Pittsburg v. Goshorn

Opinion by

Mr. Justice Stewart

It is a mistake to suppose that the only or chief infirmity to be considered in the contract which the city of Pittsburg is here seeking to enforce, arises from the fact that the mayor in entering into it exceeded his power. If this were all, the authorities cited by the learned trial judge in his opinion filed in the case, would give large support to his conclusion. But it is far from being all. The defense relied on is not only that the contract was an attempt on the part of the mayor to do something for which he had no authority, but that it was a clear usurpation of a power which by law was committed to another department of city government, and which by that department had been duly exercised. The position taken is that the contract is repugnant to the policy of the law. The law intrusted exclusively to the councils of the city the power to fix the compensation of the collector, and this they had done by ordinance duly adopted. It is to be presumed that in fixing this compensation, they had regard to the work to be performed, and what compensation was necessary to command the services of one qualified to discharge the duties of the office. When the mayor came to exercise his power of appointment, because he thought the compensation fixed by the council excessive, he required of the person he proposed to appoint — making it a condition of his appointment — that he enter into a written contract binding himself to accept for his services a fixed sum, instead of a per centum on the collections as allowed by the ordinance, thereby reducing his compensation very much below that which he otherwise would be entitled to. The mayor was thus substituting his views, in a very practical way, for the deliberate action of the only body that had any right to determine the question of compensation. No matter how meritorious his motives, he was setting at defiance the law governing the case, annulling arbitrarily the action of councils, and taking to himself as mayor a power which had not only not been conferred on his office, but which was expressly *226and exclusively lodged in another department. The terms he exacted excluded from possible appointment the entire class of men willing to accept the office at the compensation fixed by law, but who would accept for nothing less. His act was an undue interference with the proper exercise of governmental functions, and for this reason, if for no other, it contravened the settled policy of law. But the case presents another condemnatory feature which must not be overlooked. We have a public policy so clearly indicated in our state constitution that it admits of no dispute. By constitutional provision every public officer before entering upon the discharge of the duties of his office, is required to make oath that he has not paid, or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure his nomination, election or appointment. The condition of the appellant’s appointment to the office of collector was that he would promise “to pay over to the City Treasurer the amount of the commissions allowed by the ordinance, less his compensation as above fixed and the expenses of his office,” etc. This promise having been made, his appointment followed. The promise was the price of his appointment. If it should be supposed disputable by any, whether this contract offends against public policy for the first reason given, what answer can be made to this? The policy here asserted is written in the fundamental law of the state. But reasoning further on general principles is made unnecessary by our own express adjudications. We need only refer to the case of Wilkes-Barre v. Rockafellow, 171 Pa. 177. The contract there set up was that the treasurer to secure his appointment had promised to pay to the city interest on his balances. “This agreement,” says Mr. Justice Williams in the opinion, “if made, did not amount to a loan of any particular sum of money by the city council to the Treasurer, but was in the nature of a premium demanded from him as the price of the office. It was a premium for which he was not *227liable, which he could not be compelled to pay if he had taken defense to it, and for which the sureties are not liable. The agreement if made was against public policy and is incapable of enforcement.” This decision is . in full accord with the doctrine which prevails generally. If then this contract offends against public policy, as it unquestionably does, the legal results which follow are far more serious than those which attach to a contract simply ultra vires. The latter is illegal only in the sense that it lacks authority for the making; the infirmity is remediable; it may be cured by subsequent ratification, and is even enforcible against a party who has received the benefits under it and afterwards seeks to repudiate it. What results to a contract against public policy is a total and irremediable paralysis, which leaves it absolutely without any force or effect whatever, so that it cannot, under any circumstances, be made the basis of a cause of action. The law when appealed to will have nothing to do with it, but will leave the parties just in the condition in which it finds them. If they have fully executed their unlawful contract, the law will not disturb them in the possession of what each has acquired under it. If one has executed in whole or in part, the law turns a deaf ear when he pleads for its aid to compel the other to do as much. In the latter case the maxim in pari de-licto melior est conditio possidentis applies. The “con-ditio” referred to in the maxim, as explained by Mr. Pom-eroy, in his work on equity jurisprudence, is clearly the condition of the parties with respect to their property rights created by or resulting from the contract. If the contract is still executory, the promisor is left undisturbed in the possession of the money or other property which he agreed to pay or transfer; if the contract has been executed, the promisee is left undisturbed in the possession of the money or other property which has been paid or conveyed to him. Now the result must be the same whether the contract here sought to be enforced be regarded as executed or executory. If the former, the law *228leaves the parties in possession of what has been acquired under it; if executory, it refuses to enforce it. In either case the city is remediless. It is clear however that it remains executory; the appellant though he has had the benefit of the office has not paid the price he agreed to pay; he has not paid to the city treasurer the difference between the salary he agreed to accept and the compensation he was entitled to under the law. A contract can be said to be executed only when the object of the contract has been performed. Here the only object of the contract remains unfulfilled, the appellant retains the money, and the only purpose of the contract is defeated. For the reasons above stated the assignments of error are sustained, the judgment is reversed, and judgment is now entered on the case stated for the defendant.