53 S.E. 652 | N.C. | 1906
The plaintiff in his complaint alleged that by an act of the General Assembly the defendant was authorized to build a city hall and market house, and that plaintiff and other citizens of Goldsboro, who owned real estate therein, and who believed that the location of the proposed public buildings near their property would greatly enhance its value, offered to subscribe and pay to the city divers sums of money amounting in the aggregate to $1,035, if the city authorities would erect said buildings on a site near the property of the subscribers, and the offer was made and the money was afterwards actually subscribed and paid for the purpose and with the intent of inducing the city to locate the buildings at said place and with the view of enhancing the value of their property and receiving the benefit of the said location, and the money was accepted by the city with knowledge of said intent. That plaintiff paid the sum of $600 to the fund for that purpose, and that notwithstanding the receipt of the money by the defendant and its promise in consideration of the sum to locate both buildings at the said place, the defendant has erected the city hall as it promised to do, but has failed and, upon demand, has refused to so erect the market house, but instead has put up fish stalls which have proved to be a real detriment to their property. That the erection of the city hall, while of (62) some, is yet of very little benefit, the location and erection of the market house being the main object of their subscription. The plaintiff demanded the return of the $600 paid by him, and, upon refusal of the defendant to comply therewith, brought this action to recover the same, with interest, and the prayer of his complaint is to that effect. The principal allegations of the complaint as to the subscription and its purpose are admitted in the answer, though the defendant denies that it has not complied with the agreement, and alleges that the structures erected had improved the value of plaintiff's property. It is not necessary to make further reference to the answer. Issues were submitted to the jury which, with the answers thereto, are as follows:
1. Did the defendant city fail to locate and erect a market near the property of the plaintiff as alleged? A. "Yes."
2. Did the plaintiff pay to the defendant $600 on agreement that the defendant would locate the city hall and market house near plaintiff's property? A. "Yes."
3. What amount, if any, has the property of plaintiff been enhanced by the erection of the buildings by the defendant on the location mentioned in the pleadings? A. "$600."
The plaintiff upon the first two findings of the jury prayed, ore tenus, for judgment, in the nature of a mandamus, to compel the defendant *76 to locate and erect a market house as it had agreed to do. This prayer was refused, and plaintiff excepted. The court thereupon entered judgment for the defendant that it go without day and recover its costs. The plaintiff excepted and appealed. While the plaintiff, in his complaint, prayed for the judgment to which we think he was legally entitled, instead of a mandamus, if the contract with the city had been valid, yet his cause of action was not properly conceived, and he (63) cannot recover the $600 which he subscribed and paid because the contract with the city was broken by it, as it was void, being against public policy and founded upon an illegal consideration. For the same reason, the third issue was immaterial, as constituting the basis for affirmative relief in behalf of the defendants. The enhancement in value of plaintiff's property by the erection of the city hall on the site designated in the contract cannot be used as a counterclaim as the city can gain nothing, either directly or indirectly, by the illegal transaction. It surely cannot benefit in any way by a void contract for, when it is determined that the transaction was invalid, any increase in value of the plaintiff's property becomes a mere incident of the erection of the building at that place, and the case stands the same as if the contract had not been made, and what the city did was merely a voluntary act on its part. There is nothing, therefore, to support the claim for an allowance because of the enhancement, for the reason already stated and for the reason hereafter assigned for denying relief to the plaintiff.
The form of the issues indicates that the court proceeded in the trial upon the theory that the contract was valid, and had been broken, and for this reason submitted the third issue, whereas the case should have been tried upon the opposite idea, that the contract was void, and that no question of damages or other question which presupposed the validity of the contract, such as the enhancement in value of plaintiff's property, was presented. While the third issue was not material in the respect indicated, it is material in another respect, as will hereafter appear. If the contract was void, and plaintiff is not by his relation to the transaction prevented from recovering, it follows that he would be entitled to judgment, as for money had and received to his use, or for money paid upon a consideration which has failed, or upon a condition, compliance with which cannot be enforced, which practically amounts to the same thing. For the same reason as that just given, (64) plaintiff's prayer for a mandamus or coercive process was properly *77 denied. This sufficiently disposes of all preliminary matters and brings us to the consideration of the real issues involved.
The case naturally resolves itself into two questions, which require discussion: First, was the contract against public policy, or based upon an illegal consideration, and therefore void? Second, the plaintiff being a party to the illegal transaction, if it was illegal, is he in a position to ask for a return of the money, or is he debarred of a recovery, being inpari delicto?
The statute provides that the authorities of a town, whether commissioners or aldermen, shall make such orders for the disposition or use of its property as the interest of the town may require. Rev., sec. 2916. Judge Dillon, referring to the general duty of municipal officers, with respect to the affairs which they have in charge, says: "Powers are conferred upon municipal corporations for public purposes; and as their legislative powers cannot, as we have just seen, be delegated, so theycannot, without legislative authority, express or implied, be bargained orbartered away. Such corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass by-laws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties. The cases cited mark the scope and illustrate the application of this salutary principle in a great variety of circumstances, and, for the protection of the citizen, it is of the first importance that it shall be maintained by the courts in its full extent and vigor." 1 Dillon Mun. Corp. (4 Ed.), sec. 97, p. 156. It will be seen, therefore, that public office in a city is a public trust to be administered for the equal benefit and advantage of all the citizens of the municipality, and the governing body will not be permitted to contract at any time so as to deprive itself of the free exercise of its judgment and discretion in (65) providing for what may afterwards turn out to be the best interest of all citizens alike, and especially will it not be allowed by an obligatory agreement to discriminate in favor of one citizen or class of citizens as against another entitled to equality of privilege and benefit, even for a valuable consideration. It must at all times retain freedom of judgment, so that its decisions will be influenced only by a regard for the public welfare. We take it that any contract by which it should be attempted to prevent the city authorities from deciding impartially on a matter affecting the general welfare would be unenforcible. If public trustees or officers may by contract divest themselves of any portion of the essential powers intrusted to them they may just as well alienate all of them, though by degrees, and thus eventually abdicate the exercise of every governmental function. Such agreements are, therefore, contrary to the true principles upon which society is founded and subversive *78
of all well-regulated government. These propositions would seem to be self-evident. "All agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointment to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements, and it closes the door to temptation by refusing them recognition in any of the courts of the country." Tool Co. v. Norris, 2 Wall., 45; Cameron v. McFarland,
The Court concludes that the village had incurred no liability (68) to the plaintiff by its breach of the contract, as it was void, being against public policy. We have quoted liberally from the opinion in that case, not only because the personnel of the Court entitles its judgments to the greatest respect, but because the proposition is stated in concrete form and sustained by most cogent reasoning and apt illustration. We do not ignore the fact that there the contract involved the idea of permanency in the location of the market house, but the Court attached no special importance to that feature, but decided the case rather upon the ground that if the agreement was held to be valid, the town commissioners would be deprived of the exercise of that judgment and discretion in the premises so essential to the public welfare. In *80
our case the promise that the buildings shall remain near the plaintiff's property is, it seems to us, necessarily implied by the nature of the contract, for it could be of little or no benefit to him if they could be removed at any time, even if such a course were practicable. The principle of that case is applicable here, and the closing words of the Court, as quoted by us, clearly so indicate. The question is fully discussed inFuller v. Dame, 35 Mass. (18 Pick.), 472, in which Chief Justice Shaw, with his accustomed learning and ability, presents most satisfactory reasons and unanswerable arguments in condemnation of such agreements and proves their invalidity to a demonstration. He argues that it is not a satisfactory excuse to say that when the agreement was entered into the officers or trustees had come to the opinion that the location in question was the best for the interests of the public and for the interests of the corporation. Such an opinion might be changed by new views and new offers. Upon all these questions the influence of the promise of separate and distinct advantage deprived the officers of the power of exercising a free, disinterested, and unbiased judgment. Any influence from any quarter, created by the promise of a sum of (69) money, to induce them so to contract, and to yield to particular terms, with a view to benefit separate and individual interests, operated as an injury to the public and rendered the contract void. The confidence of the people in the proper transaction of business by its officials could only be safely reposed under the belief that they will fairly exercise their best and unbiased judgment upon the question of fitness, without being influenced by extraneous considerations, having no connection whatever with the accommodation of the public. The conclusion is thus substantially stated: It is obvious that if one large landholder may make a valid, conditional promise to pay a large sum of money to a stockholder or influential citizen on condition that a work of great public improvement may be so fixed as to enhance the value of his estate, all other landholders may make like promises on similar conditions, and public works, which should be conducted with a view to the public interest and to the just rights of those who make advances for the public benefit, would be in danger of being overlooked and sacrificed in a mercenary conflict of separate local and private interest. We regard the reasons advanced in that case as conclusive of the question, and find that the courts and text writers have generally adopted the same views. "A contract will not be sustained which tends to restrain or control the unbiased judgment of public officers, it being contrary to public policy and void as abdicating a public function." Ingersoll on Pub. Corp., 310. The powers conferred upon officers of cities to be exercised for the public good in making improvements demanded by public convenience are continuing and inalienable. 2 Dillon *81
Mun. Corp. (4 Ed.), sec. 685. "This power the city cannot refuse to exercise when public necessity or convenience demands that it shall be done, nor can it be allowed to excuse its failure in this particular upon the ground that it has by contract deprived itself of the right to act." R. R. v. Louisville,
When a contract belongs to a class which is reprobated by (71) public policy it will be declared illegal, though in that particular instance no actual injury may have resulted to the public, as the test is the evil tendency of the contract, and not its actual result. 15 A. E. (2 Ed.), 934. We must not be understood as holding that in no conceivable case can a citizen contribute to the expense of erecting a public building. We can easily imagine circumstances where such contributions might be lawful and proper to be considered in determining the best location for the public; but the *82 donation of money must not be the inducement to the selection of a site, apart from the public interests concerned. Cases which strongly approve the doctrine by which the particular contract in this case is condemned and in which the authorities are reviewed at length are Woodman v. Innes, 27 Am. St., 274, and Lodge v. Crary, 49 Am. Rep., 746.
This Court has recently had under consideration in Glenn v. Comrs.,
This brings us to the consideration of the next question, whether, the contract being void as founded upon an illegal consideration, the plaintiff can recover the money he has paid in part execution of the same. With reference to this subject, certain rules may be taken as settled. The law gives no action to a party upon an illegal contract, either to enforce it directly or to recover back money paid on it after it has been executed.Webb v. Fulchire,
But it must not be supposed from what has been said that in order to deprive a party of the right to repudiate an illegal contract and to recover money already paid thereon, it is necessary that the illegal transaction should have been fully executed, as it is quite sufficient for (74) that purpose that there has been a partial fulfillment of the illegal undertaking by the party against whom the action is brought for the recovery of the amount so paid to him. 15 A. E. (2 Ed.), 1007. *84
We believe that the law writers and the courts are fairly well agreed upon that proposition. Kearley v. Thompson, L. R., 1 Q. B. Div., 742; Knowlton v. Spring Co.,
No error.
Cited: Soloman v. Sewerage Co.,