Glass v. Harwell

Pur Curiam.

According to the petition, the alleged indebtedness declared on accrued during two terms served by the plaintiff as deputy marshal of the City of Atlanta. To recover the same the plaintiff sued upon two pre-election contracts alleged to have been made between him and the defendant in different election years, by the terms of which the defendant would become a candidate for the office of marshal and the plaintiff would run on the ticket with him as deputy, with the understanding that the plaintiff would pay half of the expenses of the. campaign, and that in case of the defendant’s election the defendant would appoint the plaintiff as his deputy, and give to the plaintiff enough of his salary to equalize the two salaries payable to them by law or ordinance as such officers. The plaintiff in his petition, however, speaks of the contract in the singular, and evidently refers to the original agreement made prior to the election in 1917 and renewed verbally from time to time in succeeding election years.

Such contract was illegal and contrary to public policy, in that it tended to hamper or restrict the defendant in the due performance of his public duty to appoint a suitable deputy to serve with him in ease of his election. Andrews v. Richardson, 32 Ga. App. 687, 691 (124 S. E. 378); Connor v. Canter, 15 Ind. App. 690 (44 N. E. 656); Hager v. Catlin, 18 Hun, 448; Baskett v. Moss, 115 N. C. 448 (20 S. E. 733, 48 L. R. A. 842, 44 Am. St. R. 463); O’Rear v. Kiger, 10 Leigh (Va.), 622; Hortsman v. Adamson, 101 Mo. App. 119 (74 S. W. 398); 13 C. J. 440.

Whether the agreement was otherwise tainted with illegality need not be decided. Since it was void for the reason stated, the courts will not lend aid to the enforcement of any of its executory features. Compare Pate v. Newsome, 167 Ga. 867 (147 S. E. 44). The petition discloses no post-election contract. The subsequent conduct of the parties could not amount to a validation of the .original agreement. A contract which is contrary to public policy can not be made valid by renewal or ratification, nor can the plaintiff recover because he has performed Iris obligations under such agreement (13 C. J. 506, 6 R. C. L. § 216, p. 820), although the rule seems to be otherwise in this State as to a contract having no unlawful purpose and objectionable only because made on a prohibited day; as, an agreement entered into on the Sabbath contrary to penal statute and afterwards performed by the party claiming a recovery thereon against the other. Meriwether v. Smith, 44 Ga. 541; Hayden v. Mitchell, 103 Ga. 431 (3) (30 S. E. 287); McAuliffe v. Vaughan, 135 Ga. 852 (2), 856 (70 S. E. 322, 33 L. R. A. (N. S.) 255, Ann. Cas. 1912A, 290); Jones v. Belle Isle, 13 Ga. App. 437 (79 S. E. 357).

Nor can the petition be sustaiired on the theory of an indebtedness on an implied contract. Whether the plaintiff would have been entitled to rely upon an implied promise on the part of the defendant arising out of the subsequent conduct of the parties, including the plaintiff’s performance, the petition can not be construed as seeking a recovery upon any such theory. Indeed, the able counsel for the plaintiff in error do not suggest any such construction of the petition.

The petition failed to set forth a cause of action and was properly dismissed on general demurrer.

Judgment affirmed.

Jenlcins, P. J., and Bell, J., concur. Stephens, J., dissents.