of public justice in its efforts to punish crime is opposed to public policy and void.

Thus an agreement with an attorney, for a contingent fee, to settle a criminal case so as to avoid a prosecution;1an agreement to pay one for endeavoring to induce the complainant in a prosecution for felony to discontinue the proceedings; an undertaking for compensation to endeavor to prevent the finding of an indictment, and, if found, to endeavor to have the public authorities dismiss it; an agreement for a contingent fee to use one's influence with a prosecuting attorney to induce him to bring about a lighter punishment than otherwise, and to permit the accused to turn State's evidence with the hope of receiving a pardon therefor; and an agreement with an attorney to attempt to induce the sheriff to refrain from arresting A, who is charged with murder, the object being to give A an opportunity to escape, are void.

5

§ 28. Services in procuring Appointment to Office. Contracts to procure the appointment of a person to public office fall within the same principles. These offices are trusts, held solely for the public good, and should be conferred from considerations of the ability, integrity, fidelity and fitness for the position of the appointee. No other considerations can properly be regarded by the appointing power. Whatever introduces other elements to control this power must necessarily lower the character of the appointments to the great detriment of the public good. Agreements for compensation to procure these appointments tend directly and necessarily to introduce such elements. The law, therefore, from this tendency alone, adjudges these agreements inconsistent with sound morals and public policy.

'Ormerod v. Dearman, 100 Penn. St. 561, 45 Am. Rep. 391.

2 Rhodes v. Neal, 64 Ga. 704, 37 Am. Rep. 93.

3 Barron v. Tucker, 53 Vt. 338, 38 Am. Rep. 684.

Wight . Rindskopf, 43 Wis. 344. 5 Arrington v. Sneed, 18 Tex. 135. See also, Buck v. First National Bank, 27 Mich. 293, 15 Am. Rep. 189; Haines v. Lewis, 54 Iowa 301, 37 Am. Rep. 202; McMahon v. Smith, 47 Conn. 221, 36 Am. Rep. 67; Dodson

v. Swan, 2 W. Va. 511, 98 Am. Dec. 787.

Tool Co. v. Norris, 2 Wall. (U. S.) 45; Gray v. Hook, 4 N. Y. 449; Gaston v. Drake, 14 Nev. 175, 33 Am. Rep. 548; Filson v. Himes, 5 Penn. St. 452; 47 Am. Dec. 422; Faurie v. Morin, 4 Martin (La.),39, 6 Am. Dec. 701; Outon v. Rodes, 3 A. K. Marsi. (Ky.) 432, 13 Am Dec. 193; Hager v. Catlin, 18 Hun (N. Y.), 448; Haas v. Fenlon, 8 Kans. 601; Liness v. Hes ing, 44 Ill. 113, 92 Am. Dec. 153.

$ 29. Same Rule applies to private Offices and Employments. The same principles apply to contracts to procure private offices and employments, as well as those which are public or political in their nature. Open and fair presentation of an applicant's qualifications for the position is legitimate, and such presentation may lawfully be undertaken for a compensation, where the agent's relations to the subject matter and the appointing power will permit, and the fact that he comes as a hired advocate is disclosed.

2

But where it is contemplated that the agent is to conceal his agency and assume the position of a disinterested friend or adviser; or where the appointment is to be sought by bringing to bear personal influence or persuasion; or where the undertaking of the commission at all is inconsistent with duties already assumed or imposed by law, the contract is repugnant to the public policy.❜

Thus where A, an attorney, employed B, the agent of C, to endeavor to persuade C to discharge a certain other attorney he was then employing, and to employ A instead, and promised B, by way of compensation, to divide with him such fees as A might receive, it was held that the agreement was void.' So a contract

See Bollman v. Loomis, 41 Conn. 681, where A. for a fee from C. undertook to pose as the confidential friend and adviser of B. and thus induce him to purchase property of C. "This," says Chief Justice SHAW, in Fuller v. Dame, 18 Pick. (Mass.) 472, in speaking of this rule, "is founded upon the general consideration of fitness and expediency. Such advice and solicitation, in whatever form the agency may be exerted, are understood to be disinterested and to flow from a single regard to the interests of the parties. They are lawful only so far as they are free and disinterested. If such advice and solicitation, thus understood to be pure and disinterested, may be justly offered from mercenary motives, they would produce all the consequences of absolute misrepresentation and falsehood. It is understood to be the offer of

disinterested good offices, and the measure proposed, to be recommended by the unbiased judgment of the person offering it; whereas, it is in fact an offer flowing from unavowed motives of pecuniary interest, and the recommendation is the result of a judgment biased by a hope of a large reward. If rewards might be taken in consideration of the exertion of direct or indirect influence, either by the person acting under it, or by others who should be influenced and moved by him, it would destroy all confidence, it would lead to false and unfair representations and dealings, and be productive of infinite mischief."

2 See note 4, post.

* See note 4, 5 and 6, post.

Byrd v. Hughes, 84 Ill. 174; 25 Am. Rep. 442; Meguire v. Corwine, 101 U. S. 108.

2

that in consideration of B's purchasing of A certain stock in a corporation, A would procure B's appointment as treasurer1 or cashier thereof, is void. Such appointments should be made because of the personal fitness of the applicant, and not because the appointing power is open to personal influence or can be bought for a price. So A, who has been requested to recommend to C, a suitable person for employment whom he could endorse as in every way responsible and reliable, cannot lawfully undertake to secure the position for B in consideration of B's paying him a fee.3

§ 30. Services in improperly influencing Elections. Purity of elections, and the free, fair and intelligent exercise of the ballot, uninfluenced by other considerations than the candidate's fitness and the general good of the community, are of paramount public importance, and any agreement for the rendition of ser'vices which have for their object, or which legitimately tend to, the introduction of other elements, as the bribery of voters or the bringing to bear upon them of personal influence, solicitation or persuasion, is, in accordance with the principles already referred to, clearly opposed to public policy and void.

Thus where one who was a candidate for the office of district attorney, employed another to "use all of his influence" with the voters of the county to secure the candidate's election, and who promised as compensation therefor, that if he should be elected, he would divide the fees of the office with the other, the court said: "Such a contract cannot be upheld. Its tendency was to corrupt the people upon whose integrity and intelligence the safety of the state and nation depends,-to lead voters to work for individual interests rather than the public welfare.” So where one agreed to render services in procuring the elec

1 Guernsey v. Cook, 120 Mass. 501; Noyes v. Marsh, 123 Mass. 286; Jones . Scudder, 2 Cin. Sup. Ct. 178.

2 As of a National Bank, Noel . Drake, 28 Kans. 265, 42 Am. Rep. 162; see also Railroad Co v. Ryan, 11 Kans. 602; Haas v. Fenlon, 8 Kans. 601; Tool Co. v. Norris, 2 Wall. (U. S.) 45.

Holcomb v. Weaver, 136 Mass. 265, 17 Reporter, 401.

Gaston v. Drake, 14 Nev. 175, 33 Am. Rep. 548; Martin v. Wade, 37 Cal. 168; see also Swayze v. Hull, 3 Halstead (N. J.),54, 14 Am. Dec. 399. An agreement to pay another to "work and canvass" voters for the purpose of securing the promisor's nomination for an office is void. Keating v. Hyde, 23 Mo. App. 555.

tion of a certain candidate to the office of sheriff upon consideration that if successful he should be appointed deputy, the court held the agreement void.' And where one for money or other personal profit, agrees to use his influence in an election against what he believes to be for the public good, the contract is void, though as a matter of fact he uses no unlawful means."

§ 31. Same Subject-What Services legitimato. But it is not unlawful for a candidate for a public office, particularly where his candidacy extends over a considerable territory, to employ another to make public speeches in his behalf, or to prepare, print or distribute arguments upon the questions at issue, or to use other open and honorable means to promote the success of his candidacy, where the object is to convince the understandings of the voters by public means and not to bring personal or other improper influences to bear upon their weaknesses or prejudices.

§ 32. Services in procuring Pardons. The same general principles which underlie the questions just discussed, govern here. An agent or attorney may lawfully be employed to attend an open or public hearing of the executive or board of pardons, and make such legitimate arguments and present such petitions, memorials, statements of fact and evidence as are appropriate to bring before the pardoning power all the considerations which may be properly taken into account in behalf of the convicted

'Stout v. Ennis, 28 Kans. 706. And a like ruling was made in Robertson v. Robinson, 65 Ala. 610, 39 Am. Rep. 17. See also Salling v. McKinney, 1 Leigh (Va.), 42, 19 Am. Dec. 722; Groton v. Waldoborough, 11 Me. 306, 26 Am. Dec. 530.

Nichols v. Mudgett, 32 Vt. 546. "There is a clear distinction," says LEWIS, P. J., in Keating v. Hyde, 23 Mo. App. 555, "between the purchase of services to be devoted only to an advertising of the fact that one is or desires to be a candidate, and the purchase of services to be employed in advocating his peculiar merit and eligibility so as to influence

the choice of the voter. No public policy forbids the making of compensation, under agreement or otherwise, for printing or distributing announcements, or for the employment of any proper agency which may bring the fact of a person's candidacy more prominently before the public eye. The information thus disseminated is essential to the intelligent determination of the voter's choice. But it becomes a very different thing when money is paid or promised for efforts to control the voter's free agency in selecting the object of his suffrage." See also Murphy v. English, 64 How. Pr. (N. Y.) 362.

person;' but all employments having for their object or natural tendency the using of any improper or sinister means, or which contemplate the exercise of personal influence or solicitation, especially if for a contingent fee, are looked upon by the law as demoralizing in their tendency, opposed to public policy and void, even though in the particular case no improper means were used or contemplated.'

§ 33. How when Conviction illegal. But where the conviction was unwarranted, as because the court had no jurisdiction, or where there was a grave doubt as to the constitutionality of the statute under which the conviction was had, no rule of public