State Ex Rel. Hamilton v. Thomas , 176 Wash. 544 ( 1934 )

Trafficking in the emoluments of public office is almost universally frowned upon by the courts. Contracts conceived with that purpose are generally held to be void and unenforcible. Mechem, Public Officers, §§ 370, 371, 372. This court has so held in the following cases: Rhodes v. Tacoma, 97 Wn. 341,166 P. 647; Bell v. Mabton, 165 Wn. 396, 5 P.2d 514; Stateex rel. Knez v. Seattle, ante p. 283, 28 P.2d 1020.

In the first cited case, the court held that the manager of a sub-department of the city light department was a public officer, and could recover the balance of salary fixed by ordinance, notwithstanding he had, over a period of years, accepted a lesser sum, and acknowledged payment in full for his services. In the second case cited, the "water works commissioner" was held to be a public officer and entitled to recover the balance of salary fixed by ordinance, notwithstanding that, before appointment to the position, he agreed in writing to accept a lesser sum. The theory of these decisions is that, where the salary of a public officer is fixed by duly constituted authority, the compensation provided for cannot be changed by contract, or by any other than such authority — whether it be the state legislature or a city council. In the last cited case, we held that a fireman is a public officer, and that agreement made by him to accept less than the salary provided for by ordinance was void as against public policy.

The majority apparently concedes the rule, and predicates its holding, as I understand, upon two postulates which seem to me to be unsound. The first is that the public printer is not a public officer; the second is that the contract is a valid and binding agreement between the parties. To my mind, the only saving grace of the transaction is that the state was designed to be the beneficiary under it. The iniquity of the contract would be clear enough if the controversy presented were between the parties to it over the emoluments of the office of which it was designed to dispose in a manner contrary to statute. Under the principle of the cases above cited, the state could not enter into such a contract. The fact that the contract was beneficent in purpose does not diminish the force of the principle, nor impair its applicability. It might have been (as such contracts usually are) conceived in iniquity. If the so-called trustees had made the advancements upon the stipulation that they were to have all the emoluments derived from state printing over and above five hundred dollars per month, would the court hold it valid? It would seem to me, clearly not.

The fact that the parties to the contract, in pursuance of its terms, executed the bill of sale and assignment of January 8, 1933, is a fortuitous circumstance. That instrument adds nothing by way of legalizing or validating the original contract. Had they failed to execute the bill of sale and assignment, what remedy would the state have had? It would be in the anomolous position (as it is now) of seeking to recover, by virtue of a private contract, payments authorized by statute. Laws 1917, chapter 129, p. 511; § 3, Rem. Rev. Stat., § 10329.

The respondent says in his brief:

"At the time the original trust agreement was entered and the supplemental agreement as well, the compensation of the state printer was fixed by statute. Sections 8616 to 8626, incl. Rem. and Bal. Code and Statutes. This being true and the office of state printer being a public office, any agreement fixing a different compensation is void as being against public policy."

He then seeks to sustain his position in this action on the theory that the assignment and bill of sale, having been accepted by the act of the legislature (Laws 1933, chapter 97, p. 409), has rendered valid a contract which, in its inception, was void.

Of course, the assertion by the majority that the public printer is essentially not a public officer, but a sort of contractor, flies in the face of the statute (Laws 1905, chapter 168, p. 332, § 1), which provides:

"The office of public printer is hereby created, which office shall be filled by appointment, by the governor, and who, when appointed, shall hold office at the pleasure of the governor, until his successor is appointed and qualified." Rem. Rev. Stat., § 10323.

The fact that the legislature might have changed the method of compensating the public printer is alluded to by the majority as affording some support for its holding. The legislature, however, has not yet exercised that prerogative.

The original contract out of which this suit arises being void, the action should be dismissed. This court is committed to the rule that it will not lend its aid to the enforcement of void contracts, but will leave the parties where it finds them. 6 R.C.L. 820; Reed v. Johnson, 27 Wn. 42, 67 P. 381, 57 L.R.A. 404; Stirtan v. Blethen, 79 Wn. 10, 139 P. 618, 51 L.R.A. (N.S.) 623.