I do not concur in the reasoning or conclusions of the majority opinion. Under the war-time Prohibition Act, adopted August 10, 1917 (Fed. Stat. Ann., 1919, Supp. p. 199), the sale of distilled liquors for beverage purposes was declared to be unlawful until the conclusion of the World War and thereafter until the termination of demobilization be proclaimed by the President of the United States. It is admitted that this sale was made while this statute was operative — and, as we are not authorized in presuming a further violation of the law than that shown by the facts — the conclusion is authorized that the liquor was bought by the insured for beverage purposes and not for resale. This does not lessen the offense or lend a flavor of legality to the transaction. It is the sale that is absolutely forbidden. Consummated in violation of an express statute its illegality affects all persons connected therewith, without regard to the reason of the inhibition it contains or the morality or immorality of the act against which it is leveled. This is so without regard to the ignorance of the parties to the prohibitions of the statute. Under our classification of criminal offenses, the penalty, prescribed for a violation of the Federal act referred to, authorizes its designation as a misdemeanor. The character of the offense, however, does not lessen the illegality of the transaction. One cannot contract with another to commit a misdemeanor. Although the offense which renders the contract based thereon void, may be but malum prohibitum, its basis for a contract is equally as insecure as if it were malum in se, since in principle there is nothing which should cause a different result in the one case rather than in the other. [Haggerty v. Ice Mfg. S. Co., 143 Mo. 238.]
Nor does it matter in what manner the illegality of the contract is shown so far as it affects its vitiating effect. In Sprague v. *Page 31 Rooney, 104 Mo. l.c. 358, SHERWOOD, J., in discussing this question said:
"If there be one principle of the law well settled it is this: That a contract, expressed or implied, based on an illegal consideration, whether that consideration appear on the face of the contract or be proved aliunde, cannot be enforced either at law or in equity; that the moment the illegality of the contract is disclosed the gates of legal and equitable relief and remedy are at once shut against the party who seeks to enforce such a contract. Nor is it necessary that such a contract, when it violates the provisions of a statute, should be declared void by that statute in order that the courts should refuse to enforce it, when relief based upon it is asked at their hands. These positions are sustained, perhaps, by as great an array of authorities as is to be found on any other topic of the law." (Citing and discussing numerous cases).
The sale of liquors for beverage purposes being forbidden by a constitutional statute, a contract based upon or arising out of such sale, if held valid would be to enforce that which the law has forbidden, and to give effect to that which Congress has declared void, or as has been judicially declared, effect the repeal of a law by judicial construction. [Hancock v. Yaden,121 Ind. 366, 16 Am. St. 396, 6 L.R.A. 576; 6 R.C.L. secs. 106, 107, p. 701 and notes; 13 C.J. sec. 341, p. 411 and notes; 65 Am. St. Rep. 647, 40 L.R.A. 51.]
As a summary of what has heretofore been said, we find no more succinct statement of the rule than that found in an old English case as follows: "Every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, tho' the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, tho' there are no prohibitory words in the statute." [Bartlett v. Vinor, Carthew, 251, 90 Reprint, 750; 13 Cyc. sec. 352, p. 42 and notes.]
The illegality of the action of the insured in purchasing the liquor in violation of a prohibitory statute did not end when he acquired possession of the same, but was present with paralyzing effect when he entered into the contract with the Indemnity Company for its insurance. In holding to the contrary the Court of Appeals not only ran counter to the rule of this court, as laid down in Sumner v. Summers, 54 Mo. 340, and Burgess v. Pan. Amer. Life Ins. Co., 230 S.W. (Mo.) 315, cited by the relator, but to many other cases here and elsewhere in which the subject has been discussed.
The record of the Court of Appeals, therefore, so far as it holds that the policyholder (Kistenmacher) is entitled to recover for the whiskey insured, should be quashed. *Page 32