Odineal v. Barry

Mr. Justice Yerger delivered the opinion of the court. Plaintiff in error sued the defendants upon a promissory note,executed by Craven and Wade, payable to Calvin Perkins, president of the board of police of Lowndes county, and his successors in office. The defendants relied upon want of consideration and illegality of consideration, as a defence. The facts are substantially these. The court-house in Lowndes county had become old and dilapidated, and the board of police had determined to build a new one. Certain citizens of Columbus petitioned the board to build the new court-house on a different lot in a different part of the town of Columbus from that on which the old one was situated, and proposed to make a donation to the county of a lot for that purpose. The lot proposed to be donated was very eligible for a court-house, more so than that upon which the old one was situated; and the board was inclined to accept the proposition, and to change the location. Craven and Wade, and certain other persons owning property near the old court-house, which would have been diminished in value by the removal of it to another part of the town, proposed to pay the county two thousand dollars towards the erection of the new building, if the board of police would build it on the site of the old court-house. This proposition the board accepted, and did build it on the same lot. The note sued on was given in consideration of this action of the board, and in part performance of the contract to pay them therefor. It is also admitted, that the property of the defendants would have been diminished in value if the court-house had not been so erected, and had been built on the other lot, to which it was proposed to remove it. Was there a sufficient consideration for the note? Judge Story lays down the rule, that a sufficient consideration for a promissory note may consist “ either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility, act, or labor on the other side.” Story on Promissory Notes, § 186. Does the consideration in this case come within the above definition ? It is admitted, that the removal of the court-house -from the old site to that proposed to be given to the county, [21] would have diminished the value of the property of defendants. It is also admitted, that in consideration of the undertaking of defendants, the board of police forebore to remove the courthouse, declined accepting the donation of the lot proposed to be given them in a different part of the town, and built on the site of the old building. Here there was a benefit to the defendants, in preventing a diminution in the value of their property, and a loss to the board of police of the lot proposed to be given to it, ofi condition that they would build the new court-house upon it. This benefit on the one side and loss on the other, we think constitute a sufficient consideration for the note. But, it is said, however true this principle of law may be generally, yet it is not applicable to this case, because the board of police had no power to change the site of the com’t-house, but were bound by law to erect the new court-house on the same lot where the old one had stood; and the various acts of the legislature providing for the establishment of a permanent seat of justice and the building of a court-house for Lowndes county, have been cited and commented upon, to sustain this position. We do not think they warrant the construction which counsel have placed upon them. The constitution provides for the election, in every county, of five persons, “who shall constitute a board of police; a majority of whom may transact business; which body shall have full jurisdiction over roads, highways, ferries, and bridges, and all other matters of county police.” , Constitution, Art. 4, § 20. Under this clause in the constitution, and the acts of the legislature passed in pursuance of it, it has been held, that the board of police have power to build or repair court-houses; and the legislature, by the act of-1838, conferred upon them the power to -levy and collect special taxes sufficient to build or repair any court-house or jail, of other county building, for their counties respectively. Hutch. Code, art. 11, p. 703. Also, see Hutch. Code, 708-710; 10 S. & M. 243; 9. Ib. 77. It is true, that this court held, in' the case of Monet v. Jones, 10 S. & M. 243, that the boards of police had no power to locate the seats of justice, and that the power to do so remained [22] in the legislature. We do not mean to controvert the soundness of this decision. But, in making it, we do not understand the court to have intended to decide, or even to intimate a doubt, that the boards of police of the respective counties had not full power to repair and erect court-houses in their several counties. This power being conceded to them, the question arises, in what part of the county must the court-house be built ? Of course it must be erected within the limits of the seat of justice designated by the legislature. But on what particular lot, or in what particular part of the seat of justice, is a matter which is left entirely and exclusively to the discretion of the board of police; and over that matter they have full jurisdiction. Upon looking at the various acts in relation to the seat of justice for Lowndes county, we have come to a different conclusion from the counsel for the defendants. .We are satisfied, when the legislature speaks of “ a permanent seat of justice ” being established, it was intended by them that the commissioners should designate a certain tract or quantity of land within the limits of which the court-house, jail, and other county buildings should be placed; but we cannot, for an instant, suppose that it ever was their intention to declare that the comt-house should forever remain upon the precise spot or locality within those limits on which it might have happened to be placed in tíxe first instance. On the contrary, we think, when the town of Columbus was designated as the permanent site for the seat of justice of Lowndes county, it was within the discretionary power of the board of police, in the first instance, to build the court-house on any lot within the limits of that town ; and we believe a similar discretion existed and could have been properly exercised in regard to the location of the new court-house. This brings us to the consideration of the last point, which we deem it necessary to notice in this opinion. Was the consideration on which this promissory note was given, illegal? We do not think so. We recognize fully the doctrine of this court in the case of Merrell v. Legrand, 1 Howard, R. 150, that the consideration of a contract must not be merely of benefit to one party, or prejudice to the other; but that the benefit or prejudice must arise from a legal, and not an illegal or immoral [23] act. No contract will be enforced in a court of justice which is founded on an illegal or immoral consideration, or which is contrary to public policy. In this ease, it is not pretended that there was any express law prohibiting the board of police from making this contract, or that it was a contract immoral in itself; but it is said it was a contract against public policy, and, therefore, should not be enforced. What principle of public policy does it violate ? The members of the board of police, as individuals, will not receive any portion of the money for which the note was given. At the time of the contract it was not intended or expected that they should receive it. It was not a proposition by the defendants to pay them so much as individuals, in consideration that they would not change the site of the courthouse. If it had been, it would have been clearly illegal, and cotíld not have been enforced.' But the contract was made by them in their official capacity, for the benefit of the county. When collected, the money will become the property of the county, and be under its direction and control, applicable to any pm-pose that may be deemed beneficial, or promotive of its interests. By looking into the act of the legislature of 9th .December, 1830, it will be seen, that the commissioners who were directed to fix the seat of justice permanently, were authorized to receive either donations of land from individuals for that purpose, or if, in their,discretion, they believed it would conduce more to the interests of the county, they were authorized to take, instead of donations of land, propositions from individuals, or bodies politic or corporate, either to pay the expenses of the public buildings in whole or in part,” &c. It will thus be seen, that so far from the action of the board of police contravening the public policy on this subject, it perfectly accords and entirely harmonizes with that policy as indicated in the act authorizing then predecessors to erect the first court-house in Lowndes county. Inasmuch as, in our opinion, the board of police had discretionary power to change the location or site of the courthouse to any other lot in the town of Columbus which it conceived conducive to the true interests of the county, it is diffi- • cult to imagine.a reason why it might not, with equal propriety, take into consideration the question, whether the removal of the [24] court-house for the donation of land in another part of the town, or its erection on the old site for the payment of money by the defendants, would most conduce to the interests of the county ? The donation of the land and the removal of the court-house would have enabled the board to have sold the lot on which the old court-house stood, and applied the money towards erecting the new building. The payment of the money by the defendants could have been likewise so applied; and, in either instance, the burden of taxation on the county would have been lessened pro tanto. We, therefore, think that it was a very fair- case, about which the board might exercise its discretion without contravening any principle of public policy. In our opinion, the circuit court erred in deciding that the consideration of the note was illegal and insufficient; and, therefore, direct that the judgment be reversed, and the cause remanded for further proceedings in accordance with this opinion. Judgment reversed; and cause remanded for further proceedings.