Stirtan v. Blethen

• Decision Date: 27 March 1914
• Citation: 79 Wash. 10,139 P. 618
• Court: Washington Supreme Court
• Parties: STIRTAN et al. v. BLETHEN.

139 P. 618

79 Wash. 10

STIRTAN et al. v. BLETHEN.

Supreme Court of Washington

March 27, 1914

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Catherine D. Stirtan and another against A. J. Blethen. From a judgment on demurrer for defendant, plaintiffs appeal. Affirmed.

Parker & Brown, of Seattle, for appellants.

Bausman & Kelleher, of Seattle, for respondent.

ELLIS J.

This action was brought to recover expenses incurred by the plaintiff Catherine D. Stirtan at the instance of the defendant in promoting a recall movement against certain officials of the city of Seattle. A demurrer to the complaint was sustained. The plaintiffs electing not to amend, the action was dismissed. They appeal.

The complaint alleges the adoption by the city of Seattle of a charter, prescribing the procedure for effecting the removal of elective officers; that among other things, it provides that a petition, signed by voters equal in number to at least 25 per cent. of the entire vote at the last preceding election, for all candidates for the office, the incumbent of which is sought to be removed, demanding an election of a successor to such person, shall be filed with the city clerk. It is then alleged: 'That on or about the 20th day of June, 1911, the said defendant, under and by virtue of said charter provision, was desirous of recalling and having successors elected to certain officers in said city of Seattle, to wit: George W. Dilling, mayor of said city of Seattle, Max Wardall, J. Y. C. Kellogg, E. F. Blaine, and F Steiner, councilmen of said city of Seattle, and employed the said plaintiff, Catherine D. Stirtan, by an oral contract, as his agent and representative, to institute and carry out a movement to recall said officers of said city, and then and there, to wit, on or about the day last aforesaid, ordered and directed the said Catherine D. Stirtan to lay out and expend certain money necessary to promote and carry it to a successful termination, the said recall movement, to wit, to hire an office for the transaction of certain business incident to said movement, to pay the necessary office expenses, to hire canvassers to circulate petitions for the recall of said officers among the voters of the city of Seattle, and solicit signatures of such petitions, to hold public meetings, and to do all that might and would be necessary to promote and advance said recall movement, but without disclosing the name of her principal the said A. J. Blethen, but at all times to exercise great care and caution to keep his name secret, and in no event to disclose his connection with the said movement, and then and there undertook, and solemnly promised the said plaintiff Catherine D. Stirtan that he, the said A. J. Blethen, would pay and be responsible for all such expenses and disbursements, and that he would promptly and fully and without delay pay the same from time to time as the same accrued, arose, or were incurred by the said Catherine D. Stirtan for the purposes aforesaid.' This is followed by allegations that Catherine D. Stirtan, pursuant to this contract, hired an office, held public meetings, hired canvassers, and secured sufficient names to petitions to procure a recall election in the case of each of the officers named; that on June 1, 1912, defendant caused to be filed a number of the names with the city clerk, withholding others, and subsequently withdrew the petitions and abandoned the movement; that defendant paid the expenses as they accrued without objection, down to a short time prior to the discontinuance of the movement; that a short time before such discontinuance, the defendant ceased paying the expenses, and there accumulated salaries of canvassers and other necessary expenses in the amount of $1,500; that this fact was reported to the defendant, who directed Mrs. Stirtan to pay the same, and promised to reimburse her within a short time; that she paid these expenses in the sum of $1,500, by reason whereof the defendant became and is liable to the plaintiffs in that sum.

Two questions are presented by this appeal: (1) Was the contract in question contrary to public policy? (2) Assuming that it was, can the plaintiffs recover from the defendant money expended in the prosecution of the enterprise?

1. The appellant insists that the contract pleaded violated no sound canon of public policy. It is argued, in substance, that a recall election is not contrary to public policy; that it is a means by which society may protect itself against undesirable public servants; that to hire an office, hold public meetings, circulate petitions among the voters and solicit signatures is within the express or implied authority conferred by the law relating to recall elections; that these things are incidental to popular government; that it therefore follows that any means by which the public may recall undesirable officers is wholesome and for the public good. Stripped to its essentials, the naked thought which underlies the argument is just this: That because a recall is not contrary to public policy, a contract secretly to finance a movement to create a factitious sentiment in favor of recall, without divulging the true motives or the real personality behind the movement, is to be commended as in furtherance of the public good, rather than condemned as against public policy. It seems to us that a policy which would justify such a contract, even on a plea of a good motive, would open wide the door to secret contracts of the same character in furtherance of the most sinister and corrupt purposes, since the true motive on either side would be difficult to prove, and, if corrupt, would hardly be announced from the housetops. The insidious tendency of the agreement is made manifest by the very fact that public knowledge of its existence would tend largely to defeat its purpose. The very secrecy enjoined by the contract should be held a conclusive badge of corrupt motive. The recall, as an instrument of popular government, is of recent application in this country, and we are cited to no decisions passing upon the validity of such a contract as that here involved. An analogy, however, is found in contracts to influence elections and contracts to influence legislation. The purpose and genesis of the recall make this analogy plain. It cannot be questioned that the recall and its usual concomitant, the referendum, are wholesome means to the preservation of responsible popular government. They embody a principle as old as the English constitution. The frequent appeals of the English ministry from a vote of Parliament to a vote of the people on a given measure, requiring the members of Parliament to stand for re-election upon that measure as an issue, the continuance or resignation of the ministry being dependent upon the result, is obviously but a recall as to the personnel of the government and a referendum as to the given measure. It is patent, therefore, that every secret compact looking to the advancement of private personal ends by the financing of a recall is just as inimical to a sound public policy as it existed at the common law as would be the same course of conduct when applied to an election itself, or as would be a contract to influence legislation by a secretly paid lobby. That contracts to influence elections or appointments to public office are void as contrary to public policy is sustained by ample authority. In Keating v. Hyde, 23 Mo.App. 555, a contract intended to influence a primary, though not falling within the express prohibition of any statute, was held void because contrary to public policy. The court said: 'There is a clear distinction between the purchase of services to be devoted to an advertising of the fact that one is, or desires to be, a candidate and the purchase of service to be employed in advocating his peculiar merits and eligibility, so as to influence the choice of the voter.' See, also, Whitman v. Ewin (Tenn. Ch.) 39 S.W. 742; Nichols v. Mudgett, 32 Vt. 546. There can be no sound distinction between a contract intended to influence the election of an official and a contract intended to influence the recall of an official after he is elected. The employment of hired canvassers to bring about either result has an inevitable tendency to corrupt the electorate.

Contracts to influence legislation have been almost universally condemned. In Sussman v. Porter (C. C.) 137 F. 161, the plaintiff declared upon a contract whereby his assignor had undertaken to obtain from municipal authorities a franchise for a trolley line and the consent of property owners thereto, and pay the necessary expenses in connection therewith. The court held the contract void as contravening public policy, and denied a recovery. After citing many authorities sustaining its judgment, the court said: 'Cases to the above effect might be cited indefinitely, and very many are cited in the cases already referred to. It is clearly deducible from them that a contract to procure or influence legislation is bad, whatever the intention of the parties may have been, and whether the influences actually exerted thereunder were honest or corrupt. It is the temptation to corruption and dishonesty which the courts will not tolerate. It will be noticed, too that some of the cases cited lay great stress upon the fact that a contingent fee is dependent upon the success of the service. The rule of law in all these and similar cases is that the court will not aid either party to the contract, but each will be left in the position in which he has placed himself. Judicial did will not be given to either party to a corrupt agreement. This is not because the court desires to favor either party, but because the agreement is corrupt and...