Trist v. Child

88 U.S. 441 (____) 21 Wall. 441

TRIST
v.
CHILD.

Supreme Court of United States.

Messrs. Durant and Horner, for the appellants.

Messrs. B.F. Butler and R.D. Mussey, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

The court below decreed to the appellee the amount of his claim, and enjoined Trist from receiving from the treasury "any of the money appropriated to him" by Congress, until he should have paid the demand of the appellee.

This decree, as regards that portion of the fund not claimed by the appellee, is an anomaly. Why the claim should affect that part of the fund to which it had no relation, is not easy to be imagined. This feature of the decree was doubtless the result of oversight and inadvertence. The bill proceeds upon the grounds of the validity of the original contract, and a consequent lien in favor of the complainant upon the fund appropriated. We shall examine the latter ground first. Was there, in any view of the case, a lien?

It is well settled that an order to pay a debt out of a particular fund belonging to the debtor gives to the creditor a specific equitable lien upon the fund, and binds it in the hands of the drawee.^[*] A part of the particular fund may be assigned by an order, and the payee may enforce payment of the amount against the drawee.^[†] But a mere agreement to pay out of such fund is not sufficient. Something more is necessary. There must be an appropriation of the fund pro tanto, either by giving an order or by transferring it otherwise in such a manner that the holder is authorized to pay the amount directly to the creditor without the further intervention of the debtor.^[‡]

Viewing the subject in the light of these authorities, we are brought to the conclusion that the appellee had no lien upon the fund here in question. The understanding between the elder Child and Trist was a personal agreement. It could in nowise produce the effect insisted upon. For a breach of the agreement, the remedy was at law, not in equity, and the defendant had a constitutional right to a trial by jury.^[§] If there was no lien, there was no jurisdiction in equity.

There is another consideration fatally adverse to the claim of a lien. The first section of the act of Congress of February 26th, 1853, declares that all transfers of any part of any claim against the United States, "or of any interest therein, whether absolute or conditional, shall be absolutely null and void, unless executed in the presence of at least two attesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant therefor." That the claim set up in the bill to a specific part of the money appropriated is within this statute is too clear to admit of doubt. It would be a waste of time to discuss the subject.

But there is an objection of still greater gravity to the appellee's case.

Was the contract a valid one? It was, on the part of Child, to procure by lobby service, if possible, the passage of a bill providing for the payment of the claim. The aid asked by the younger Child of Trist, which indicated what he considered needful, and doubtless proposed to do and did do himself, is thus vividly pictured in his letter to Trist of the 20th February, 1871. After giving the names of several members of Congress, from whom he had received favorable assurances, he proceeds: "Please write to your friends to write to any member of Congress. Every vote tells, and a simple request may secure a vote, he not caring anything about it. Set every man you know at work. Even if he knows a page, for a page often gets a vote."

In the Roman law it was declared that "a promise made to effect a base purpose, as to commit homicide or sacrilege, is not binding."^[*] In our jurisprudence a contract may be illegal and void because it is contrary to a constitution or statute, or inconsistent with sound policy and good morals. Lord Mansfield said:^[†] "Many contracts which are not against morality, are still void as being against the maxims of sound policy."

It is a rule of the common law of universal application, that where a contract express or implied is tainted with either of the vices last named, as to the consideration or the thing to be done, no alleged right founded upon it can be enforced in a court of justice.

Before considering the contract here in question, it may be well, by way of illustration, to advert to some of the cases presenting' the subject in other phases, in which the principle has been adversely applied.

Within the condemned category are:

An agreement — to pay for supporting for election a candidate for sheriff;^[*] to pay for resigning a public position to make room for another;^[†] to pay for not bidding at a sheriff's sale of real property;^[‡] to pay for not bidding for articles to be sold by the government at auction;^[§] to pay for not bidding for a contract to carry the mail on a specified route;^[†] to pay a person for his aid and influence in procuring an office, and for not being a candidate himself;^[¶] to pay for procuring a contract from the government;^[**] to pay for procuring signatures to a petition to the governor for a pardon;^[†] to sell land to a particular person when the surrogate's order to sell should have been obtained;^[‡] to pay for suppressing evidence and compounding a felony;^[§§] to convey and assign a part of what should come from an ancestor by descent, devise, or distribution;^[†] to pay for promoting a marriage;^[¶¶] to influence the disposition of property by will in a particular way.^[***]

The question now before us has been decided in four American cases. They were all ably considered, and in all of them the contract was held to be against public policy, and void.^[*] We entertain no doubt that in such cases, as under all other circumstances, an agreement express or implied for purely professional services is valid. Within this category are included, drafting the petition to set forth the claim, attending to the taking of testimony, collecting facts, preparing arguments, and submitting them orally or in writing, to a committee or other proper authority, and other services of like character. All these things are intended to reach only the reason of those sought to be influenced. They rest on the same principle of ethics as professional services rendered in a court of justice, and are no more exceptionable. But such services are separated by a broad line of demarcation from personal solicitation, and the other means and appliances which the correspondence shows were resorted to in this case. There is no reason to believe that they involved anything corrupt or different from what is usually practiced by all paid lobbyists in the prosecution of their business.

The foundation of a republic is the virtue of its citizens. They are at once sovereigns and subjects. As the foundation is undermined, the structure is weakened. When it is destroyed, the fabric must fall. Such is the voice of universal history.^[†] The theory of our government is, that all public stations are trusts, and that those clothed with them are to be animated in the discharge of their duties solely by considerations of right, justice, and the public good. They are never to descend to a lower plane. But there is a correlative duty resting upon the citizen. In his intercourse with those in authority, whether executive or legislative, touching the performance of their functions, he is bound to exhibit truth, frankness, and integrity. Any departure from the line of rectitude in such cases, is not only bad in morals, but involves a public wrong. No people can have any higher public interest, except the preservation of their liberties, than integrity in the administration of their government in all its departments.

The agreement in the present case was for the sale of the influence and exertions of the lobby agent to bring about the passage of a law for the payment of a private claim, without reference to its merits, by means which, if not corrupt, were illegitimate, and considered in connection with the pecuniary interest of the agent at stake, contrary to the plainest principles of public policy. No one has a right, in such circumstances, to put himself in a position of temptation to do what is regarded as so pernicious in its character. The law forbids the inchoate step, and puts the seal of its reprobation upon the undertaking.

If any of the great corporations of the country were to hire adventurers who make market of themselves in this way, to procure the passage of a general law with a view to the promotion of their private interests, the moral sense of every right-minded man would instinctively denounce the employer and employed as steeped in corruption, and the employment as infamous.

If the instances were numerous, open, and tolerated, they would be regarded as measuring the decay of the public morals and the degeneracy of the times. No prophetic spirit would be needed to foretell the consequences near at hand. The same thing in lesser legislation, if not so prolific of alarming evils, is not less vicious in itself, nor less to be condemned. The vital principle of both is the same. The evils of the latter are of sufficient magnitude to invite the most serious consideration. The prohibition of the law rests upon a solid foundation. A private bill is apt to attract little attention. It involves no great public interest, and usually fails to excite much discussion. Not unfrequently the facts are whispered to those whose duty it is to investigate, vouched for by them, and the passage of the measure is thus secured. If the agent is truthful, and conceals nothing, all is well. If he uses nefarious means with success, the spring-head and the stream of legislation are polluted. To legalize the traffic of such service, would open a door at which fraud and falsehood would not fail to enter and make themselves felt at every accessible point. It would invite their presence and offer them a premium. If the tempted agent be corrupt himself, and disposed to corrupt others, the transition requires but a single step. He has the means in his hands, with every facility and a strong incentive to use them. The widespread suspicion which prevails, and charges openly made and hardly denied, lead to the conclusion that such events are not of rare occurrence. Where the avarice of the agent is inflamed by the hope of a reward contingent upon success, and to be graduated by a percentage upon the amount appropriated, the danger of tampering in its worst form is greatly increased.

It is by reason of these things that the law is as it is upon the subject. It will not allow either party to be led into temptation where the thing to be guarded against is so deleterious to private morals and so injurious to the public welfare. In expressing these views, we follow the lead of reason and authority.

We are aware of no case in English or American jurisprudence like the one here under consideration, where the agreement has not been adjudged to be illegal and void.

We have said that for professional services in this connection a just compensation may be recovered. But where they are blended and confused with those which are forbidden, the whole is a unit and indivisible. That which is bad destroys that which is good, and they perish together. Services of the latter character, gratuitously rendered, are not unlawful. The absence of motive to wrong is the foundation of the sanction. The tendency to mischief, if not wanting, is greatly lessened. The taint lies in the stipulation for pay. Where that exists, it affects fatally, in all its parts, the entire body of the contract. In all such cases, protior conditio defendentis. Where there is turpitude, the law will help neither party.

The elder agent in this case is represented to have been a lawyer of ability and high character. The appellee is said to be equally worthy. This can make no difference as to the legal principles we have considered, nor in their application to the case in hand. The law is no respecter of persons.

DECREE REVERSED, and the case remanded, with directions to

DISMISS THE BILL.

NOTES

[*] Yeates v. Groves, 1 Vesey, Jr. 280; Lett v. Morris, 4 Simons, 607; Bradley v. Root, 5 Paige, 632; 2 Story's Equity, § 1047.

[†] Field v. The Mayor, 2 Selden, 179.

[‡] Wright v. Ellison, 1 Wallace, 16; Hoyt v. Story, 3 Barbour's Supreme Court, 264; Malcolm v. Scott, 3 Hare, 39; Rogers v. Hosack, 18 Wendell, 319.

[§] Wright v. Ellison, 1 Wallace, 16.

[*] Institutes of Justinian, lib. 3, tit. 19, par. 24.

[†] Jones v. Randall, 1 Cowper, 39.

[*] Swayze v. Hull, 3 Halsted, 54.

[†] Eddy v. Capron, 4 Rhode Island, 395; Parsons v. Thompson, 1 H. Blackstone, 322.

[‡] Jones v. Caswell, 3 Johnson's Cases, 29.

[§] Doolin v. Ward, 6 Johnson, 194.

[†] Gulick v. Bailey, 5 Halstead, 87

[¶] Gray v. Hook, 4 Comstock, 449.

[**] Tool Company v. Norris, 2 Wallace, 45.

[†] Hatzfield v. Gulden, 7 Watts, 152.

[‡] Overseers of Bridgewater v. Overseers of Brookfield, 3 Cowen, 299.

[§§] Collins v. Blantern, 2 Wilson, 347.

[†] Boynton v. Hubbard, 7 Massachusetts, 112.

[¶¶] Scribblehill v. Brett, 4 Brown's Parliamentary Cases, 144; Arundel v. Trevillian, 1 Chancery Reports, 47.

[***] Debenham v. Ox, 1 Vesey, 276; see also Addison on Contracts, 91; 1 Story's Equity, ch. 7; Collins v. Blantern, 1 Smith's Leading Cases, 676, American note.

[*] Clippinger v. Hepbaugh, 5 Watts & Sergeant, 315; Harris v. Roof's Executor, 10 Barbour's Supreme Court, 489; Rose & Hawley v. Truax, 21 Id. 361; Marshall v. Baltimore and Ohio Railroad Company, 16 Howard, 314.

[†] 1 Montesquieu, Spirit of Laws, 17.