Mayor of Jackson v. Bowman

39 Miss. 671

• Court: Mississippi Supreme Court
• Decided: April 15, 1861
• Status: Published

Opinion

Harris, J.,

delivered the opinion of the court:

The defendant in error filed his action of covenant in the court below against the plaintiff, to recover damages for the breach of the following agreement, to wit:

“Articles of agreement, made and entered'into on this the 7th day of July, 1856, between the mayor and aldermen of Jackson, State of Mississippi, of the first part, and James H. Bowman, of said city, of the second part, witnesseth : that whereas a'commodious hotel is greatly needed and desired for the accommodation of the public in said city, and the parties of the first part are willing to aid in the erection of said building, and thus fulfil the wishes of the inhabitants of said city, by granting the privileges and exemptions hereinafter named; and the said party of the second part, being hereunto solicited by the parties of the first part, and divers lawful voters of said city, has consented and agreed to cause to be erected a hotel building, on fractional square No. 1, north, in said city, of the description and dimensions stated in the plan of said building which has been submitted to, and approved by, the board of mayor and aldermen of the city of Jackson, upon the conditions hereinafter named, and certain donations from individuals of said city: Now, therefore, the said parties of the first part, in consideration of the premises,- and of the stipulations hereinafter contained, and of the sum of ten dollars, to the said parties of the first part in cash paid for the party of the second part, the receipt whereof is hereby acknowledged, do for themselves and their successors in office hereby covenant, promise, and agree to and with the said James H. Bowman, his heirs, executors, administrators, and assigns, as follows, to wit:

“ First, that the lot of ground upon which said hotel shall be erected, and all the buildings and structures thereon, and all the fixtures and furniture of said hotel buildings, and all the servants, horses, hacks, or other property that'may be employed in or about said hotel, shall be and remain wholly and entirely free and exempt from all city taxes, impositions, and charges of every kind and nature whatever, for and during the period of five-years from the completion of said hotel and the opening thereof, for the reception of guests.

“ Secondly, that the said party of the second part, his heirs, and executors, administrators, and assigns, shall be authorized and permitted to have and keep for public use, at such rate of charge as he or they may deem proper, billiard tables and tenpin alleys upon any part of said square, and hold the same for the period of five years, commencing from the completion of said hotel, wholly and entirely free and exempt from any city tax,imposition, or charge, on account of same.

" Thirdly, the said parties of the first part, and their successors in office, shall issue to said party of the second part, his heirs, executors, administrators, and assigns, immediately upon the completion and opening of said hotel as aforesaid, upon a compliance by him or them with the conditions prescribed by law — - to wit, upon the petition of the majority of the legal voters of thmcity of Jackson therefor — license to sell, by retail, in any quantity, vinous and spirituous liquors on any part of said square, for the period of twelve months from the date of such license, which license shall be annually renewed to said Bowman, his heirs, executors, administrators, and assigns, upon the like petition being by him or them presented to the board of mayor and aldermen of the city of Jackson, for the period of five years, commencing from the completion of said hotel, and the charge for such license shall not exceed the lowest rate at which license to retail vinous and spirituous liquors may by law be granted; and that they will also grant forthwith, and at the rate aforesaid, upon a petitional majority of the legal voters of this city therefor, license to the said Bowman or his assigns to retail vinous and spirituous liquors, in any quantity, in any house in the said city that he or they may designate, for the period of twelve months from the date of such license, and the same to renew as aforesaid until said hotel is completed and opened as aforesaid; and that they will also pay over to him or them such sums as may be by him or them paid for such license, such. payment by the city being a further donation for the erection of said hotel.

'■ “ Fourthly, the said parties of the first part will not, nor shall their successors in office, during any of the periods aforesaid, grant any license to any other person or persons applying for license to retail vinous and spirituous liquors, or either, in said city, unless such person or persons shall bind themselves to erect a hotel in said city, the costs of which shall not be less than forty thousand dollars; and in case any such license shall be issued to any other person or persons except as above stated, or if license shall not be duly issued to the said James H. Bowman, his heirs, executors, administrators, and assigns, upon the petition of a majority of the legal voters of the city of Jackson therefor, for the period aforesaid, as herein provided, then the said parties of 'the first part hereby bind themselves and their successors in office to pay to the said James H. Bowman, his heirs, executors, administrators, and assigns, the full sum of five thousand dollars as a donation for the erection of .said hotel.

“ But these grants and privileges are upon conditions that the said James H. Bowman shall erect or cause to be erected and completed upon said square, on or before the first day of December, A-. D. 1857, a hotel containing from eighty-five to one hundred rooms, the plan whereof has been approved by the said parties of the first part, and is now filed with the clerk of the city of Jackson; and in the event that said hotel is not completed on or' before said date, this agreement is to be null and void.

“And the said James H. Bowman hereby covenants and agrees in consideration of the premises, that he will erect or cause to be erected and completed said hotel within the period limited, to wit, on or before the first day of December, 1857; and in default thereof hereby binds himself, his heirs, executors, administrators, and assigns, to pay to the mayor and aldermen of the city of Jackson, and their successors in office, the full sum of five thousand dollars, which sum is agreed on by the parties to this contract as liquidated damages to be paid by said Bowman upon a breach of this contract by him.

“In testimony whereof, William H. Taylor, Mayor of .the city' of Jackson, has hereunto affixed his hand and the corporate seal of said city; and James H. Bowman has hereunto affixed his hand and seal, -this the day and year above written.

“WM. H. TAYLOR, Mayo?-, [seal.]

“JAMES H. BOWMAN. [seal.]”

The validity of this contract is the question submitted for our determination.

The power to grant licenses to retail vinous and spirituous liquors is not a corporate franchise, conferred on this corporation-by its charter. Its charter is the law of its being, in the exercise of its corporate rights and powers. As a corporation, therefore, acting under its charter, it could do no act, nor make any contract, not authorized by it. We are then to look beyond its corporate character for the power in question.

Admitting that the plaintiff in error was a corporate city, having more than two thousand inhabitants, (which nowhere appears in this record,) the power to grant retail license, under certain limitations and restrictions, was conferred by the Act of 1842, p. 109. But this is a special and limited jurisdiction, conferred by a general law, for the public good, and both the extent of its power and the limits of its discretion are strictly measured and regulated in their exercise by that Act. It is not a private right, nor an exclusive privilege, nor a public franchise granted to this corporation for the benefit of the city of Jackson as such corporation; but it is a naked power — a special duty — imposed by law upon this body, for the benefit of the public at large, which can only be exercised for the purpose, and in the manner, and according to the special provisions of the Act, and is wholly foreign to the objects and purposes for which the corporation was created. The corporation was only used as a convenient agent for the accomplishment of the purposes of the Act. Its object was twofold: 1st, to guard the community against the evils of numerous unrestrained retail shops; and, 2d, to make them a source of revenue for the benefit of common schools. The Act was subsequently amended so as to appropriate this revenue, in the city of Jackson, not to this corporation, but “ to the education-of poor children and the support of paupers.” See Act of 1846, p. 105. In this respect, as aptly suggested by counsel for appellants, this corporation occupies the precise attitude of the boards of police in the respective counties, or of any other court acting under a special and limited power beyond its general or ordinary jurisdiction, and all the doctrines applicable to that class of cases apply strictly here.

This corporation could not dispense with the conditions and prerequisites upon which its power and jurisdiction to grant license depended. Nor could it, in violation of the statute, interpolate new conditions, precedent to the exercise of its power and discretion. The Legislature contemplated by this Act, 1st, that only the corporate authorities of towns and cities having two thousand inhabitants or more, and the boards of police of the respective counties, should exercise this power; 2d, that the license should be for one year; 3d, that the amount paid for such license should not be less than two hundred nor more than one thousand dollars; 4th, that the applicant should be a free white person resident in the city; 5th, that there should be a recommendation of five freeholders ; 6th, that a bond should -be executed ; 7th, that the amount raised should be appropriated to the education of poor children and the support of paupers — by the amendment of 1846, p. 105, applicable to the city of Jackson; 8th, that no license should be delivered until the receipt of the treasurer of the corporation for the tax should be produced. It was not in the power of this corporation to do any act, or to make any contract, in violation of the plain duties enjoined by these provisions. It was not in its power to sell a discretion and authority specially delegated to it to be used for the public good, and thereby prevent itself from the further exercise of such discretion and authority, from time to time, as the exigencies of the country might demand. It was not in its power, by contract, to divest itself of this public, official duty, irrevocably, for a term of years, for private benefit or local advantage.

No person, even so far back as the feudal ages, was permitted by law to stipulate for iniquity. JSx turpi contractu actio non oritur is the universal maxim of the courts in every period of English jurisprudence. Our American reports equally abound with cases of contracts declared illegal on account of the illegality of the consideration; and they contain striking illustrations of the general rule that contracts are illegal when founded upon a violation of public trust, or confidence, or duty, or the violation of public law. 2 Kent, 620-622; 1 Story Eq. Jur. p. 324, sec. 294. As to violate the license laws, Ritchie v. Smith, 6 C. B. R. 462.

The courts of the country will give no man a remedy on a contract made in contemplation of a violation of its laws. Yewett v. Bartlett, 21 Verm. R. 184; Woottier v. Miller, 7 S. & M. 385.

When we examine this contract in reference to the laws of this State existing at the time it was made, and in the light of these general principles, it is most apparent that not only its tendency, but its real design, was, to evade, defeat, and absolutely nullify the provisions of the Acts of 1842 and 1846. To enable the parties to the contract to erect a commodious hotel for the accommodation of the public in the city of Jackson, “by granting the privileges and exemptions” named in said contract, is its declared purpose — a purpose wholly foreign to the objects intended to be accomplished by this Act of 1842, and inconsistent with the just exercise of the power and discretion vested in the corporation by that Act for the public good.

The contract next proceeds to violate the letter and spirit of the Act of 1842, by obligating the authorities of the city of Jackson, -without regard to the conduct of Bowman under his license, to renew it annually for five years, whether he shows himself to be a proper person to whom the license should be granted or not; thus selling or donating away — irrevocably—the power and discretion vested in them by law, to be exercised from year to year, in preventing the abuse of the license, and vesting the right in Bowman, by contract, to exercise this privilege for five years:

They next obligate themselves to grant him the license annually for five years, “at the lowest rate at which license to retail vinous and spirituous liquors may by law be granted;” thus parting with their power and discretion, in view of all circumstances surrounding them, to demand from the grantee of such license the highest or any intermediate sum therefor between two hundred and one thousand dollars, according to the provisions of the Act of 1842.

They next obligate themselves “ annually to renew said license to said Bowman, his heirs, executors, administrators, and assigns," in violation of the fourth section of the Act of 1842, declaring such license "a personal privilege, not transferable from one person to another.”

They next bind themselves to violate a positive trust and duty, enjoined upon them by the Act of 1846, appropriating the license fund in the city of Jackson “ to the education of poor children and the support of paupers" therein, and agree to donate it to Bowman for five, years, to build a commodious hotel in said city for the accommodation of the public at large; and not only so, but they undertake, further, to bind their successors in office to a like disregard of their social duty, and a like violation of a positive law.

They lastly obligate themselves to grant to Bowman all these privileges, to the exclusion of all other persons, until such persons shall bind themselves to erect a .hotel in said city the cost of which shall not be less than forty thousand dollars' — a condition not authorized by the statute from which they derive their authority.

That a contract thus vicious, fraudulent, evasive, and illegal upon its face, cannot be enforced is too obvious to require argument.

That it is dressed in the language of donation does not change the character of the contract. It is obvious that the five thousand dollars agreed to be donated was intended as a penalty, to induce the violation of a public duty, and the violation of a public law, by the authorities of the city of Jackson, for the private advantage of James H. Bowman. Perhaps such public benefits as the world at large might be able to obtain by availing themselves of a “commodious hotel” in the city of Jackson, and paying a full equivalent therefor, and the further benefits that other citizens of Jackson might glean from temporary sojourners, were also considerations and inducements to this contract.

But the first and leading design intended to be covered by this transparent pretence of public advantage was the violation of the statute, and the flagrant abuse of the power and discretion vested in this corporation for wholly different objects.

It is clear that the Act of 1857-does not sanctify this wrong nor attempt to give it validity, even if the Legislature had the power. It is true the Act says, “the mayor and aldermen of the city of Jackson are authorized and empowered to carry into effect said contract.” But they choose to repudiate it, and have the right to do so. Indeed it is their duty to do so, as it violates their, public duty.

Let the judgment be reversed, and judgment rendered here for the defendant below on the demurrer to the declaration.