case that she could not destroy the homestead while any of the children 94 were minors. But exactly the same principle applies in favor of the widow as against the grantee of a child; such grantee cannot disturb her possession until her homestead right has been extinguished either by her own act or by operation of law, and it cannot be extinguished by any act of one or all of the children, either before or after their majority. The rights of a homestead claimant cannot be affected by an instrument in writing to which such claimant is not a party: See Phelan v. Smith, 100 Cal. 166. The governing principle is, that the homestead right continues in favor of any one of the family for whom it was created as long as he or she asserts it and remains in a position to assert it.

This rule has been declared in other states, for, while not many of their statutory provisions about homesteads are exactly like ours, still they are sufficiently similar to make the principle applicable: See cases cited in opinion of Harrison, J., in Hoppe v. Fountain, 104 Cal. 94. In Keyes v. Hill, 30 Vt. 768, the supreme court of Vermont declares the law as follows: "We think the clear design of the law is to continue the homestead entire, as the home of the widow, or of the widow and children constituting the family at the decease of the husband, housekeeper, or head of the family, and that no rights of the children become operative to sever or divert such homestead from full occupancy and enjoyment as a family home, as long as the widow, or widow and children, see fit to continue it as such family home."

The judgment and order appealed from are reversed.

Temple, J., and Henshaw, J., concurred.

HOMESTEADS-RIGHTS IN, OF WIDOW AND CHILDREN.A homestead is secure to the use of the family as long as the family continues to exist, and the head thereof to occupy the homestead: Hoffman v. Neuhaus, 30 Tex. 633, 98 Am. Dec. 492; but grown-up married children are not included in a family: Note to Wade v. Jones, 61 Am. Dec. 587; and children who have attained the age of majority cannot claim partition of the homestead as against the mother and minor children who continue to occupy it: Hoffman v. Neuhaus, 30 Tex. 633, 98 Am. Dec. 492. Compare note to Ex parte Worley, 54 S. C. 208, 71 Am. St. Rep. 788, showing that, after all the children have attained their majority, their homestead rights cease, and that the widow is then entitled to the exclusive use and occupancy of the homestead.

BERKA V. WOODWARD.

[125 CALIFORNIA, 119.]

CONTRACTS-VALIDITY-FORBIDDEN

CONTRACTS IN

CLUDE IMPLIED CONTRACTS.-When a contract is expressly prohibited by law, no court will entertain an action upon it, or upon any asserted rights growing out of it, and this rule applies to implied as well as to express contracts.

CONTRACTS-PENALTY FOR ACT-ILLEGALITY.-When a statute pronounces a penalty for an act, a contract founded on such act is void, although the statute does not pronounce it void, nor expressly prohibit it.

MUNICIPAL CORPORATIONS-FORBIDDEN CONTRACT -RECOVERY UPON IMPLIED CONTRACT.-Under a city charter, which forbids a member of the city council from being directly or indirectly interested in any contract made by them, and statutes which forbid city officers from being interested in such contracts, and which impose a penalty for such an act, a member of a city council who has expressly contracted with it for the sale of lumber and materials to the city, cannot recover their value upon an implied contract.

CONTRACTS OF PUBLIC OFFICERS-RECOVERY UPON A QUANTUM MERUIT OR QUANTUM VALEBAT.-In cases where the contracts of public officers, with their counties or municipalities, have not been expressly forbidden by law, the demands of public policy are sometimes held to be satisfied by allowing the officer to recover, not according to the terms of his contract, but upon a quantum meruit or quantum valebat. This, however, is not true where the contract is malum in se, or is against the express prohibition of the law, as the law will not imply a promise to pay for benefits received under a contract expressly prohibited by law. MANDAMUS-CITY TREASURER-ILLEGAL DEMAND APPROVED BY CITY COUNCIL.-The duty of a city treasurer is to pay only legal demands against his funds. He cannot, therefore, be compelled, by mandamus, to pay a warrant issued for the value of lumber and materials sold to the city by a member of the city council, although the demand has been allowed by the city council, for such a claim is not a legal one, and its allowance by the council does not give it any validity not otherwise possessed.

0. O. Webber, city attorney, and J. Leppo, for the appellant. D. R. Gale and Campbell & Campbell, for the respondent.

121 HENSHAW, J. This is an appeal from a judgment in mandate ordering the treasurer of the city of Santa Rosa to honor and to pay two warrants issued in favor of plaintiff by the common council of the city. The warrants were in payment of lumber and materials "had and received by the city from Berka." At the times when the material was supplied, at the times when Berka presented his bills and demands for payment, and at the time when the city council allowed and approved his claims, Berka was an officer of the city and a member of its

common council. These facts appear by the petition. The defendant interposed a demurrer, both general and special. This demurrer was "overruled without leave to answer," and a peremptory writ of mandate was ordered to be issued.

The question of first importance presented upon this appeal is that of the right of an officer of the city to recover upon an implied contract with the municipality. The following provisions of the law, and of the charter of the city of Santa Rosa, have direct bearing upon this consideration:

"No councilman to be directly or indirectly interested in any contract made by them, or in any pay for work done under their direction or supervision": Charter of Santa Rosa, Stats. 187576, p. 255.

....

"All bills, claims, and demands against the city shall be filed by the city clerk, who shall present it to the council, and they shall allow or reject the same in whole or in part": Charter of Santa Rosa, Stats. 1875-76, p. 251.

122 "Members of the legislature, state, county, city, and township officers must not be interested in any contract made by them in their official capacity, or by any body or board of which they are members": Pol. Code, sec. 920.

"State, county, township, and city officers must not be purchasers at any sale, nor vendors at any purchase made by them in their official capacity": Pol. Code, sec. 921.

"Every contract made in violation of any of the provisions of the two preceding sections may be avoided at the instance of any party except the officer interested therein": Pol. Code, sec.

922.

"Every officer or person prohibited by the laws of this state from making or being interested in contracts, or from becoming a vendor or purchaser at sales, or from purchasing script or other evidence of indebtedness, who violates any of the provisions of such laws, is punishable by a fine of not more than one thousand dollars, or by imprisonment in the state prison not more than five years, and is forever disqualified from any office in this state": Pen. Code, sec. 71.

"That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or 3. Otherwise contrary to good morals": Civ. Code, sec. 1667.

"The consideration of a contract must be lawful within the meaning of section 1667": Civ. Code, sec. 1607.)

"If any part of a single consideration for one or more objects, or of several considerations for a single object, is unlawful, the entire contract is void": Civ. Code, sec. 1608.)

It would seem that the need of discussion is foreclosed by the mere quotation of our express laws, but respondent contends, and in his contention prevailed in the trial court, that these provisions have no application to an implied contract such as this admittedly is, and that in the case of implied contracts which are not malum in se, even though they may be against public policy, the rule is, that if the consideration has passedif the contract upon the one hand has been wholly executedthe party who has so performed will be allowed a recovery upon quantum meruit or quantum valebat, as the case may be The importance of this question, the right of an officer of the city to 123 recover upon an implied contract with his municipality, its gravity and far-reaching consequence, demand something more than a passing consideration.

By subdivision 1 of section 1667 of the Civil Code reference is had to contracts expressly prohibited. These will be discussed hereafter. Within subdivisions 2 and 3 of the same section are embraced the multitude of contracts which, though not expressly prohibited, are refused recognition upon grounds of public policy. These contracts, in contemplation of their subject matter, may be divided into two distinct classes; the first where the consideration is base and against good morals, malum in se; the second, where the consideration is in itself lawful, but where the mode is unauthorized, or where, because of some fiduciary relation between the parties, the law will not permit the contract to be made, nor countenance it when made. As to the first it is said in Blatchford v. Preston, 8 Term Rep. 95: "A plaintiff cannot recover in a court of justice whose cause of action arises out of a contract between him and the defendant in fraud or to the prejudice of third persons." Of the second, Lord Mansfield and the court of king's bench, in Jones v. Randall, Cowp. 39, declared: "Many contracts which are not against morality are still void as being against the maxims of sound policy." The first class of contracts embraces the infinite number of those made to further crime, or to interfere with the administration of the law, or to obstruct the course of justice, all contracts affecting the rights and prerogatives of the government, as well as the personal rights of the citizen. In the second class no baseness is inherent in the essence of the contract, but there is either some defect in the mode of creation or the AM. ST. RIP., VOL. LXXIII.-3

manner of performance, or some incapacity in one or the other of the parties because of nonage, mental disability, or the fiduciary relation which they sustain to each other. Within this second class, as has been said, are the contracts of one who stands in a fiduciary relation to another with that other. Because of the tendency to abuse, the temptation to take undue advantage, these contracts, even when not expressly prohibited by law, are still looked upon with disfavor, and they may be avoided at the instance of the other party in interest; but where the trustee or other fiduciary agent has fully carried out 124 the terms of the contract, the contract itself being fair, public policy, which is not punitive, is satisfied to leave the right of rescission to the other party. If he shall elect to rescind, he does so upon the equitable condition of restoring what he has received. If, however, he chooses to retain the consideration, he is not bound by the terms and conditions of the contract, but the courts permit an action to establish and to recover the reasonable value of the thing sold or the service rendered. Such, it may be said, is the general rule, but in this state the line has been more closely drawn. Such contracts are against public policy. Being against public policy, the making of them is not to be encouraged. But to permit a profit is thus to encourage them. Therefore, in this state, when a recovery is permitted, it is not for the reasonable or market value, which naturally includes within it the contemplation of a profit, but, when possible, the recovery is limited to the actual cost: Fox v. Hale etc. Min. Co., 108 Cal. 369.

Where contracts of public officials with their counties or municipalities, have not been expressly forbidden by law, the principles which we have been considering have in some cases been applied, and a recovery has been permitted. In these cases it has been said that the demands of public policy have been satisfied by allowing the officer to recover, not according to the terms of his contract, but upon a quantum meruit or quantum valebat: Spearman v. Texarkana, 58 Ark. 348; Pickett v. School Dist., 25 Wis. 551, 3 Am. Rep. 105; Concordia v. Hagaman, 1 Kan. App. 35; Gardner v. Butler, 30 N. J. Eq. 702; Call Pub. Co. v. Lincoln, 29 Neb. 149; Mayor etc. v. Huff, 60 Ga. 221; Currie v. School Dist., 35 Minn. 163; Mayor etc. v. Muzzy, 33 Mich. 61, 20 Am. Rep. 670. But in no one of these cases, nor, indeed, in any case which has come under our observation, have the courts entertained any contract or any rights growing out of a contract, where either the consideration was base, or the