Ohio National Bank of Washington v. Hopkins
8 App. D.C. 146
D.C.
1896
Check Treatment
Mr. Chief Justice Alvey

delivered the opinion of the Court:

There has been a question made as to the sufficiency of the terms of the affidavit of defence, under the rule of court, apart from the subject-matter of the defence, set up in the affidavit. But, with the view we have of this case, that objection is immaterial, and need not be considered.

The two principal questions presented on the affidavit of *152the defendant are: ist. Whether there is any sufficient legal consideration shown for the agreement set up in the defendant’s affidavit ? and, 2d. Whether that'agreement, if otherwise valid, is not in contravention of sound public policy, and therefore void. ■

1. With respect to the first of these questions, it is a well known attribute of a notary public, that he is a public officer, recognized as such by the common law,' the civil law, and the law of nations. Governor v. Gordon, 15 Ala. 72; Pierce v. Indseth, 106 U. S. 546, 549. His duties are principally concerned with the commercial law of the world ; but he has many superadded duties,’ prescribed by statute; and his fees for services, whether earned as commercial agent, or in the performance of duties prescribed by statute, are all fixed and determined by law. This is the case of the notaries appointed in this District. Rev. Stats.' U. S., D. C., secs. '983 and 9go. And for the performance of such services the notary himself has no right to ask more or less than the fees prescribed ; nor has any person, for whom such service are performed, the right to require such services of the notary for’less than the amount of the. fees prescribed. If, therefore, the defendant bank was the owner of the paper protested, .or noted for protest, it was bound to pay the fees prescribed by law, for the official service rendered'; and if it was the mere collecting agent for its correspondents, in employing the plaintiff in his official capacity, it was bound to place the paper in the hands of a competent and careful- notary, and for his services to pay the lawful fees,.and charge the same in account to the correspondent for whose benefit the service was rendered, according to universal custom in- such cases. Therefore, ■ the payment of the fees prescribed by law, or half the amount thereof, could constitute no valid consideration for the agreement stated in the affidavit; nor could the mere favoritism in the selection of the plaintiff in preference to other notaries, for the performance of the official services, be regarded as constituting a valid consideration for the agreement stated.

*1532. But, if this were otherwise, and the agreement could be regarded as founded upon consideration, such an agreement would, manifestly, be in contravention of sound public policy, and therefore void. The policy is obvious that will forbid such relation to exist, as that created by the agreement set up in the affidavit of defence, between a bank and a notary public, handling the paper affecting the rights of third persons, and where the incentive might often be strong to suppress or conceal the evidence of the negligence of each other. The notary is intended to, be, and from the nature and importance of his office, should in all cases be required to act entirely independent of any influence of the bank or agent placing the paper in his hands for his official action. From the moment that he receives the paper for notarial action, he thereby becomes the agent of the owner of the paper, and his paramount duty is to him, and those affected by his official action. Britton v. Niccolls, 104 U. S. 757. The bank, acting either as owner of the paper, or as a mere intermediate agent, in employing the services of the notary, should have no share in the profits or fees of the latter’s office.

The terms of the agreement, as set forth in the affidavit, are, that the defendant would employ the plaintiff to do all its notarial work, and that the plaintiff would accept in full payment for- his services fifty per centum or one-half of the legal fees chargeable therefor, as fast as collected by the defendant, and the other half to be retained by the defendant as its own. This, in effect, was an assignment of one-half of the fees as earned in the future, and not the assignment of fees then actually, earned and, due. Such an assignment is clearly not’ allowable. It has been decided in many cáses, that an assignment by a public officer of the salary or fees of his office before due and payable, is contrary to public policy- and void (Bangs v. Dunn, 66 Calif. 72; Schloss v. Hewlet, 81 Ala. 266; Bank v. Fink, 86 Texas, 303; Beall v. McVicker, 8 Mo. App. 202); and this upon clear and satisfactory • reason.

*154In the case of Bliss v. Lawrence, 58 N. Y. 442, the question was most elaborately ¿discussed by counsel, and the court, in a learned and well reasoned opinion, unanimously held, that an assignment of the salary of á public officer, before it is earned, is void as against public policy. Cases both English and American were reviewed in that case ; and-it was fully shown that the principle was of early foundation in the law. Among the more recent English cases cited by the court in Bliss v. Lawrence, is that of Liverpool v. Wright, 28 L. J. (N. S.) Ch. 871, where the question involved was as to the assignability of the fees of the office of a clerk of the peace; and Vice-Chancellor Wood, after disposing of another question, then proceeded to say: “ There is a second ground of public policy, for which the case of Palmer v. Vaughn, 3 Swanst. 173, is a leading authority, which is this : That, independently of any corrupt bargain with the appointer, nobody can deal with the fees of a person who holds an office of this description, because the law presumes, with reference to an office of trust, that he requires'the payment which the law has assigned to him, for the purpose of upholding the dignity and performing properly the duties of that office, and, therefore, it will, not allow him to part with anj' portion of those fees, either to the appointer or to anybody else. He is not allowed to charge or incumber them. That was the case of Parsons v. Thompson, 1 H. Bl. 322. Any attempt to assign any portion of the fees of his office is illegal on the ground of public policy, and held, therefore, to be void."

And in principle, the case of Meguire v. Corwine, 101 U. S. 108, would seem to be quite applicable to this case, and against the defence set forth in the affidavit. In that case, it appears that the testator of the defendant had agreed to pay the plaintiff one-half of all fees he should receive in certain cases, for the aid of the plaintiff in getting the testator the appointment of special counsel for the Government, and for the assistance which the plaintiff was to render in procuring testimony and giving information in support of the *155defence. The Supreme Court of the United States held that contract to be against public policy and void. There, the consideration set up was the procuring the appointment of the party as special counsel in cases where the Government was concerned; ■ and here the alleged consideration for the half of the fees to be retained by the defendant is the exclusive employment of the public officer to do all the notarial work required by the defendant to be done, and the payment over of the other half of the fees. In both cases the agreements tended to vicious practices and malfeasance in public office; and the defence in the present case is no less in violation of public policy than the agreement attempted to be enforced in Meguire v. Corwine.

It is argued, however, on the part of the defendant, that if the agreement set up in the affidavit of defence be void as in contravention of public policy, the plaintiff is- not entitled to judgment under the rule of court, because he is in pari delicto with the defendant, and therefore not entitled to recover the money retained by the defendant. But there is a distinction between the position of the plaintiff and that of the defendant in this action. The plaintiff asserts a right to recover the amount of fees earned and allowed by law, and which the defendant has received and unlawfully detains from him. To repel this claim, the defendant sets up a collateral and independent contract, as a defence, whereby it was agreed that the fees sued for should be retained by the defendant. The plaintiff in this action does not claim by or through the contract set up by the defendant, but his claim is quite independent of it. Jt is founded upon his legal rights as prescribed by the statute. It seems to be well established by the decisions, that the test, whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case. Simpson v. Bloss, 7 Taunt. 246; Atkinson v. Denby, 6 Hurl. & N. 778; S. C. Ex. Ch. 7 Hurl. & N. 934; Phalen v. Clark, 19 Conn. 421; Ins. Co. v. Hull, 51 Ohio St. 270.

*156In this last mentioned case of Ins. Co. v. Hull, the principle is very fully discussed, and it was there held, that an illegal agreement made by a plaintiff will not defeat his right to recover, unless his cause fot' action is founded upon, or arises out of such illegal agreement. This would seem to be the result of the recent authorities upon the subject. See Armstrong v. Am. Ex. Bank, 133 U. S. 469.

The action in this case not being founded upon the illegal agreement set up in the affidavit of defence,, but upon an independent consideration, not controverted by the defendant in its affidavit of defence, the judgment under the rule was properly entered.

The judgment, therefore, must be affirmed; and it is so ordered.

Judgment affirmed.