McCortle v. Bates

Boynton, J. The contract sued upon having none of the attributes or immunities of commercial paper, the plaintiff, by the assignment by Wachob of his claim against the defendants, secured and succeeded to such rights, and -.such only, as Wachob possessed at the time of the transfer. Such defenses as would have been allowed had he retained the claim and brought suit upon it himself, are now admissible against the plaintiff’. Assuming, without ■deciding, that by the understanding of the parties to .the agreement the defendants incurred a personal liability, it is quite clear that there was no error in‘the action of the •common pleas in sustaining the demurrer and dismissing ■the petition. The request to Wachob to forward the globes, provided a majority of the board signed the order; the agreement to pay for the same on or before September 1,' 1871; the direction to the township clerk to “issue” an order on the township in favor of Wachob for the amount agreed upon; the request to the clerk to call a ■special meeting of the board for action upon the matter, .and the agreement among the members signing the contract to ratify the same at such meeting, were all elements of the -same transaction. The paper on which they were written •contained the price-list of school apparatus belonging to Wachob, and it was delivered to him after it was signed by the defendants. He was not only cognizant of its contents, but a party to its stipulations. The promise or agreement •of the members of the board, inter sese, to ratify the contract at the meeting to be called, was to the knowledge ■of Wachob a material inducement to the agreement to purchase, and made for his benefit. He accepted an order drawn on the treasurer in anticipation of such ratification. It was an agreement to avoid or evade personal liability, 'if any was incurred, by shifting it to the township. It is inot unlike, in its legal aspect, a promise or agreement by a — 422 — legislator, or member of a city or town council, to act and' vote upon a pending measure, in a cértain way, for a consideration paid. Such promise or agreement was clearly contrary to public policy, and therefore illegal and void. Its effect is to vitiate the whole instrument. The board is constituted, by statute, a body politic and-corporate in law, and as such is invested with certain corporate powers, and charged with the performance of certain public duties. These powers are to be exercised, and these duties discharged, in the mode prescribed by law. The members composing the board have no power to act as a board, except when together in session. They then act as a body or unit. The statute requires the clerk to-record, in a book to be provided for that purpose, all their official proceedings. They have, in their corporate capacity, the title, care, and custody of all school property whatever within their jurisdiction, and are invested with full power to control the same in such manner as they may think will best subserve the interest of the common schools- and the cause of education. They are required to prescribe-rules and regulations for the government of all the common schools within the township. Clothed with such powers,, and charged with such duties and such responsibilities, it will not be permitted to them to make any agreement’ among themselves, or with others, by which their public action is to be, or maybe restrained or embarrassed, or its freedom in anywise affected or impaired. The public, for whom they act, have the right to their best judgment after free and full discussion and consultation among themselves of, and upon, the public matters intrusted to them, in the session provided for by the statute. This can not be-when the members, by pre-engagement, are under contract to pursue a certain line of argument or action, whether the same will be conducive to the public good or not. It is one of the oldest rules of the common law, that contracts-contrary to sound morals, or against public policy, will not be enforced by courts of justice — ex facto illicito non oritur actio; and the court will not enter on the inquiry, whether423 such contract would, or would not, in a given case, be injurious in its consequences if- enforced. It being against the public interest to enforce it, the law refuses to recognize its claim to validity. Leave refused.