19 Pa. Super. 191 | Pa. Super. Ct. | 1902
Opinion by
On Sunday, April 28,1901, Henry Becker and Edward Kester, two of the three members of the board of poor directors of Schuylkill county, entered into a written compact, which they called articles of agreement, whereby they agreed “ to organize
“ It is further agreed that each of the parties shall hold a copy of this agreement; and it is further agreed that the sum of $1,000 dollars is to be deposited by P. W. Houck and the same sum by Wm. Goas ; it being understood that P. W. Houck represents Kester, andWm. Goas, Henry Becker; the forfeit is to bind the parties to a faithful performance of the covenants herein and before, to be forfeited by the party putting up said stake in case principal makes default. It is further agreed that a copy of this agreement be placed in an envelope and mailed to E. B. Hunter, at the Merchants’ National Bank, Shenandoah, and $2,000 be deposited in the Union Safe Deposit Bank to the order of E. B. Hunter. Money or proper collateral to remain up until April 1, 1903, and not to be delivered by him until called for by Wm. Goas and P. W. Houck jointly, at the time before stated; it being however agreed that if either of the principals violate the contract so filed with E. B. Hunter, that the said E. B. Hunter shall deliver after Monday, April 29, 1901, the sum of $2,000 to the party who was ready and willing to carry out this agreement.”
The money was posted as above agreed, and at the regular meeting of the board on tbe afternoon of the same day, all the members being present, the following resolutions were adopted by the votes of Becker and Kester against the protest of Hogan, the other member.
“ Whereas, certain appointments heretofore made for the various positions at the Schuylkill County Almshouse have proved unsatisfactory to the majority of the directors of the
“ And it is further resolved that all vacant places be filled by other appointees, who shall assume their duties on the first day of May, 1901.”
Thereupon Becker and Kester each nominated persons for the places allotted to him, and, as they constituted a majority of the board, the nominees were elected. Amongst them was the plaintiff, who was thus appointed clerk at a salary of $1,200. He entered upon the duties of his appointment on May 1,1901, and at the end of the month received an order drawn on the county treasurer for the amount of his salary for that month. As the county controller refused to approve it, it was not paid; hence this suit.
This compact was vicious in principle, and, as properly characterized by the learned trial judge; disreputable. It is asked, “Who was injured by this agreement?” The same question might be asked with equal propriety if the offices had been sold to the highest bidder. The answer is, that the public was harmed, because it involved a surrender by each of these directors of that discretion with which the law had invested him, and which he had solemnly sworn to exercise. In whatever light it may be viewed it is odious; it presents on its face its own condemnation, even if we assume that the posting of $1,000 by each of the backers of the officers was a matter of pure and disinterested friendship. We will not waste further words to show that a compact, whereby a member of such a board, who has sworn to discharge the duties of his office, “ truly, faithfully and impartially, to the best of his knowledge and ability,” binds himself to vote for any person that a fellow member may name for a position to be filled by the board, without knowing who will be named, is illegal, immoral and contrary to public policy, even though he is not moved to enter into such compact by any pecuniary consideration, or the hope of pecuniary reward. This is a self-evident proposition and need not be dwelt upon.
The serious question in the case is, whether the above facts were admissible in evidence in an action by the appointee to recover his salary, his appointment being regular on its face, and he having performed the duties devolving upon him. Prima facie, this was not the case of a de facto officer suing
It has been suggested that the appointment was illegal because the place was not vacant. In answer to this suggestion it seems sufficient to say, that if the place held by Miss Mellet, the plaintiff’s predecessor, was a public office, she was removable at the pleasure of the power by which she was appointed, but if she was a mere employee and the relation purely contractual, it cannot be set up as a defense to this action that the creation of the vacancy involved a breach of the contract with her.
Much comment was made in the argument upon the remarks of the learned trial judge which are the subject of the fourth assignment of error. In the main, these remarks were unobjectionable. It was perfectly proper for the court to give a stinging rebuke to such practices on the part of public officials as were shown by the undisputed evidence in this case ; but inadvertently the learned judge referred to reports concerning the management of the almshouse, which reference should have
We need not discuss the assignments in further detail. We have discussed the controlling questions in the case, and for the reasons given the judgment is reversed and a venire facias de novo awarded.-