Mills v. Mills , 36 Barb. 474 ( 1862 )

By the Court,

Brown, J.

By the agreement of the 8th June, 1853, referred to in the pleadings in this action, the defendant David S. Mills covenanted to convey to the plaintiff, by deed with full covenants, certain lots of land, thirty-four in number, situate upon Myrtle avenue and Witherspoon street in the city of Brooklyn. The deed of conveyance was to be executed by himself and wife and delivered when the bill, which before that time had been introduced into the senate of the state of Hew York, with the amendments, or some similar bill, to which I shall presently refer, should become a law. The agreement recited that a bill had recently been introduced into the senate of the state granting to David S. Mills and others a franchise for a rail road on Division avenue, in the county of Kings, and for the operating of trains of cars thereon. The considerations for the grant and conveyance of the 34 lots of ground were ; 1st. The transfer and assignment to David S. Mills of the right, title and interest of the firm of Ivins & Mills in and to a certificate or declaration filed by them under the general rail road act, together with the license theretofore made to them by the common council of the city of Williamsburgh, and also the good will of an omnibus line of Ivins & Mills on Division avenue. 2d. A covenant by William T. Mills “ that he would give all the aid in his power, and spend such reasonable time as may be necessary, and generally use his utmost influence and exertions to procure the passage into a law of the said bill heretofore introduced into the senate of the state of Hew York, as hereinbefore mentioned, or any other bill to the same end; the said bill being so amended as to limit the grant therein mentioned to the said parties hereto, without any other party in interest in such grant except them; and also to be amended as may mutually be agreed between said parties, from time to time, until the same shall become a law. And further, when any such hill shall become a law, said party of the first part wiE release, assign and transfer to the party of the second part, by a good and sufficient instrument in writing under his hand and seal, all the right, title and interest which shall accrue to or belong to him, the party of the first part, under such law.” 3d. A further covenant by WiEiam T. Mills, “that he will not in any way co-operate or conspire with any other person whomsoever at the introduction into either branch of the legislature, or elsewhere, of any proposition for the construction of any rail road whatever on Division avenue, in the county of Kings, or in any way give aid or countenance to any such measure.” The purpose of the plaintiff’s action was to obtain a specific performance of the contract, and to compel David S. Mills to execute and deliver the deed for the 34 lots of ground in the city of Brooklyn. WiEiam Dolson was made a party upon the allegation and charge that the lots had been conveyed to and were then held by him without consideration, and with fuE knowledge of the plaintiff’s equitable rights thereto.. The defendants put the principal allegations of the complaint at issue by their answers, and the action was referred to Henry ificoll, Esquire,to hear and determine. Upon the hearing before the referee, the counsel for the plaintiff read the pleadings, and also read in evidence the agreement executed under the hands and seals of WiEiam T. Mills and David S. Mills. The counsel for the defendants then moved that the complaint be dismissed, which motion the referee granted, upon the ground that the agreement was illegal and void. Judgment having been entered, upon the report, the plaintiff appealed.

I have quoted the covenants at large from the agreement for the purpose of seeing the precise nature of the plaintiff's obligation under the contract, and what were the nature of the services which he was to render as an equivalent for the 34 lots of ground. He was to give all the aid in his power, spend his time and use his utmost influence and exertions, to procure the passage of a law conferring a valuable public franchise upon another. These are his very words. The state owed to the proposed grantee no duty, no debt and no obligation which it did not owe to all the rest of its citizens, and it withheld no property or estate from him to which he had any manner of right. It might, however, grant the franchise, and should grant it, if thereby the public interest would be served, and not otherwise. The plaintiff was not therefore employed, as he lawfully might be, to prosecute a private claim, nor as he also might have been, without the breach of any moral duty, to collect information, prepare statements and furnish arguments freely and openly to a legislative committee in favor of any public measure which might incidentally benefit individuals. His employment went far beyond this. He was to give all the aid in his power, spend his time and use his utmost influence and exertions, to procure for the defendant from the legislature that which, if.granted at all, should have resulted from a sober examination and sincere conviction of its public necessity and utility, and not from the exertions and influence of hired and mercenary outsiders. The kind of influence to be used and applied to move the minds of the lawgivers to think favorably of the proposed rail road franchise in Division avenue, is not defined and described in the contract. But we know well enough what it is. We know that similar grants have been the cause of great scandal and reproach to the legislation of the state, and that the influences employed to procure their passage, by persons like the plaintiff, who are not intrusted with seats in the legislature, have tended to corrupt the public morals, weaken the sense of public duty, impair the public virtue, and lessen the hope and confidence which men have hitherto had in the perpetuity of representative government. “ All contracts or agreements which have for their object any thing which is repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void. The principle is universally recognized, and-has often been applied in onr own courts to contracts which had for their object the perversion of the ordinary operations of the government; such as contracts to prevent a fair competition at legal sales by auction; contracts to prevent the administration of the insolvent laws; and contracts by which one person engages to pay another for his aid and influence, even in procuring an appointment to office. (Bell v. Leggett, 3 Comst. 176.) So, also, the same principle has been applied to a contract to obtain signatures to a pardon. To procure the passage of an act of the legislature by using personal influence, and an agreement to pay a sum of money for withdrawing opposition to an act touching the interests of a corporation, are equally offensive and repugnant to public morality. It will not be useful to pursue the ■Subject further, or to quote authorities in support of what has been said. They are numerous, and I could add nothing to the argument or to the force and power of expression with which some of the cases condemn all contracts of the kind. Some of the considerations mentioned in the agreement are doubtless unexceptionable, and, standing alone, would support the covenants of the defendant. But where the contract grows out of or is connected with an illegal act, the court will not lend its aid to enforce it.

[Dutchess General Term, May 12, 1862.

JSmcrtt, Brown, Scrugham and Lott, Justices.]

The judgment should be affirmed.