Robertson v. Robinson , 65 Ala. 610 ( 1880 )

BEICKELL, C. J.

— When the primary court has jurisdiction, it is not the practice of an appellate court, to consider any other matter than such as may have been acted on in the court below, and the action assigned as error. Other matters which may be suggested, or which are apparent on the face of the record, and which, if attention had been directed to them in the primary court, would or could be presented in a different aspect, it would be injustice to make the basis of decision. In the present case, the contention in the City Court was limited to the validity of the agreement between the appellant and George W. Sewell. No other question was considered or passed’upon; and it is that question only we propose now to decide.

All agreements or contracts, having for their object that which is repugnant to public justice, or violative of public policy, or offensive to good morals, or contrary to statutory provisions, or in derogation of the principles of the common law relating to the public peace or security, and injurious to the community, are void ; “ and the reason why the common law says such contracts are void, is for the public good.” The agreement between Sewell and appellant, it is insisted, falls within this general principle, because, in fact, it was a sale of the office or employment of deputy tax-assessor of the county of Montgomery. Whether this is the real character of the agreement, and, if it be, whether it is offensive to law, and violative of public policy, requires that the whole transaction should be inquired into and considered. The form of the agreement, and the expressions embodied in the writing to which it was reduced, are only matters of evidence, not operating an estoppel upon the parties, and not embarrassing or hindering the court. If it were otherwise —if the manner of the transaction could gild over and conceal the truth, this great conservative principle of the law, essential to the purity of the administration of justice, of public-morals, and the general welfare, would be evaded at the pleasure of the designing, the wicked, and the corrupt.

The county assessor of taxes is a public officer, elected by the qualified voters of the county, commissioned by the governor, required to take the oath of office prescribed by the constitution to be taken by all public officers, the highest or lowest, and charged with duties of great importance to the public and to the citizen — duties not only ministerial, but in their nature, in some respects, judicial. He has authority to ajjpoint deputies, whose acts have the force and effect of his official acts, and for whose good conduct he is responsible. — Code of 1876, § 397. The deputy appointed by him, not for a mere particular case, or for a mere casual, special service, is required to take the constitutional oath of office. The statute authorizing his appointment, requiring him to take the oath of office, distinguishing between him and one whom the assessor may appoint to a special service, places him, in many respects, as a public officer.

The transaction between Sewell and the appellant had its origin on the day of, and pending the election of a tax-assessor for the county of Montgomery, in November, 1874. It commenced by a proposition made by Sewell to the appellant, in substance, that if Sewell, who was a candidate for tax-assessor, was successful, he would appoint the appellant his chief deputy, and pay him from the fees and perquisites of the office twenty-five hundred dollars annually, if the appellant would make for him his official bond, and perform all the duties of the office, except such as related to the assessment of the poll-tax. The proposition was accepted, and it is this agreement the subsequent writing was intended to embody, and which the parties treated as embodying.

Of such an agreement, in the strong language of Chief-Justice WilmoT, in Collins v. Blantern, 2 Wils. 341 (1 Smith’s L. C. Pt. 2, 673), it may be said, that it “ is void ab initio, by the common law, by the civil law, moral law, and all laws whatever.” It concerns a place of public trust, in which the public have high interests, involving the performance of public duties, and which can not be made the subject of traffic, and can not become the matter of trade and bargaining. It was corrupting the appellant as a voter, bound by his duty to cast his vote from public, not private considerations, on the eve of the election to make such a proposition; tempting him to merge his duty as a citizen in the promptings of mere selfishness, in the gratification of his avarice. It was bargaining away the discretion in the appointment of a deputy, which Sewell was bound to exercise for the public good, and not for the promotion of his private interest or convenience. It was an irrevocable appointment, continuing during the term of office, which was contemplated, fettering the power of appointment with which Sewell was clothed by law. In fact, it was a sale of the office of deputy, and the consideration was not only the services the appellant was expected to render, but the making of the official bond. The people of Montgomery county, trusting to the integrity and good judgment of Sewell, elected him to the office of assessor of taxes. Their confidence was repaid by his transfer to the appellant of every duty not merely ministerial, attaching to the office, in consideration really of ease and convenience in making the official bond. It would be far better that public trusts, pub-lie offices, or the deputations to them, should be exposed at public auction to the highest, or to the lowest bidder, than that they should become the subject of such private bargaining and traffic. We cite numerous authorities, which it is unnecessary to review specially, and in which the bargaining away of public offices, or of deputations to them, have been pronounced void. — 2 Chit. Contr. 990; 1 Addison Contr. 262, 266; Hanington v. Duchatell, 1 Brown’s C. C. 124; Morris v. McCulloch, Ambler, 455; Lee v. Coleshill, Cro. Eliz. 529; Garforth v. Fearon, 1 H. Black. 328; Godolphin v. Tudor, 2 Salk. 468; Greenville v. Atkins, 9 B. & C. 462; Tappan v. Brown, 9 Wend. 175; Gray v. Hook, 4 Conn. 449; Haralson v. Dickens, N. C. L. R. 66; Grant v. McLester, 8 Geo. 553; Lewis v. Knox, 2 Bibb. 453; Outon v. Rodes, 3 A. K. Marsh. 453.

No judicial tribunal, so far as we can discover, has ever given countenance to any such agreement; and if popular elections are to be kept free from the taint of selfishness and corruption — if public offices are to be dignified as public trusts, and the performance of official duty preserved from the contamination of unlawful and improper influences, all such agreements will be condemned.

The validity of the agreement was the only question presented to, and decided by the City Court, and the manner of presenting it was matter of agreement between the parties. The court did not err in pronouncing the agreement void, and its judgment is affirmed.