Elkhart County Lodge v. Crary. pose of securing the location of an important office connected with the public service for individual benefit, rather than for the public good, tends to the injury of the public service. The case made by the evidence falls fully within the principle that contracts which tend to improperly influence those engaged in the public service, or which tend to subordinate the public welfare to individual gain, are not enforceable in any court of justice. Pollock Cont. 279; Anson Cont. 175; 1 Whart. Cont., §§ 402 to 414 inclusive. A wholesome rule of law is that parties should not be permitted to make contracte which are likely to set private interests in opposition to public duty or to the public welfare. This rule is recognized in our own case of Maguire v. Smock, 42 Ind. 1; s. c., 13 Am. Rep. 353, where it was held that an agreement to pay a consideration to a property owner for signing a petition to secure the improvement of a street was void, although there was no fraud, and although the person to whom the promise was made was really in favor of the improvement. It is not necessary that actual fraud should be shown, for a contract which tends to the injury of the public service is void, although the parties entered into it honestly and proceeded under it in good faith. The courts do not inquire into the motives of the parties in the particular case to ascertain whether they were corrupt or not, but stop when it is ascertained that the contract is one which is opposed to public policy. Nor is it necessary to show that any evil was in fact done by or through the contract. The purpose of the rule is to prevent persons from assuming a position where selfish motives may impel them to sacrifice the public good to private benefit. An English author says: "But an agreement which has an apparent tendency that way, though an intention to use unlawful means be not admitted, or even be nominally disclaimed, will equally be held void." Pollock Prin. Cont. 286. In the case of Tool Co. v. Norris, supra, the court said: "All agreements for pecuniary considerations to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation by refusing them recognition in any of the courts of the country." Elkhart County Lodge v. Crary. The case in hand is plainly distinguishable from those in which a promise is made to the public through its representatives. Here the motive of the contracting parties was to secure the location of a public office to advance their private interests, and not to benefit the public and here too there was competition between two localities. The case therefore is one in which there should have been no influence brought to bear upon the decision of the contest except that of the public good. The cases of Peirce v. Ruley, 5 Ind. 69; Commissioners v. Perry, 5 Ohio, 56; State Treasurer v. Cross, 9 Vt. 289; 31 Am. Dec. 626, hold that a contract with the officers of the State for the benefit of the State is valid, but they clearly distinguish between the cases where a promise is made to an individual for his private benefit and those in which the promise is made to a public officer for the benefit of the public. This distinction is made in the case of State v. Johnson, 52 Ind. 197, and in the course of the opinion the following extract from the decision in Clippinger v. Hepbaugh, 5 Watts & S. 312; 40 Am. Dec. 519, is approvingly quoted: "It matters not that nothing improper was done or was expected to be done by the plaintiff. It is enough that such is the tendency of the contract, that it is contrary to sound morality and public policy, leading necessarily, in the hands of designing and corrupt men, to improper tampering with members, and the use of an extraneous, secret influence over an important branch of the government." The difference between the two classes of cases is clearly stated in Odineal v. Barry, 24 Miss. 9, where it was said: "The members of the board of police, as individuals, will not receive any portion of the money for which the note was given. At the time of the contract it was not intended or expected that they should receive it. It was not a proposition by the defendants to pay them so much as individuals, in consideration that they would not change the site of the court-house. If it had been, it would have been clearly illegal, and could not have been enforced." It is true that a contract to pay for professional services in fairly placing the facts of a case before the officers of government is valid Trist v. Child, 21 Wall. 441; Smith Lead. Cases (7th Am. ed.), 692; Bryan v. Reynolds, 5 Wis. 200. But the contract in this case is not for professional services but for personal influence, and this constitutes an essential element, for personal influence is not a commodity for which money can be demanded. The case of Oscanyan Elkhart County Lodge v. Crary. v. Arms Co., 103 U. S. 261, cited by appellants, is directly against them upon this point. In the course of the opinion in that case it was said: "But independently of the official relation of the plaintiff to his government, the personal influence which he stipulated to exert upon another officer of that government was not the subject of bargain and sale. Personal influence to be exercised over an officer of government in the procurement of contracts * is not a vendible article in our system of laws and morals, and the courts of the United States will not lend their aid to the vendor to collect the price of the article. Numerous adjudications to this effect are found in the State and Federal courts. This is true when the vendor holds no official relations with the government, though the turpitude of the transaction becomes more glaring when he is also its officer." In Trist v. Child, supra, the court in speaking of professional services, said: "But such services are separated by a broad line of demarcation from personal solicitation." While contracts for the payment of fixed fees for professional services are valid, yet when the fees are made contingent upon success in obtaining the desired legislation, the contract sought, or the office asked of the government, the contract becomes so tainted with illegality as to render it void. "High contingent compensation," said Justice GRIER, "must necessarily lead to the use of improper means and the exercise of undue influence," and the decisions give approval to his discussion of the question of the legality of such contracts, and concur in the conclusion that all such contracts are against sound public policy. Marshall v. Baltimore, etc., R. Co., 16 How. 314; Meguire v. Corwine, 101 U. S. 108; Oscanyan v. Arms Co., supra, see opinion, p. 274; Clippinger v. Hepbaugh, supra ; Wood v. McCann, 6 Dana (Ky.), 366; Mills v. Mills, 40 N. Y. 543; Ormerod v. Dearman, 100 Penn. St. 561; s. c., 45 Am. Rep. 391. The contract before us has two infirmities, one of an agreement for the use of personal influence, and another of an agreement for compensation dependent upon the contingency of success. That we are correct in saying that the agreement is dependent upon a contingency is shown by the fact that the consideration became payable only in the event that the post-office was located and maintained in appellant's building. Doubtless a contract to assist a property owner in fitting up or purchasing a building to be given to the government for public use would be valid, but in the present instance this was not Terre Haute and Indianapolis Railroad Company v. McMurray. the character of the consideration of the notes in suit, although such an element may have formed part of the consideration. The consideration of the notes is indivisible and the illegal cannot be separated from the legal, and under the familiar rule that where the consideration is in part illegal and there can be no separation, the whole contract is void. The contract before us must be held invalid because of the illegality of the consideration. Judgment affirmed. TERRE HAUTE AND INDIANAPOLIS RAILROAD COMPANY V. MCMURRAY. (98 Ind. 658.) Master and servant - authority of conductor to employ surgeon for injured brakeman. Where a railway brakeman is injured in the discharge of his duty at a point distant from the chief offices of the company, and stands in need of immedi. ate surgical attendance, the conductor may bind the company by the employment of a surgeon, if there is no superior agent of the company present. A CTION for services. The opinion states the case. iff had judgment below. J. G. Williams, for appellant. J. Claybaugh and B. K. Higinbotham, for appellee. The plaint ELLIOTT, J. The facts in this case are simple, and lie within a narrow compass, but the questions of law are important and difficult. Frankfort is a way station on the line of appellant's road, distant many miles from the principal offices of the company and from the residences of its chief officers. At this station, at one o'clock in the morning of July 2, 1881, Thomas Coon, a brakeman in the service of the appellant, had his foot crushed between the wheel of a car of the train on which he was employed as brakeman, and a rail of the track. The injury was such as demanded immediate surgi Terre Haute and Indianapolis Railroad Company v. McMurray. cal attention. The conductor of the train requested the appellee, who was a surgeon residing in the town of Frankfort, to render the injured man professional aid and informed the appellee that the company would pay him for such services. At the time the accident happened, and at the time the surgeon was employed, there was no officer superior to the conductor at the town of Frankfort. There was at the station a resident agent who had full knowledge of the injury to Coon, and of appellee's employment. This agent was in telegraphic communication with the principal officers of the company, but did not communicate with them. The trial court held the appellant liable for the reasonable value of the services rendered by the appellee, and awarded him $100. In ordinary cases, a conductor or other subordinate agent has no authority to employ surgical assistance for a servant of the corporation who receives an injury or becomes ill. We do not doubt that the general rule is that a conductor has no authority to make contracts with surgeons, and if this principle governs all cases the discussion is at an end; but we do not think it does rule every case, for there may be cases so strongly marked as to constitute a class in themselves and one governed by a different rule. The authority of an agent is to be determined from the facts of the particular case. Facts may exist which will greatly broaden or greatly lessen an agent's authority. A conductor's authority in the presence of a superior agent may dwindle into insignificance; while in the absence of a superior it may become broad and comprehensive. An emergency may arise which will require the corporation to act instantly, and if the conductor is the only agent present, and the emergency is urgent, he must act for the corporation, and if he acts at all his acts are of just as much force as that of the highest officer of the corporation. In this instance the conductor was the highest officer on the ground; he was the sole representative of the corporation; he it was upon whom devolved the duty of representing the corporation in matters connected within the general line of his duty in the sudden emergency which arose out of the injury to the fellow-servant immediately under his control; either he as the superior agent of the company, must in such cases be its representative, or it has none. There are cases where the conductor is the only representative of the corporation that in the emergency it can possibly have. There are cases where the train is distant from the supervision of superior officers where the conVOL. XLIX-95 |