27 Colo. App. 337 | Colo. Ct. App. | 1915
rendered the opinion of the court.
For answer defendant pleaded a general denial, and that the contracts sued on, if made, were contrary to public policy, and therefore illegal and void, for reasons which will be stated in connection with the proof.
The cause was tried to a jury, and the court seems to have decided the affirmative defense adversely to the defendant, and submitted to the jury only the question as to whether or not Oliver had agreed to pay Wilder and Bigelow for publication of the matter in their papers, and to -pay Wilder for printing the aforesaid copies. Upon that issue the jury found for plaintiff in the sum of $1215.34.
In 1912 James B. Pearce was Secretary of State, and as such was charged with the duty, and vested with- the authority, to contract for the publication of initiated and referred bills and constitutional amendments to be submitted at the general election to be held in November.
“The text of all measures to be submitted shall be published as- constitutional amendments are published.” Section 1, article V, as amended in 1910.
Section 2 of article XIX, in relation to proposed amendments to the Constitution; provides that:
“The Secretary of State shall also cause the said amendment or amendments to be published in full in not more than one newspaper of general circulation in each county, for four successive weeks previous to the next general election for members of the general assembly.” (Italics ours.)
Section 1423, Gen. Stats., 3934 R. S. ’08, 4488 M..A. S. T2, fixes the maximum fees that may be paid for legal advertisements. It further provides that:
“Any public or municipal officer or board created or existing under the laws of this state that has now, or may hereafter be authorized by law to enter into contracts for the publication of legal advertisements, is hereby authorized, subject to other limitations on said authority, now imposed by law, to agree to pay therefor prices not exceeding said rates.” (Italics ours.)
Section 4489 M. A. S. ’12, 3935 R. S. ’08, defines legal advertisements, and contains the following proviso:
“Provided, however, that any contract providing for payment for such notice at a lesser sum than is provided in said act 1423 shall be valid.”
Acting presumably under the authority of the foregoing.constitutional and statutory provisions, Mr. Pearce, then a candidate on the' democratic ticket for re-election, sent a circular letter to the democratic newspapers of the state, reading as follows:
“Dear Sir :
The law governing the publication of constitutional amendments requires that such publication shall be made*341 under and by authority of the Secretary of State. The time for publication is close at hand, and I am anxious, where'two or more democratic newspapers are printed in one county, that the owners of those newspapers should agree on the particular newspaper which shall print the amendments. I am also desirous that there shall be no misunderstanding whatever over those agreements, and that the newspapers which shall be parties to them shall give loyal and unstinted support to every nominee on the democratic ticket — national, state and county.
In furtherance of this general understanding I would appreciate your presence in my office at your first convenience, not later than ten days after next Monday, September 16, when I will go more into detail with you.
Faithfully yours,
James B. Pearce.”
Defendant herein (Mr. Oliver) received one of these, letters and went to the office of the Secretary of State and made an arrangement with him whereby it was understood that Oliver was to be awarded the contract for such publications in his newspaper at the maximum rate, and that. Oliver was to pay The LaJara Chronicle 25% of said contract price. A few minutes after Oliver left the office with that understanding, Pearce wrote and caused to be delivered to Oliver at Denver the following letter:
“A. Oliver,
Denver.
Dear Sir:
Everything off; must make new arrangement for benefit of party in your county relative to printing.
Get Bigelow, Wilder and yourself come to office in morning.
Yours,
James B. Pearce.”
Oliver was owner and publisher of The Alamosa Independent, a democratic newspaper having a circulation of
Although by his answer Oliver denied that he made the agreement for, or assented to, such division, and the plaintiff by his reply admitted that Oliver did not so consent, nevertheless in proving plaintiff’s case, Pearce and others testified that Pearce insisted that such an agreement be made by and between the three publishrs; that Wilder said one-third would be satisfactory to him, Bigelow said the same, and that Oliver consented thereto. Several witnesses testified that Dillon was called in to take a note of the understanding; that he had had it typewritten and had read it to Wilder, Bigelow and Oliver in the presence of the Secretary of State, and that all three had agreed thereto. That agreement provided that Oliver should be awarded the contract at the maximum price, and that he should divide with the other two, giving each of them one-third. Pursuant to that arrangement, a written contract was made on October 1st, between Pearce and Oliver, which specified the items necesary to be published, and that Oliver would publish the same in four successive issues of The Alamosa
Another matter was discussed at the office of the Secretary of State, which is the foundation for the first cause of action. Wilder offered to print the sheets containing the matter for publication, for the three newspapers, and agreed to furnish them at as low a price as they could be obtained elsewhere. He claimed that Oliver assented thereto. In accordance with that understanding Wilder printed the sheets, but Oliver refused to take them. The Western Newspaper Union furnished the necessary printed matter. to Oliver for $69.43. It made a price to Bigelow of $68.75 for his paper. Wilder charged $116 for printing the entire publication, but deducted $15 for press work made unnecessary by Oliver’s refusal to take the copies for his paper, and sued for the balance, $101. The actual cost of the legal publication was less than $75. • The amount contracted for by the Secretary of State and paid to Oliver was $1782.87, the maximum fee allowed by law. Oliver repudiated the oral agreement, for which reason the Secretary of State withheld the contract price for. a time, but finally paid it to Oliver.
It seems strange that there is not to be found any express legislative inhibition against agreements of this kind, whereby the public policy of the state in that respect is declared. In the absence of such legislation the court, to declare a particular agreement void on the ground that it is opposed to public policy, must find that such contract has a tendency to injure, the public, is against the public good, or inconsistent with sound policy and good morals, as to the consideration or thing to be done. But if, by well-settled
“All contracts for supplies should be made with those, and with those only, who will execute them most faithfully, and at the least expense to the government. Considerations as to the most efficient and economical mode of meeting the public wants should alone control, in this respect, the action of every department of the government. No other consideration can lawfully enter into the transaction, so far as the government is concerned. Such is the rule of public policy; and whatever tends to introduce any other elements into the transaction is against public policy. Thát agreements, like the one under consideration, have this tendency, is manifest. They tend to introduce personal solicitation and personal influence as elements in the procurement of contracts; and thus directly lead to inefficiency in the public service, and to unnecessary expenditures of the public funds.”
It is also there held that all such agreements “are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution.” No language at our command can more fitly express the duty of public officials or the tendency of the contract under consideration in the instant case, than the foregoing excerpt from the opinion of Mr. Justice Field. Such being the principle of public policy as sanctioned by the common law and expounded by the ablest jurists, our
In exchange for this substitution of newspaper owners’ agreement in place of the exercise of his own discretion in the selection, Mr. Pearce exacts of the newspapers becoming parties thereto “loyal and unstinted support to every nominee on the democratic ticket — national, state and county.” As the law stands, only one newspaper in each county can be awarded a contract and paid a contract price, and it does not appear from the letter what consideration the other newspapers were to be offered as an inducement for such an agreement, but that feature was left for determination at the conference in Secretary Pearce’s office
The true construction of the above mentioned constitutional and legislative provisions contemplates that the publication of such measures shall be obtained at a reasonable cost to the people, and any flagrant departure from that construction is in violation of a sound public policy. Whatever the statute permits a.public officer to do, manifestly in the interest of the public, it is his duty to perform. Therefore, public officers who fail or refuse under these publication acts to make an honest effort to secure for the people as good terms as they would endeavor to secure for themselves, if they personally had to make the payment, falls, short to the extent of carrying out the spirit of the law; and the abuse of these provisions in any manner which tends to increase the reasonable and necessary cost for the work to be done is detrimental to the public and contrary to public policy. Whoever joins in any bargain or arrangement which prevents, or has a tendency to prevent, the public from obtaining such publication at a reasonable cost should
In the face of the letters and the evidence, the purpose, nature, effect and size of the graft is manifest, and amounts in the aggregate to approximately $75,000 in excess of the amount necessary to be paid to procure the publication throughout the state, in the mode and for the time required by the constitution. In addition to the extravagant and unlawful expenditure of the public funds, disclosed by the evidence, it is obvious that the natural result, and the 'desired purpose of the agreement, was to direct and control the political policy of the public press. If the press may be debauched by such means, then indeed may we regard our social and political institutions in jeopardy at the hands of its legally constituted guardians.
“Wherever an illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case.”
The court is of the opinion that the agreement sued on in the first cause of action is not so inseparably connected with the other contracts that the vice inherent in the latter necessarily defeats the former also.
In conclusion, we call the attention of the General Assembly to the crying necessity for remedial legislation, which will effectively prevent the recurrence of such practices as are here disclosed, with suitable punishment for infraction of the law in that respect. The judgment is reversed and the cause remanded, with directions to enter judgment for defendant upon the second and third causes of action; and for the plaintiff upon the first cause of action, in the sum of $101.00.
Reversed with Directions.