Fox v. Petty , 235 Ky. 240 ( 1930 )

The answer in this case denied that the defendant and appellant, Henry I. Fox, as county judge of Jefferson county, capriciously or arbitrarily refused to approve the appointment by plaintiff and appellee, Hubbard R. Petty, of Fred Barringer, as one of plaintiff's deputy sheriffs for Jefferson county, and in another paragraph it was alleged that plaintiff and others were candidates for the Republican nomination for the office of sheriff of Jefferson county in the August, 1929, primary election, and that prior thereto plaintiff entered into an agreement with one Searcy, a prominent and politically influential citizen of Jefferson county, whereby, in consideration of Searcy's support for the nomination of plaintiff, it was agreed that he (Searcy) might name ten of plaintiff's deputy sheriffs in case he should receive the nomination and be finally elected. The answer further alleged that defendant had been informed of that agreement before he declined to approve the nomination of Barringer or to swear him in as deputy sheriff, and that he approached plaintiff on the subject and asked him "as to the truth of said information and that the plaintiff admitted to him that said agreement and contract had been made by him." It was further alleged in the answer that Barringer was one of the ten deputies selected and furnished to plaintiff by Searcy in compliance with the pleaded agreement, and that such fact was also admitted by plaintiff. However, the averments of such express admissions by plaintiff were wholly unnecessary, since the demurrer to the pleading of the fact as to such an agreement admits its existence without the further allegation that plaintiff also expressly admitted it before the litigation was commenced.

It is conceded in the opinion that such an agreement is against public policy and nonenforceable by the courts, and which is most emphatically true, as is demonstrated by the opinions of all courts and text-writers dealing with the question, some of which are Kentucky Association Highway Contractors v. Williams, 213 Ky. 167, 280 S.W. 937, 939, 45 A.L.R. 544, with authorities therein cited; 13 C. J. 438, sec. 375; Owsley v. Hill, Jr., 210 Ky. 285, 275 S.W. 797; Van Meter v. Burns, 176 Ky. 153, 195 S.W. 470; Martin v. Francis,173 Ky. 529, 191 S.W. 259, 260 L.R.A. 1918F 966, Ann. Cas. 1918E 289; Campbell v. Offutt, 151 Ky. 231, 151 S.W. 403; Commonwealth v. Sheeran, 145 Ky. 361, 140 S.W. 568, 37 L.R.A. (N.S.) 289; and Dassey, County Judge, v. Sanders, 33 S.W. 193, 17 Ky. Law Rep. 972. See also annotation to the case of Walden v. Fallis, 45 A.L.R. 1396, in which there is collected a number of cases from foreign courts, and they are in complete accord with our cited opinions in classifying agreements interfering with the unhampered freedom of elections or appointments of persons to office as being at the head of the vicious list of contracts against public policy. "The test," as pointed out in the 213 Ky. case, "is the evil tendency of the contract and not its actual injury to the public in a particular instance . . . and that their validity is determined by their general tendency at the time they are made, and, if such tendency is opposed to the interest of the public, the contract will be invalid, 'even though the intent of the parties was good, and no injury to the public would result in the particular case.' "

Some of the cases exclusively deal with vicious agreements and contracts having a tendency to interfere with the freedom of elections and appointments to office, an outstanding one of which is the case of Martin v. Francis, supra, from this court, and in which an agreement similar in all respects to the one here involved was denounced "because they (such contracts) impose on a public officer the obligation to appoint an assistant or deputy without reference to his fitness or qualifications for the place, and only for the reason that it was a part of an agreement entered into, not for the benefit of the public, but pursuant to a corrupt bargain detrimental to the public." The law casts upon a sheriff, after taking his oath of office, the right and duty to appoint his own deputies in the performance of which he is as much bound by his oath as he is in the performance of any other official act. But if he has previously bargained away that right, he has thereby vested in his bargainee the right to perform such an official act without even the restraining influence of an admonishing oath to secure its proper exercise, and, under the authorities, supra, such a contract is nevertheless vicious although "no injury to the public would result in the particular case," or that "the intent of the parties was good," and which destroys the efficacy of the admitted fact, that Barringer was competent to fill the office of deputy sheriff of Jefferson county, to relieve the agreement of its viciousness and of the duty of the court to lend no aid to its enforcement.

It is conceded in the opinion of the court that the agreement here involved would not be enforced as between defendant and Searcy, the immediate parties to it; but it is held that, since Searcy is not a party to this litigation, the court will not refuse to interfere with its specific performance, but will indirectly compel it by mandatorily requiring plaintiff, as county judge, to perform an official act, which under the law is requisite and necessary to complete the full performance and successful carrying out of the admittedly unlawful agreement. A simple illustration will, as I think, suffice to demonstrate the fallacy of that position. According to it, if defendant was himself a party to the unlawful agreement, i. e., if he had also agreed at the same time with Searcy and plaintiff that he would approve such deputies as Searcy would designate, but afterwards relented and refused to perform his part of the agreement, then he would not be required by this mandamus proceeding to do so; but, inasmuch as he was not a party to the agreement, but discovered it before he was called upon to give his approval to the appointment and to administer the oath to the appointee, which are the final acts for the specific execution of the agreement, he may be compelled to do so and to thereby foist upon the people an officer or officers whose selection was rooted in, and was the outgrowth of, the most vicious type of anti-public policy transactions.

Suppose that, instead of support and influence in the primary election as a consideration for the right to name ten of plaintiff's deputies, he (Searcy) had agreed to and had paid plaintiff a monetary consideration for the right to so name ten of his deputies; could it be said that the agreement would be any less vicious, and would the court in that event compel defendant to approve such a bribing contract by compelling him to do and perform an official act as a condition precedent to the specific execution of such an agreement? I think not.

But it is said that in the cases cited in the opinion from this court it was held, in substance, that the county judge in giving his approval to the appointment of a deputy sheriff is confined to the exercise of a reasonable discretion which may not extend beyond the moral and other qualifications of the tendered appointee, and which was all that was necessary to be said and determined in those cases, since no such public policy question as we have here was presented in either of them. But when present it injects an entirely different question into the case, since it is then not one where the court will merely leave the parties where it finds them and thereby punish them, so to speak, by refusing or declining to aid in the performance of the vicious agreement affecting only themselves personally. The agreement pleaded in the answer and admitted by the demurrer in this case has a tendency to obstruct and corruptly contaminate good government, including the proper enforcement of the laws of the land and the upright discharge of official duties, and it is pre-eminently a question in which the public at large is most vitally interested; the consequences attendant upon the execution of the agreement not being confined alone to the parties to it. I am therefore clearly convinced that in cases of this kind it is the duty of a court to refuse to extend its power to coerce a governmental agency or officer to perform an official act required of him to complete and carry into full execution the appointment of an officer pursuant to such an unlawful and vicious agreement. In other words, it is my position that the courts should decree the taking of no step necessary to the execution of such agreements but, on the contrary, to withhold its aid all along the line, regardless of the fact that the person sought to be coerced was or not a party to the offending agreement; but the statute in this case makes the defendant a necessary one for its complete fulfillment.

This litigation is analogous to an action for specific performance, which ordinarily affects only thepersonal or private rights of the nominal parties to the contract sought to be performed, but which latter, as we have above pointed out, is not the extent of the vice in this case, since the public is the one most vitally affected by the enforcement of the agreement here involved. Appyling the principles of the opinion, and personifying the law, we have it saying to one of the parties to the unlawful agreement who is seeking its enforced performance: "I would not enforce this agreement for you in an action between you and the other party to it. Yet I will accomplish the same result for you by compelling another (the county judge in this case) to approve the unlawful agreement and thereby require him to perform an act which I myself would refuse if I was the only one with authority to enforce performance."

We are taught that what one does by another he does himself, and in the illustration just given the court, through the instrumentality of the county judge, does that which it would decline to do itself. The law does not tolerate, or indulge in, subterfuge; nor does it have for its foundation any such specious reasoning as I concede the opinion to employ. Rather does it look to the substance and not the shadow, which if done in this case would require that, instead of looking to the shadow (i. e., that the defendant is not a party to the contract and that his discretion is limited only to personal qualifications of the appointee), the substance should be looked to and the court should decline all aid, directly or indirectly, in furtherance of the performance of the agreement as made between plaintiff and Searcy, and especially so when one of the parties to it is seeking such specific relief.

I have so far dealt with the case upon the theory that plaintiff himself made the appointment of Barringer and that his request of defendant was such as he could make under the statute, and enforce if wrongfully refused; but I am not altogether convinced whether under the admitted facts that conclusion is correct. The defendant as county judge of Jefferson county was and is not required under the statute (Ky. Stats., sec. 4560) to approve the appointment of a deputy sheriff made by any other person than the sheriff, and according to the facts, which the demurrer to the answer admits, the appointment of Barringer in this case was not made by plaintiff, the sheriff of Jefferson county, Ky., but was made by Mr. Searcy, pursuant to the unlawful agreement entered into for that purpose, and the sheriff, who was a party to that agreement, in requesting defendant to approve the appointment of Barringer, was only conveying to defendant his previous private appointment by Searcy. In other words, plaintiff under the alleged and admitted agreement was but the agent of Searcy to bring about the approval of his selection of Barringer as one of the deputy sheriffs in and for Jefferson county, and if that be true, surely the opinion of the majority could not be sustained even if the other reasons against it herein discussed were insufficient for that purpose.

In writing this dissenting opinion I have merely outlined my reasons for doing so and which will not be extended by further elaboration. I regret my inability to agree with the majority of my associates, but the importance of the question and my firm conviction that they are in error compel me to disagree with them and to thus briefly register my reasons therefor. I am authorized to say that Judges LOGAN and REES join in the views herein expressed, and in this dissent.