Opinion
April Term, 1851
James T. Brady, for appellant.
N. Hill, Jr. for respondent.
Was the original or primary agreement between Gray and Hook, in reference to procuring Gray's appointment to the office of inspector of flour, as offered in evidence by the defendant, illegal and void? The contract, together with the circumstances attending the making of it, and which are useful in its construction, amounted to this: Gray and Hook, both being applicants to the constitutional appointing power for the office of inspector of flour in the city of New-York, and considering their chances of obtaining the appointment about equal, made an agreement by which Hook was to withdraw his application and aid Gray in procuring the appointment, in consideration of which Gray was to allow Hook to receive one half of the fees and emoluments of the office as long as Gray held it. This is all of the agreement part of the transaction which was offered to be proved; the remainder of the facts offered in proof relate to what followed this agreement, in the execution or performance of it. Had the agreement included what the offer seems to intimate, and what the conduct of the parties justify us in suspecting, that a part of the agreement was that Gray should also appoint Hook his deputy, I should have no doubt that the agreement, when executed, would be in direct violation of the statute against buying and selling offices, notwithstanding the propositions for the agreement were made and entertained before Gray received his appointment. (2 R.S. 696, §§ 34, 35, 36.) But there is nothing about the appointment of deputy expressed in the arrangement which the defendant offered to prove, though the whole transaction, as offered in evidence, shows that the appointment of Hook as deputy sustains a very suspicious proximity and relationship to the agreement. The agreement in its original form, as offered in evidence, is not therefore within the literal reading of the statute. But is it not void by the principles of the common law, as against public policy? Comyn says, "All contracts or agreements which have for their object any thing which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void; and whenever a contract or agreement is entered into with a view to contravene any of these general principles, there is no form of words, however artfully introduced or omitted, which can prevent courts of law and equity from investigating the truth of the transaction, for ex turpi contractu actio non oritur, is a rule both in law and equity." (1 Com. on Cont. 30; 1 Fonbl. Eq. b. 1, ch. 4, § 4; 1 Story's Eq. 296; 4 Hill, 424; 4 Cond. Rep. 304; 11 Wheat. 258.) This general principle is universally recognized by the American courts, and has frequently been applied, in this state, to contracts which had for their object the perversion of the more ordinary operations of the government, such as contracts to prevent fair competition at legal auction sales; (3 John. 29; 6 id. 194; 8 id. 444;) and contracts to prevent the due administration of the insolvent laws. (3 Caines, 213; 2 John. 386, 4 id. 410; 9 id. 295; 19 id. 311.)
There is quite as much reason for applying this principle to contracts made for the purpose of influencing and perverting the more important and extensive operations of the legislative and executive powers of the government. Every citizen owes to his government and all its officers while executing their official duties, truth and fidelity. All the actions of the government and its officers, are based upon certain facts, assumed, or proved, and falsehood and deception in reference to these facts are moral wrongs, injurious to the whole state, whose government it is, and therefore against public policy. The strength, durability and prosperity of our political institutions, depends entirely, on the intelligence, integrity and faithful support of the people. No citizen can, therefore, legally stipulate to embarrass the operations of government, by diminishing its means to execute its powers. It has been decided by the supreme court of New-Jersey, that where A. and B. contemplated applying to the postmaster general for a contract to carry the mail, and A. agreed to give B. $1,000, on condition that he would forbear to propose or offer himself to the postmaster general to carry the mail on a certain route, such agreement was against public policy, and no action could be maintained upon it. (5 Halst. Rep. 78.) The supreme court of Pennsylvania has decided, that a contract founded upon a promise and engagement to procure signatures to a petition and obtain a pardon from the governor, for one convicted of a crime and sentenced to punishment, was unlawful and could not be enforced by an action. (7 Watts' Rep. 152.) Also, that a contract to procure, or endeavor to procure the passage of an act of the legislature by any sinister means, or by using personal influence with the members, was void, as being inconsistent with public policy, and the integrity of their political institutions. (5 Watts Serg. 315.) So an agreement to pay a man for exerting an influence over a railroad company, to induce them to locate their depot at a particular place, was decided to be unlawful and void by the supreme judicial court of Massachusetts. (18 Pick. Rep. 472.) An agreement by an administrator to sell the land of an intestate, when a surrogate's order for that purpose should be obtained, to a particular person, was declared to be void by the supreme court of New-York. (3 Cowen, 299.)
By the agreement under consideration, Hook was to withdraw his application, which he had already made, and aid Gray in pursuing his, not for a fixed and certain pecuniary consideration merely, but he was to have one equal half of the fees and emoluments of the office, as long as Gray should hold it. Thus stipulating for a dangerous influence over a profitable office which was not intrusted to him, and for the performance of the duties, of which he was under no pecuniary or official obligation. This is the nature of the original agreement, as offered to be proved, excluding all stipulation respecting the deputyship. I think that this contract was void, because it stipulated that Hook should have a pecuniary compensation for withdrawing his application by which he had probably driven off competition, and contributed to reduce the number of applicants to himself and Gray. I have no doubt that it is void, because it stipulated that Hook should have a pecuniary compensation for aiding Gray to obtain the appointment. And I have no doubt that any agreement between two citizens, by which one stipulates to pay the other a proportion of the fees and emoluments of a public office which he is seeking, in consideration that that other will aid him in obtaining it, is void.
That the original agreement between Gray and Hook was illegal and void, appears to have been the opinion both of the common pleas and the supreme court in the case under consideration. If the original agreement between Gray and Hook was illegal and void, it appears to me that the proof given, and that offered on the trial, would sufficiently connect the covenant, on which this action was brought, with the original illegal agreement, to give it the same character. This proof would have shown that by the original agreement Hook was to have one equal half of the fees and emoluments of the office of inspector of flour as long as Gray held the office; that Gray was appointed to the office about the 27th day of May, 1839.
The recital contained in the covenants upon which this suit is brought and which is dated July 1st, 1842, and signed by both parties, shows that upon a settlement of certain accounts and transactions between Gray and Hook in relation to the fees collected in the office of inspector of flour, Gray gave to Hook his note (which is produced by Gray, and bears date March 4, 1841,) for $376,85, payable in sixty days, in full settlement of all accounts and balances existing between them, except the expenses and liabilities incurred and to be incurred by Gray in certain proceedings between him and Tappan relating to the said office of inspector of flour, and the fees of said office, for which Hook was liable to pay one-half; and in the body of the covenant it is stated, that in consideration of the premises and of the payment of the note by Gray, and of the sum of one dollar paid by him, Hook covenants, promises and agrees to pay Gray the full, equal one-half of all liabilities incurred, or which might thereafter be incurred by him by reason of the suit or proceedings brought or to be brought by Tappan against Gray, or by him against Tappan, relative to said office of inspector of flour, or the fees of said office. And the proof offered was, that Gray insisted on Hook's giving the covenants to pay half of the expenses in the Tappan proceedings, as Hook was to receive one equal proportion of the said office of inspector, and that the several liabilities mentioned in the plaintiff's declaration, if any did accrue, arose from an agreement to divide the fees of the said office of inspector, and was a part of the consideration thereof.
I think the facts proved, and those offered in evidence, tended strongly to the conclusion, that Gray's claim upon Hook for one-half of the expenses of defending the Tappan suits, was part of the same agreement by which he gave Hook one-half of the fees and emoluments of the office of inspector; and that such evidence should have been received and submitted to the jury. If this view of the subject should be sustained, the whole transaction would be reduced to this: Gray, on the performance of his part of an illegal parol contract, received from Hook a covenant for the performance of his part of the same illegal agreement.
I have not alluded to the fact of the transfer of Gray's note to Ketchum, nor the payment of the note by Gray, because I can not perceive that these facts alter the relation between the parties. Whether Gray paid the balance to Hook on the settlement, and then took the covenant; or whether he took the covenant on giving his note for the balance; or whether he gave Hook the money to take up the note from Ketchum, and then took the covenant; or whether he paid the money on the note to Ketchum at the request of Hook, who was liable as indorser, and thereupon took the covenant, would all amount to the same thing as between Gray and Hook. The covenant would still be for the performance of the old agreement. The change of the contract to a covenant could make no difference in its legality. A seal can not protect an illegal contract, nor prevent an inquiry into the legality of its consideration. ( Com. on Cont. 30; 2 Wils. Rep. 341, 347; 1 P. Wms. 156, 220; 4 John. 410; 19 id. 311.)
Nor did the addition of one honest dollar cure the illegality of the remainder of the consideration. When the contract grows immediately out of and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it; and if the contract be in part only connected with the illegal transaction, and grows immediately out of it, though it be in fact a new contract, it is equally tainted by the illegality of the transaction from which it sprung. (4 Wash. C.C. Rep. 297; 11 Wheat. 258; 4 Denio, 63.)
The distinction between a void and valid new contract, in relation to the subject matter of a former illegal one, depends upon the fact, whether the new contract seek to carry out or enforce any of the unexecuted provisions of the former contract; or whether it is based upon a moral obligation growing out of the execution of an agreement which could not be enforced by law, and upon the performance of which the law will raise no implied promise. In the first class of cases no change in the form of the contract will avoid the illegality of the first consideration; while express promises based upon the last class of considerations may be sustained. Mr. Chitty says the test whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case. ( Chitty on Cont. 657, and authorities there cited.)
In this case, the covenant which the plaintiff produced as the foundation of his action, recites and acknowledges its relationship with, and dependance upon, the former illegal agreement respecting the office of inspector. On the whole I think the judgment appealed from is erroneous and ought to be reversed, and a new trial granted.
Judgment reversed.