Page:Federal Reporter, 1st Series, Volume 3.djvu/17

 10 FEDERAL REFOBTEB. �officer of a corporation anything of value, in conaideratioa for his assent to the execution of a particular contract, is, without doubt, an immoral and unlawful agreement, and one which equity will not enforce; and a careful examina- tion of the subject leads me to the conclusion that no affirma- tive relief can be granted upon a contract which includes this as one of its features, although it be in other respects unob- jectionable. There is, of course, no merit in the defence here, 80 far as the railway company is concerned, for both officers and stockholders were undoubtedly aware of the existence of the contract, and have for over 13 years acquiesced in it and enjoyed its advantages. It is for the protection of public interests that courts take notice of the immorality of such contracts whenever, by any means, made aware of it. In the present case the court cannot ignore this objection able fea- ture of the contract, since it is set ont in full by the com- plainant in the body of the bill, and ail its provisions are brought to the attention of the court by the demurrer. The contract being tainted with immorality, the law is well settled that a court of equity must leave the parties to it where it finds them, without affirmative relief, and this whether the contract has been executed or not. Marshall v. R. Co. 16 How. 314; Bank U. S. v. Owens, 2 Pet. 539; 2 Eedfield on Eailways, 576, 584; Pomeroy on Specifie Performance, §§ 284-6 ; Wright v. Rindskoph, 43 Wis. 344 ; McWilliams v. Phil- lips, 57 Miss. 196; Guernsey\. Cook, 120 Mass. 501; Setter y. Avery, 15 Kan. 157. �A contract may bo ultra vires, and yet, if it is not immoral, it may, after it has been executed, in whole or part, form the basis for equitable relief. If, therefore, it was conceded that this contract was beyond the powers of the railway company, it would still, but for the clause now under consideration, be proper to hold the parties bound by their executed dealings under it. Such was my opinion in the case of The Telegraph Co. V. The Railway Co., supra, and to that opinion I still ad- here. But when a party comes into a court of equity and asks affirmative relief upon a contract which, in one of its ����