Trainer v. Wolfe ( 1891 )

Opinion,

Mr. Chief Justice Paxson:

The ^complainants are taxpayers of the township of Lower Chichester, in the county of Delaware, and filed this bill in the court below to restrain the school board of the school district of said township from purchasing a certain lot of ground from the Linwood Land Company, for the purpose of erecting a schoolhouse thereon. The court below issued a preliminary injunction, as prayed for in the bill. It subsequently appearing that the purchase of the lot had been consummated before the injunction went out, the court below dissolved it. The case then proceeded to final hearing, and the bill was dismissed. The ground of the proceeding was that the lot in question belonged to John D. Goff, treasurer of the board, and that the resolution to purchase it was carried by his vote. The master has found, and error is not assigned to such finding, that each member of the board acted in entire good faith. The location of the lot appears to have been suitable, and the price reasonable.

The first assignment alleges error “in not finding distinctly as a fact that John D. Goff, one of the members of the school board of the school district of Lower Chichester, at the time of the voting for the resolution to purchase the lot of ground in question from the Linwood Land Company, was interested in said lot as one of the owners thereof.” This was the important fact in the case, and, while the master has not found it as clearly as he might have done, it nevertheless sufficiently appears. Indeed, it was not disputed that Goff was one of the beneficial owners of the property at the time of the sale.

The other assignment presents the question of the effect of this sale, the complainants alleging that it was null and void, by reason of Goff’s interest in the property at the time he gave the deciding vmte in favor of the purchase. This assignment was evidently based upon our decision in Milford Bor. v. Water Co., 124 Pa. 610. In that case, it was held that, under the provisions of the sixty-sixth section of the act of Marclx 31, 1860, P. L. 400, a borough ordinance contracting with a water company for a supply of water to the borough, enacted when a majority of the eouncilmen were stockholders in the water company, was illegal and void, and no liability could be enforced thereon. In that case there was an attempt to show a subsequent ratification of the contract by the action of council when no one of its members was a member of the water company. We held, however, that the original contract was incapable of ratification, for the reason that it was prohibited by law, and therefore absolutely void. There, as here, good faith and the absence of fraud were alleged, but we said : “ It may be there was no fraud, actual or intended, in the present case, but we will not allow it to be made an entering wedge to destroy the act of 1860. Of what possible use would that act be if its violations are condoned, and its prohibited, criminally condemned contracts allowed to be enforced under the guise of an implied ratification ? ” Where a contract is not only prohibited by law, but its execution made a criminal offence, it needs no argument to show that it cannot be warmed into life by ratification. It follows that, if the contract for the purchase of this lot comes within the act of 1860, it is utterly void, and is not cured by the subsequent payment of the purchase money, the acceptance of the deed, or any attempted ratification of it by the school board. Nothing short of a new contract, made by a board capable of contracting, would remedy the difficulty.

The learned judge below held that the case does not come within the act of 1860, in which we think he was correct. The portion of the sixty-sixth section applicable to the case in hand is as follows:

“Nor shall any member of any corporation or public institution, or any officer or agent thereof, be in any wise interested in any contract for the sale or furnishing of any supplies or materials, to be furnished to or for the use of any corporation, municipality or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly or indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale,” etc.

Singularly enough the act makes no reference to a purchase of real estate. It perhaps did not occur to the mind of the legislature that any one would be so foolish as to take a defective title to real estate. It was urged, however, that the case comes within the meaning and spirit of the act. If we concede this, the difficulty remains that it is a highly penal statute, and for this reason we cannot extend it by implication beyond its precise meaning. We must deal with the question outside of the act of 1860. We have, then, the case of a sale of real estate where the same person is both vendor and vendee. The law under such circumstances is well settled. The sale is not void; it is merely voidable, and this marks the difference between this transaction and the one referred to in Milford Bor. v. Water Co., supra. In the present case, it appears, as we learn from the opinion of the learned judge below, “ that a new and entirely disinterested board, with full knowledge of all the facts and circumstances, have, by a solemn preamble and resolution, fully ratified the action of the old board.” We regard this as conclusive of the case, and if we had reached a different conclusion, if we regarded this transaction void under the act of 1860, we could not reverse this decree for the want of proper parties.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

On March 28,1891, a motion for a re-argument was refused.