Edwards v. City of Goldsboro

Decision Date10 April 1906
Citation53 S.E. 652,141 N.C. 60
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Wayne County; Ward, Judge.

Action by Asher Edwards against the city of Goldsboro. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Where a city made an illegal contract with certain property owners whereby a city hall and market house were to be erected by the city, and the city erected the hall, but not the market house, the property owners could not recover the sums paid by them to the city under the contract.

The plaintiff, in his complaint, alleged that, by an act of the General Assembly, the defendant was authorized to build a city hall and market house, and that plaintiff and other citizens of Goldsboro, who owned real estate therein and who believed that the location of the proposed public buildings near their property would greatly enhance its value, offered to subscribe and pay to the city divers sums of money amounting in the aggregate to $1,035, if the city authorities would erect said buildings on a site near the property of the subscribers, and the offer was made and the money was afterwards actually subscribed and paid for the purpose and with the intent of inducing the city to locate the buildings at said place and with the view of enhancing the value of their property and receiving the benefit of the said location, and the money was accepted by the city with knowledge of said intent. That plaintiff paid the sum of $600 to the fund for that purpose, and that, notwithstanding the receipt of the money by the defendant and its promise in consideration of the sum to locate both buildings at the said place, the defendant has erected the city hall as it promised to do, but has failed, and, upon demand, has refused, to so erect the market house, but instead has put up fish stalls which have proved to be a real detriment to their property. That the erection of the city hall, while of some, is yet of very little benefit; the location and erection of the market house being the main object of their subscription. The plaintiff demanded the return of the $600 paid by him, and upon refusal of the defendant to comply therewith, brought this action to recover the same with interest, and the prayer of his complaint is to that effect. The principal allegations of the complaint as to the subscription and its purpose are admitted in the answer, though the defendant denies that it has not complied with the agreement, and alleges that the structures erected had improved the value of plaintiff's property. It is not necessary to make further reference to the answer. Issues were submitted to the jury which, with the answers thereto, are as follows: "(1) Did the defendant city fail to locate and erect a market near the property of the plaintiff as alleged? Ans. Yes. (2) Did the plaintiff pay to the defendant $600 on agreement that the defendant would locate the city hall and market house near plaintiff's property? Ans. Yes. (3) What amount, if any, has the property of plaintiff been enhanced by the erection of the buildings by the defendant on the location mentioned in the pleadings? Ans. $600." The plaintiff, upon the first two findings of the jury, prayed ore tenus for judgment in the nature of a mandamus to compel the defendant to locate and erect a market house as it had agreed to do. This prayer was refused, and plaintiff excepted. The court thereupon entered judgment for the defendant, that it go without day and recover its costs. The plaintiff excepted and appealed.

Aycock & Daniels and W. C. Munroe, for appellant.

Dortch & Barham, for appellee.

WALKER J. (after stating the case).

While the plaintiff, in his complaint, prayed for the judgment to which we think he was legally entitled, instead of a mandamus, if the contract with the city had been valid, yet his cause of action was not properly conceived, and he cannot recover the $600 which he subscribed and paid because the contract with the city was broken by it, as it was void, being against public policy and founded upon an illegal consideration. For the same reason, the third issue was immaterial, as constituting the basis for affirmative relief, in behalf of the defendants. The enhancement in value of plaintiff's property by the erection of the city hall on the site designated in the contract cannot be used as a counterclaim, as the city can gain nothing, either directly or indirectly, by the illegal transaction. It surely cannot benefit in any way by a void contract, for, when it is determined that the transaction was invalid, any increase in value of the plaintiff's property becomes a mere incident of the erection of the building at that place, and the case stands the same as if the contract had not been made, and what the city did was merely a voluntary act on its part. There is nothing, therefore, to support the claim for an allowance because of the enhancement, for the reason already stated and for the reason hereafter assigned for denying relief to the plaintiff. The form of the issues indicates that the court proceeded in the trial upon the theory that the contract was valid, and had been broken, and for this reason submitted the third issue, whereas the case should have been tried upon the opposite idea-- that the contract was void, and that no question of damages or other question which presupposed the validity of the contract, such as the enhancement in value of plaintiff's property, was presented. While the third issue was not material in the respect indicated, it is material in another respect, as will hereafter appear. If the contract was void, and plaintiff is not, by his relation to the transaction, prevented from recovering, it follows that he would be entitled to judgment, as for money had and received to his use, or for money paid upon a consideration which has failed or upon a condition, compliance with which cannot be enforced, which practically amounts to the same thing. For the same reason as that just given, plaintiff's prayer for a mandamus, or coercive process, was properly denied. This sufficiently disposes of all preliminary matters and brings us to the consideration of the real issues involved.

The case naturally resolves itself into two questions which require discussion: First. Was the contract against public policy, or based upon an illegal consideration, and therefore void? Second. The plaintiff being a party to the illegal transaction, if it was illegal, is he in a position to ask for a return of the money, or is he debarred of a recovery, being in pari delicto?

The statute provides that the authorities of a town, whether commissioners or aldermen, shall make such orders for the disposition or use of its property as the interest of the town may require. Revisal 1905, § 2916. Judge Dillon referring to the general duty of municipal officers with respect to the affairs which they have in charge, says: "Powers are conferred upon municipal corporations for public purposes; and as their legislative powers cannot, as we have just seen, be delegated, so they cannot, without legislative authority, express or implied, be bargained or bartered away. Such corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass by-laws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties. The cases cited mark the scope and illustrate the application of this salutary principle in a great variety of circumstances, and, for the protection of the citizen, it is of the first importance that it shall be maintained by the courts in its full extent and vigor." 1 Dillon, Mun. Corp. (4th Ed.) p. 156, § 97. It will be seen, therefore, that public office in a city is a public trust to be administered for the equal benefit and advantage of all the citizens of the municipality, and the governing body will not be permitted to contract at any time so as to deprive itself of the free exercise of its judgment and discretion in providing for what may afterwards turn out to be the best interest of all citizens alike, and especially will it not be allowed by an obligatory agreement to discriminate in favor of one citizen or class of citizens as against another entitled to equality of privilege and benefit, even for a valuable consideration. It must at all times retain freedom of judgment, so that its decisions will be influenced only by a regard for the public welfare. We take it that any contract by which it should be attempted to prevent the city authorities from deciding impartially on a matter affecting the general welfare would be unenforceable. If public trustees or officers may, by contract, divest themselves of any portion of the essential powers intrusted to them, they may just as well alienate all of them, though by degrees, and thus eventually abdicate the exercise of every governmental function. Such agreements are, therefore, contrary to the true principles upon which society is founded and subversive of all well-regulated government. These propositions would seem to be self-evident. "All agreements for pecuniary considerations, to control the business operations of the government, or the regular administration of justice, or the appointment to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements, and it closes the door to temptation by refusing them recognition in any of the courts of the country." Tool Co. v. Norris, 2 Wall. 45, 17 L.Ed. 868; Cameron v. McFarland, 4 N. C. 299, 6 Am. Dec....

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