60 Ga. 221 | Ga. | 1878
Whilst Wm. A. Huff was mayor of the city of Macon and ex-officio president of council, he leased the city park for five years, paying in advance so much per annum therefor, and agreed to erect certain levies, build and repair fences, grade and gravel walks, and to put and keep the park in repair, and to cut and furnish wood to the poor from what is called the new park, for the sum of three thousand
The fundamental principle which will be found to underlie all adjudications made in this state on similar questions, and which, we think, has not been upset by any well considered case anywhere, is that no officer or agent, public or private, whose duty it is to supervise a contract in behalf of his employers or principal, can himself undertake to do that thing which his office or agency makes it his duty to supervise for others, and to see to it for them that it is well and faithfully done. The reason is too plain and palpable for serious dispute. The man becomes a judge in his own case. He agrees to perform work himself, and yet is to judge whether or not it is well done. So tender is our law of bias on the part of the noblest and purest in behalf of
It matters not how fair the contract may be; |:>ublic policy will not uphold it. This principle is iterated and reiterated everywhere in the books.
Hence, the principle decided in the South Carolina case, in 9th Richardson, 399, Albright & Pinchback vs. The Town Council of Chester, does not cover this case. The contract there was upheld, though made by the intendant with the council while he was intendant; but it was fully executed— the work was done, and the suit was for the value thereof. Certainly there ought to have been a recovery on a quantum meruit, if the contract was set aside. The work was done, and done according to contract, and it does not appear that the intendant was to be the judge of how it was done. Perhaps he was, as, being the executive officer of the town, it was in the line of his duty to supervise the streets. If, however, it were necessary to collide directly with that case, great as is the respect entertained for the distinguished and learned judges who then presided there, we should be foi’ced on principle, and the policy of this state drawn from the current of its legislation from the date of its independence to this day, to differ with that court in that case. Judge O’Neal simply said, “T agree to the principle laid down by my late friend, chancellor David Johnson, in the Railroad Company vs. Cleghorn et al., Speer’s Eq., 562; there is nothing in law or equity which forbids a member, or even a director, of a corporation from contracting with it; and, like any other individual, he has a right to prescribe his own terms, which the corporation are at liberty to accept or reject, and, when the contract is concluded, he stands in the same relation to the other creditors of the corporation as any other
On turning to the case referred to — 1 Speer’s Eq. E., 545 — it will be apparent that the case did not cover the case in 9 Eichardson, nor does it touch, as we think, the case made here by these contracts. That case simply involved the indorsement of paper by certain persons who were alleged to be directors of a private corporation, and the question whether the chief executive officer of a municipal corporation, whose duty it was to see to the enforcement of a contract made with the municipal corporation, to be executed or performed in the future, was in no way involved.
The case in 9 Eichardson is the only one directly in point which has been cited, and then the contract had been performed and the suit was for money after service rendered; nor does it seem to have been thoroughly considered, especially in the view taken by this court of this continuous contract. It will be seen, too, that the case in 9 Eichardson was the case of a partnership, of which the intendant was a member, against the town. Perhaps that fact may make some difference — as the partner may have made the contract, and the intendant’s skirts have been clear.
On the other hand, in addition to the codification of the act of 1801, our own Code, section 364, codifying the act of 1850, declares in express terms that no sheriff or other officer discharging a similar duty shall purchase at his own sale. That sale is public, known to all, duly advertised, yet he cannot buy; if he had to lease out work yet to be performed, could he be the lessee, or could any officer discharging a similar duty % We think not. The reason for prohibiting the mayor from making such contracts as these thus appears to be stronger than the law which prohibits the sheriff from purchasing at his own sale. So section 796, codifying the act of 1872, expressly prohibits any municipal officer from contracting with the corporation to do work for pay out of the treasury; and whilst that act
Such is the spirit and policy of the act of 1801, and the
It would seem, therefore, to he unnecessary to fortify our own judicial exposition of our own statutes by the authority of courts foreign, or quasi foreign, to us upon cases and questions similar to those declared and ruled by our own courts.
If need be for other reference, however, we could refer on the same general line to 4 Howard, 553; 21 Wallace, 182, 6161 Kerr on Fraud and Mistake, 160 ; Wood on Master and Servant, 213, 215; 1 White and Tudor, Lead. Cases in Equity, 72; 115. 2 Johnson’s Chancery R., 252; 3 American Reports, 105; Zinn’s Leading Oases on Trusts, 76, being a great case before the House of Lords, where the chancellor, Lord Cranworth, delivered his opinion for reversal, and ex-chancellor, Lord Brougham concurred, both opinions being in point on this question, it being held that a director of a railroad company could not contract with the company; 25 Wisconsin, 551, where it was held that a school commissioner could not contract with the other commissioners to build the school-house. See also, Garrison vs. City of Chicago, Law and Equity Reports, pamph., August 1877, p. 166. 1 Perry on Trusts, 59, 191, 191, 206, 207, 209, 210. Smith vs. City of Albany, 61 N. Y., 444. Indeed the books abound in the general principle — sometimes and under some circumstances annulling absolutely the contract — at others and under other circumstances on terms ; but we rest the case confidently upon the great fundamental principle that the mayor is paid to superintend all this work done for the city — that he is her administrative and executive officer, to see that the work is well done — that it is wholly unreasonable, and against all public policy, therefore, that he be permitted to make a contract to do what his official duty makes him superintend and oversee, and holds him responsible for.
But as the supposed ratification could have been made, and the acts which it is argued amount to it were done by the same council which originally did the illegal thing, and by another council down with the same complaint, Mr. Huff still being similarly related to both, no act or omission to act on their part can so operate as to make this contract legal by ratification. It is true that Mr. Huff has been elected mayor since the making of these contracts, and since they were orobably generally known, but certainly unless the question was by competent authority, derived from an act of the legislature or the charter, submitted to vote, the only lawful mode in which the corporation can act, either to make or ratify a contract, is tlurough the mayor and council, and it would be folly to hold that a contract, illegal because made by one who was mayor when it was made with the council of which he was head, could be ratified by a council of which he was still the
Before, therefore, this complainant can have any relief in equity, it must do equity itself. Certainly it ihust do so where the chancellor is satisfied that there is no actual or intentional fraud on the part of the defendant, and that public policy alone demands that the law be enforced and the contract be rescinded or annulled. This seems to have been the idea of Lord Brougham in the Aberdeen Railway Company vs. Blaikie Bros., Zinn’s Lead. Cases on Trusts, 76 — where the case of the York Building Company vs. MacKenzie is cited, and where even ornamental improvements were required to be paid for, though the sale was annulled. That case is a very strong authority to invalidate these contracts at bar as illegal; but it seems, also, from the opinion of Lord Brougham before the house of lords, where the case was determined, to be an authority for paying Mr. Huff back what he has expended, with interest thereon, in the absence of fraud on his part. That ease, too, disposes of all that has been urged about the custom of former members of council to buy and deal with the city of Macon, of whom a long list, running back many years, is given in the record; but no case, so far as we see, of the mayor taking a contract to do work which his official duty required him to stvpervise.
Certainly, however, it is right and equitable that Mr. Huff should be paid by the city that' which he has spent, and of which the city will reap the benefit. It would be grossly unjust to hold otherwise, and, when this case is tried, this equitable principle will be applied to it. On this point, see 1 Lead. Cases in Eq., 217, et seq.; 1 Perry on Trusts, 195, et seq., 29 Beavan, 353; 30 Beavan, 235. We mean, of
At all events, everybody has access to the park, and there is no use for a receiver in that view; its rents, even if it could make anything clear, can hardly overgo what, ex aequo et bona, it owes defendant for work and labor*, of which it has and will have the benefit, and there is no necessity for a receiver for that purpose, of collecting them if any could be made; and for the same reason, there seems no necessity fora temporary injunction.
At all events, we are quite sure that the chancellor has not abused his discretion in declining to grant the interlocutory order for receiver and injunction, especially as the complainant has not offered to do full equity, and has actually repaid defendant nothing.
Judgment affirmed.