It is first urged by it in support of the judgment that the illegality not having been presented by the issues of the case, it cannot be heard or considered. This question is not one of first impression in this state. [1] The rule here is well settled that the failure of the party against whom relief is sought upon an illegal contract to make objection upon the ground of illegality will not justify a court in enforcing the same. The illegality appearing, the court, sua sponte, will withhold all relief. It has been further held that such a contract cannot be enforced, even where there has been a waiver of the illegality and express consent given for the enforcement thereof. (Union Collection Co. v. Buckman, 150 Cal. 159, [119 Am. St. Rep. 164, 11 Ann. Cas. 609, 9 L. R. A. (N. S.) 568, 88 Pac. 708]; Kreamer v. Earl, 91 Cal. 112, [27 Pac. 735]; Ball v. Putnam, 123 Cal. 134, [55 Pac. 773].) Here the contract was in evidence, and when the attention of the court was directed to the infirmity, upon defendants' motion for a new trial, it should have withheld all relief to the parties, unless the sections referred to were not controlling.

The action of the trial court in denying defendants' motion, no doubt, was based upon its conclusion that the provisions of the contract were severable, and this is one of the grounds relied upon by respondent in support of the judgment. In this behalf it is urged that the provisions of the contract in relation to the sale of the dredge are fixed and definite and in no manner interrelated or connected with the covenants providing for the performance of work, to which provisions, it is claimed, the restraint applies. [2] Whether a contract is entire or separable depends upon its language and subject matter, and this question is one of construction to be determined by the court according to the intention of the parties. If the contract is divisible, the first part may stand, although the latter is illegal. (Civ. Code, sec. 1599.) In invoking the aid of this rule respondent urges the argument that defendant corporation has enjoyed the use of the property it bought since June, 1912, and it would be inequitable to allow it to retain and enjoy the dredge and successfully resist payment therefor. [3] The rule making void contracts in restraint of trade is not based upon any consideration for the party against whom the relief is sought, but upon considerations of sound public pol

icy. (Union Collection Co. v. Buckman, supra.) As was said in Hill v. Kidd, 43 Cal. 615, "when parties make such contracts they must reply upon the good faith of those with whom they deal for their performance, and, that failing, they are denied all redress." This consideration, therefore, is not controlling. The question as to whether a contract is entire or severable is a question that is sometimes difficult to determine. (Sterling v. Gregory, 149 Cal. 117-120, [85 Pac. 305].) [4] Where, however, a contract is capable of two constructions, the one making it valid and the other void, the first ought to be accepted. (Herzog v. Purdy, 119 Cal. 99, [51 Pac. 27]; McVicker v. McKenzie, 136 Cal. 656, 660, [69 Pac. 495].) [5] Here the notes were given and accepted as the balance of the purchase price of the dredge and the amount was in no manner connected with or related to the covenant concerning work. There is no provision in the contract that in any manner shows that the different covenants are dependent upon each other, or that the illegal portion of the contract forms any part of the consideration for the notes sued upon. The price agreed to be paid for the dredge was definite and in no manner interdependent or connected with the provisions relating to the doing of work.

[6] The rule is well settled that where several things are to be done under a contract, if the money consideration to be paid is apportioned to each of the items to be performed, the covenants are ordinarily regarded as severable and independent. (Sterling v. Gregory, supra.) The items here are so apportioned. The different provisions, being in no manner interrelated or connected, are severable, and the good may be enforced. To our minds this seems to be the most obvious and just construction to be given the contract.

Considering the conclusion we have reached, other points raised by respondent become unimportant.

Judgment affirmed.

Rehearing denied.

All the Justices concurred, except Sloane, J., who was absent.

[S. F. No. 9090. In Bank.-October 5, 1920.]

QUONG HAM WAH COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA, et al., Respondents.

[1] CONSTITUTIONAL LAW DISCRIMINATORY STATUTE- -RIGHT OF ATTACK. The general rule that a statute purporting to make an unconstitutional discrimination between persons or classes of persons cannot be assailed on the ground of unconstitutionality by a person not belonging to the class discriminated against, is subject to certain well-defined exceptions, as, where no member of such a class is in a position to raise the constitutional question, any person affected by the application of the statute can urge its unconstitutionality. [2] WORKMEN'S COMPENSATION ACT-INJURIES TO EMPLOYEES OUTSIDE OF STATE-CONSTITUTIONALITY OF PROVISION-RIGHT OF EMPLOYER TO ATTACK.-An employer has the right to attack the constitutionality of section 58 of the Workmen's Compensation, Insurance and Safety Act (Stats. 1917, p. 870), authorizing compensation for injuries received outside the state, where the employee is a resident of the state and the contract of employment is made within the state, on the ground that the section is discriminatory and violative of section 2 of article IV of the constitution of the United States in not providing for compensation for injuries sustained by nonresident workmen.

[3] ID.-APPLICABILITY OF PROVISION-CITIZENS AND ALIENS DOMICILED WITHIN STATE.-The benefits of section 58 of the Workmen's Compensation Act, authorizing compensation for injuries received outside the state where the employee is a resident of the state and the contract of employment is made within the state, extends solely to citizens of this state and to aliens domiciled herein and discriminates against nonresident aliens and citizens of other states. [4] ID.-OBLIGATION IMPOSED UPON EMPLOYERS-NATURE OF-POWER OF LEGISLATURE TO ENACT.-Section 58 of the Workmen's Com pensation Act, authorizing compensation for injuries received outside the state where the employee is a resident of the state and the contract of employment is made within the state, is not an attempt to create an obligation merely as an incident to the status of master and servant, but is, in form and substance, a genuine regulation of

1. Who may raise objection to constitutionality of statute or ordinance, notes, 19 Ann. Cas. 175; Ann. Cas. 1915C, 57.

2. Constitutionality of Workmen's Compensation Act, notes, Ann. Cas. 1912B, 174; Ann. Cas. 1915A, 247; Ann. Cas. 1916B, 1286; Ann. Cas. 1917E, 401, 839; Ann. Cas. 1918B, 611.

contracts subject to the sovereignty of the state, and within the power of the legislature to enact.

[5] ID.-PROVISION IN CONTRAVENTION OF FEDERAL CONSTITUTION.-Section 58 of the Workmen's Compensation Act, authorizing compensation for injuries received outside the state where the employee is a resident of the state and the contract of employment is made in this state, is in contravention of section 2 of article IV of the constitution of the United States in giving citizens of the state a privilege denied to the citizens of other states.

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OF

[6] ID.-EFFECT OF VIOLATION OF CONSTITUTION - EXTENSION BENEFITS TO NONRESIDENTS.-The provisions of the federal constitution do not have the effect of rendering invalid that portion of the Workmen's Compensation Act providing for an extension of its benefits to residents who are injured abroad, but it allows such portion of the act to stand as effective and valid, and, automatically and without regard to the intent of the state legislature, extends the benefits created by the act to nonresidents, or rather to such nonresidents as are citizens of sister states.

[7] CONSTITUTIONAL LAW-DISCRIMINATORY STATE STATUTE-RIGHT OF NONCITIZEN. When a state statute imposes a burden on a noncitizen which is not imposed on the citizen of the state, the noncitizen may have relief from the burden thus imposed by invoking the provision of the federal constitution for the nullification of the discriminatory legislation, but when a privilege is granted to a citizen and withheld from a noncitizen, the latter finds relief in the provision of the federal constitution, which, by operation of law, so to speak, extends the privilege to him.

PROCEEDINGS on Certiorari to review an award of the Industrial Accident Commission. Affirmed.

The facts are stated in the opinion of the court.

Gorrill & Trowbridge and Delger Trowbridge for Petitioner.

A. E. Graupner and Warren H. Pillsbury for Respondents.

LENNON, J.-Certiorari to review the action of the Industrial Accident Commission in making an award pursuant to the terms of section 58 of the Workmen's Compensation, Insurance and Safety Act. (Stats. 1917, p. 870.)

Upon the first hearing in this court, the award was annulled upon the theory that said section 58 of the Workmen's Compensation Act granted to citizens of this state a

privilege which it denied to noncitizens, and was, therefore, violative of section 2 of article IV of the federal constitution. (Quong Ham Wah Co. v. Industrial Acc. Com., 59 Cal. Dec. 18.) Upon petition for rehearing the judgment of this court in the first instance was set aside and the cause set down for a hearing "for the purpose of considering the following questions:

"(1) To what extent may the state give extraterritorial effect to its laws fixing the incidents of the relation of employer and employee when such relation has its inception within the state?

"(2) Assuming that the state has the power to give extra territorial effect to its laws in such a case and assuming that a discrimination is made between residents and nonresidents of the state by the provisions of the Workmen's Compensation Act extending the incidents of the relation of the employer and employee therein provided for to residents but not to nonresidents when the relation has its inception within the state but the injury to the employee occurs elsewhere, is such discrimination contrary to the federal constitution, and if so, does the federal constitution have the effect of rendering invalid that portion of the Workmen's Compensation Act providing for such extension in the case of residents, or (a point not made in the original briefs), does it have the effect of allowing this portion of the act to stand as effective and valid but of extending the incidents of the relation under similar circumstances to nonresidents, although there is no provision in the act for such extension to nonresidents?" (Minutes of the Court, 59 Cal. Dec. No. 3111.)

In keeping with the order granting a rehearing, counsel for the respective parties briefed the case anew, painstakingly directing their efforts, in addition to a discussion of the points originally made, to an exhaustive exposition of the law appertaining to the subject matters designated in the order granting the rehearing. Therefore, aside from the recognition due the commendable efforts of counsel to facilitate the avowed purpose of the order, a discussion not only of the points originally made, but also of those designated in the order, would seem to be necessary to a decision of the case as now presented, even though the latter points