County of Lancaster v. Fulton

128 Pa. 48 | Pennsylvania Court of Common Pleas, Chester County | 1889

Opinion,

Mr. Justice Sterrett :

In his statement and affidavit of claim, plaintiff below avers that his demand is founded on a contract between himself and the county commissioners, dated June 28, 1882, by which he agreed to collect from the commonwealth all overpaid taxes on personal property then due; for which services the county, by its commissioners, agreed to pay him twenty-five per centum on the amount or amounts which might be credited to it in its account with the commonwealth; that said contract was evidenced by a resolution, adopted and entered on the minutes of said commissioners, as follows:

“ Resolved, That H. R. Fulton, Esq., be and he is hereby appointed attorney for the county, to take proceedings to obtain credit for the county in its accounts with the commonwealth for all unpaid taxes on personal property: Mr. Fulton’s compensation is to be twenty-five per centum upon the amount or amounts which may be credited, and is to be in full settlement for all costs and expenses as well as of fees.”

Tfiat, “ in pursuance of said agreement and resolution the plaintiff, after five years of work, labor and great expense, .....procured a credit settlement in favor of the county .....in its accounts with the commonwealth, of $20,823.50, of overpaid taxes included in the terms of said contract,” etc.; and the plaintiff’s compensation for services, etc., as specified in said agreement and resolution, is $5,205.87, which sum is now due him with interest thereon from June 20, 1887.

In substance, the defence interposed by the county was, that at the time the resolution of June 28, 1882, was adopted, plaintiff below “ was the duly elected and qualified solicitor ” of the county, serving under the act of February 18, 1870, at a salary of $500 fixed by that act; and, for that reason, neither he nor the county commissioners had any power or authority to enter into the contract, under which the services were rendered, and on which the claim is founded.

It is conceded that when the contract was made and for a considerable time thereafter, plaintiff below was the duly elected and qualified solicitor of the county. The 4th section of the act under which he was elected, declares: “ The salary of the officer, elected as hereinbefore provided, shall be five hundred dollars per annum, payable quarterly; and the officer so elected shall be the legal adviser of the board of commissioners of Lancaster county, and shall represent the said board in all proceedings in law or equity wherein the said county is a party or has any interest.” He was undoubtedly a public officer within the meaning of the constitution, article III., § 13, and article XIV., §§ 1 and 5, the first of which declares: “No law-shall extend the term of any public officer or increase or diminish his salary or emoluments, after his election or appointment.”

The services for which the contract in question undertakes to provide, are clearly within the sphere of the duties of the “ solicitor of Lancaster county,” as defined by the act of February 18, 1870. He “shall be the legal adviser of the board of commissioners of Lancaster county and shall represent the said board in all proceedings in law or equity wherein said county is a party or has any interest.” What authority, then, had either the plaintiff below, or the county commissioners, to enter into a contract to compensate the former for services within the sphere of his duties as solicitor of the county? We are of opinion that they had none; that the act of the commissioners in undertaking to bind the county to pay the compensation provided for in the contract, was ultra' vires. Doubtless the very object of the act in creating the office of county solicitor, providing for his election and fixing his salary, etc., was to take the power out of the hands of the county commissioners and place it beyond their reach. But be that as it may, we think the contract was ultra vires and void, and that the first and second points for charge submitted by defendant below, should have been affirmed. Those points are as follows:

“ 1. The contract of June 28, 1882, given in evidence by the plaintiff, having been made between the plaintiff and the commissioners of Lancaster county, when the plaintiff was a public officer, solicitor of Lancaster county, an office to which he was duly elected in pursuance of an act of assembly at a' salary of five hundred dollars a year, is contrary to public policy and null and void, and no recovery can be had by the plaintiff for any services rendered by him in pursuance thereof.”

“2. The said contract of June 22, 1882, given in evidence by the plaintiff, was contrary to public policy and void, and there can be no recovery by the plaintiff in this action for services rendered under and in pursuance of said contract, whether said services were rendered while the plaintiff held the office of solicitor of Lancaster county, or after the expiration of his term of office.”

These points were answered together by the learned judge as follows : “ I have probably fully answered these points in what I have said in the general charge; I may simply repeat what I have already said, that if the services of Mr. Fulton had been rendered while he was county solicitor, then there could have been no recovery; but, as the services were rendered largely after he was solicitor under his election, if the county commissioners recognized his services after that time, and he went on under their employment after his term of office expired, that would be a ratification by the commissioners of the agreement made by Mr. Fulton with them, and he would be entitled to recover whatever reasonable amount the jury may find due him for the services rendered and for the expenses incurred.”

In the ninth to sixteenth specifications, inclusive, the subjects of complaint are certain portions of the general charge. These specifications of error present substantially the same questions that are involved in the foregoing points and the answer thereto, and hence they do not require separate or special consideration.

In saying, as he correctly did, that if the services of plaintiff below “ had been rendered while he was county solicitor, then there could be no recovery,” the learned judge rightly assumed that the contract in question was unauthorized and illegal. All such contracts, whether intended to be so or not, are in effect evasive and subversive of law, contrary to public policy, and therefore void. They are no more capable of ratification than was the contract in Hunter v. Nolf, 71 Pa. 282. Speaking of the illegal contract under consideration in that case, Mr. Justice Sharswood said: “ It is undisputed law that such a contract is illegal as against public policy, and cannot be enforced. Even if there had been an express contract on entirely different terms than those agreed upon before, it ought to be viewed with a considerable degree of suspicion as an attempt to evade a sound and salutary rule of public policy.”

A case more nearly parallel with this, in some of its features, is Chester County v. Barber, 97 Pa. 456. Barber, one of the plaintiffs below, was attorney for the county of Chester, but it did not appear whether he was serving under an annual salary fixed by act of assembly, or under a special agreement with the commissioners. The county commissioners, however, made a contract with him and two other attorneys to pay them fifty per centum of the amount they recovered from the state for taxes improvidently paid into the state treasury. Speaking for the court, the present Chief Justice said: “The commissioners had no power to bind the county by such a contract..... It was against public policy, and therefore null and void..... These commissioners were acting in a fiduciary character. They were but trustees of the money when received, for the use of the county. When, therefore, they contracted to give one half of it to the plaintiffs for their services they exceeded their power. They were giving what did not belong to them. As well might a trustee contract to give away one half of the trust estate as compensation to counsel for services in connection therewith. And, if he may give away one half, why not three fourths, or even a greater proportion ? Can it be doubted that a court of equity would strike down such a contract as improvident and "a legal fraud? .... Whether the plaintiff, Barber, can recover anything, will depend upon the terms of his previous engagement as solicitor to the commissioners.”

If it had appeared in that case that Barber was acting under a salary, fixed by act of assembly (as was Mr. Fulton in this case), and that his defined duty was to act as the legal adviser of the commissioners and represent them in all proceedings at law or in equity wherein the county had any interest, it is not likely that any doubt as to his legal status would have been suggested. According to the reasoning of the opinion, the contract as to him would have been declared illegal, contrary to public policy, and absolutely void. We are, therefore, of opinion that the learned judge erred in holding that plaintiff below might recover, if the commissioners recognized his services after the expiration of his term of office as county solicitor ; that such recognition would be a ratification of the original illegal agreement, etc.

Plaintiff’s statement of claim avers, and his own testimony proves most conclusively, that all the services for which he claims to recover compensation were rendered under and in pursuance of the original illegal contract. In his cross-examination he said, in substance, that all he did was in pursuance of the contract. “I commenced under this contract.” “1 never rejected the contract, as a matter of course.” “I continued in this service, beginning on this contract.” “ I went on under this contract,” and many similar expressions in his answers to questions put to him on cross-examination.

There is no pretence that any new agreement was entered into, or the terms of the original in any manner changed after the expiration of his term of office. Neither the subject of a new contract nor the modification of the original ever appears to have been considered by the parties. The services of plaintiff below were no doubt efficient and valuable ; but, so far as they were rendered during his term of office, his salary is all the compensation he can claim. As to services rendered after the expiration of his term of office, under and in pursuance of the original illegal and void contract, he cannot, under the pleadings and evidence in this case, recover. The ninth to nineteenth assignments of error, inclusive, are sustained. The first to eighth assignments are immaterial; but, aside from that, they are not according to rule, and therefore not entitled to any consideration.

Judgment reversed.

Mr. Justice Mitchell dissented.