]" ( Hooper v. Barranti (1947) 81 Cal.App.2d 570, 574 [ 184 P.2d 688]. See also Smith v. Bach (1920) 183 Cal. 259, 262-263 [ 191 P. 14]; Berka v. Woodward (1899) 125 Cal. 119, 126-127 [57 P. 777]; Stockton Morris etc. Co. v. Calif. etc. Corp. (1952) 112 Cal.App.2d 684, 689 [ 247 P.2d 90]; and Del Rey Realty Co. v. Fourl (1941) 44 Cal.App.2d 399, 402-403 [ 112 P.2d 649].) In the case last cited the court quoted with approval from 6 California Jurisprudence, page 153, as follows: "`The rule as to the nonenforceability of illegal contracts is not based upon any consideration for the party against whom the relief is sought, and who may be benefited by the refusal of the court to grant the same, but upon consideration of sound public policy.
The proscribed interest certainly includes any direct interest, such as that involved when an officer enters directly into a contract with the body of which he is a member. ( Osburn v. Stone (1915) 170 Cal. 480 [ 150 P. 367]; Berka v. Woodward (1899) 125 Cal. 119 [57 P. 777]; County of Shasta v. Moody (1928) 90 Cal.App. 519 [ 265 P. 1032].) California courts have also consistently voided such contracts where the public officer was found to have an indirect interest therein.
C. S., secs. 387, 392, 3515 and 8122, prohibit and make felonious the acquisition of land from the county under the circumstances here presented. When a contract is expressly prohibited by law, no court of justice will entertain an action upon it or upon any asserted rights growing out of it. ( Berka v. Woodward, 125 Cal. 119, 73 Am. St. 31, 57 P. 777.) There is no evidence whatever that Dora A. Clark was in actual posssession of the land involved at the time of the alleged trespass or at any other time.
It necessarily follows that the contract of lease was founded upon an unlawful consideration, and that the entire contract was therefore void and unenforceable. (Civ. Code, secs. 1607, 1608; Berka v. Woodward, 125 Cal. 119, [73 Am. St. Rep. 31, 45 L.R.A. 420, 57 P. 777]; Swanger v. Mayberry, 59 Cal. 91.) It is claimed that even if the original lease was void and unenforceable for the reasons stated, plaintiff is not required to rely upon the same for a recovery in this case, reliance being placed upon the rule that the test whether a demand connected with an illegal transaction is capable of being enforced at law is whether the plaintiff requires the aid of the illegal transaction to establish his case.
But it is to be noticed that every case from every court recognizes that when a statute has been made for the protection of the public, a contract in violation of its provisions is void. (Woods v. Armstrong, 54 Ala. 150, [25 Am.Rep. 671]; Griffith v. Wells, 3 Denio, 226; Cope v. Rowlands, 2 Mees. W. Rep. 149; United States Bank v. Owen, 27 U.S. 526; Burck v. Taylor, 152 U.S. 634, [ 14 Sup. Ct. 693]; Miller v. Ammon, 145 U.S. 421, [ 12 Sup. Ct. 884]; Berka v. Woodward, 125 Cal. 119, [73 Am. St. Rep. 71, 57 P. 777]; Jackson v. Shaw, 29 Cal. 267; Johnson v. Simonton, 43 Cal. 242.) As has been pointed out, sections 338 and 339 of our Penal Code make every person carrying on the business of a pawnbroker, except by the authority of a license, guilty of misdemeanor; also every person carrying on such business, if he fails at the time of the transaction to enter in a register kept by him for that purpose, in the English language, the date, duration, amount, and rate of interest of every loan made by him, an accurate description of the property pledged, and the name and residence of the pledgor, and to deliver to the pledgor a written copy of such entry, and to keep an account in writing of all sales made by him.
Appellant counters with the proposition that a voluntary conveyance in fraud of existing creditors is in violation of our penal laws (Pen. Code, ยงยง 154 and 531) and is therefore not merely voidable but void for illegality. ( California Delta Farms v. Chinese American Farms, 207 Cal. 298, 306 [ 278 P. 227]; Berka v. Woodward, 125 Cal. 119 [57 P. 777, 73 Am.St.Rep. 31, 45 L.R.A. 420]; Smith v. Bach, 183 Cal. 259 [ 191 P. 14].) This view also finds support in the language of Civ. Code, section 3439, as it read at the time of the transfer in 1911: "Every transfer of property . . . made . . . with intent to delay or defraud any creditor . . . is void against all creditors of the debtor . . ." (Italics ours); and in Everts v. Sunset Farms, Inc., 9 Cal.2d 691 [ 72 P.2d 543] the court said at p. 698:
Section 7031 is but a statutory declaration of the common law rule that a contract which violates a statute designated for the protection of the public is void and unenforceable. ( Levinson v. Boas, 150 Cal. 185 [ 88 P. 825, 11 Ann.Cas. 661, 12 L.R.A.N.S. 575]; Berka v. Woodward, 125 Cal. 119 [57 P. 777, 73 Am.St.Rep. 31, 45 L.R.A. 420]; 12 Am.Jur., Contracts, ยง 158, p. 652.) This rule, however, is not applied where to do so does not serve the intended purpose of the statute.
( Cityof Oakland v. California Const. Co., 15 Cal.2d 573 [ 104 P.2d 30]; Berka v. Woodward, 125 Cal. 119 [57 P. 777, 73 Am.St.Rep. 31, 45 L.R.A. 420]; Adams v. Minor, 121 Cal. 372 [53 P. 815]; Meyer v. City of San Diego, 121 Cal. 102 [53 P. 434, 66 Am.St.Rep. 22, 41 L.R.A. 762]; Visalia Gas E.L. Co. v. Sims, 104 Cal. 326 [37 P. 1042, 43 Am.St.Rep. 105]; Morill v. Nightingale, 93 Cal. 452 [28 P. 1068, 27 Am.St.Rep. 207]; Gardner v. Tatum, 81 Cal. 370 [22 P. 880]; Santa Clara Valley Mill Lbr. Co. v. Hayes, 76 Cal. 387 [18 P. 391, 9 Am.St.Rep. 211]; Swanger v. Mayberry, 59 Cal. 91; Raymond v. Bartlett, 77 Cal.App.2d 283 [ 175 P.2d 288]; Salada Beach etc. Dist. v. Anderson, 50 Cal.App.2d 306 [ 123 P.2d 86]; County of Marin v. Messner, 44 Cal.App.2d 577 [ 112 P.2d 731]; Miller v. City of Martinez, 28 Cal.App.2d 364 [ 82 P.2d 519]; City of Los Angeles v. Watterson, 8 Cal.App.2d 331 [ 48 P.2d 87]; Hobbs, Wall Co. v. Moran, 109 Cal.App. 316 [ 293 P. 145]; County of Shasta v. Moody, 90 Cal.App. 519 [ 265 P. 1032]; Noble v. City of Palo Alto, 89 Cal.App. 47 [ 264 P. 529]; Nielson v. Richards,
It appears to us to be too clear to require argument that the purpose of section 446 is to leave the public body which may be a party to such contracts free to accept or reject such contracts at its option. It is true that we adopted our sections 444, 445, and 446 from [5] California's Political Code, and that the supreme court of that state in Berka v. Woodward, 125 Cal. 119, 57 P. 777, 45 L.R.A. 420, 73 Am. St. Rep. 31, held a similar contract void and denied the culpable city official any restitution. Other California cases cited by plaintiffs followed the Berka case, except Miller v. City of Martinez, 28 Cal.App.2d 364, 82 P.2d 519, the decision in which was determined under an entirely different statute, and that case is not in point here.
Political Code, section 920, provides: "Members of the Legislature, state, county, city and township officers, must not be interested in any contract made by them in their official capacity. . . ." [23] Contracts made by a public officer in his official capacity may be avoided at the instance of any party except the interested officer where the officer has any direct or indirect interest therein. (Political Code ยง 922; Moody v. Shuffleton, 203 Cal. 100 [ 262 P. 1095]; Berka v. Woodward, 125 Cal. 119 [57 P. 777, 73 Am. St. Rep. 31, 45 L.R.A. 420].) [24] The sole question in the present case is whether section 920 precluded the commissioner from making contracts relating to Pacific Mutual, for it must be conceded that persons may hold the office of commissioner although they own policies in companies subject to the act. (Prior to 1941 section 12901 of the Insurance Code provided "An officer, agent, or employee of an insurer is not eligible to the office of commissioner," but it did not render anyone ineligible because of ownership of policies, and in 1941 the section was clarified to specifically permit such ownership.)