other gas companies "had been materially in- | sign of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction." It is clear from the evidence adduced by the plaintiff that he falls within the category last described; and he makes profert of the fact that the first suggestion in the line of manipulating the gas interests of Baltimore [400] came from himself. Hence, if the contract he brought about was forbidden by statute, or by public policy, it is evident that he could not recover, and the judgment must be affirmed. By this contract it is recited that active comed in expense, annoyance, and loss of profits, and it was therefore provided that the price of gas to consumers should be placed at one dollar and seventy-five cents per thousand cubic feet, with a rebate of fifteen cents a thousand feet for payment within seven days, "unless the rate shall be changed by mutual agreement of the parties hereto in writing;" but as the defendant had much the larger interest, it might, in case of competition on the part of any other gas company, reduce the rate at which gas should be sold "by either or both of the parties hereto, from time to time so long as such competition shall continue," provided it should not be put at less than one dollar per thousand feet without the written consent of both parties; that the entire net receipts from the sale of gas Since he had thus entered upon the enter- should be pooled and divided between the comprise under a specific agreement with the Equi-panies in a fixed ratio without regard to the table Gas Company, it is somewhat difficult to amount of gas actually supplied by either; that understand upon this record how, in carrying one of the companies should lay no more pipes such an express contract out, he could impose or mains for the supply of gas in the city; that the obligation on the defendant to pay him for all future pipes or mains should be laid by and doing so, upon a mere notification that he remain the property of the other company; and should expect from it compensation for the that either party which violated any of the services he had expressly agreed to render the covenants in the contract should pay to the other company, because the result might be other the sum of $250,000 as quidated damsatisfactory to the defendant-a result neces- ages. It will be perceived that this was an sarily to be assumed if any contract was ar- agreement for the abandonment by one of the rived at. The defendant could not in that companies of the discharge of its duties to the view be held to have laid by and accepted serv- public, and that the price of gas as fixed thereices which the plaintiff would otherwise not by should not be changed except that, in case have been obliged to perform or could assert of competition, the rate might be lowered by that he did perform only upon the expectation one, but not below a certain specified rate, of being also paid by the defendant. The without the consent of the other. And in the hypotheses of fact set up by the plaintiff in the case in hand the Equitable Gas-Light Company Instructions be asked, and which were refused, was expressly forbidden to enter into such a contain nothing in respect of which testimony contract. That company was incorporated by tending to upport and establish such hypo- an Act of the General Assembly of Maryland, theses would add to the mere fact of the no- passed March 6, 1867, with a capital of two tification of plaintiff's expectation, and the evi- millions of dollars, which might be increased dence on defendant's part tended to show a to three million, aud with authority to lay denial of any obligation to pay. But apart pipes along and under the streets, squares, lanes, from this, the real question submitted to us for and alleys of the City of Baltimore, and to sup decision is whether, even if there were no other ply with light any dwelling house or other objection to plaintiff's recovery, such recovery buildings or places whatever belonging to incould be allowed in view of the nature of the dividuals or corporations, adjacent to any such alleged services. street, square, lane, or alley, and with "all the rights and privileges granted to the Gas Light Company of Baltimore, by the second, third, fourth, and fifth sections of the ordinances of the mayor and city council of Baltimore, entitled an ordinance to provide for more effectually lighting the streets, squares, lanes and alleys of the City of Baltimore, approved June seventeenth, eighteen hundred and sixteen, and the Act of Assembly of December Session, We do not feel called upon, under such circumstances, to reverse the judgment, upon the ground that the court assumed in the instruction a matter of fact which should have been left to the jury to determine. According to the evidence given by the plaintiff, he informed the defendant "that he was employed and would be paid by the Equitable Gas-Light Company, if he made an arrangement satisfactory to that company, and that if he should be successful in bringing about a settle05] ment satisfactory to the defendant also, he should expect and claim to be compensated by the defendant likewise." In Irwi v. Williar, 110 U. S. 499, 510 [28: 225, 230], it was held that where a contract, void on ccount of the illegal intent of the principal parties to it, had been negotiated by a perso ignorant of such intent, and innocent of any violation of law, the latter might have meritorious ground for the recovery of compensation for services and advances; but when such agent "is privy to the unlawful de [407 nary corporation engaged in the manufacture of articles that may be furnished by individual effort. New Orleans Gaslight Co. v. Louisiana Light & Heat Co. 115 U. S. 650 [29:516]; eighteen hundred and sixteen, chapter two U. S. 683 [29: 510]; Shepard v. Milwaukee Gas- On the 3d of May, 1882, an Act supplementary to the Act incorporating the Equitable Gas-Light Company of Baltimore City was approved (Laws, of Maryland, 1882, pr. 550, 551), authorizing and empowering said company to manufacture and sell gas in Baltimore County as well as in Baltimore City, and to exercise all the powers and rights conferred upon it by the Acts of Assembly and any amendments thereto, including the right to lay all necessary and convenient pipes, etc., in the county as well as in the city, and the fourth section of this Act was as follows: "That the said company be, and hereby is, so, or to make such combinations or contracts void." In Greenwood v. Union Freight R. Co. 105 U. S. 13 [26: 961], the right to repeal the charter of a street railroad company was sustained under a provision of the general statutes of Massachusetts declaring "Every Act of incorporation passed after the 11th day of March, in the year 1831, shall be subject to amendment, alteration, or repeal at the pleasure of the Legislature.' The decision in Mitchel v. Reynolds, 1 P. Wms. 181, Smith's Leading Cases, Vol. 1, Pt. II, 508, is the foundation of the rule in relation to the invalidity of contracts in restraint of trade; but as it was made under a condition of things, which now prevail, the rule laid down is not and a state of society, different from those regarded as inflexible, and has been considsidered, and if it be not involved, and the erably modified. Public welfare is first conrestraint upon one party is not greater than protection to the other party requires, the contract may be sustained. The question is, whether, under the particular circumstances of the case and the nature of the particular contract involved in it, the contract is, or is not, unreasonable. Rousillon v. Rousillon, L. R. 14 Ch. Div. 351; Leather Cloth Co. v. Lorsoni, L. R. 9 Eq. 345. Cases must be judged according to their cir- founded that a contract in restraint of trade is The consent of the corporation was not required to the operation of such a provision as that embodied in the fourth section of the Act of 1882, but if acceptance were necessary, the exercise of corporate action by this gas company after the passage of the amendment was sufficient evidence of such acceptance. The supplying of illuminating gas is a business of a public nature to meet a public necessity. It is not a business like that of an ordi It is evident that both these evils occur when the contract is general, not to pursue one's trade at all, or not to pursue it in the entire realm or country. The country suffers the loss in both cases; and the party is deprived of his occupation, or is obliged to expatriate himself in order to follow it. A contract that is open to such grave objection is clearly against public policy. But if neither of these evils ensue, and if the contract is founded on s valid consideration and a reasonable ground of benefit to the other party, it is free from objection, and may be enforced." Innumerable (410 cases, however, might be cited to sustain the proposition that combinations among those engaged in business impressed with a public or quasi public character, which are manifestly prejudicial to the public interest, cannot be upbeld. 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. So that, in short, all stipulations to overturn-or in evasion ofwhat the law has established; all promises interfering with the workings of the machinery of the government in any of its departments, or obstructing its officers in their official acts, or corrupting them; all detrimental to the public order and public good, in such manner and degree as the decisions of the courts have defined; all made to promote what a statute has declared to be wrong-are void." Bishop, Contracts, 549; Woodstock Iron Co. v. Rich mond & D. Extension Co., decided at this term, opinion by Mr. Justice Field [ante, 819]; Trist v. Child, 88 U.S. 21 Wall. 441 [22: 623]; Irwin v. Williar, 110 U. S. 499 [28: 225]; Arnot v. Pittston & E. Coal Co. 68 N. Y. 558; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Woodruff v. Berry, 40 Ark. 261; Hartford & N. H. R. Co. v. New York & N. H. R. Co. 3 Robt. 411; Craft v. McConoughy, 79 Ill. 346; Hooker v. Vandewater, 4 Denio, 349; Stanton v. Allen, 5 Denio, 434; Central R. Co. v. Collins, 40 Ga. 582; Morris Run Coal Co. v. Barclay Coal Co. 68 Pa. 173. " It is also too well settled to admit of doubt that a corporation cannot disable itself by contract from performing the public duties which it has undertaken, and by agreement compel itself to make public accommodation or convenience subservient to its private interests. "Where," says Mr. Justice Miller, delivering the opinion of the court in Thomas v. West Jersey R. Co. 101 U. S. 71, 83 [25: 950, 952], "a corporation, like a railroad company, has 11] granted to it by charter a franchise intended in large measure to be exercised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disables the corporation from performing those functions, which undertakes without the consent of the State to transfer to others the rights and powers conferred by the charter, and to relieve the grantees of the burden which it imposes, is a violation of the con tract with the State and is void as against public policy." chises, upon the excuse that it cannot go forward because of expense and want of remuneration. There is no evidence in this record of any such state of case, and, on the contrary, it appears that the cost of the manufacture of gas was largely below the price to be charged named in the stipulation between the parties. There is nothing upon which to rest the suggestion that the companies were unable to serve the consumers, while the record shows, on the other hand, that they simply desired to make larger profits on whatever gas they might furnish. Nor are we called upon to pass upon the validity generally of pooling agreements. Here the contract was directly in the teeth of the statute, which expressly forbade the Equitable Gas-Light Company from entering into it. That prohibition declared the policy of the State as well as restrained the particular corporation. The distinction between malum in se and malum prohibitum has long since been exploded, and as "There can be no civil right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal" (Bank of United States v. Owens, 27 U. S. 2 Pet. 527, 539 [7: 508]), it is clear that contracts in direct violation of statutes expressly forbidding their execution, cannot be enforced. The question is not one involving want of authority to contract on account of irregularity of organization or lack of an affirmative grant of power in the charter of a corporation, but a question of the absolute want of power to do that which is inhibited by statute, and, if attempted, is in positive terms declared "utterly null and void." "The rule of law," said Parker, Ch. J., in Russell v. DeGrand, 15 Mass. 35, 39, "is of universal operation, that none shall, by the aid of a court of justice obtain the fruits of an unlawful bargain." We cannot assist the plaintiff to get payment for efforts to accomplish what the law declared should not be done, and the judgment must be affirmed. (See 8. C. Reporter's ed. 482-493.) Appeal brings up whole cause-decree, binding upon the parties-suspending sale estoppel. 1. An appeal of a cause brings up the whole cause as far as it had progressed, including an appealable order previously made by the court below. 2. A decree of a state court, providing for a sale of a railroad, is binding upon all the parties to the suit in which it was rendered, until modified or reversed, and is not open to collateral attack by any of the Circuit Court of the United States, after the those parties in a separate suit brought by them in jurisdiction of the state court attached. These gas companies entered the streets of Baltimore, under their charters, in the exercise of the equivalent of the power of eminent domain, and are to be held as having assumed an obligation to fulfill the public purposes to subserve which they were incorporated. At common law corporations formed merely for the pecuniary benefit of their shareholders could, by a vote of the majority thereof, part with their property and wind up their business; but corporations to which privileges are granted in order to enable them to accommodate the public, and in the proper discharge of whose duties the public are interested, do not come within 4. Where an agreement was made, between the the rule. But we are not concerned here with appellee and the trust company who represented the question when, if ever, a corporation can of rights given him by a decree of the state court, the bondholders, for the surrender by the former cease to operate without forfeiture of its fran-in consideration of the receiver's certificate for the 3. No order in the circuit court could interfere with or suspend the sale which the state court had directed to be made. [412] [484] amount of his claim, the bondholders are bound by | $7,806.22; and it was adjudged that for the cate. [No. 224.] Argued March 21 and April 1, 1889. Decided that unless such sum, and the costs of the ac April 15, 1889. tion, were paid within ninety days, the master "shall, after the court has ascertained and de of the United States for the Southern District of Ohio, for the foreclosure and sale of the Cincinnati Northern Railway. Affirmed. a decree of the Court termined the dimension and location of so Statement by Mr. Justice Harlan: The principal questions upon this appeal arise out of an order directing the receiver in this cause to issue to certain parties his certifi cate of indebtedness for the amount of claims held by them against the property of which he was directed to take possession 'The history of those claims and the circumstances under which the above order was made will appear from the following statement: Jacob Seasongood, Lewis Seasongood, and Bernard G. Stall, by written agreement, made August 29, 1876, bargained and sold to the Miami Valley Narrow Gauge Railway Company (whose name was afterwards changed to the Miami Valley Railway Company), for the purpose of its roadway, three adjoining lots in the City of Cincinnati, Ohio, for the sum of $18,500, of which $2,000 was agreed to be paid in thirty days, and $16,500, at the end of ten years, the latter sum to bear interest at the rate of seven per cent per annum, payable quarterly. The company also agreed to pay the taxes and assessments on the property. The vendors retained the legal title, but bound themselves to convey the premises, upon the performance by the vendee on its part of the agreement of purchase. The company was put into immediate possession, and proceeded to construct its road over the lots. On the 1st of November, 1876, it mortgaged the road, its property and franchises to secure bonds aggregating $500,000. In an action brought in the Court of Common Pleas of Warren County, Ohio, that mortgage was foreclosed, and the mortgaged property sold. The title ultimately passed to the Cincinnati Northern Railway Company, a corporation created under the laws of Ohio, with authority to construct and operate a railroad from Cincinnati through the Counties of Hamilton, Butler, and Warren to Waynesville in the latter county. That company, by mortgage in the nature of a trust deed, executed November 17, 1880, conveyed its property rights and franchises to the present appellant, as trustee, to secure bonds aggregating $1,000,000. By a decree rendered by the Superior Court of Cincinnati, at general term, in an action brought, May 2, 1881, by Jacob Seasongood, Lewis Seasongood, and Bernard G. Stall against the Miami Valley Railway Company, the Cincinnati Northern Railway Company, the trustees in the mortgage of November 1, 1876, the Central Trust Company (the trustee in the mortgage of November 17, 1880), and others, it was found that there was due to the plaintiffs in that action, under the above agreement with the Miami Valley Railway Company, for interest and taxes, the sum of of the lots of land aforesaid as are not needed for the railroad, cause such portions of said lots as he shall find as aforesaid to be unnecessary for the railroad, to be appraised and advertised, and sold upon execution at law;" and that, "In the event that the sum realized from the sale of the portions of the lots of land aforesaid shall be insufficient to pay the sum of money and interest and costs last aforesaid, the entire railway, as owned and operated by the said Cincinnati Northern Railway Company, shall be sold as an entirety." To this decree the Cincinnati Northern Railway Company and the Central Trust Company excepted, the latter corporation tendering its bill of exceptions, which was signed, sealed, and made part of the record. By a further decree rendered October 3, 1883, the court found that certain portions of the lots, [485] described by metes and bounds, were not nec essary for the roadway of the Cincinnati Northern Railway Company, and ordered them to be appraised and sold separately, and if they did not sell for enough to pay the above judgment, interest and costs, then to sell the road as theretofore ordered. To that decree the defendants also excepted. The present suit was instituted in the Circuit Court of the United States, by the Central Trust Company of New York, on the 14th day of August, 1883 (the day after it filed its answer in the above suit in the Superior Court of Cincinnati), against the Toledo, Cincinnati and St. Louis Railroad Company, the Cincinnati Northern Railway Company, the Spring Grove, Avondale and Cincinnati Railway Company, and Grenville D. Braman. The bill set out the above mortgage or deed of trust of November 17, 1880; the lease by the Cincinnati Northern Railway Company for the term of ninety-nine years of the tracks, roadbed, rights of way, property, franchises, etc., of the Spring Grove, Avondale and Cincinnati Railway Company, and the mortgage executed May 25, 1881, by the Cincinnati Northern Railway Company to the Central Trust Company, of its property, rights and franchises, for the payment of $1,000,000 of bonds theretofore issued by the Spring Grove, Avondale and Cincinnati Railway Company, secured on its road, the lien of the latter mortgage to be second only to that of the mortgage of November 17, 1880; a mortgage by the Cincinnati Northern Railway Company, of May 25, 1881, to the same trustee, of its property, rights and franchises, to secure an issue of $1,000,000 of income bonds, payable out of the net earnings, of the last named rail way company; and the consolidation of the above railroad companies under the name of the Toledo, Cincinnati and St. Louis Railroad Company, and the assumption by the consoli dated company of the debts secured by each of said mortgages. The prayer of the bill was, that all of said mortgaged property be sold, the proceeds to be fore appointed herein that said proceedings to On the 8th of December, 1883, the following order was made by the circuit court in this cause: "Now, therefore, in consideration of the premises, it is ordered by the court that the master commissioner in said case in said superior court be authorized to proceed and sell under his order said outlying strips which were found not to be necessary for said right of way, and, after paying the costs of said action and taxes, to apply the balance of the purchase money on said certificate and pay the same to said Seasongoods and Stall. "And by agreement it is ordered that in the event that said case in said superior court shall be taken to the Supreme Court of Ohio by motion for leave to file within thirty (30) days, and leave shall be granted and bond given, then said certificate to be returned. "Nothing herein contained shall prejudice the right of defendant to prosecute a proceeding in error in the Supreme Court of Ohio within said thirty (30) days. "It appearing to the court that the Superior 20 100 the said The Cincinnati Northern Railway Jacob Seasongood having died, the court, by [488] |