Russell v. Courier Printing & Publishing Co.

43 Colo. 321 | Colo. | 1908

Mr. Justice Gabbert

delivered the opinion of the court:

Public policy, with respect to the administration of the law, is that rule of law which declares that no one can lawfully do that which tends to injure the public, or is detrimental to the public good. — 23 Cyc. 455. All contracts contrary to public policy are void. If either party to a contract of that character seeks redress from the other, he will be left by the courts in the position in which he placed himself. It does not sound well for a defendant to say that a contract which he deliberately entered into, and of which he has had the benefit, is void because contrary to public policy; but, it is not for his sake, or for his protection, that the objection is allowed, but for the protection of the public, by thus preventing this character of contracts being made, and avoiding evils which naturally result therefrom. — Hope v. Linden Park Assn., 58 N. J. Law 627; Drake v. Lauer, 86 N. Y. Supp. 986.

It is clear that contracts contrary to public policy cannot be enforced, but the difficulty arises in determining whether a given contract comes within this rule. Each case, therefore, where the question is raised, must be determined from its own particular facts. In determining this question the test is not so much what acts the parties performed or contemplated doing in order to carry out their agreement, or'its actual result, but, rather, whether or not its tendency is evil. — Wood v. Casserleigh, 30 Colo. 287; 97 Am. St. Rep. 138; Tool Co. v. Norris, 2 Wall. 45; McMullen v. Hoffman, 174 U. S. 639; Richardson v. Crandall, 48 N. Y. 348; Atcheson v. Mallon, 43 N. Y. 147; 15 Am. & Eng. Enc. Law 934; 3 Supp. Enc. 496.

The supreme court of the United States has declared, in effect, that agreements for procuring government contracts where compensation is contingent upon the success of the promisee’s efforts, are void as against public policy, without reference to the question of whether improper means are contemplated or employed in their execution, for the reason that the law conclusively presumes that the tendency of such agreements is evil, and closes the door to temptation by refusing them recognition in the courts. — Tool v. Norris, supra. Every citizen is vitally interested in a pure administration of the affairs of government, and in order to attain this desired end, the law will not lend its aid to the enforcement of a contract between parties of a character which tends to tempt one or both to resort to sinister or improper influences to secure contracts from our government. — 9 Cyc. 485; Greenhood on Public Policy,- 363-4-5.

Improper influences are sometimes, employed to secure government contracts, and occasionally, in awarding them, willing ears are lent to corrupt propositions, and when, by a contract between parties, a motive is disclosed to resort to improper means to secure contracts from the government, the only safe course to pursue is to meet the evil it suggests by striking it down from its inception. In the present case there is not the slightest suggestion that either party to the contract employed, or intended to employ, any improper means to carry out its terms; but it is of a nature where such means to effect its object might be employed, and that is sufficient to condemn it. The law adopts -this prohibitory rule with respect to such contracts to prevent fraud, and remove temptation to commit it, without regard to whether fraud was contemplated or committed.

The law fixes the rate of compensation for legal advertising in newspapers at so much per each insertion. — Laws 1901, p. 179. The constitution requires that notices of proposed amendments to the constitution shall be published in" not more than one newspaper of general circulation in each county for four successive weeks previous to the next general elec-' tion for members of the general assembly. — § 2, art. XIX. The contract which plaintiffs had was for publications which would be made but once a week. The contract which it was the purpose of the arrangement made by plaintiff's and defendant to secure for the defendant contemplated daily insertions, so that the latter would receive for the notices which the plaintiffs had contracted to publish more than six times as much as plaintiffs would have received, which was to be divided between them. In other words, plaintiffs, by surrendering their contract,would, if the defendant .was awarded the contract to publish the notices which they had agreed to publish, and published them, receive more than three times what they would had they published the same notices under their contract with the state. This was the inducement for the ■plaintiffs to surrender their contract with the state. The carrying out of this arrangement with the defendant by which this end .was to be attained, was contingent upon their ability to induce the secretary of state to release them from their obligation. This contingency, in the circumstances of this case, invalidated the contract of defendant. It matters not that the parties entered into this agreement in good faith, or whether improper means were contemplated or employed to bring about the result which they intended by entering into it, or that the state was not a party, and was free to enforce the contract which it had made with plaintiffs, or could have selected some other paper in which to publish the notices of the proposed amendments. The fact remains that it was the intent of plaintiffs, through the contract which they now seeh to enforce, to secure a sum of money from the state which they could not have obtained except by entering into, and carrying out, such contract. This result was dependent entirely upon a contingency of such a character that it offered a temptation to resort to improper means to bring it about. For this reason the tendency of the contract under consideration was evil, without reference to the question of whether fraud was intended by the parties or employed in its execution, or whether the state was, or was not, defrauded, and cannot be enforced.

The judgment of the district court is affirmed.

Affirmed.

Chiee Justice Steele and Mr. Justice Campbell concur.