Levy v. Kansas City, Kan.

• Decision Date: 22 March 1909
• Docket Number: 2,834.
• Citation: 168 F. 524
• Parties: LEVY v. KANSAS CITY, KAN.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F. 524

LEVY v. KANSAS CITY, KAN.

No. 2,834.

United States Court of Appeals, Eighth Circuit.

March 22, 1909

(Syllabus by the Court.)

It is a general rule of public policy and of law that no action may be maintained which arises out of the moral turpitude of the plaintiff, or out of his violation of a general law enacted to effectuate the public policy of a state or nation.

The maintenance of actions to recover moneys or property lost, or damages sustained, through transactions or contracts wherein the plaintiffs were guilty of moral turpitude, or of the violation of a general law of public policy, is prohibited by this rule, as well as the maintenance of actions to enforce such contracts.

The fact that the plaintiff was induced by the misleading acts of the defendant to part with his money or property in the belief that the defendant would continue to violate the law and would perform the illegal contract for which he paid his money will not sustain his action.

There was a statute of the state of Kansas (Sess. Laws 1895, p 294, c. 155) which prohibited pool selling and book making in that state, with an immaterial exception, and there was an ordinance of Kansas City, Kan., that any person might carry on that business in that city for a year for $5,000. The plaintiff bought of the city a license under this ordinance and paid $5,000 for it, and the second day after he commenced his business the city stopped him, and it has prevented him ever since from carrying it on. He sued the city for the $5,000.

Held the plaintiff was guilty of a violation of a general law enacted to effectuate the public policy of the state of Kansas, and his action was not maintainable.

I. J. Ringolsky (D. I. White and C. F. Hutchings, on the brief), for plaintiff in error.

Ralph Nelson (H. L. Alden, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

SANBORN Circuit Judge.

Conducting the business of pool selling and book making in the state of Kansas, except within the inclosure of a race track for not exceeding two weeks in any year, was prohibited under a penalty of imprisonment for one year and a fine of $1,000 by section 1, c. 155, p. 294, of the Session Laws of Kansas of 1895. In April, 1898, the city council of Kansas City enacted an ordinance to the effect that any person might carry on the business of book making and pool selling in that city for an annual license fee of $5,000. The plaintiff brought an action against the city of Kansas City, and alleged in his complaint that on July 29, 1905, he purchased a license to conduct the business of book making and pool selling at Nos. 5 and 5 1/2 Central avenue, in that city, for the term of one year, and paid the city $5,000 for it under its ordinance; that he leased and furnished a room at those numbers for that business, and engaged in it there under his license; that on July 31, 1905, the city wrongfully and forcibly arrested him, and by force and threats of repeated arrests has excluded and prevented him ever since from carrying on the business of book making or pool selling in that city; that these acts of prevention and exclusion were instigated and performed by the city at the request and for the benefit of persons who were conducting the same business in that city under a similar license, and for the purpose of depriving him of his $5,000 and of appropriating it to the use of the city; that he has demanded the return of his $5,000, and the city has refused to repay it. The court below sustained a general demurrer to this complaint, and the plaintiff sued out this writ of error to reverse the judgment founded upon that ruling.

'Ex dolo malo non oritur actio' is a maxim which lies at the foundation of a general rule of public policy, the rule that the courts will not sustain an action which arises out of the moral turpitude of the plaintiff or out of his violation of a general law enacted to carry into effect the public policy of the state or nation. Coppell v. Hall, 7 Wall. 542, 552, 557, 558, 19 L.Ed. 244; Thomas v. City of Richmond, 12 Wall. 349, 355, 20 L.Ed. 453; Oscanyan v. Arms Co., 103 U.S. 261, 269, 26 L.Ed. 539; Irwin v. Williar, 110 U.S. 499, 510, 4 Sup.Ct. 160, 28 L.Ed. 225; Embrey v. Jemison, 131 U.S. 336, 345, 9 Sup.Ct. 776, 33 L.Ed. 172; Central Trans. Co. v. Pullman's Car Co., 139 U.S. 24, 60, 11 Sup.Ct. 478, 35 L.Ed. 55; Pullman's Car Co. v. Trans. Co., 171 U.S. 138, 151, 18 Sup.Ct. 808, 43 L.Ed. 108; McMullen v. Hoffman, 174 U.S. 639, 654, 658, 19 Sup.Ct. 839, 43 L.Ed. 1117; Harriman v. Northern Securities Co., 197 U.S. 244, 295, 25 Sup.Ct. 493, 49 L.Ed. 739; Continental Wall Paper Co. v. Voight & Sons, 212 U.S. 227, 29 Sup.Ct. 280, 292, 53 L.

Ed. . . . But counsel say, and it is true, that this is not an action to enforce the illegal contract evidenced by the license, but to recover back the money he paid for this contract that the city repudiated, this contract for which he received no consideration. But the maintenance of actions to recover moneys or property lost, or damages sustained, through transactions or contracts wherein the plaintiffs were guilty of moral turpitude, or of the violation of a general law passed to effectuate a public policy, is prohibited by this rule, as well as the maintenance of actions upon contracts of that nature. Thomas v. Richmond, 12 Wall. 349, 355, 20 L.Ed. 453; Irwin v. Williar, 110 U.S. 499, 510, 4 Sup.Ct. 160, 28 L.Ed. 225; Begbie v. Phosphate Sewage Co., L.R. 10 Q.B. 491, 499; Scott v. Brown & Co., L.T.R. (N.S. 1892) 782; Babcock v. Thompson, 20 Mass. 446, 449, 15 Am.Dec. 235; Abbe v. Marr, 14 Cal. 210, 212; Knight v. Linzey, 80 Mich. 396, 45 N.W. 337, 339, 8 L.R.A. 476; Morgan v. Groff, 5 Denio (N.Y.) 364, 365, 49 Am.Dec. 273; Myers v. Meinrath, 101 Mass. 366, 370, 3 Am.Rep. 368; Haynes v. Rudd, 102 N.Y. 372, 376, 377, 7 N.E. 287, 55 Am.Rep. 815; Bryant v. Wilcox, 137 Mich. 669, 100 N.W. 919, 920; Shaffner v. Pinchback, 133 Ill. 410, 24 N.E. 867, 868, 23 Am.St.Rep. 624; Inhabitants of Worcester v. Eaton, 11 Mass. 368, 377; Shipley v. Reasoner, 80 Iowa, 548, 558, 45 N.W. 1077; Robeson v. French, 53 Mass. 24, 25, 45 Am.Dec. 236; Lyon v. Strong, 6 Vt. 219; Duffy v. Gorman, 64 Mass. 45.

The complaint shows that the city had enacted an ordinance which by its terms authorized the plaintiff to carry on for a year his business of book making and pool selling, that other persons were conducting a business of that nature under that ordinance with the consent of the city, and that the city received the plaintiff's money and issued a license to him; and counsel argue that the plaintiff was deluded into parting with his money by the acts of the city, by its ordinance, by its practice of issuing licenses and of permitting other licensees to carry on a similar business thereunder, and by its acceptance of his money and its issue of the license to him. It is conceded that the action of the city in taking his money for a license to do business for a year under its ordinance, in depriving him of the use of this license two days later, and in refusing to return his money to him, is abhorrent to the sense of fairness and justice and despicable. Nevertheless, one who loses his money or his property by knowingly engaging in a contract or transaction which involves his own moral turpitude, or his violation of a general law enacted to carry into effect a public policy, may not maintain an action for his loss or his damages because the acts of others deluded or persuaded him to believe that they would continue to violate the law or to perform an illegal contract, and this because his own moral turpitude and his violation of the law repel him from the courts. Haynes v. Rudd, 102 N.Y. 372, 376, 377, 7 N.E. 287, 55 Am.Rep. 815; Babcock v. Thompson, 20 Mass. 446, 449, 15 Am.Dec. 235; Abbe v. Marr, 14 Cal. 210, 212; Scott v. Brown & Co

., L.T.R. (N.S. 1892) 782; Begbie v. Phosphate Sewage Co., L.R. 10 Q.B. 491, 499; Robeson v. French, 53 Mass. 24, 25, 45 Am.Dec. 236; Gregg v. Wyman, 58 Mass. 322, 325; Duffy v. Gorman, 64 Mass. 45.

In view of these established rules of law, the allegations of the complaint that the plaintiff was induced by the acts of the city to fit up a place of business at great expense, and that the city was instigated and induced to prevent him from carrying on his illegal business by those who were conducting a rival business, and that it prevented him from proceeding with his business for the benefit of his rivals and for the purpose of appropriating to the benefit of the city his $5,000, are immaterial and will not be farther noticed. The controlling issue in this case is the legality and righteousness of the acts of the plaintiff. Those of the defendant have little...