where, by the doing of certain acts, a lien would be prevented from attaching, a partial doing of the acts required would not prevent the lien. In McCracken v. Todd, 1 Kan. 148, it was held that the sureties on a bond cannot take advantage of an omission to have the bond approved, and its amount prescribed. A careful review of the authorities upon this subject satisfies us that the true rule is that while the party upon whom rests the duty of giving the bond cannot take advantage of the bond to relieve himself of liability, unless it is executed, approved, delivered, and deposited or recorded as required by law, yet, as to the party to be protected thereby, the failure to observe such requirements as relate to its approval, verification, deposit, or record does not invalidate it. Such provisions are for the benefit of the state or obligee, who alone can take advantage of them.

It is next contended that P. E. Lane, the subcontractor under whom the services were performed, ought to have been a party defendant. This contention is not well founded, as the act under which this condition of the bond was made expressly provides for an action on the bond; and, had the defendants desired a personal adjudication as to Lane, sufficient authority is given by sections 24, 27, c. 95, Gen. St. 1897, to have brought him in. As to the objection that the claim was not for labor done under said contract, within the meaning of the term "labor" as used in the statute, we think the evidence was sufficient to sustain the finding of the court in that respect.

2. "The objection to the introduction of evidence ought to have been sustained." J. T. Botkin, recording clerk in the office of the secretary of state, identified the papers, the first of which (Exhibit A, attached to plaintiff's petition) is a copy, as being a part of the files of that office. The other papers were the contract referred to in the bond as the contract under which said bond was given, and Specification No. 2 to Addenda No. 2, inclusive, dated June 5, 1889; also Specification No. 1, of workmanship and material required for the completion of the Kansas state capitol building, at Topeka, Kansas, under which proposals were made June 1, 1887. These were properly admitted.-the first two because they were the instruments sued on, and were sufficiently identified, and the other because it was referred to and made a part of the contract under which the bond was given, and said specification expressly authorized any changes to be made that were thought expedient, without in any way affecting the validity of the contract.

3. "In giving and refusing instructions, the court erred." Under this head the first complaint is that the court refused and failed to instruct the jury as to the different attitudes of sureties from principals. As there was no question involving the distinction between principals and sureties in this case, such instruction was not necessary. So far as the

liability upon this bond to the plaintiff was concerned, they were simply obligors.

It is next claimed that neither the bond nor the contract contains any reservation of the right to make changes, and the court should have so instructed the jury. The bond, so far as this case is concerned, provides for the payment of all indebtedness incurred for labor and material furnished in the construction of the improvements provided for by Plans and Specincation No. 2 and Addenda No. 2. Specification No. 2 provides: "All general clauses in Specification No. 1 not specially modified by Specification No. 2 will be in full force, the same as if they were in Specification No. 2." Reference is had chiefly to the general clauses of Specification No. 1. Among the general clauses of Specification No. 1 is the following: "Right is reserved to make any alterations or additions to the work that may be thought expedient, without in any way affecting the validity of the contract based on these specifications or drawings."

It is next claimed that by the transaction of July 7 and 11, 1892, between the state and Evans & Co., said firm was released from the work from which recovery is sought. We do not think that such was the necessary or legal effect of these transactions. The contractors sublet the iron work to P. E. Lane, and, desiring to go to El Paso, Tex., they separated as far as possible the sublet work from the balance of the contract, and, for the purpose of enabling the subcontractor to deal directly with the owner, executed an irrevocable power of attorney for said subcontractor to sign and execute all vouchers for material furnished and work done, "and to indorse all warrants that may be allowed by the state board of public works and the state architect, and to receive and receipt for all sums so allowed, to the full sum of nineteen thousand dollars; said sum being the amount due from said George H. Evans & Co. to said Philander E. Lane, as P. E. Lane, upon a subcontract made with him under the contract of said George H. Evans & Co., dated May 20th, 1889, with the state of Kansas, for the construction of the state-house building. And the said P. E. Lane, in consideration of this power of attorney, hereby agrees to release the said George H. Evans and J. J. Cox from all liability arising out of the above-mentioned subcontract." We see no intimation heremuch less, conclusive proof-that P. E. Lane had contracted with the state of Kansas for said work, or that the state of Kansas had accepted the said P. E. Lane as solely responsible therefor, and had released Evans & Co. from liability on that part of their contract. or the bondsmen from their liability on the bond. This is upon the theory that the state board of public works could have released the bondsmen, had they so desired and agreed. Of this we have serious doubts. The bond was taken, in obedience to the requirements of law, for the benefit of the materialmen

and workmen, and we can see weighty reasons why it should not be abrogated or annulled without the unequivocal consent of the parties for whose benefit it was given. We see no reversible error in this case. On the contrary, we think the judgment of the court below was right. It will be affirmed.

GARST v. LOVE et al. (Supreme Court of Oklahoma. Sept. 4, 1896.) UNLAWFUL OCCUPANCY OF PUBLIC LANDS-CONTRACT FOR PASTURAGE-VALIDITY.

In a suit to recover compensation for the pasturage of cattle under a contract which is alleged by the plaintiffs to provide for the defendant's turning his cattle into the 175,000acre pasture of the plaintiffs, to be kept and cared for, and held by the plaintiffs therein, and which pasture, it is alleged, is inclosed by a post and wire fence, paragraphs of the answer which state that this inclosure is maintain ed upon government land, to which the plaintiffs have no right or title, and which it is alleged they are holding exclusive possession of, for rental and speculation, to the exclusion of the defendant and other persons, thereby requiring the defendant to pay for the use thereof, and that the plaintiffs' said pasture is an unlawful inclosure of public lands, in violation of the provisions of the act of congress of February 25, 1885, state a good defense, and it is error to sustain a demurrer thereto.

Tarsney, J., dissenting.
(Syllabus by the Court.)

Error from district court, Woodward county; before Justice Frank Dale.

Action between J. E. Love and J. T. Word and Frank Garst.

The material parts of the record for consideration are the petition filed in the case on August 22, 1895, which is as follows:

"In District Court in and for County of Woodward, Territory of Oklahoma. J. E. Love and J. T. Word, Doing Business under the Firm Name of Love & Word, Plaintiffs, vs. Frank Garst, Defendant. Petition. To the Hon. Frank Dale, Judge of Said Court: Your petitioners, J. E. Love and J. T. Word, hereinafter styled 'plaintiffs,' complaining of Frank Garst, hereinafter styled 'defendant,' would respectfully represent unto your honor that all parties to this action, both plaintiffs and defendant, reside in the county of Woodward, territory aforesaid; that at all times hereinafter mentioned, and now, plaintiffs were and are co-partners, doing business under the firm name and style of Love & Word, and such times were, and still are, engaged in the business of buying, selling, raising, pasturing, and caring for cattle; that, at the time herein mentioned, plaintiffs possessed and controlled in the county and territory aforesaid a pasture inclosed by a post and wire fence, including 175,000 acres, more or less, constructed for the holding and maintaining of cattle; that heretofore, to wit, on the 1st day of February, 1895, defendant

made and entered into a certain oral contract with the plaintiffs, wherein it was mutually agreed by and between the parties plaintiff and the defendant that the defendant should place and turn into the aforesaid pasture of plaintiffs 1,800 head of cattle, consisting of steers and stock cattle, and that, for the keeping, care, and holding of said cattle, defendant should pay, and then and there agreed to pay, plaintiffs the sum of $180 per month, from time said cattle were so kept and cared for until they were taken out of the pasture aforesaid; that, upon and in pursuance of such oral contract, said cattle, in class and number aforesaid, were on the said 1st day of February, 1895, delivered by the defendant to the plaintiffs, and by them received and turned into said pasture, where said cattle remained until the 21st day of August, 1895; that, during said time, plaintiffs, in pursuance of their contract as aforesaid, kept, watched, cared for, and grazed said cattle in pasture aforesaid until said cattle were removed from the pasture of plaintiffs by defendant as aforesaid, on the 21st day of August, 1895; that on said date, as will ap pear from computation, there was due plaintiffs from defendant the sum of $1,415, for the pasturage, care, keeping, and maintenance of said cattle; that the services were performed by the plaintiffs for the defendant at his express invitation and request, and were reasonably worth the amounts charged therefor, whereby defendant became liable, and promised to pay plaintiffs the said sum of money, according to the spirit and tenor of said oral contract; that said sum is now due, and, though often requested, defendant refuses to pay same, or any part thereof, to plaintiffs' damage in the sum of $1,415. Wherefore, the premises considered, plaintiffs pray that, upon final hearing hereof, they have judgment for their debt and cost of suit, for which, as in duty bound, they will ever pray. Houston & Ray, Attorneys for Plaintiffs."

-And the answer of the defendant to this petition, which is as follows:

"In the District Court of Woodward County, Oklahoma Territory, Dec. Term, 1895. Love & Word, Plaintiffs, vs. Frank Garst, Defendant. Answer. Comes now defendant, Frank Garst, by his attorneys, Dean & Laune, and for answer to plaintiffs' petition-First, denies each and every material allegation in their petition contained; second, for a second defense to plaintiffs' cause of action, defendant alleges that the pasture of plaintiffs, of 175,000 acres, as stated in their petition, is an unlawful inclosure of government land. and that plaintiffs have attempted, by means of this unlawful inclosure, and by threats and intimidation, to extort money from defendant and others, and thus hold to their own exclusive use and benefit, for rental and speculation, a large area of government land, to which plaintiffs had no exclusive right of pos

session, title, or color cf title, and the inclosing of which was and is in strict violatic of the act of congress of February 25, 1885, entitled 'An act to prevent unlawful occupancy of public lands'; third, that the suit brought by plaintiffs against defendant is, as stated in their petition, for pasturage of defendant's cattle, which were on government land, and within said plaintiffs' unlawful inclosure, and said plaintiffs' suit is unjust, unfounded, and oppressive, by reason of the garnishment notices and attachment levies made against defendant; fourth, that, by reason of the above-mentioned process and proceedings, plaintiffs sought to extort money from defendant under settlement or compromise, and so injure his commercial credit and standing that he would be compelled to settle with plaintiffs; fifth, that, by reason of the foregoing illegal and oppressive proceedings, defendant has been put to great expense, inconvenience, and loss of time and injury to property and commercial credit, and has been damaged in the sum of $1,000, for which, with costs of suit, he asks judgment. Frank Garst, by His Attorneys, Dean & Laune.

"Territory of Oklahoma, Woodward County. S. B. Laune, being duly sworn, deposes and says that he is one of the attorneys for defendant; that defendant is now absent from Woodward county; that affiant has read the foregoing answer, and knows the statements therein contained are true, as he verily believes. S. B. Laune.

"Subscribed and sworn to before me, this 19 day of Dec., 1895. Louis E. Pitts, Clerk." The plaintiffs demurred to the second, third, fourth, and fifth paragraphs of the answer, on the ground that the facts therein stated are not sufficient to constitute a defense to the plaintiffs' cause of action. This demurrer was sustained to all the paragraphs of the answer demurred to, and, on trial before the court, judgment was rendered for the plaintiffs for the sum of $1,100 and costs, and an attachment which was had in the cause sustained. Defendant filed his motion for a new trial, which was overruled, and he now brings the case here for review. Reversed.

Dean & Laune and John H. Pitzer, for plaintiff in error. Temple Houston, R. J. Ray, and Keaton & Cotteral, for defendants in

error.

BIERER, J. (after stating the facts). This action was brought to recover of the defendant below, Frank Garst, for the pasturing of defendant's cattle in the pasture of the plaintiffs, located in Woodward county, Okl. This pasture, it was alleged by plaintiffs, was fenced with a post and wire fence, inclosing 175,- | 000 acres, and that, by the agreement, the defendant was to place, and did place, 1,800 head of cattle in this pasture, to be kept, held, and cared for, for the sum of $180 per month, until they should be taken out of the pasture;

and it was claimed that the sum sued for was due under this contract. The paragraphs of the answer which were demurred to, with the bluster and useless expressions omitted, substantially allege that this pasture mentioned in plaintiffs' petition, consisting of 170,000 acres, was upon government land, to which the plaintiffs had no right or title, and upon which the plaintiffs were maintaining an unlawful inclosure, in violation of the act of congress of February 25, 1885, and that, by means of this unlawful inclosure, they were speculating upon government land, and attempting to hold the exclusive possession thereof, and to require this defendant and others to pay for the pasturage of cattle in such inclosure; and the only substantial question in the case is as to whether or not such allegations were sufficient to constitute a defense to the plaintiffs' claim for pasturage.

The question presented resolves itself into the plain and distinct proposition: Can a person or an association of persons fence in and inclose a large body of government land by a post and wire fence, and exclude other persons therefrom, and make a contract with a person who is so excluded for the pasturage of cattle in such inclosure upon government land, and enforce in a court of law and equity the payment of money for such pasturage? Section 1 of the act of congress of February 25, 1885, in the supplement to the Revised Statutes (1 Supp. Rev. St. p. 477), an act to prevent the unlawful occupancy of the public lands, provides: "That all inclosures of any public lands in any state or territory of the United States, heretofore or hereafter to be made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any state or any of the territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and hereby prohibited." Section 2 of the same act requires the district attorney for the proper district to institute civil suits in the United States courts of the district against parties violating this act, and requires such cases to have precedence over other cases on the civil docket, and that they be determined at the earliest practicable day, and that the proceedings shall be of a summary character.

Section 4 of the same act makes the violation of any of the provisions thereof, whether as owner, part owner, agent, aider, or abettor, a misdemeanor, and the violator subject to a fine not exceeding $1,000, and imprisonment for not exceeding one year. This act, in our judgment, was made for the express purpose of preventing just such inclosures of the public lands as the pleadings in the case allege the plaintiffs are maintaining. The public lands of the United States are held by the government for the purposes of settlement, sale, and occupancy by actual settlers thereon, each settler taking not more than one-quarter section thereof, and are not held for the purpose of being segregated by fencing the same into large pastures, and holding the same for the pasturage of stock, to the exclusion of other citizens. And this act sought to make provisions for the use of summary process in preventing these trespasses upon the public domain, and also to make such conduct criminal, and punishable under the criminal laws of the United States.

Can, then, a person who is maintaining this breach both of the civil and criminal laws of the United States come into a court of equity, and ask that a contract that he has made with another for the use of such prohibited inclosure be enforced, and receive an affirmative answer? Our answer must be, directly and plainly: "No. You are maintaining an inclosure which is prohibited by law, and a court of equity will not aid you in enforcing any contract which assists you in maintaining or deriving profit from this unlawful transaction." It is insisted, however, in behalf of defendants in error, that it is only the maintaining the fence that is prohibited; that, while that may be illegal, the pasturing of cattle on the government lands is not illegal, and, as the legal part of the contract can be separated from the illegal, the legal part can be enforced. While there is a principle of law that where two independent and distinct considerations enter into a contract which is not illegal in itself, one of which considerations is legal, and the other of which is illegal, and where the same can be distinctly and clearly separated, the contract will be enforced; yet the argument of defendants in error cannot be sustained, for this abstract principle is not applicable to the case at bar. Here the consideration for the payment of the price sought to be recovered was the pasturage of cattle in the inclosure of the plaintiffs. The contract contemplated the turning of the cattle into this inclosure, the feeding them there upon the grass grown by nature upon the government lands, and the keeping of the cattle within this inclosure, and, as is alleged in substance in the answer, the keeping of other cattle, for which payment was not made, off of this part of the government domain, and out of this pasture. The use of the inclosure, the use of the government land for grazing, and the keeping of the cattle in that pasture, were the component

parts of the consideration; and each and every one was illegal, because the primary one-the maintenance of the inclosure, and the consequent "unlawful occupancy of the public lands"-was unlawful. It is true that we know of no statute that makes it illegal for one person to contract with another for the grazing of cattle upon the public domain, but it is illegal to maintain an inclosure, and thus keep a pasture upon the public domain. And the pasturing of these cattle, in the manner provided by the contract of the parties, so clearly contemplated the use in this business of the unlawful inclosure of the public lands that, although the caring for and keeping of the cattle upon the public domain might be lawful, these things, coupled with the agreement that they be done in this unlawful inclosure, makes the entire contract illegal and void, for the legal cannot be separated from the illegal. This conclusion is amply supported by authority.

The case of Widoe v. Webb, 20 Ohio St. 431, was a suit upon a promissory note, given in settlement of an account, part of the items of which were for intoxicating liquors, sold by the payee of the note to the maker, to be drunk upon the premises where sold, in violation of the statute. The trial court instructed the jury: "That, if any of the items for spirituous liquors thus illegally sold entered into and formed part of the consideration of the note, then the plaintiff could not recover; the law being that, when any part of the entire consideration of a promise is illegal, the whole contract is void." Concerning the question then before the court, the opinion states: "The concurrent doctrine of the text-books on the law of contracts is that, if one of two considerations of a promise be void merely, the other will support the promise, but that, if one of two considerations be unlawful, the promise is void. When, however, for a legal consideration, a party undertakes to do one or more acts, and some of them are unlawful, the contract is good for so much as is lawful, and void for the residue. Whenever the unlawful part of the contract can be separated from the rest, it will be rejected, and the remainder established. But this cannot be done when one of two or more considerations is unlawful, whether the promise be to do one lawful act, or two or more acts, part of which are unlawful, because the whole consideration is the basis of the whole promise. The parts are inseparable. Metc. Cont. 246; Add. Cont. 905; Chit. Cont. 730; 1 Pars. Cont. 456; 1 Pars. Notes & B. 217; Story, Prom. Notes, 190; Byles, Bills, 111; Chit. Bills, 94. Whilst a par tial want or failure of consideration avoids a bill or note only pro tanto, illegality in respect to a part of the consideration avoids it in toto." In the case of McQuade v. Rosecrans, 36 Ohio St. 442, the court used this language in approving the former decision: "Where a part of the consideration, whether large or small, is affected with the fraud, the case falls within

*

the operation of the principle stated and affirmed in Widoe v. Webb, 20 Ohio St. 431." The case of Meguire v. Corwine, 101 U. S. 108, is a very interesting one to consider in connection with this question. There the suit was to recover upon a contract whereby the defendant's testator had agreed that, in consideration of the services of the plaintiff in procuring his (the testator's) appointment as special counsel in certain causes against the United States, and in abiding him in managing the defense of them, the testator agreed to pay plaintiff one-half of the fee he should receive from the government; and the supreme court, while recognizing the validity of an bonest claim for attorney's services, but denying the right to recover for such services when they were connected with a contract to pay compensation for procuring the appointment as counsel for the government, such contract being against public policy and void, by Mr. Justice Swayne, who wrote the opinion in the case then before the court, and quoted from his own language used in Trist v. Child, 21 Wall. 441, said: "But they are blended and confused with those which are forbidden. The whole is a unit, and indivisible. That which is bad destroys that which is good, and they perish together. * * Where the taint exists, it affects fatally, in all its parts, the entire body of the contract. In all such cases, potior conditio defendentis.' Where there is turpitude, the law will help neither party." The case of Trist v. Child was one brought by Child against Trist, and recovery had in the trial court, but reversed, and the cause dismissed by the supreme court, upon a claim for compensation for professional services in prosecuting a claim before congress as the agent and attorney for Trist. The supreme court recognized the validity of a contract for compensation for attorney's fees in such cases, but held that, where the same was connected with services as lobbyist, the taint of the latter services affected the entire transaction, and made it all illegal, so that no compensation whatever could be recovered. That is exactly the situation here. While a contract to keep and care for cattle on government land would not be illegal, where the same was done in a prohibited inclosure it would make the entire transaction illegal. Another case in point is that of Bixby v. Moor, 51 N. H. 402, where it is held that one cannot recover anything on a quantum meruit for an entire service where a small part of his labor consists in selling liquor contrary to law. On this question, Lawson, in his work on Contracts, says: "If any part of a single consideration for one or more promises is illegal, the whole agreement is void, for public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have connected with this act or promise another which is legal." Section 340. Bishop on Contracts (section 471) uses this language: "A contract

illegal in part, and legal as to the residue, is void as to all when the two parts cannot be separated. When they can be, the good will stand, and the rest fall. One entire consideration cannot, within this rule, be separated, though composed of distinct items, some of which are legal and others illegal." Where a contract is based upon several considerations, one of which is illegal, the entire contract is void, whether the illegality be by common law or by statute. Chit. Cont. p. 730. The law says that the plaintiffs cannot maintain this unlawful inclosure. While maintaining it, as the pleadings allege they were doing, they were engaged in the keeping and pasturing of cattle in a manner prohibited by law; and, so long as they are thus engaged, they can recover no compensation for their labors. The supreme court of Colorado held in Hittson v. Browne, 3 Colo. 304, that an unlicensed attorney could not recover any compensation for his services, because they were rendered in violation of a statute expressly or impliedly prohibiting his practice of that profession. In the recent and well-considered case of Yount v. Denning, 35 Pac. 207, the supreme court of Kansas decided that a real-estate agent who had failed to procure a license under a city ordinance requiring all real-estateagents to pay a semiannual license or occupa tion tax of $10, and which imposed a fine for the violation thereof, could not recover any compensation for making a sale of real estate, and a judgment in his favor for a commission of $265 was, for this reason, reversed. It certainly could not be contended that a contract to pasture these cattle in this unlawful inclosure was not in furtherance of a violation of law, and did not tend to aid and promote, by a financial reward, such violation. In Dillon v. Allen, 46 Iowa, 299, where it was decided that no recovery could be had for threshing grain where the work was done on a machine where the rods, knuckles, joints, and jacks were not boxed as required by statute, that statute making it a misdemeanor and punishable by a fine for any one to run a machine, or for any one to permit his grain to be threshed by a machine, not boxed in accordance with the statute, the law was stated thus, quoting from a former decision of the same court: "The rule to be drawn from these cases, therefore, appears to be that when an act is absolutely prohibited by statute, or is contrary to public policy, all notes, etc., given in furtherance of that act, are null and void." And in the syllabus of the case it is said: "Contracts tending to promote or requiring the performance of acts forbidden by statute are void, even though the statute does not so declare, but merely inflicts a penalty for its violation." Ingersoll v. Randall, 14 Minn. 400 (Gil. 304), is cited as authority in this Iowa case. In the case of Bank v. Owens, 2 Pet. 527, it was held that not only were contracts in violation of law and public policy void, but that the rule was extended to such as are cal