He cannot claim a legal right which is dependent upon such illegal conduct. Albertson Co. v. Shenton, 78 N.H. 216; Karamanou v. Company, 80 N.H. 420; Dunbar v. Locke, 62 N.H. 442; Moskwa v. Nassikas, 82 N.H. 559. One object of the statute under consideration is the protection of those using the highway.
" In Albertson Co. v. Shenton, 78 N.H. 216, 98 A. 516, the New Hampshire court had under consideration sections 1 and 8 of chapter 76 of the New Hampshire Laws of 1897. Section 1 reads: "No person shall do any business as a hawker or pedler, or go about from town to town, or from place to place in the same town, exposing for sale or selling any goods, wares, or merchandise, * * * until he shall have procured a license so to do."
While chapter 284 of the Public Laws of New Hampshire does not in terms declare all contracts made in violation of this chapter to be void, it is the general rule that, where a penalty is imposed upon one of the parties participating in such bargains or sales, the transaction is illegal and void. 6 R.C.L. p. 702, § 108; Kneeland v. Emerton, 280 Mass. 371, 380, 183 N.E. 155, 87 A.L.R. 1; Randall v. Tuell, 89 Me. 443, 446, 36 A. 910, 38 L.R.A. 143; Lewis v. Welch, 14 N.H. 294; Albertson Co. v. Shenton, 78 N.H. 216, 98 A. 516. Section 580 of the Restatement of the Law on Contracts provides that:
These early New Hampshire cases, as well as a succeeding line of similar case decisions in New Hampshire, were examined by the Court of Appeals for the First Circuit in Doherty v. Bartlett, 83 F.2d 259 (1936) noting (at pages 260-261) the following: In New Hampshire from the earliest time contracts or acts entering into contracts prohibited by statute subject to penalty have been uniformly held to be void, not voidable (Allen v. Deming, 14 N.H. 133, 40 Am.Dec. 179; Boutelle v. Melendy, 19 N.H. 196, 49 Am.Dec. 152; State v. Rand, 51 N.H. 361, 12 Am.Rep. 127; Albertson & Co. v. Shenton, 78 N.H. 216, 98 A. 516; Edgerly v. Hale, 71 N.H. 138, 51 A. 679; George v. George, 47 N.H. 27, and numerous other cases); whereas, in Massachusetts they frequently have been held voidable, if not executed, not void. More recently, the New Hampshire Supreme Court has indicated some softening of its earlier rigid position of refusing to enforce any provision of a contract found to be violative of a specific statutory proscription, as indicated in the decision of American Home Improvement Inc. v. MacIver, 105 N.H. 435, 201 A.2d 886 (1964).
If all the relevant factors indicate the purpose of such a statute is the collection of revenue, the express statutory penalties are usually held to be exclusive and contracts made without a license are not thereby made unenforceable. If on the other hand the statute is an exercise of the police power and is designed to protect the public against fraud and incompetence, the lack of license will not only subject a violator to the express statutory penalties but he will be unable to enforce his bargain and collect his commission. Albertson v. Shenton, 78 N.H. 216, 217, 218; Benham v. Heyde, 122 Colo. 233; Bickley v. Van Antwerp Realty Corporation, 122 So.2d 275, 276; Harris v. Kent House Corporation, 127 F. Supp. 44 (D. Conn. 1954); 6 A Corbin, Contracts, s. 1512. In the latter instance the purpose of the statute is held to prohibit the transaction upon which the right of action is sought to be based.
Whatever may be said concerning the Tennessee case and other cases cited by defendant's counsel it seems to me that the question must turn on the intention of the New Hampshire Legislature in enacting the so-called Blue-Sky Law. In the case of Albertson Co. v. Shenton, 78 N.H. 216, 98 A. 516, 517, Parsons, C. J., says: "As a general rule, if not invariably, the imposition of a penalty for the doing of an act is held to be equivalent to an expressed prohibition of the act. Brackett v. Hoyt, 29 N.H. 264; Roby v. West, 4 N.H. 285, 289, 17 Am. Dec. 423.
We begin with the applicable statute, as the discretionary easement deed explicitly conveyed the easement "pursuant to New Hampshire RSA 79-A:15—21," and, in any event, could not contravene the statute. Cf. Albertson v. Shenton, 78 N.H. 216, 217 (1916). "In matters of statutory interpretation, we are the final arbiter of legislative intent as expressed in the words of the statute considered as a whole.
It is commonly and historically understood that hawkers and peddlers sell goods, not intangible items such as securities. See Albertson v. Shenton, 78 N.H. 216, 217-18 (1916); State v. Angelo, 71 N.H. 224, 225 (1902); State v. Wells, 69 N.H. 424, 425-26 (1898). Securities, by definition, are not tangible goods, wares or products.
In some cases, the decision turns on the same distinction made in Randall, viz. whether the purpose of the statute is the collection of revenue (in which case the express statutory penalties are held to be exclusive), or the protection of public health and safety (in which case non-enforceability of the bargain may be inferred as an additional penalty). See for example, Patterson v. Southern R. Co., 214 N.C. 38, 198 S.E. 364 (1938); Albertson Co. v. Shenton, 78 N.H. 216, 98 A. 516 (1916); Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 48 So. 510 (1909). See also 6A Corbin on Contracts § 1512, at 710-713.
Defendant argues also that the lack of a prohibition clause renders it constitutionally vulnerable. The statement made by this court in Albertson v. Shenton, 78 N.H. 216, 217 that "as a general rule, if not invariably, the imposition of a penalty . . . is held to be equivalent to an express prohibition of the act" is a valid statement of the present law. State v. Ross, 43 Del. 490; 22 C. J. S., Criminal Law, s. 24 (3), p. 86; 21 Am. Jur. 2d, Criminal Law, s. 16, p. 96. A statute, which provides that a person who commits certain acts specified therein "may be arrested" and "if convicted, may be punished" by the imposition of specified penalties, sufficiently "warns individuals of the criminal consequences of their conduct" and is not void for vagueness. Jordan v. DeGeorge, 341 U.S. 223, 230.