Gordon v. Gordon's Admr.
| Decision Date | 10 February 1916 |
| Citation | 168 Ky. 409 |
| Parties | Gordon v. Gordon's Administrator. |
| Court | Kentucky Court of Appeals |
Appeal from Boyle Circuit Court.
JAY W. HARLAN and HENRY JACKSON for appellant.
J. W. RAWLINGS for appellee.
The appellant, Wm. M. Gordon, is a son of J. L. Gordon, who died in January, 1914. J. L. Gordon was the father of another son, George Gordon, who was confined in the State penitentiary, at Frankfort, in 1909, under a judgment of the Boyle circuit court.
The petition alleges that in 1909 J. L. Gordon employed the appellant to prepare an application and to do what was necessary toward securing the parole of said George Gordon, and agreed and promised to reimburse and pay plaintiff for all the expense that he might incur in that work; that pursuant to said employment, the plaintiff prepared the application for the parole; and, in doing so made many trips to Frankfort, Danville, Harrodsburg and over the entire county of Boyle, at his own expense.
The petition further alleges that by reason of the plaintiff being required to be absent from home in this work, he was forced to hire a man to work in his place on his farm; that the time consumed in this work and effort to get the parole was the greater part of five years; that he was required to pay for said substituted hand at least $1,000.00; and that his father agreed to pay the plaintiff his expenses, including the hire of the substituted hand.
The plaintiff also alleges that no unlawful means were used by him in said employment and none were contemplated at the time of the agreement; that said services so rendered were purely ministerial; that he did not use his personal influence with the paroling powers, and that it was never contemplated that he should do so.
It is further alleged that the agreement did not contemplate and did not include any reward or compensation to plaintiff whatever, but only included and provided for the plaintiff having returned to him his expenses, as above indicated; and that J. L. Gordon, by reason of his age and physical condition, was unable to personally make said trips in the preparation of said petition for a parole.
Upon the death of J. L. Gordon, his son, J. T. Gordon, qualified as his administrator; and, J. T. Gordon having subsequently died, George Gordon was appointed administrator of his father's estate.
In December, 1914, Wm. M. Gordon brought this action to recover his expenses aggregating $1,000.00, and the court having sustained a demurrer to his petition, upon the ground that the contract was against public policy and void, the plaintiff prosecutes this appeal.
By way of defense, the administrator relies upon section 1370 of the Kentucky Statutes, which reads as follows:
"If any person shall, for fee or reward, or the promise thereof, aid or assist in procuring the Governor to grant or refuse a pardon, remission or respite of any punishment or fine, he shall be fined not less than twenty nor more than five hundred dollars."
Appellant, however, denies the applicability of the statute, supra, or the doctrine that the contract relied on is against public policy, because, as he contends, (1) the work performed by the plaintiff was to secure a parole, and not a pardon; (2) it was clerical or ministerial, and under the contract the plaintiff was not to be paid for his personal influence; and, (3) the money sought to be recovered is not a reward, remuneration or profit to the plaintiff for his personal services, but is only for money expended and pecuniary loss suffered by reason of expenses and time lost from his own business, by reason of the contract.
It is contended by appellant that there is a radical difference between a contract to procure a pardon from the Governor, which is denounced by the statute, and a contract to prepare an application to the Board of Prison Commissioners, for a parole; that a contract to procure a parole is in no respect against public policy; and, that the reason which makes a contract to procure a pardon invalid has no application whatever to a contract to prepare and present an application for a parole.
Since the enactment of section 1370 of the Kentucky Statutes, the power of parole has been vested in the State Board of Prison Commissioners, subject to the approval of the Governor. Ky. Sts., sec. 3828. By the terms of that statute, the Board of Prison Commissioners must base its action upon the record of the prisoner while confined; the record of his life previous to his confinement, which requires the ascertainment of the sentiment of the people where he formerly resided; and upon his securing, before his parole, a contract for some respectable employment for a period of six months after being liberated. Of course, much of this information can be furnished only through the efforts of some outside person in behalf of the man confined in the penitentiary.
Moreover, the parole does not pardon the prisoner; he still remains in the legal control and custody of the Board of Prison Commissioners. The pardoning power remains vested in the Governor.
It will thus be seen that the action of the paroling board must be based upon the facts specified in the statute, and that many of those facts necessarily must be gathered from outside sources.
There are many acts which the law positively forbids, and for the doing of which some penalty is attached. Whether the prohibition is by the common law or by statute is immaterial. Any agreement which involves the doing of an act which is positively prohibited by the rules of the common law or by statute, is illegal and void.
There are also many things which the law does not prohibit, in the sense of attaching penalties, but which are so mischievous in their nature and tendency that on grounds of public policy, they cannot be admitted as the subject of a valid contract.
It is probable that a satisfactory or precise definition of public policy has never been given. The courts have, however, frequently approved Lord Brougham's definition of public policy, as the principle which declares that no one can lawfully do that which has a tendency to be injurious to the public welfare.
But the notion as to what is injurious to the public welfare at one time may not accord with the notion of a succeeding generation. Public policy, therefore, is variable and that which is contrary to the policy of the public at one time may become public policy at another time. No hard and fast rule can be given by which to determine what is public policy.
It has been said that a contract is against public policy if it is injurious to the interests of the public, or contravenes some established interest of society, or if it contravenes some public statute, or is against good morals, or tends to interfere with the public welfare or safety, or, as it is sometimes put, if it is at war with the interests of society, and is in conflict with the morals of the time. Pueblo R. R. Co. v. Taylor, 6 Colo., 1, 45 Am. Rep., 512; McNamara v. Gargett, 68 Mich., 454, 13 Am. St. Rep., 355.
The rule must not be understood to mean that in order that a contract may be declared to be against public policy, it must be inimical to morality. Many contracts which are not immoral, are, nevertheless, void on the ground that they are against public policy. Kohn v. Melcher, 43 Fed., 641, 10 L. R. A., 439.
In applying this rule, it has been said that contracts are against public policy when they tend to injustice or oppression, restraint of liberty, and natural or legal right, or the obstruction of justice, or the violation of a statute, or to interfere with or control executive, legislative, or other official action, or to prevent competition...
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