56 W. Va. 251 | W. Va. | 1904
In an action of assumpsit in the circuit court of Barbour 'County by Poling, use of Paul, against Board of Education of .Philippi District to recover the price of maps and historical charts sold by Poling, by written contract signed by Poling as ;agent, to said board, the defendant was allowed to file a special qplea along with its plea of the general issue, setting up that ■when Poling sold the goods he was interested in such sale and ■was a member of the board of education of Philippi Independent district in Barbour county and forbidden by law to act as agent for the introduction or sale of said articles. There was nd evidence on either side, and the jury found for the defendant, the -court gave judgment for it, and the plaintiff obtained a writ of •error.
The ease turns upon the question whether the special plea presented a defence to the action. The Code of 1899, ch. 45, sec. •57, enacts: “No school officer, or teacher of any free school, ■shall act as agent for any author, publisher, bookseller, or other person, to introduce or recommend the use of any book, appa-ratus, furniture or other article, in the free schools of this state, or any'one or more of them, or directly or indirectly contract for <,or receive any gift or reward for so introducing or recommending the same, nor shall such person be otherwise interested in the
We must so construe the statute as not to emasculate it of its force and defeat its purpose. The very person who violated the ■ statute seeks the enforcement of a sale in violation of it. Of what avail is the statute, if the very person at whom it is aimed takes the fruit of its violation ? If we say that such a contract is • good in law, then we encourage such contracts, promote the vice which the law condemns, and offer a premium for it. The law books say that it is a good test of the validity or invalidity of a contract whether its enforcement would encourage the mischief' condemned. If it would do so, the contract is void. We must carefully regard the nature of the contract and the purpose -of the statute. Impartiality, honesty, purity in public officers is a demand of public policy by common law, and this statute only applies that policy in this instance. “If a court should enforce such-an agreement, it would employ its functions in undoing what it' was created to do.” 9 Cyc. 481. It is there said that public policy is that principle which holds that no one can lawfully do what is injurious to the public or against the public good. “Where a contract belongs td this class, it will be declared void'
Toledo Co. v. Thomas, 33 W. Va. 566, is cited for the plaintiff. It holds that the act that foreign corporations may do business in the state by complying with certain requirements, and not otherwise, and imposes a penalty, does not avoid a contract, but that the penalty can alone be resorted to to enforce the statute. National Bank v. Mathews, 98 U. S. 621, holds that such a bank can enforce a deed of trust given to secure a note assigned tci it. The act of Congress simply prohibited it from holding real estate under mortgage. There was no penalty. It was held not to come under the prohibition. The case is inapt here. Niemey v. Wright, 75 Va. 239, involves whether a seller of fertilizers could recover their price under a statute saying that fertilizers should be labeled, and imposing a penalty for selling those not so lebel-ed. The court said the general rule is that a statute containing a prohibition and penalty makes the act unlawful, but that it did not follow that it made a contract void. It admitted that when the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void. Conceding this general rule, the court said that “the mere imposition of a penalty does not itself, in every case, necessarily imply an intention by the legislature that every such contract in contravention of the statute should be void in the sense that it is not to be enforced in a court.” The court allowed a recovery. I mention as a ease along this line Middleton v. Arnolds, 13 Grat. 489, holding that bonds given for land sold under pretense title can be collected by law. The statute prohibited sale of pretense title and imposed a penalty. I draw a marked line of demarcation between those cases and our case. The statutes which they passed upon -did not so deeply and vitally concern the public weal, pure official conduct, protection against bribery of school officers, bribery of public officials, misuse and waste of public money, as does the section of the Code governing this case. The old case of Wilson v. Spenser, 1 Rand. 76, lays down the ttue rule in such a case as this in holding that neither a court of equity nor law will enforce a contract in violation of laws “enacted for the public good.”
The Supreme Court has twice said that if the statute prohibits and penalizes an act, and is silent as tci whether the contract is void, and contains nothing from which the contrary may be inferred, a contract in contravention of it is void. Harris v. Runnels, 12 How. 79; Miller v. Ammon, 145 U. S. 421. Tested by these cases this contract is void.
It is mentioned, but not urged in argument, that Poling, who-as agent made the contract, was a member of a board of education of another district. The statute makes no such exception. It prohibits all school officers from acting as agents or being interested in sales to schools. True, we -see that if he were one of the board of the district buying, it would be a plainer wrong against law; but though of another district he might collude with other school officers; he might have from his office undue-influence in selling articles not needed or for excessive price to-other districts. As a school officer he should do no act to the barm of any district, nor be induced to do so by self-interest. ‘
The statutory provision above quoted was made to execute -section 9, article 12 of the constitution, reading thus: “No person-connected with the free school system of the State, or with any educational institution of any name or grade under the State control, shall be interested in the sale, proceeds or profits of any book or other thing used, or to be used therein, under such penalties as may be prescribed by law: Provided, That nothing herein shall be construed to apply to any work written, or thing invented, by such person.” ' •
This seems broader than the statute words. It is very comprehensive and sweeping in words and purpose, and the statute words should, in view of that section of the constitution, be given broad remedial meaning. But the constitution itself would make-
It is merely Suggested that the plea should set out that the district was prejudiced, and offer to return the goods sold. If the statute makes the sale void, it does not matter whether the district was prejudiced, as authority cited above from Cyc. shows. The law implies prejudice. Offer to return goods is not a condition precedent to this defense. No law is cited to support this suggestion.
It is suggested that the plea should be under Code, chapter 126, sedtion 5. It is .simply a plea of illegality of the contract, . not of fraud in its procurement or breach of warranty, or failure of consideration.
Objection is made to the affidavit to the plea. Where is the law that requires such a plea to be sworn? None is cited.
Judgment affirmed.
Affirmed.