Summary
In Lyons v. Mitchell, 36 N.Y. 235, it is said that it is allowable to employ counsel to appear before the legislature itself, to advocate or oppose a measure in which the individual has an interest, for an honest purpose, avowed to the body before which the appearance is made, and by the use of just argument and sound reasoning.
Summary of this case from Hazelton v. SheckellsOpinion
March Term, 1867
Henry A. Cram, for the appellants.
Wm. F. Allen, for the respondents.
The defendant asks that the judgment below shall be reversed upon the ground that the judge declined to charge "that, to entitle the plaintiff to recover, the jury must be satisfied that his agency was the procuring cause of the sale." The charge actually made was that the jury must find "that Mr. Stillman's action in the matter did direct or draw the attention of the navy department or of Mr. Morgan to these steamers as vessels that were offered for sale, and led to the negotiations that resulted in the purchase of the vessels." The two propositions are substantially the same, and the language employed by the judge embodied the proposition as fairly as that desired by the counsel. The defendant claims a ruling that "Stillman's agency was the procuring cause of the sale." This sale, it was proven, was made to the navy department through Mr. Morgan. It was conceded on both sides that the actual sale and transfer was always expected to be made by the defendant, and the question was whether the means employed by the plaintiff had resulted in producing the sale that did take place. The question as submitted by the judge was whether Stillman's action in the matter led to the negotiations that resulted in the purchase of the vessels. The prominent idea of each proposition is the same, and the jury, I doubt not, acted upon the precise principle laid down by the defendant's counsel. I see no error in this particular.
The defendant insists also that the contract, as established by the evidence, was in conflict with good morals and against public policy, and therefore void. The evidence showed that the defendant asked the plaintiff if he could sell those steamers. He replied that he did not know. Defendant said, "You are acquainted with the republican members of the administration?" The plaintiff replied that he was acquainted with some, and had friends who could introduce him to others, and who could aid him.
The defendant submitted to the court a series of propositions, which he requested him to charge, and under the fourth one of which, he desires to raise the present question.
That proposition commences in these words: "Any contract which conflicts with the morals of the time, and contravenes any established interest of society, is void, as being against public policy." It then asks the application of such principles to the present case. This is the only one of the requests looking to this subject.
The defendant, I think, had no right to ask a charge that "any contract which conflicts with the morals of the time," is void, as being against public policy. To make a contract thus void, it must be against sound morals. Morality is defined by Paley to be "that science which teaches men their duty, and the reason of it." (Paley Mor. Ph., b. 1, c. 1.) "Morality is the rule which teaches us to live soberly and honestly. It hath four chief virtues, justice, prudence, temperance and fortitude." (Bp. Horne's Works, vol. 6, charge to clergy of Norwich.) To make a contract void on the principle claimed, it must be against morality as thus defined. The "morals of the time" may be vicious; public sentiment may be depraved; the people may have all gone astray, so that not one good man can be found. Sound morals, as taught by the wise men of antiquity, as confirmed by the precepts of the gospel, and as explained by Paley and Horne, are unchangeable. They are the same yesterday and to-day.
The proposition under consideration also contains a statement that a contract which "contravenes any established interest of society," is void, as being against public policy. This position is equally unsound, but I will not enlarge upon it.
My examination of this question upon the merits has also brought me to the conclusion, that no valid objection can be made to the decision of the judge at the circuit.
The whole of the defendant's fourth request to charge, and upon which the question arises, is as follows: "Any contract which conflicts with the morals of the time, and contravenes any established interest of society, is void, as being against public policy. If the jury believe that the agreement on which this action is brought, was made in reference to the influence of the plaintiff, or his friends, with the republican members of the administration, or with any persons connected with the administration, whose duty it was to act in the purchase of steamers, and the percentage, as commissions, was fixed in reference to that influence, that the contract is void and no action can be sustained upon it."
The defendant and those concerned with him, had these four steamers on hand. The coasting trade in which they had been employed, was broken up by the inauguration of war at the South. Open war against the government of the United States had been commenced nearly a month before the date of this contract. The vessels were useless for the service in which they had been employed, and for the business in which the defendant was engaged. A deduction of ten per cent upon their value, or the payment of commissions to that amount was not an unreasonable inducement to a sale under such circumstances. No inference of corrupt intentions can therefore be drawn from the payment of a larger commission, than was usually paid for the services of an agent or broker.
The proposition under consideration, it will also be observed, makes no reference to corrupt intentions on the part of the agent, or of pecuniary influences to be used by him, or secret service to be employed. It presents but a single point, namely, that if the fact that the plaintiff or his friends had influence with the administration, or with those whose duty it was to purchase steamers, was an inducement to the contract, then the contract is void.
Two classes of cases are cited in support of this proposition, viz.: where a contract has been made to induce a particular legislative action, and where a contract has been made to procure appointments to office. Several cases of these classes are referred to in the recent case of Norris v. The Tool Company (2 Wallace, 45), and are cited with approval. Among them is Marshal v. Baltimore O.R.R. (16 How. U.S., 314), where the principle is laid down that all contracts for contingent compensation for obtaining legislation, or to use personal or secret or sinister influence on legislators, is void. That where an agent contracts to use or does use secret influences to affect legislative action, the contract respecting it is void. The learned judge, in deciding the case, says: "Public policy and sound morality do, therefore, imperatively require that courts should put the stamp of their disapprobation on every act, and pronounce void every contract the ultimate or probable tendency of which would be to sully the purity or mislead the judgments of those to whom the high trust of legislation is committed." It was further said that all contracts to evade the revenue laws are void, as well as all marriage brokage contracts, and contracts for procuring appointments to office. In aid of these views may also be cited Hartzfield v. Gurden (7 Watts, 152), which was an agreement to obtain signatures for a pardon, and Chippenger v. Hopbaguh (5 Watts S., 315), which was an agreement to procure the passage of a legislative act by personal influence, and Pingry v. Washburn (1 Aik., 264), which was an agreement to pay for the withdrawal of opposition to an act of the legislature, and Harris v. Roof (10 Barb., 489), which was an agreement to obtain legislative action recognizing an ancient land grant, and Debenham v. Ox (1 Ves. Sen., 276), which was an agreement to pay for soliciting a will in favor of another. Of the same general character is Gray v. Hook (4 Comst., 449), where two persons being applicants for an office, it was agreed that one should withdraw and aid the other in procuring the office, and in consideration thereof the fees should be divided between them. The agreement was held void.
The general rule as laid down in the cases cited, is a salutary one. Care is necessary, however, in its application. Certain other rules and principles are also to be remembered. Thus, the right to sell and dispose of property is an essential element of ownership. It is a right to which the owner is entitled to the full and unrestricted enjoyment. So, the time, place and manner of sale, are within the range of an owner's rights. He may sell personally or by agent, at private sale or by public auction. He may employ that agent who, by his zeal, his activity, his acquaintance, or his good character, may be likely to obtain the best price for the articles to be sold. So, also, a suitor in the courts of justice, may employ that advocate, who, in his opinion, has the best qualifications to obtain the judgment he desires. To do so, is his undoubted right. Learning, industry, eloquence, high personal character, the esteem in which he is held by the court, may all justly be considered by the party making the employment. It is allowable to employ counsel to appear before a legislative committee, or before the legislature itself, to advocate or oppose a measure in which the individual has an interest. ( Mills v. Mills, 36 Barb., 474; Hillyer v. Trarene, 1 Am. Law Reg., 146; Howden v. Simpson, 10 Ad. Ell., 193). It is allowable, and not unusual, to employ counsel thus to appear before the governor of the State, when he has under consideration the propriety of giving his sanction to a bill which has passed both branches of the legislature. Will it be insisted that no advocate can be legally employed thus to appear, unless he is of doubtful reputation, or personally offensive to the legislature or governor, or unless he belongs to a different political party? I apprehend, not. An advocate of high personal character would naturally and most properly be employed in the discharge of such duties, and one who was likely, by his personal qualities or his political position, to be acceptable to the body before which he was to appear. The possession of such qualifications, and the knowledge of and reference to it, would form no objection to the employment. For an honest purpose, avowed to the body before which the appearance is made, and by the use of just argument and sound reasoning, this is lawful. ( Auth. sup.) These principles are equally plain with those restricting the sale of political influence. Neither class of cases can be overthrown. The law is to be so applied that both may be preserved.
A distinction may also well be made upon those cases which I think will dispose of the present question. Personal solicitations of legislators or of judges is not a lawful subject of contract. Personal solicitations of the president, the governor, or the heads of department for favors or for clemency, is not the lawful subject of a contract. The apprehension that considerations other than those of a high sense of duty and of the public interest, may thus be brought to influence their determination, forbids this employment. But a different principle prevails where property is offered for sale to the government, and where a bargain is sought to be made with them, and where there is no concealment of the agency. It then becomes a matter of traffic. The agent says that he has vessels or arms for sale, and that he can furnish the government with what it needs and at a fair price; that the vessels are owned by Mr. Mitchell, or the arms are manufactured at Providence. As a general principle, the seller desires to obtain a high price, while the buyer desires to purchase at a low one. This element is known and appreciated by each party in making a bargain. I know of no principle upon which a seller should be compelled to employ an agent who would be looked upon with suspicion and distrust by the party to whom he wished to sell. In a time of revolution, when the Southern Confederacy, against which the arms or vessels were to be used, had friends at the North, would it be a legal objection to an agent desiring to sell munitions of war, that his loyalty to the government was undoubted? I cannot think so. The present case was one of bargain and sale simply. No fraud upon the government is imputed, no suggestion is made of pecuniary influence to be used, no intended corruption is suggested. The case to be decided is free from the existence of any of these elements.
An agent of the same political party with the executive or the heads of departments, having acquaintances and a reputation which would enable him to make an advantageous presentation of his merchandise, may, in my opinion, be lawfully employed to make such sale, and with reference to those qualifications. The decision in Norris v. The Tool Co. (2 Wallace, 45), confounds a sale or traffic openly made by an avowed agent to a party wishing to purchase, with the forbidden case of an interference with legislative action or executive clemency, where the party does not profess to act upon commercial principles. There is a manifest difference in the principle governing the cases. I think that case was not well considered, and cannot adopt it as an authority for the present. Judged by the principles I have set forth, the ruling at the trial was correct.
The rule of damages was rightly laid down, and I see nothing in the other points raised which will require a new trial.
Judgment should be affirmed.
All concur except GROVER, J.
Affirmed.