Usher v. McBratney

28 F. Cas. 853 | U.S. Circuit Court for the District of Kansas | 1874

DILLON, Circuit Judge.

The legal title is in Mr. Usher, who is in possession, and is a purchaser for value. There is no proof of any authority from the railway company to Stone to make the agreement of April 9, 1862, which is the sole basis of the title bond of December 15, 1862, or of McDowell to execute the title bond, but if such authority existed or is assumed, the paper of April 9, 1862, shows upon its face, and is also shown by the evidence, aliunde, to have been given for an illegal purpose, viz.: to suppress investigation and to influence the course of legislation.

NOTE. See Trist v. Childs, 21 Wall. [88 U. S.] 441; Weed v. Black [2 McArthur, 268]. The following is an extract from the brief of complainant's counsel on lobbying contracts: (1) “ ‘Ail contracts for a contingent compensation for obtaining legislation are void by the policy of the law.’ Grier, X, in Marshall v. Baltimore & O. R. Co., 16 How. [57 U. S.] 366. See, also, Clippinger v. Hepbaugh, 5 Watts & S. 315; Wood v. McCann, 6 Dana, 366; Bryan v. Reynolds, 5 Wis. 200. (2) “ ‘A contract for a contingent compensation to use personal influence on legislators is void by the policy of the law.’ Grier, X, Marshall v. Baltimore & O. R. Co., supra. Same doctrine, Clippinger v. Hepbaugh, supra; Rose v. Truax, 21 Barb. 361; Frost v. Belmont, 6 Allen, 159. In Rose v. Truax it is said that an agreement in respect to lobby services, and in effect providing for the sale of an individual’s personal influence to procure the passage of a private law by the legislature, is void, as being inconsistent with public policy, and will not support an action; and if the contract be an entire one, and it be void in part, it is void in toto. (3) “ ‘All agreements for pecuniary considerations to control the course of legislation are void as against the policy of the law.’ Field, X, in Tool Co. v. Norris, 2 Wall. [69 U. S.] 45. See, also, Pingry v. Washburn, 1 Aikens, 264; Mills v. Mills, 46 N. Y. 543; Harris v. Roof’s Ex’rs, 10 Barb. 489. The position of attorneys for public and open advocacy of such measures before legislative committees, or other similar bodies sitting in a quasi judicial capacity, is distinguished in Wood v. McCann, supra; Sedg-wick v. Stanton. 14 N. Y. 289; Bryan v. Reynolds, 5 Wis. 200. and Lyon v. Mitchell, 36 N. Y. 235. Hunt, X, says: ‘It is allowable to employ counsel to appear before a legislative committee, or before the legislature itself, to advocate or oppose a measure in which the individual has an interest, for an honest purpose, avowed to the body before which the appearance is made, and by the use of just argument and sound reasoning; this is lawful. Personal soliciting of legislators is not a lawful subject of contract.’ In the later case of Mills v. Mills, much stronger and more sweeping language is used. The court said: ‘It is not necessary to adjudge that the parties stipulated for corrupt action, or that they intended that secret and improper resorts should be had. It is enough that the contract tends directly to these results. It furnishes a temptation to the plaintiff to resort to corrupt means or improper devices to influence legislative action. It tends to subject the legislature to influences destructive of its character and fatal to public confidence in its action.’ (4) “ ‘Such agreements are void, although no improper influences were contemplated or used, and although part of the consideration was lawful.’ Field, X, in Tool Co. v. Norris, 2 Wall. [69 U. S.] 45. Same principle, Filson’s Trustees v. Himes, 5 Pa. St. 542: Bryan v. Reynolds, supra; Rose v. Truax, supra; Mills v. Mills, supra. (5) “Such agreements are not merely voidable, or capable of rescission, but are mala in se. absolutely void, and without effect. Martin v. Wade, 37 Cal. 16S; Rose v. Truax, supra; Hunter v. Nolf, 71 Pa. St. 284. (6) “All contracts for a pecuniary consideration for influencing a public officer in. the discharge of his duty are void. Cook v. Shipman, 51 III. 316; Bowman v. Coffroth, 59 Pa. St. 19; Hatzfeld v. Gulden. 7 Watts, 152: Fuller v. Dame, 18 Pick. 472: Filson’s Trustees v. Himes, supra; Hunter v. Noif, supra; Workman v. Campbell, 46 Mo. 305. Case of brokers for sale is distinguished in Lyon v. Mitchell. 36 N. Y. 235, disproving Tool Co. v. Norris on this point. . But see the dissenting opinion of Grover, X, at page 682 of same volume. Winpenny v. French, 18 Ohio St. 469.” See, also, Union Pac. R. Co. v. Durant [Case No. 14,377].

The suit in the state court against the railway company is no estoppel as against the plaintiff. That was expressly decided by the supreme court of Kansas on the appeal in that case. Kansas Pac. Ry. Co. v. McBratney, 10 Kan. 415.

The defendant not being a stockholder in the railway company cannot set up that the Shoemaker & Co. contract was entered into by directors who had a personal interest in it, even if ail the stockholders were not interested equally with the directors or did not ratify it by acquiescence or otherwise. As the plaintiff is in possession and as the title bond of the defendant is of record and the defendant asserts rights under it, the plaintiff is entitled to the relief he seeks against it and a decree accordingly may be entered. Decree accordingly.