Sallade v. Schuylkill County

19 Pa. Super. 191, 1902 Pa. Super. LEXIS 60

Opinion

Opinion by

Rice, P. J.,

On Sunday, April 28,1901, Henry Becker and Edward Kester, two of the three members of the board of poor directors of Schuylkill county, entered into a written compact, which they called articles of agreement, whereby they agreed “ to organize the board of poor directors of Schuylkill county on Monday April 29, 1901, in the manner following: . . . . Edward Kester is to have the following appointments to be elected by the joint votes of Henry Becker and Edward Kester.” Then followed a list of the offices parceled out to Kester and the salaries attached to each, but not naming the persons to be appointed. A similar stipulation in favor of Becker was inserted and amongst the offices placed at his disposal was that of clerk at a salary of $1,200. Then to make the compact binding for the year 1902, as well as the year 1901, the paper concluded as follows : “ The positions as here divided are to be the same next year.” On the following day they entered into this supplemental agreement in which two of their friends joined:

“ It is further agreed that each of the parties shall hold a copy of this agreement; and it is further agreed that the sum of $1,000 dollars is to be deposited by P. W. Houck and the same sum by Wm. Goas ; it being understood that P. W. Houck represents Kester, andWm. Goas, Henry Becker; the forfeit is to bind the parties to a faithful performance of the covenants herein and before, to be forfeited by the party putting up said stake in case principal makes default. It is further agreed that a copy of this agreement be placed in an envelope and mailed to E. B. Hunter, at the Merchants’ National Bank, Shenandoah, and $2,000 be deposited in the Union Safe Deposit Bank to the order of E. B. Hunter. Money or proper collateral to remain up until April 1, 1903, and not to be delivered by him until called for by Wm. Goas and P. W. Houck jointly, at the time before stated; it being however agreed that if either of the principals violate the contract so filed with E. B. Hunter, that the said E. B. Hunter shall deliver after Monday, April 29, 1901, the sum of $2,000 to the party who was ready and willing to carry out this agreement.”

The money was posted as above agreed, and at the regular meeting of the board on tbe afternoon of the same day, all the members being present, the following resolutions were adopted by the votes of Becker and Kester against the protest of Hogan, the other member.

“ Whereas, certain appointments heretofore made for the various positions at the Schuylkill County Almshouse have proved unsatisfactory to the majority of the directors of the poor; therefore, it is resolved that all such appointees shall be dismissed and the several places so filled declared vacant.

“ And it is further resolved that all vacant places be filled by other appointees, who shall assume their duties on the first day of May, 1901.”

Thereupon Becker and Kester each nominated persons for the places allotted to him, and, as they constituted a majority of the board, the nominees were elected. Amongst them was the plaintiff, who was thus appointed clerk at a salary of $1,200. He entered upon the duties of his appointment on May 1,1901, and at the end of the month received an order drawn on the county treasurer for the amount of his salary for that month. As the county controller refused to approve it, it was not paid; hence this suit.

This compact was vicious in principle, and, as properly characterized by the learned trial judge; disreputable. It is asked, “Who was injured by this agreement?” The same question might be asked with equal propriety if the offices had been sold to the highest bidder. The answer is, that the public was harmed, because it involved a surrender by each of these directors of that discretion with which the law had invested him, and which he had solemnly sworn to exercise. In whatever light it may be viewed it is odious; it presents on its face its own condemnation, even if we assume that the posting of $1,000 by each of the backers of the officers was a matter of pure and disinterested friendship. We will not waste further words to show that a compact, whereby a member of such a board, who has sworn to discharge the duties of his office, “ truly, faithfully and impartially, to the best of his knowledge and ability,” binds himself to vote for any person that a fellow member may name for a position to be filled by the board, without knowing who will be named, is illegal, immoral and contrary to public policy, even though he is not moved to enter into such compact by any pecuniary consideration, or the hope of pecuniary reward. This is a self-evident proposition and need not be dwelt upon.

The serious question in the case is, whether the above facts were admissible in evidence in an action by the appointee to recover his salary, his appointment being regular on its face, and he having performed the duties devolving upon him. Prima facie, this was not the case of a de facto officer suing for the salary or fees attached to an office to which he could not show a valid title. Hence the rule that none but the officer de jure can successfully claim compensation for official service cannot be invoked to prevent recovery. We are not to be understood as holding that the title to a public office, which though regular and valid on its face, was obtained by bribery or fraud, may not be questioned in appropriate preeeedings. The cases show that it may be: Commonwealth v. Walter, 88 Pa. 105; Commonwealth v. Walter, 86 Pa. 15; Leonard v. Commonwealth, 112 Pa. 607. It is urged, however, that where the title of the officer is valid and regular on its face and he is in possession, the proper and exclusive mode of attacking it upon the grounds last suggested is by quo warranto. But was the position to which the plaintiff was appointed a public office ? It was not created in express terms by any of the acts to which our attention has been called. True, the act of February 23, 1859, speaks of the appointment of certain officers and amongst them, “ one resident physician who shall be clerk and bookkeeper,” but this was not the office to which the plaintiff was appointed. The Act of March 25, 1864, P. L. 77, authorizes the directors “ to appoint a steward, and physician, and surgeon, and such other officers as may be deemed necessary by the said directors, for the proper management of the almshouse.” This act did not create the office but authorized the directors to create it and prescribe the duties attached to it. But surely not every position or place created by the directors pursuant to the authority here given is a public office, and without more knowledge as to the duties attached to it than the evidence in this case furnishes, we are unable to declare that it is, in the true sense of the term, a public office. Without expressing a more decided opinion upon that question we may say this, that the mere name given to the place or position, unless public duties were attached to it, would not make it a public office. If the plaintiff was a mere employee and the relation purely contractual, we have no doubt that it would be competent to show in an action by him for his salary that he obtained the position through a fraudulent and corrupt compact to which he was a party, either as principal or accessory, and which involved a violation of official duty by the directors. Looking at the case in that view we have with great care read and reread all the testimony for the purpose of ascertaining whether there is any evidence from which a jury could find that he was thus connected with the illegal compact of the two directors. As a result of said examination we are compelled to answer this question in the negative. The facts, that he was at the almshouse on the afternoon of the day that the appointment was made, before the meeting of the board, that he was seen in close and confidential consultation in a low tone of voice with Becker, the director to whom this appointment was allotted, that he remained until after the board met and the appointments were announced, while relevant facts, were not sufficient, without more, to warrant an inference that he was a party to the transaction, or was even cognizant of the illegal agreement that had been entered into by Becker and Kester. We are constrained to say, therefore, that it was error to submit this question to the jury, and that in the absence of sufficient evidence to connect him with the transaction, the motion to strike out the evidence referred to in the third assignment should have been sustained, and a verdict directed for the plaintiff. See Hyatt v. Johnston, 91 Pa. 196; McCarthy v. Scanlon, 176 Pa. 262; Brooks v. Penna. R. R. Co., 2 Pa. Superior Ct. 581.

It has been suggested that the appointment was illegal because the place was not vacant. In answer to this suggestion it seems sufficient to say, that if the place held by Miss Mellet, the plaintiff’s predecessor, was a public office, she was removable at the pleasure of the power by which she was appointed, but if she was a mere employee and the relation purely contractual, it cannot be set up as a defense to this action that the creation of the vacancy involved a breach of the contract with her.

Much comment was made in the argument upon the remarks of the learned trial judge which are the subject of the fourth assignment of error. In the main, these remarks were unobjectionable. It was perfectly proper for the court to give a stinging rebuke to such practices on the part of public officials as were shown by the undisputed evidence in this case ; but inadvertently the learned judge referred to reports concerning the management of the almshouse, which reference should have been omitted. As the case must be reversed on other grounds this is all that need be said concerning this assignment.

We need not discuss the assignments in further detail. We have discussed the controlling questions in the case, and for the reasons given the judgment is reversed and a venire facias de novo awarded.-