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law or to these provisions, the house of which the person arrested is a member may give summary relief by ordering his discharge, and if the order is not complied with, by punishing the persons concerned in the arrest as for a contempt of its authority. The remedy of the member, however, is not confined to this mode of relief. His privilege is not the privilege of the house merely, but of the people, and is conferred to enable him to discharge the trust confided to him by his constituents; and if the house neglect to interfere the court from which the process issued should set it aside on the facts being represented, and any court or officer

having authority to issue writs of habeas corpus may also [* 135] * inquire into the case, and release the party from the un

lawful imprisonment.2 Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions, and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case.

Such a committee has no authority to sit during a recess of the house which has appointed it, without its permission to that effect ; but the house is at liberty to confer such authority if it see fit. A refusal to appear or to testify before such committee, or to produce books or papers, would be a contempt of the house ;4 but the committee cannot punish for contempts; it can only report the conduct of the offending party to the house for its action. The power of the committee will terminate with the final dissolution of the house appointing it.

Each house keeps a journal of its proceedings, which is a public

termination thereof, and all process served contrary hereto shall be void." Art. 4, § 5.

I Coffin v. Coffin, 4 Mass. 27.

? On this subject, Cushing on Law and Practice of Parliamentary Assemblies, SS 546-597, will be consulted with profit.

3 Branham v. Lange, 16 Ind. 497; Marshall v. Harwood, 7 Md. 466. See also parliamentary cases, 5 Grey, 374; 9 Grey, 350; 1 Chandler, 50.

• Burnbam v. Morrissey, 14 Gray, 226. But the privilege of a witness to be exempt from a compulsory disclosure of his own criminal conduct is the same when examined by a legislative body or committee as when sworn in court. Emery's Case, 107 Mass. 172.

record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirement of the constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void. But whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either house has exceeded its authority, or disregarded a

constitutional requirement in the passage of legislative (* 136] acts, unless where the constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.3

The law also seeks to cast its protection around legislative sessions, and to shield them against corrupt and improper influences, by making void all contracts which have for their object to influence legislation in any other manner than by such open and public presentation of facts and arguments and appeals to reason as are recognized as proper and legitimate with all public bodies. Wbile counsel may be properly employed to present the reasons in favor of any public measure to the body authorized to pass upon it, or to any of its committees empowered to collect facts

! Spangler v. Jacoby, 14 Ill. 297 ; Miller v. State, 3 Ohio, N. s. 475; People v. Mahaney, 13 Mich. 481 ; Southwark Bank v. Commonwealth, 2 Penn. St. 446 ; McCulloch v. State, 11 Ind. 430; State v. Moffit, 5 Ohio, 358; Turley v. Logan Co. 17 Ill. 151; People v. Supervisors of Chenango, 8 N. Y. 317; Jones v. Hutchinson, 43 III. 721; Fordyce v. Goodman, 20 Ohio, n. s. 1.

2 See cases cited in preceding note. Also Prescott v. Trustees of Ill. & Mich. Canal, 19 Ill. 324. The case of Sherman v. Story, 30 Cal. 253, appears to be contra. And see Louisiana State Lottery Co. v. Richoux, 23 La. An. 458; 8. C. 8 Am. Rep. 600. A remarkable case recently came under judgment in South Carolina. An act to simplify practice passed the two houses of the legislature. By the previous law the courts for the county of Barnwell were held at Blackville, and the new act contained a provision continuing them at that place. As presented to and signed by the governor, however, it substituted Barnwell for Blackville. Held that the provision thus changed was void, the journals showing the change, – and that the courts must still be held at Blackville. State v. Platt, 2 S. C. (n. 8.) 150.

3 Miller v. State, 3 Ohio, n. s. 475; McCulloch v. State, 11 Ind. 424; Supervisors o. People, 25 Ill. 181.

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

1 This whole subject was very fully considered in the case of Frost v. 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.


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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 had 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;1 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.

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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.

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