upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff." In Gibbs v. Baltimore Gas Co., 130 U. S. 396, 410, 9 Sup. Ct. 553, 32 L. Ed. 979, the court quotes from Bishop on Contracts: "The law cannot recognize as valid any undertaking to do what fundamental doctrine or legal rule directly forbids. Nor can it give effect to any agreement the making whereof was an act violating law." In Pullman's Car Co. v. Transportation Co., 171 U. S. 138, 151, 18 Sup. Ct. 808, 43 L. Ed. 108, after citing with approval the case of Holman v. Johnson, 1 Cowp. 341, and many other cases, the court said: They are substantially unanimous in expressing the view that in no way and through no channels, directly or indirectly, will the courts allow an action to be maintained for the recovery of property delivered under an illegal contract, where, in order to maintain such recovery, it is necessary to have recourse to that contract. The right of recovery must rest upon a disaffirmance of the contract, and it is permitted only because of the desire of the courts to do justice as far as possible to the party who has made payment or delivered property under a void agreement, and which in justice he ought to recover. But courts will not, in such endeavor, permit any recovery which will weaken the rule founded upon the principles of public policy already noticed." How can complainant claim the protection of this court for its alleged title to this easement without having recourse to the contract by which it claims to have acquired that title? To grant the relief sought by complainant is to both recognize and enforce a contract which the law declares to be absolutely void; void because of want of power to make it, and void because contrary to public pol icy. It is insisted that the city of Evansville occupies the position of a third person or stranger to this contract, and therefore it cannot raise the question as to its validity. As the authorities cited above show, if this contract is absolutely void, it is void as to everybody, and is a nullity whenever or wherever it is set up. The right asserted here by complainant is the right to use the streets, alleys, and public places of the city. The regulation and control of this use is by law vested in the city. The complainant is asserting the right to this use against the city, which now has control of the right, unless it has granted it to a corporation which has legally assigned it to complainant. It would be strange, indeed, if in such case the city could not question the validity of such assignment. But it is the duty of courts to refuse recognition to an illegal contract whenever and however its illegality appears. A court is, in the due administration of justice, bound to refuse its aid to enforce an illegal contract, even if its invalidity be not pleaded. Oscanyan v. Arms Co., 103 U. S. 261, 26 L. Ed. 539. A party to the contract cannot waive its invalidity. In Hall v. Coppell, 7 Wall. 542, 559, 19 L. Ed. 244, Mr. Justice Swayne, speaking for the court, said: "The instruction given to the jury that, if the contract was illegal, the illegality had been waived by the reconventional demand of the defendants, was founded upon a misconception of the law. In such cases there can be no waiver. The defense is allowed, not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity of its administration. It will not enforce what it has forbidden and denounced. The maxim, 'Exdolo malo non oritur actio,' is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted with the vice of the original contract, and void for the same reasons. Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded upon its violation.” In order to establish its claim to the right sought to be protected in this case, complainant alleged, and it was necessary for it to prove, the contract out of which its alleged right springs. In this way, and in this way alone, can it establish the right alleged in the bill. In McMullen v. Hoffman, 174 U. S. 639, 654, 19 Sup. Ct. 839, 43 L. Ed. 1117, the Supreme Court said: "The authorities, from the earliest time to the present, unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged rights directly springing from such contract." The petition to rehear is overruled.2 2 See Abbott v. Johnstown, G. & K. H. R. R. Co. (1880), 80 N. Y. 27; McCarter v. Vineland L. & P. Co. (1907), 72 N. J. Eq. 767; Oregon v. Portland Gen. El. Co. (1908), 52 Oreg. 502. Compare Plummer v. Chesapeake & O. Ry. Co. (1911), 143 Ky. 102; Attorney General v. Haverhill G. L. Co. (1913), 215 Mass. 394. Facts :- pant of eminent domain to by to build to Strack. after doing so it fired that fuomess Monactions not the text there and no erant so to build new live souce place live. WITHDRAWAL FROM PUBLIC SERVICE. [CHAP. VII. cist tres ou Iis laud & he ques fath actual dayagir statutory trespass for My. LUSBY v. KANSAS CITY, MEMPHIS AND BIRMINGHAM 73 Miss. 360. 1895.1 WOODS, J. This action was instituted by the appellant in the circuit court of Monroe county for the recovery, in one of the counts of the declaration, for actual damages, and, in the other count, for the statutory penalty for trespass in cutting trees upon appellant's land. The count for the actual damages was, by the appellant, dismissed in the court below, whereby the right to recover the statutory penalty for the cutting of trees was left as the sole issue to be determined. Brushing aside all the mere forms of pleadings adopted by the parties in reaching and raising this issue, we state at once the defense set up by the appellee, which was, and is, in a word, that because of certain other suits, begun by the appellant and others, against appellee, to recover for injuries sustained by them in the flooding of their lands and destroying their crops, and because, as alleged by them in their complaints, of the improper construction of appellee's line of railway, it became, in the judgment of appellee, necessary to make fresh surveys over appellant's lands, with a view to a change and relocation of said line, if, after such surveys, it should appear to be necessary to reconstruct or relocate its line of railway, and this right to resurvey and change and relocate is asserted to be contained in the grant of its powers contained in the charter. It thus appears that the great, underlying question presented is, was the original selection and location of the route, and the actual construction of the railroad in its entirety, many years ago, final, and was the power to exercise the right of eminent domain exhausted by the one exercise of it, in such original selection and location of the route and the actual construction of the road? . . . In no part of the charter, either as recited by us or elsewhere, is there to be found any express grant of any powers to reselect or relocate the line after the most advantageous route has been once adopted, nor any hint of power conferred to change the route shown to have been located and selected by the map required to be filed in the office of the secretary of state, and to reconstruct the line, in whole or in part, on any other route, slightly or widely different and distant from the original line of selection and location, and actual construction of the road. If any such power to 1 Arguments of counsel and part of the opinion are omitted.- ED. Heed! -π- but only for actical damages for relied on opericon of muclitary heat a that cutting o. K. & so heat a thespard. lr. омирачнем 1. Here there is no unforseen or relocate and reconstruct can be successfully asserted by the cor- The second class of exceptional cases arises when, not by consideration of the corporation's convenience, or of economy in the expenditure of its moneys, or of a more advantageous location, and reconstruction on a new and different line, but by imperious necessity, some change of the line must be made, or the road abandoned, and the ends of its creation fail of fulfillment because of some insurmountable obstacle interposed by nature to the further operation of the road on its original line. If some appalling cataclysm should swallow in a yawning chasm the right of way, roadbed, and track, and leave a bridgeless gulf where solid earth had been, then, in this and other like cases, the deviation of the line from its original location would be within the implied powers of the charter, because to relocate and reconstruct to the extent indicated would be absolutely necessary in order to the accomplishment of the ends for which the corporation was created. But these classes of cases do not embrace the case presented by autpilled the desire. 2. My having the grant of 3. the present appeal. Here, in the case at hand, no uncontrollable and not to be foreseen convulsion of the earth had rendered the continued use of the line impossible, nor was there any overpower. ing necessity which required a new location and reconstruction of the road. It does not appear that, as originally located and constructed, the line was not, as the selection and location by appellee declared it to be, by its original action, the most advantageous route. But, if the location was not the most advantageous, and if damage had resulted to lands and crops by reason of improper loca tion, yet we are at a loss to conjecture why sufficient culverts, trestles, and bridges for the passage of the flood waters would not have prevented such damage, and, in addition, and chiefly, the corporation, having once made its election, and constructed and for years used its road according to such election, is bound thereby. Having elected to take its original route, such election is final, and no change, from motives of convenience or expediency or economy, could be made, without another legislative grant authorizing the change.. It would be amazing, if any high authority could now be found, holding that a corporation, under such a charter as that of appellee, could continue indefinitely to exercise the state's sovereign right of eminent domain whenever and wherever it would be more advantageous to it to change, relocate, and reconstruct an established and long-used line of railway, than to stand by its original selection, location, and construction. In a few earlier cases there are intimations not in harmony, apparently, with the views we have advanced. Perhaps the case most cited for the false view is that of Railroad Co. v. Devaney, in the book entitled 42 Miss. at page 555. The case has no binding authority upon us, nor does the doctrine of stare decisis have any application in the case referred to, nor in any other case found in the so-called 42 Miss. The opinions found in that volume are the utterances of a tribunal appointed by the military satrap, who then ruled in a prostrate commonwealth, and have no other binding authority upon us than that each case therein must be regarded as res adjudicata. In that case, an unsuccessful railroad company having had a bridge burned across a small stream, the Yallobusha river by name, and having no money (a very common condition with men, and not wholly unknown with corporations) with which to build, abandoned its line, long before located and constructed and operated, seized Devaney's lands, to the extent of a right of way, changed the location of its once-selected and long-used line, and all on the ground of its poverty,- its want of funds to rebuild its burned bridge; and the tribunal of military appointment held that there was mani evethaut further leg. grant authorizing 3. To allow cary. to continue to operate fement domaine & more. en pait irauted to would be vs. |