Mayor And Council Of The City Of Macon v. Huff

• Citation: 60 Ga. 221
• Parties: Mayor and Council of the City of Macon et al. v. Huff.
• Decision Date: 31 January 1878
• Court: Supreme Court of Georgia

60 Ga. 221

Mayor and Council of the City of Macon et al. v. Huff.

Supreme Court of the State of Georgia

(January Term, 1878.)

[COPYRIGHT MATERIAL OMITTED] The following, taken in connection with the opinion, sufficiently reports this case:

Complainants, in addition to the averments as to the main issue, alleged that Huff had, without authority, made and signed officially a note to the City Bank for $2303.00, on which thecity had sued; that the city was not properly *liable therefor, but if judgment should be recovered against it, the amount would prove a total loss, as Huff was insolvent. There was a prayer that if anything should be found due by the city to Huff, whether on account of his salary or otherwise, it be first applied to the payment of the claim of the City Bank.

Defendant, after denying complainants' allegations in regard to the note held by the City Bank, and alleging that it was given in lieu of another note indorsed by him as mayor, which had been discounted at the bank and the proceeds used for the benefit of the city, and denying any danger of loss on the part of the city both because the suit could be successfully defended and because if otherwise, he was able to answer to the city for the amount of loss, tendered a bond for that purpose.

The chancellor refused the injunction and appointment of receiver prayed for in the bill, but accepted the bond tendered by defendant for $4000.00. He also ordered that if complainants should except, the original restraining order should remain of force until a decision by the supreme court, upon complainant's filing a bond for $2000.00 payable to defendant for damages and costs.

Whittle & Whittle; R. F. Lyon; Nisbets & Pieroe; G. W. Gustin, for plaintiffs in error.

Bacon & Rutherford; Lanier & Anderson, for defendant.

Jackson, Judge.

Whilst Wm. A. Huff was mayor of the city of Macon and ex-officio president of council, he leased the city park for five years, paying in advance so much per annum therefor, and agreed to erect certain levees, build and repair fences, grade and gravel walks, and to put and keep the park in repair, and to cut andfurnish wood to the poor from what is called the new park, for the sum of three thousand *dollars per annum for the term of five years. There were two contracts made at different times and in respect to different but adjoining tracts of land, known as the park and the new park. These contracts were made in 1875 and 1876, and the same principles of law will cover both. In the fall of 1876, in December perhaps, Huff was re-elected mayor, but a new council was then elected, and a majority of the aldermen, eight out of twelve, (which was the whole number), brought a bill against Huff to annul and set aside the contracts, and until the hearing to appoint a receiver to take charge of the park, and to grant an injunction restraining Huff from interfering therein, and col-lecting rents therefor, etc., etc. The chancellor refused to appoint a receiver or to grant an injunction on Huff\'s giving a certain bond which he had offered to give, and he also required the city to give a comparatively small bond of two thousand dollars; and the questions are, did the chancellor err in refusing the prayer for a receiver and injunction until the hearing, and in granting the order which he did grant?

1. The first question, and the great question argued before us with great research and ability by the able counsel on both sides, is this, could Huff, whilst Mayor of Macon, and ex-officio president of council, make the contracts which are set out in the record, and legally bind the city thereby?

The fundamental principle which will be found to underlie all adjudications made in this state on similar questions, and which, we think, has not been upset by any well considered case anywhere, is that no officer or agent, public or private, whose duty it is to supervise a contract in behalf of his employers or principal, can himself undertake to do that thing which his office or agency makes it his duty to supervise for others, and to see to it for them that it is well and faithfully done. The reason is too plain and palpable for serious dispute. The man becomes a judge in his own case. He agrees to perform work himself, and yet is to judge whether or not it is well done. So tender is our law of bias on the part of the noblest and purest in behalf of *self-interest, that no judge is permitted to sit in a cause in which he has any interest. If a relative by blood or marriage within a certain degree, is interested, he cannot sit and determine the case. The same principle applies to jurors and to all courts, federal, state, or municipal. Ever since the Yazoo fraud, this has been the policy of this state. In 1801 an act was passed "that no judge or justice of any court, no ordinary, justice of the peace, nor presiding officer of any inferior court or commission, can sit in any cause or proceeding in which he is pecuniarily interested, or related to either party within the fourth degree of consanguinity or affinity, nor in which he has been of counsel." See Code, § 205. Cobb's Digest, 460. Therefore, in the mayor's court of the city of Macon, Mr. Huff could not sit in a cause between himself and the humblest citizen of the city, involving the slightest breach of propriety or the smallest amount of money. Yet the effect of these contracts is to make him every day the judge in his own case. He has contracted for money to do certain work for the city. and as mayor of the city and its chief executive officer, it is his official duty to see that this work is well done. He contracts to cut and haul wood to the poor, to fence and keep in repair the fencing of a very large piece of ground, involving heavy and continuous expense, to levy the river or drain the lagoons and keep the park dry as far as practicable, to gravel the walks and keep them in order, in fine, to keep the whole park in perfect order for the term of five years. His administrative and executive duties as mayor require him to overlook and judge of the extent and manner in which, as contractor, he discharges these obligations. Can he do it disinterestedly? Possibly he may; but the law regarding our fallen nature as all weak, and profiting by the prayer which the Son of God prescribed for all men, forbids that such temptation be laid in the path of any man, however exalted his office or pure his character. How would it look for governor Colquitt, while in office, to lease for himself the penitentiary convicts, or the state road, or * Macon and Brunswick road, when it is his official duty to see to it that the lessees carry out faithfully their contracts with the state? It will be observed that these contracts with Mr. Huff are executory and continuous—that the contract is not executed in its totality on his part, but he obligates himself to do things day by day for the entire term of his contract.

It matters not how fair the contract may be; public policy will not uphold it. This principle is iterated and reiterated everywhere in the books.

Hence, the principle decided in the South Carolina case, in 9th Richardson, 399, Albright & Pinchback v. The Town Council of Chester, does not cover this case. The contract there was upheld, though made by the intendant with the council while he was intendant; but it was fully executed—the work was done, and the suit was for the value thereof. Certainly there ought to have been a recovery on a quantum meruit, if the contract was set aside. The work was done, and done according to contract, and it does not appear that the intendant was to be the judge of how it was done. Perhaps he was, as, being the executive officer of the town, it was in the line of his duty to supervise the streets. If, however, it were necessary to collide directly with that case, great as is the respect entertained for the distinguished and learned judges who then presided there, we should be forced on principle, and the policy of this state drawn from the current of its legislation from the date of its independence to this day, to differ with that court in that case. Judge O'Neal simply said, "I agree to the principle laid down by my late friend, chancellor David Johnson, in the Railroad Company v. Cleghorn et al., Speer's Eq., 562; there is nothing in law or equity which forbids a member, or even a director, of a corporation from contracting with it; and, like any other individual, he has a right to prescribe his own terms, which the corporation are at liberty to accept or reject, and, when the contract is concluded, he stands in the samerelation to the other creditors of the corporation as any other *individual would under the same circumstances." That is the whole decision, except the addition, that "the jury have decided that the work was done according to contract."

On turning to the case referred to—1 Speer's Eq. R., 545— it will be apparent that the case did not cover the case in 9 Richardson, nor does it touch, as we think, the case made here by these contracts. That case simply involved the indorsement of...