Jacobs v. Tobiason

Reed, J. Plaintiff was examined as a witness in his own behalf, and his testimony was the only evidence introduced on the trial. He testified in substance that after the appeals were taken, and while the causes wore pending in the circuit court, an agreement was entered into between him and defendant for the settlement of the causes and their final disposition; that his undertaking in the agreement was that he would make no further appearance in the causes, and would cease all efforts for procuring the final establishment of the highways, and that he would withdraw the money which he had deposited with the county auditor for the payment of the awards; and that defendant agreed, in consideration of his doing these things, to pay him $100, and to take care of the costs in the cases; and that he had paid out as attorney’s fees, and other expenses incurred by him in the proceeding to establish the highway, about the sum of $100; and that the object of the parties in entering into the agreement was to put an end to the proceeding, and to reimburse him for the expenses he had [247] incurred therein. On this testimony the circuit court ruled that the contract was against public policy, and was therefore not enforceable; and the jury were directed to return a verdict for defendant; and the only question presented by the record is as to the correctness of this ruling. We think the ruling is correct. Proceedings for the establishment of public highways are essentially public in their character. They are in the exercise by the state of one of its sovereign powers. The rights which are established and the privileges which are created by the proceedings are for the benefit of the whole people. The proceeding can be instituted, it is true, only on the petition of some member of the public who is interested in the question, and it may be carried on in his name, and he may be made responsible for the costs occasioned by it, and, if damages are awarded to those whose lands are appropriated for the use of the highway, he may be required to pay the same as a condition to its establishment, and, if an appeal be taken from such award, he may be made a party to the litigation thus instituted, and may ultimately be compelled to pay the costs occasioned by it. Code, Title VII, Chap., 1. But the proceeding is not for his benefit. It is a proceeding by the state for the benefit and advantage of all the people of the state, and the petitioner acquires no special rights or advantages by it. In so far as his efforts are instrumental in procuring the establishment of the highway, he acts for the public. In instituting and carrying on the proceeding, he acts, in a sense, in a public capacity. He invokes the power of the state, and it is exercised for the benefit of the common public, and he, in a sense, represents that public, and stands for it in the proceeding. It is true, he cannot be compelled to institute the proceeding, and it may be true, also, that, having voluntarily begun it, he cannot be compelled to continue it to a final result. If it turns out that the burthens likely to be imposed upon him are greater than was anticipated when he instituted the proceedings, it may be that he has the right to retire [248] from them, or discontinue them entirely. But when he has assumed a position of trust towards the public, and instituted a proceeding of public concern, he cannot be permitted to make the question whether he will remain in the position or continue the proceeding a matter of private bargain for his own emolument. One occupying a public office bas the undoubted right to resign his position. But if a public officer were to agree with one who, for any reason, was desirous that a vacancy in the office should be created, that for a money consideration he would resign the office, it would hardly be contended that sucb contract was enforceable. Yet it seems to us there is no difference in. principle between that case and the one before us. The highest considerations of public policy demand that all duties in wbieli tbe state and public are concerned shall be performed with fidelity; and no man who has once assumed the performance of such duties should be permitted to make tbe question whether he will continue in their performance a matter of private speculation. We think the judgment of the circuit court is right, and it-is Affirmed.