Anderson v. Branstrom

Ostrander, J. The decree appealed from is in affirmance and enforcement of the unexecuted partnership contract, not its specific performance, it is true, but none the less for damages to be measured in part by the results of a performance of the contract according to its terms. The agreement was to divide equally between the partners the salary of the office of prosecuting attorney, to which office one of the parties, before or after the making of the agreement, succeeded. This salary is the quid pro quo paid by the public for the performance of public official duties, and the agreement, in substance and effect, assigns, before it is earned, this salary. The decree enforces the agreement to assign, not in terms, but actually. The test of the validity of such an agreement is not, I think, whether, if it was faithfully carried out, the public would be harmed, but its validity must be measured by its tendency. It is undoubtedly true that the salary of public office is frequently brought into firm accounts and divided by the officer with partners. But assignments of unearned emoluments of public office are not favored, and courts have, pretty uniformly, refused to enforce them. The agreement in question amounts to such an assignment, and it would seem therefore that the courts should refuse to enforce the agreement, directly or indirectly. We said in Granger v. French, 152 Mich. 356 (116 N. W. 181, 125 Am. St. Rep. 416), that— “ The rule of public policy makes all anticipatory assignments of salary by the relator void, and demands that he [159] be paid his official salary notwithstanding such assignments.” This rule was restated and affirmed in Dunkley v. City of Marquette, 157 Mich. 339 (122 N. W. 126, 17 Am. & Eng. Ann. Cas. 523). See, also, Bailey v. Quarry Co., 166 Mich. 321 (129 N. W. 17); Mechem on Public Offices and Officers, § 370; Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721). In my opinion, the agreement of defendant to divide his official salary was void, and in consequence the entire agreement is invalid. The decree should be reversed, and the bill dismissed, with costs of both courts to defendant. Steers, McAlvay, Brooke, Stone, and Bird, JJ., concurred.