Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

and hear arguments, and parties interested may lawfully contract to pay for this service, yet to secretly approach the members of such a body with a view to influence their action at a time and in a manner that do not allow the presentation of opposite views, is improper and unfair to the opposing interest; and a contract to pay for this irregular and improper service would not be enforced by the law.?

1 This whole subject was very fully considered in the case of Frost o. Inhabitants of Belmont, 6 Allen, 152, which was a bill filed to restrain the payment by the town of demands to the amount of nearly $9000, which the town had voted to pay as expenses in obtaining their act of incorporation. By the court, Chapman, J.: “It is to be regretted that any persons should have attempted to procure an act of legislation in this Commonwealth, by such means as some of these items indicate. By the regular course of legislation, organs are provided through which any parties may fairly and openly approach the legislature, and be heard with proofs and arguments respecting any legislative acts which they may be interested in, whether public or private. These organs are the various committees appointed to consider and report upon the matters to be acted upon by the whole body. When private interests are to be affected, notice is given of the hearings before these committees; and thus opportunity is given to adverse parties to meet face to face and obtain a fair and open hearing. And though these committees properly dispense with many of the rules which regu-, late hearings before judicial tribunals, yet common fairness requires that neither party shall be permitted to have secret consultations, and exercise secret influences that are kept from the knowledge of the other party. The business of • lobby members' is not to go fairly and openly before the committees, and present statements, proofs, and arguments that the other side has an opportunity to meet and refute, if they are wrong, but to go secretly to the members and ply them with statements and arguments that the other side cannot openly meet, however erroneous they may be, and to bring illegitimate influences to bear upon them. If the • lobby member' is selected because of his political or personal influence, it aggravates the wrong. If his business is to unite various interests by means of projects that are called • log rolling,' it is still worse. The practice of procuring members of the legislature to act under the influence of what they have eaten and drank at houses of entertainment tends to render those who yield to such influences wholly unfit to act in such cases. They are disqualified from acting fairly towards interested parties or towards the public. The tendency and object of these influences are to obtain by corruption what it is supposed cannot be obtained fairly.

“ It is a well-established principle, that all contracts which are opposed to public policy, and to open, upright, and fair dealing, are illegal and void. The principle was fully discussed in Fuller v. Dame, 18 Pick. 472. In several other States it has been applied to cases quite analogous to the present case..

“ In Pingrey v. Washburn, 1 Aiken, 264, it was held in Vermont that an agreement, on the part of a corporation, to grant to individuals certain privileges * The Introduction and Passage of Bills. [* 137] Any member may introduce a bill in the house to which he belongs, in accordance with its rules; and this he may do in consideration that they would withdraw their opposition to the passage of a legislative act touching the interests of the corporation, is against sound policy, prejudicial to just and correct legislation, and void. In Gulick v. Ward, 5 Halst. 87, it was decided in New Jersey that a contract which contravenes an act of Congress, and tends to defraud the United States, is void. A. had agreed to give B. $100, on condition that B. would forbear to propose or offer himself to the Postmaster-General to carry the mail on a certain mail route, and it was held that the contract was against public policy and void. • The general principle as to contracts contravening public policy was discussed in that case at much length. In Wood v. McCann, 6 Dana, 366, the defendant bad employed the plaintiff to assist him in obtaining a legislative act in Kentucky legalizing his divorce from a former wife, and his marriage with his present wife. The court say: 'A lawyer may be entitled to compensation for writing a petition, or even for making a public argument before the legislature or a committee thereof; but the law should not hold him or any other person to a recompense for exercising any personal influence in any way, in any act of legislation. It is certainly important to just and wise legislation, and therefore to the most essential interest of the public, that the legislature should be perfectly free from any extraneous influence which may either corrupt or deceive the members, or any of them.'

• In Clippinger v. Hepbaugh, 5 Watts & S. 315, it was decided in Pennsylvania that a contract to procure or endeavor to procure the passage of an act of the legislature, by using personal influence with the members, or by any sinister means, was void, as being inconsistent with public policy and the integrity of our political institutions. And an agreement for a contingent fee to be paid on the passage of a legislative act was held to be illegal and void, because it would be a strong incentive to the exercise of personal and sinister influences to effect the object.

“ The subject has been twice adjudicated upon in New York. In Harris v. Roof, 10 Barb. 489, the Supreme Court held that one could not recover for services performed in going to see individual members of the house, to get them to aid in voting for a private claim, the services not being performed before the house as a body, nor before its authorized committees. In Sedgwick v. Stanton, 4 Kernan, 289, the Court of Appeals held the same doctrine, and stated its proper limits. Selden, J., makes the following comments on the case of Harris v. Roof: Now the court did not mean by this decision to hold that one who has a claim against the State may not employ competent persons to aid him in properly presenting such claim to the legislature, and in supporting it with the necessary proofs and arguments. Mr. Justice Hand, who delivered the opinion of the court, very justly distinguishes between services of the nature of those rendered in that case, and the procuring and preparing the necessary documents in support of a claim, or acting as counsel before the legislature or some committee appointed (* 138] at any * time when the house is in session, unless the

constitution, the law, or the rules of the house forbid. (* 139] The Constitution of Michigan * provides that no new bill

shall be introduced into either house of the legislature after the first fifty days of the session shall have expired ;) and the Constitution of Maryland provides that no bill shall originate in either house within the last ten days of the session. The purpose of these clauses is to prevent hasty and improvident legislation, and to compel, so far as any previous law can accomplish that

by that body. Persons may, no doubt, be employed to conduct an application to the legislature, as well as to conduct a suit at law; and may contract for and receive pay for their services in preparing documents, collecting evidence, making statements of facts, or preparing and making oral or written arguments, provided all these are used or designed to be used before the legislature or some committee thereof as a body; but they cannot, with propriety, be employed to exert their personal influence with individual members, or to labor in any form privately with such members out of the legislative halls. Whatever is laid before the legislature in writing, or spoken openly or publicly in its presence or that of a committee, if false in fact, may be disproved, or if wrong in argument may be refuted; but that which is whispered into the private ear of individual members is frequently beyond the reach of correction. The point of objection in this class of cases then is, the personal and private nature of the services to be rendered.'

“ In Fuller v. Dame, cited above, Shaw, Ch.J., recognizes the well-established right to contract and pay for professional services when the promisee is to act as attorney and counsel, but remarks that the fact appearing that persons do so act prevents any injurious effects from such proceeding. Such counsel is considered as standing in the place of his principal, and his arguments and representations are weighed and considered accordingly.' He also admits the right of disinterested persons to volunteer advice; as when a person is about to make a will, one may represent to him the propriety and expediency of making a bequest to a particular person; and so may one volunteer advice to another to marry another person; but a promise to pay for such service is void.

“ Applying the principles stated in these cases to the bills which the town voted to pay, it is manifest that some of the money was expended for objects that are contrary to public policy, and of a most reprehensible character, and which could not, therefore, form a legal consideration for a contract."

See further a full discussion of the same subject, and reaching the same conclusion, by Mr. Justice Grier, in Marshall v. Baltimore & Ohio R.R. Co., 16 How. 314. See also Hatzfield v. Gulden, 7 Watts, 152; Frankfort v. Winterport, 54 Me. 250. A contract to assist by money and influence to secure the election of a candidate to a public office in consideration of a share of its emoluments, in the event of election, is void as opposed to public policy, and if voluntarily rescinded by the parties a recovery cannot be had of the moneys advanced under it. Martin v. Wade, 37 Cal. 168. 1 Art. 4, § 28.

: Art. 3, § 26.

[ocr errors]

0.

result, the careful examination of proposed laws, or at least the affording of opportunity for that purpose ; which will not always be done when bills may be introduced up to the very hour of adjournment, and, with the concurrence of the proper majority, put immediately upon their passage." '

For the same reason it is required by the constitutions of several of the States, that no bill shall have the force of law until on three several days it be read in each house, and free discussion allowed thereon ; unless, in case of urgency, four-fifths or some other specified majority of the house shall deem it expedient to dispense with this rule. The journals which each house keeps of its proceedings ought to show whether this rule is complied with or not; but in case they do not, the passage in the manner provided by the constitution must be presumed in accordance with the general rule which presumes the proper discharge of official duty.2

* A practice has sprung up of evading these constitutional provisions by introducing a new bill after the time has expired when it may constitutionally be done, as an amendment to some pending bill, the whole of which, except the enacting clause, is struck out to make way for it. Thus, the member who thinks he may possibly have occasion for the introduction of a new bill after the constitutional period has expired, takes care to introduce sham bills in due season which he can use as stocks to graft upon, and which he uses irrespective of their character or contents. The sham bill is perhaps a bill to incorporate the city of Siam. One of the member's constituents applies to him for legislative permission to construct a dam across the Wild Cat River. Forthwith, by amendment, the bill entitled a bill to incorporate the city of Siam has all after the enacting clause stricken out, and it is made to provide, as its sole object, that John Doe may construct a dam across the Wild Cat. With this title and in this form it is passed; but the house then considerately amends the title to correspond with the purpose of the bill, and the law is passed, and the constitution at the same time saved ! This dodge is so transparent, and so clearly in violation of the constitution, and the evidence at the same time is so fully spread upon the record, that it is a matter of snrprise to find it so often resorted to.

Supervisors of Schuyler Co. v. People, 25 III. 181; Miller v. State, 3 Ohio, N. S. 480. In People v. Starne, 35 Ill. 121, it is said the courts should not enforce a legislative act unless there is record evidence, from the journals of the two houses, that every material requirement of the constitution has been satisfied. The clause in the Constitution of Obio is: “Every bill shall be fully and distinctly read on three different days, unless, in case of urgency, three-fourths of the house in which it shall be pending shall dispense with this rule”; and in Miller v. State, 3 Ohio, N. 8. 481, and Pim v. Nicholson, 6 Ohio, N. 8. 178, this provision was held to be merely directory. The distinctness with which any bill must be read cannot possibly be defined by any law; and it must always, from the necessity of the case, rest with the house to determine finally whether in this

[* 140] * As to what shall constitute a reading of a bill, it seems

to be held sufficient to read the written instrument that is adopted by the two houses ; and if any thing else becomes law in consequence of its passage, and by reason of being referred to in it, it is nevertheless not essential that it be read with the reading of the bill. Thus, a statute which incorporated a military company by reference to its constitution and by-laws, was held valid notwithstanding the constitution and by-laws, which would acquire the force of law by its passage, were not read in the two houses as a part of it. But there cannot be many cases, we should suppose, to which this ruling would be applicable.

It is also provided in the constitutions of some of the States that, on the final passage of every bill the yeas and nays shall be entered on the journal. Such a provision is designed to serve an important purpose in compelling each member present to assume as well as to feel his due share of responsibility in legislation ; and also in furnishing definite and conclusive evidence whether the bill has been passed by the requisite majority or not. 66 The constitution prescribes this as the test by which to determine whether the requisite number of members vote in the affirmative. The office of the journal is to record the proceedings of the house, and authenticate and preserve the same. It must appear on the face of the journal that the bill passed by a constitutional majority.

These directions are all clearly imperative. They are [* 141] * expressly enjoined by the fundamental law, and cannot

be dispensed with by the legislature.” 3

[ocr errors]

particular the constitution has been complied with or not; but the rule respecting three several readings on different days is specific, and capable of being precisely complied with, and we do not see how, even under the rules applied to statutes, it can be regarded as directory merely, provided it has a purpose beyond the mere regular and orderly transaction of business. That it has such a purpose, that it is designed to prevent hasty and improvident legislation, and is therefore not a mere rule of order, but one of protection to the public interests and to the citizens at large, is very clear; and independent of the question whether definite constitutional principles can be dispensed with in any case on the ground of their being merely directory, we cannot see how this can be treated as any thing but mandatory. See People v. Campbell, 3 Gilm. 466 ; McCulloch v. State, 11 Ind. 424.

Dew v. Cunningham, 28 Ala. 466. • Bibb County Loan Association v. Richards, 21 Geo. 592.

* Spangler v. Jacoby, 14 Ill. 297; Supervisors of Schuyler Co. v. People, 25 Ill. 183. There have been cases, as we happen to know, in which several bills

« ΠροηγούμενηΣυνέχεια »