Clippinger v. Hepbaugh

The opinion of the Court was delivered by

Rogers, J.

The practice which has generally obtained in this State, to allow a contingent compensation for legal services, has been a subject of regret, nor am I aware of any direct decision by •which the practice has received judicial sanction in our courts. But conceding the principle to be as^ is assumed, it is very certain that it has not yet been extended to the allowance of a compensation for services in our legislative halls. The point, therefore, comes before us, untrammelled either by inveterate practice or authoritative decisions. Such services, be it remembered, are not confined to the legal profession. They are common to every elass of citizens, and if we should give countenance and a legal sanction to this attempt* which is the entering wedge, it is impossible to foretell the train of evils of which it may be the prolific parent. Already is there too much reason to believe that this indispensable branch of government, without which our whole political fabric would crumble into ruins, has in some instances been contaminated by sinister and improper influences brought to bear on members, and no doubt having their source in the direct and indirect efforts of individuals retained under the hope of reward in the event of success. It cannot be avoided that such influences, privately and secretly exerted under false and covert pretences, must operate deleteriously on legislative action; and of this truth, unfortunately, our annals (I do not speak of this State alone) have afforded some melancholy proofs. There is at least a wide-spread and growing suspicion of legislative integrity, which of itself is an evil of no little magnitude. Its pernicious tendency seems to be admitted as to public bills, but a distinction is taken between them and private acts. That the latter may not prove so pernicious as the former, (of which, by the bye, I am by no means satisfied), may be conceded without danger to the argument; but the principle, with which alone we have to do, is the same. When it is recollected that, with the rapid increase of wealth and population, such Acts have greatly multiplied, and have assumed an importance before unknown; and when it is remembered (with all due respect be it spoken) that comparatively so little care is taken in the preparation of private bills, or in giving notice to persons interested in the examination of the evidence on which they are founded, that the information of members is derived, altogether or in part, from the applicant himself, and the secret whisperings of his friends; we cannot be too much on our guard against them, nor insist too strongly on the necessity of preserving, as far as can be done, the source from which the evidence on which they act is obtained. It would not be becoming in us to lend our aid in a transaction which may be founded in corruption, and steeped in fraud.

These remarks are not to be understood as having any relation to the case in hand, for no suspicion is entertained that anything out of the ordinary course took place in respect to this bill. Yet it cannot escape observation that even here an inducement was not wanting to an improper, or at least personal influence, or deceptive acts, to procure the success of the measure. The temptation may be small here, but it has not always been confined within such narrow limits, as there is great reason to fear. We do not say, it is not necessary to the case to say, that a certain compensation for such services may not be recovered; but we are clearly of opinion that it would be against sound policy to sanction a practice which may lead to secret, improper and corrupt tampering with legislative action. It is not required that it tends to corruption: if its effect is to mislead, it is decisive against the claim; and that such is its tendency, no human being can reasonably doubt. In Hatzfield v. Gulden, (7 Watts 152), it is decided that a contract, founded on a promise and agreement to procure signatures and obtain a pardon from the governor, is unlawful, and cannot be enforced by action. This case is very pertinent, for if it is essential to the purity of the government to protect the governor from imposition in the exercise of the executive functions, it is equally so to extend the same protection to the members of the Legislature. It is of the first consequence that they should not be deceived, that they should be protected from the arts and misrepresentations of designing men, having an interest to mislead them from the paths of duty.

It is therefore most erroneous to assume, as is done by the plaintiff’s counsel, that a practice, leading to such consequences, is not contrary to private interest and public morals. The reverse is too true; for already has a class of persons arisen, at the seat of the general government and elsewhere, who make it a business to push through private claims, for a compensation greatly, if not entirely, dependent on success. How demoralizing this may be, it needs not the gift of prophecy to foretell. Nay, more; we feel its effects, for it is impossible to shut our eyes at the consequences of this, with other causes, daily developing themselves in the decline of justice and public morals. How easy the transition from private individuals to the members themselves, it would not be difficult to divine; but we are not left to conjecture, for we are not without examples, which it would be invidious to mention, but which are too well known. Whatever abuses may exist elsewhere, we hope the judicial tribunals of the country may be kept pure, without suspicion even, that they may never be induced under a pretence to countenance vice, or lend their sanction to a principle, the inevitable effect of which will be to increase, if it does not create, fraud and misrepresentation. In the face of many painful examples to the contrary, it is idle to say that individual, extraneous influence, acting secretly upon the members of the Legislature, is not pernicious to the best interests of society. Its direct tendency is to sap the foundations of all morality. And we are not without authority in a sister State, 6 Dana 366, where this point has been considered. The court, it is true, decided in favour of the plaintiff; but it was on the special grounds, that it. did not appear that the fee was contingent, nor that the plaintiff was expected or required to do anything he might not lawfully have done, or that he had any personal or pecuniary interest in the success of the application to the Legislature.

The whole reasoning of the court, however, goes to establish these propositions, which cannot be reasonably denied. That the law will not aid in enforcing any contract that is illegal, or the consideration of which is inconsistent with public policy and sound morality, or the integrity of the domestic, civil or political institutions of a State. That a contract to procure or endeavour to procure the passage of an Act of the Legislature, by any sinister means, or even by using personal influence with the members, would be void, as being inconsistent with public policy and the integrity of our political institutions. And any agreement for a contingent fee, to be paid on the passage of a legislative Act, would be illegal and void, because it would be a strong incentive to the exercise of personal and sinister influences to effect the object. These are broad fundamental principles, to the truth of which we subscribe, and which cover the whole ground on which this case rests. It matters not that nothing improper was done or was expected to be done by the plaintiff. It is enough that such is the tendency of the contract, that it is contrary to sound morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with members, and the use of an extraneous, secret influence over an important branch of the government. It may not corrupt all; but if it corrupts or tends to corrupt some, or if it deceives or tends to deceive or mislead some, that is sufficient to stamp its character with the seal of reprobation before a judicial tribunal. Two cases have been cited, adverse, as is supposed, to this view of the case: The Vauxhall Bridge Co. v. Earl Spencer, (4 Con. E. C. R. 28), Jacob 64; 10 lb. 85, 7 Simons 337. In the first, it is ruled that securities given to persons Who would be prejudiced by the passage of a private bill in Parliament, in consideration of their withdrawing their opposition to it, are not illegal. In the last, that an agreement not to oppose a railway is not illegal. The projectors of a railway, pending a bill in Parliament for incorporating them, having made an agreement on behalf of the proposed corporation, in consequence of which a threatened opposition to the bill was withdrawn, it was held that the corporation, having received the benefit of the agreement, was bound by it. The last case was ruled on the authority of the first; and if it was the case of a secret agreement, withheld from the knowledge of the committee to whom the subject was committed, I cannot say that I am altogether satisfied with the decision. Nor do I see much force in the observation, that because only one member may have been dissatisfied with the bill, non constat it would have had any influence on the house. But, be this as it may, it is put upon special grounds, that it was merely an agreement to compensate the opposing party for what it was apprehended they might lose by the passage of the Act; and if it were a private affair merely, in which the public had no interest, it might be well enough. Reliance was also had, as it seems, on a practice which obtains in Parliament, of passing such bills when the parties can agree about them. The chancellor seems to have thought that it was a matter in which the public had no interest, that it was neither against sound morality nor public policy. And if he is right in these positions, his conclusions cannot be gainsaid. But in this radical distinction consists the difference of the cases.

Besides, it would be unsafe to rely on a precedent coming from such a source, when we reflect upon the different manner of conducting such business in the respective countries. The contrast is indeed striking. In England, a private Act of Parliament is in the nature of a common assurance, and the passage of such an Act is conducted in some measure with the forms and circumspection of a judicial proceeding. In this State it is notoriously otherwise. In both houses, in England, they are carried on with great deliberation and caution, particularly-in the House of Lords; they are usually referred to two judges, to examine and report the facts alleged, and to settle all technical forms. Nothing is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter, unless such consent shall appear to be perversely, and without reason, withheld. An equivalent in money, or other estate, is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by the Act. And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever, except those whose consent is so given and purchased, and who are therein particularly named. And yet, notwithstanding all the precautions used, alarm has been felt at the frequency of Acts of Parliament of a private nature, lest the good old rules which are the best security for property should be shaken; and wishes have been expressed from the highest quarter, that men might not have too much reason to fear that the settlements which they make of their estates shall be too easily unsettled, when they are dead, by the power of Parliament.

If there is reason to fear this in England, how much more so in this State, where but little precaution is used—where, not unfrequently, such Acts are passed with but little examination, on the private representations of persons who have a direct interest to misrepresent and deceive. And of the danger to property arising from this source, this case presents a proof; for it is certain that this Act, and others that might be named, so loosely drawn, containing so little security for the rights of infants, would not have passed the Parliament of England, nor the Legislature of this State, if properly conned and scrutinized, without the assent or even hearing of the parties principally to be atfected by it. I say without the hearing of the infants, for I count but little the assent of the parent who had an interest .adverse to them. It is remarkable, too, that the bill passed without any saving clause, which, although not absolutely necessary, yet would have shown some regard to the rights of persons who -were not in a capacity to protect themselves. , ■ •'

Judgment reversed, and judgment for defendant.