139 Iowa 487 | Iowa | 1908
On October 4, 1901, tbe plaintiff let to tbe defendant by written lease a certain business building on Court avenue, in tbe city of Des Moines, for tbe period of two years, at a rental of $312.50 per month. In consideration of tbe agreed rent, the plaintiff undertook, among other things, to wire the building for electric lights and make certain changes and repairs therein, and agreed that the building would be supplied with railroad trackage in the alley at the rear thereof not later than December 31, 1901. This action was begun August 27, 1906. The demand of the plaintiff is stated in three counts. The first count sets up the lease, and alleges that defendant took possession thereunder and paid the agreed rent up to May 1, 1903, but failed and refused to pay the rent thereafter accruing up to the end of the term. The second count sets up the use and occupancy of the building by defendant for a period of two years, avers that such use was reasonably worth $312.50 per month, and that defendant has refused to make payment for the period from May 1, 1903, to October 1, 1903. The third count is based on the alleged misuse of the building and fixtures by the defendant and injury resulting therefrom, for which damages in the sum of $2,500 are demanded.
Answering the petition, the defendant admits the lease as alleged by the plaintiff, and admits that it has not paid the rent accruing under said lease during the months of May and June, 1903. It denies, however, that the premises were
In reply to the counterclaim, the plaintiff denies the same, and further pleads that the agreement to furnish railroad trackage to the building could only be carried out by procuring the passage of an ordinance or resolution by the city council permitting said work to be done, and that the agreement was therefore in effect an undertaking to bring sufficient influence to bear upon the city council to -secure the desired permission, and is void as being against public policy. This last clause of the reply setting up the alleged void character of the agreement was stricken out on motion of the defendant, and error is also assigned thereon.
In Kellog v. Larkin, 3 Pin. (Wis.) 123 (56 Am. Dec. 164), Mr. Justice Howe, discussing the same general question, justly remarks: “ But I insist that, before a court should determine a contract which has been made in good faith stipulating for nothing that is malum in se, nothing that is malum prohibitum, to be void as contravening the policy of the State, it should be satisfied that the advantage to accure to the public from so holding is certain and substantial, not theoretical or problematical, and I submit that he is the safest magistrate who is more watchful over the rights of the individual than over the convenience of the public, as that is the best government which guards more vigilantly the freedom of the subj ect than the rights of the State.” In Richardson v. Mellish, 2 Bing. 229, Sir James Burrough is quoted as saying: “ I protest, as my lord has done,
But, even if this be not admissible, we think it much, more in accordance with sound principle to hold that the promise to furnish the track implied a representation and assurance that the proper authorization by the city had been obtained, than to find in such an agreement an implied undertaking to thereafter procure the authority by illegal means. And we are prepared to go further, and say that, even if we assume the contract to have been made with the knowledge and understanding by both parties that the consent of the city council to the laying of the track had not yet been procured, the agreement was not invalid per se. It is not the law that all contracts dependent upon future legislative action are against public policy, nor is it true that all contracts to secure legislative action are unenforceable. It is correct to say that the law guards the processes of legislation against improper influences with jealous care, and will not lend its aid to the enforcement of any contract which expressly or impliedly contemplates the employment of corrupt or otherwise improper methods to influence the official conduct of legislators, or others charged with public duty. But it would be a strange perversion of this wholesome rule to say that it forbids all efforts of interested persons or classes to secure the adoption of desired legislative measures. Legislative bodies do not occupy such an exalted position that they may not be approached in a proper manner by those desiring action within the legitimate scope of legislative power, and there is no consideration of public policy which forbids any individual from undertaking by petition, by legitimate argument, and by a fair showing of the circumstances to procure the passage of any law or ordinance within the power of the body so addressed to enact. Bor instance,
The cases cited by appellant (Providence Tool Co. v. Norris, 69 U. S. 45 (17 L. Ed. 868) ; Doane v. Railroad Co., 160 Ill. 22 (45 N. E. 507, 35 L. R. R. 588) ; Williamson v.
For the reasons stated, the judgment of the district court must be, and it is, affirmed.