254 Pac. 946 ]).
discussed Cited as authority (rule) Wallace v. Zinman
Cal. · 1927 · confidence medium
A. (N. S.) 575, 88 Pac. 825 ]; Smith v. Bach, 183 Cal. 259, 262 [ 191 Pac. 14 ]; Firpo v. Murphy, 72 Cal. App. 249 [ 236 Pac. 968 ].) *589 And likewise in such case it would not be necessary to present such defense by answer or other pleading, but when the illegality of plaintiff’s contract appeared, it would be the duty of the court sua, sponie to deny all relief.
discussed Cited "see" McIntosh v. Mills (2×)
Cal. Ct. App. · 2004 · signal: see · confidence high
The record before us includes a letter dated February 13, 1996, from Mills to Anton, but the subject is a division of fees between their respective law firms, not between Mills and McIntosh. 10 Readers who are schooled in the law may regard this doctrine with nostalgic fondness as they recall being instructed in the “somewhat artificial distinction” between contracts that are malum prohibitum (illegality set by statute), and malum in se (illegality based on base morals). (1 Witkin, Summary of Cal. Law, supra, Contracts, §§ 441 & 447, pp. 396, 399^400; see Smith v. Bach (1920) 183 Cal. 25…
CLARA L. SMITH Et Al., Appellants,
v.
GEO. J. BACH Et Al., Respondents
L. A. No. 5121..
California Supreme Court.
Jun 24, 1920.
191 P. 14
F.G. Blood and Crouch Chambers for Appellants. Sweet, Stearns Forward and C.C. Pease for Respondents. The following opinion was prepared by Mr. Justice Kerrigan of the district court of appeal for the first appellate district while acting as justice pro tempore in this court in place of Mr. Justice Melvin. It is adopted as the opinion of this court.
THE COURT..
Cited by 119 opinions  |  Published
THE COURT.

This action is one in assumpsit for money had and received.

The case grows out of a contract relating to the sale of certain tracts of land in a subdivision situated in San Diego County. Plaintiffs paid defendant a part of the purchase price under the terms of the contract of sale, and they seek by this action to recover the same upon the ground that' the contract relating to the sale is void. The claimed invalidity is based upon the admitted fact that the sales were made in violation of the act of March 15, 1907 (Stats. 1907, p. 290), making it unlawful to sell or offer for sale land by reference to an unrecorded map. At the conclusion[*261] of plaintiff’s ease the trial court granted a nonsuit and from the judgment and the order denying a new trial plaintiffs appeal. The main question here presented is whether or not such a contract is void so as to prevent any right of action being based thereon.

By the terms of the statute in question not only is the, selling or offering for sale of lots of land by reference to an unrecorded map or plat expressly prohibited, but the act makes it a misdemeanor so to do, the penalty for which is fixed at both a fine and imprisonment. This precise question has been presented to the appellate courts of this state in three different cases, in none of which, however, has the rights of a vendee thereunder been passed upon. (See Bentley v. Hurlburt, 153 Cal. 796, [96 Pac. 890]; Baines v. Shank, 12 Cal. App. 391, [107 Pac. 631]; King v. Johnson, 30 Cal. App. 63, [157 Pac. 531]; Shultz v. Redondo Imp. Co., 156 Cal. 439, 440, [105 Pac. 118].) In the Bentley case 'this court found it unnecessary to pass upon the validity of the contract for the reason that the evidence showed that the statute had been substantially complied with. In Baines v. Shank, supra, the district court of appeal also found it unnecessary to consider the question, the case being disposed of upon a different point. The only case, therefore, where the question has received consideration in this state is King v. Johnson, supra, which is hereinafter referred to.

Many of our sister states have adopted laws of a similar character. These statutes differ in terms, some containing no express prohibitory words, but recognizing that the act may be done subject to a fine for its disregard, while others analogous to our own, contain an express prohibition and a penalty for violation. The decisions of the courts of these various jurisdictions construing these statutes to determine the legislative intent are not harmonious. (See 39 Cyc. 1215; 13 Corpus Juris, p. 410 et seq.) An extensive review of these numerous cases would answer no useful purpose.

Frequently, as here, a statute imposes a penalty on the doing of an act without expressly declaring such act illegal and void. Applying the doctrine “Expressio unius est exclusio alterius” some of the courts have held that the legislature having fixed the penalty for the execution of the contract,[*262] courts cannot impose another, invalidating the agreement. (See 39 Cyc. 1215.) In cases announcing this doctrine a distinction is usually made, between acts malum, in se, which are generally regarded as void, and those which are mala prohibitum..

.On the / authority of these cases respondent, in effect,' contends, in support of the judgment, that the statute imposing specific penalties for its violation and the act condemned not being malum in se, that' the purpose of the act can be accomplished without declaring contracts made in violation thereof illegal, and that the inference is that it was not the intention of the legislature to render them illegal, or it would have so declared in unequivocal terms.

The decisions supporting the doctrine invoked are in the main based upon revenue statutes which simply impose a fine or penalty, the amount of which is definitely fixed as distinguished from those, as here, which prohibit and declare the violation of the act a misdemeanor punishable by fine and imprisonment.

[1] For the purpose of ascertaining the legislative intent courts should consider the entire statute, and if from such consideration it is manifest that the legislature had no intention of declaring a contract void, they should be sustained and enforced, otherwise they should be adjudged void. (Dunlop v. Mercer, 156 Fed. 548, [86 C. C. A. 435].) [2] Here it is manifest from a reading of the entire act that the statute in question was passed for the protection of the public and not as a revenue measure. (King v. Johnson, 30 Cal. App. 63, [157 Pac. 531].) In such a case a contract made in violation of its terms should be held to be void. (Levinson v. Boas, 150 Cal. 193, [11 Ann. Cas. 661, 12 L. R. A. (N. S.) 575, 88 Pac. 825]; Pangborn v. Westlake, 36 Iowa, 548.) [3] The general rule controlling in cases of this character is that where a statute prohibits or attaches a penalty to the doing of an act, the act is void, and this, notwithstanding that the statute does not expressly pronounce it so, and it is immaterial whether the thing forbidden is malum in se or merely malum prohibitum. ,A statute of this character prohibiting the making of contracts, except in a certain manner, ipso facto makes them void if made in any other way. (13 Cyc. 351; 13 Corpus Juris, p. 410.) The imposition by statute of a[*263] penalty implies a prohibition of the act to which the penalty is attached, and a contract founded upon such act is void. This general rule finds support in the decisions of this state. (Berka v. Woodward, 125 Cal. 127, [73 Am. St. Rep. 31, 45 L. R. A. 420, 57 Pac. 777], and cases cited; Bentley v. Hurlburt, supra.)

It is true, as stated by Mr. Justice Sloss in Bentley v. Hurlburt, that cases may be found holding a contrary doctrine, but an examination of those cases will, as herein-before stated, show that the statutes upon which they are based, generally do not prohibit, but merely impose, a fine as an exclusive punishment.

This identical statute was construed in King v. Johnson, supra, where the general rule above stated' was applied. It is there said that “cases from other jurisdictions are based upon statutes which the court for different reasons construed as not prohibiting the sale, while the statute under consideration in express terms, prohibits the doing of the act.”

Concluding, as we do, that the contract in question is void, it only .remains to determine the rights of plaintiffs to recover in this action.

There are authorities which, while not denying the general rule that an illegal contract cannot be enforced whether malum in se or malum prohibitum, hold that all the consequences which attend a contract contrary to public morals do not attend one which is purely malum pro hibitum, and that in the lattér case courts will take notice of the circumstances and will give relief if justice and equity require a restoration of money received by either party thereunder. (13 Corpus Juris, p. 411, sec. 341.) In such a case the complaining party is protected, the prohibition being for his benefit, and not being in pari delicto he is entitled to relief. (Id., p. 501, sec. 443.) [4] By the weight of authority where money has been paid in consideration of an executory contract which is illegal, the party who has paid it may repudiate the agreement at any time before it is executed and reclaim the money. In such a case it is the duty of the court in furtherance of justice to aid one not in pari delicto, though to some extent involved in the illegality, but who, as here, is comparatively .the more innocent, and to permit him to recover back[*264] money paid on a contract as the circumstances of the case may require. (Pomeroy’s Equity Jurisprudence, 3d ed., sec. 942; Gray v. Roberts, 2 A. K. Marsh. (Ky.) 208, [12 Am. Dec. 385]; Wassermann v. Sloss, 117 Cal. 431, [59 Am. St. Rep. 209, 38 L. R. A. 176, 49 Pac. 566]; City of Los Angeles v. City Bank, 100 Cal. 18, [34 Pac. 510]; Savings Bank v. Burns, 104 Cal. 480, [38 Pac. 102]; Manchester R. R. Co. v. Concord R. R., 66 N. H. 100, [49 Am. St. Rep. 589, 9 L. R. A. 689, 20 Atl. 383]; 13 Corpus Juris, p. 501, sec. 444.)

For the reasons given the judgment is reversed.

Shaw, J., Wilbur, J., Olney, J., Lawlor, J., Lennon, J., and Angellotti, C. J., concurred.