Snaman v. Maginn

77 Pa. Super. 287 | Pa. Super. Ct. | 1921

Opinion by

Head, J.,

The single question presented for our determination by this appeal is whether or not a plaintiff may successfully invoke the aid of the courts of Pennsylvania to recover the fruits of a contract, the making of which is expressly forbidden by our Act of 28th of June, 1917, P. L. 645. The title to the act is “An act making it unlawful for any individual or individuals to carry on or conduct any business under an assumed or fictitious name, style or designation, unless,” etc. Section 1 declares that after the passage of the act no individual shall hereafter carry on or conduct any business in this Commonwealth “under any assumed or fictitious name,” etc. Section 3 provides, “Any person carrying on or conducting any business in violation of this act shall be guilty of a misdemeanor, and, upon conviction, shall be punished” by fine or imprisonment or both.

Several cases have recently been heard, some of which are still pending in this court and in which opinions will shortly be handed down, dealing with various questions arising under this statute. For instance, in Stein et al. v. Slomkowski, 74 Pa. Superior Ct. 156, the case went off on a question of practice under our Act of 1915, leaving the main question undecided. Whether or not a trading name is “assumed or fictitious”; or whether or not a person using such assumed or fictitious name is conducting business in this Commonwealth, within the meaning of the statute, are questions which have been or will be disposed of in other cases where those questions properly arise in the record of the particular cases. We do not regard either of them as requiring particular discussion in the determination of this appeal. Since the decision of this court in Moyer et al. v. Kennedy, No. 350, October Term, 1920, in which an opinion was handed down last month, we must start with the proposition that the plaintiff in this case was using an assumed or fictitious title within the meaning of the act. As we understand, it is conceded here the plaintiff was conducting business within the meaning of the statute under the name of the Snaman Bealty Company. The real question for our determination is thus stated by the learned counsel for the appellant: “But we earnestly urge that if a statute prohibits a certain matter and provides penalties, but does not expressly say that a contract arising out of the prohibited matter shall be unenforceable, then the question of the enforceability of the contract depends on the legislative intent as to which each act of assembly depends on its own facts.” Whilst we find some difficulty in apprehending just precisely what the language quoted means, our examination of the supporting argument leads to the conclusion the position advanced and relied upon has been well stated in the case of Harris v. Runnels, 53 U. S. 79: “Where a statute prohibits an act or annexes a penalty for its commission, it is true that the act is made unlawful, but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. Where a statute is silent and contains nothing from which the contrary can properly be inferred, a contract in contravention of it is void but the whole statute must be examined in order to decide whether or not it does contain anything ‘from which the contrary question can properly be inferred.’ ”

Whilst we may concede, for the purposes of this argument, that some rather subtle distinctions have been made along the line indicated, we content ourselves with the statement that the law of Pennsylvania, as it has been announced from the earliest times; and the public policy declared in all of the decisions, recognize no such distinctions. It appears to me that reason alone, without authority, would necessarily lead us to the conclusion that a contract, the making of which is positively prohibited by a statute, cannot be enforced by the aid of the courts of the state in which the statute has been enacted. In vain would the legislative power thunder its prohibitions against the performance of a given act, if the coordinate branch of the government, the courts, would lend their powerful aid to the transgressor in recovering the frnits of the unlawful transaction. The statute we are considering not only prohibits in sweeping terms the making of the contract upon which the plaintiff here relies, but further declares that the citizen making such contract shall be guilty of a misdemeanor and subject to punishment by fine or imprisonment or both. It is the privilege and the obligation of the courts of the Commonwealth to administer and enforce the laws as they are created by the legislative will, and I am unable to perceive how a government, constructed as is ours, could successfully function if any other view of the duty of the courts under such circumstances could prevail.

In Columbia Bank and Bridge Co. v. Haldeman, 7 W. & S. 233, (decided in 1844) Huston, J., speaking for the Supreme Court, said: “As long ago as the time of Lord Hale, it was decided (Carthew 252) that 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 void, and only inflicts a penalty on the offender; and this has been fully recognized in the case of Mitchell v. Smith, 1 Binn. 118.” In Johnson v. Hulings, 103 Pa. 498, Mr. Justice Gordon, speaking for the court, said: “The result follows that Johnson, in the transaction in hand, stands in the position of a real estate broker who seeks to enforce a contract which, under the statute, he had no right to make, and by the making of which he subjected himself to the penalty imposed by that statute. But a contract such as this, opposed as it is alike to good morals and public policy, cannot be enforced. That has been ruled times without number.” The same doctrine is declared in Swing v. Munson, 191 Pa. 582, and the reason of it is briefly stated by Mr. Justice Dean : “In enforcing a policy in the interests of the whole public, the law takes but little note of the conduct of the immediate parties to the contract; the rule is, that courts, having in view public interests, will not lend their aid to the enforcement of an unlawful contract.” See also Luce v. Cook, 227 Pa. 224.

When therefore it became plain to the trial court that a judgment entered on the verdict in this case would necessarily give to the plaintiff the fruits of a contract that was forbidden by law and the making of which subjected him to a penalty, there was no proper course left open but to affirm the defendant’s motion for judgment n. o. v. We are of opinion the learned court below was right and the assignments of error must therefore be dismissed.

Judgment affirmed.