Tandy v. Elmore-Cooper Live Stock Commission Co.

CUN REHEARING.

ELLISON, J.

— Plaintiff insists that since there was an arbitration of the differences existing between the parties that the award in his favor, and execution of the note in compliance therewith, had the effect of eliminating the question of illegality of consideration in the use of the public lands. We do not concur in that view. The question was asked and answered in the following paragraph: “But can an award springing out of an illegal consideration, which no court can enforce, stand on any higher ground than the contract itself? Is the contract purged of its illegality by the award? We think not. And we apprehend that no authority can be found that goes to this extent.” [Fain v. Headrick, 44 Tenn. 327.] And it was raid in Hall v. Kimmer, 61 Mich. 269, that “a claim being illegal and absolutely forbidden by statute could not lawfully be made the subject of arbitration.” And so, in Benton v. Singleton, 114 Georgia 548, 557, the court said: “An award depends altogether for its force and validity upon a contract to be bound thereby, made by the person against whom it is returned. A contract to pay an illegal demand in the event an arbitrator shall say it is just, is no more binding than would be a contract to pay it evidenced by a bond or promissory note. The form which a contract of this nature assumes in no wise affects the question of its validity.”

The weight of authority supports those cases. The laws in support of a general public policy and in enforcement of public morality cannot be set aside by arbitration, and neither will persons with a claim forbidden by the laws be permitted to enforce it through the *423transformation process of arbitration. Would anyone say that a claim for money to be paid for the commission of murder may be made sound and legal by being awarded by arbitrators?

Neither can the acceptance of a note for the amount awarded aid a claim for such sum. For, it is out of the power of individuals to legalize that which the law prohibits by executing a contract, the consideration of which is the immediate fruit of the prohibited thing.

The judgment is reversed and the cause remanded.

Broaddus and Johnson, JJ., concur.