These are the considerations affecting another class of cases, the last which we shall mention in this connection, respecting contracts for the procurement or sale of public offices. Such are held illegal in their subject-matter, and utterly void as contrary to the soundest public policy. Lord Coke, in his commentary, notes in the instances he mentions, "that all promises, bonds and assurances, as well on the part of the bargainor as of the bargainee, are void by the same act. Nulla alia re magis Romana respublica interiit, quam quod magistratus officia venalia erant," and stating the law of England, that "no officer or minister of the king shall be ordained or made for any gift or brocage or affection; nor that any which pursueth by him, or any other privily or openly to be in any manner of office, shall be put in the same office or any other," says, "A law worthy to be written in letters of gold, but more worthy to be put in execution." He concludes with the rule, "Such condition as is intended by the law to be annexed to any thing is as strong as if the condition were in writing."

1 Story Eq. Jur., § 341; 1 Dig. L. 14, t. 6, 1, 1; see, however, note 1 Story Eq. Jur. (8th ed.) p. 328 and note 3, p. 329; Co. Litt. 234a; 1 Story Eq. Jur., § 229; 1 Atl. R. 300; 7 Mass. 119.

CHAPTER XIV.

PUBLIC POLICY AND ITS OBLIGATIONS IN MATTERS OF CONTRACTS, COMBINATIONS AND STRIKES.

No exact definition of public policy will be found. Whatever is detrimental to the interests of the public, as understood at the time, falls within its ban. It is sufficient that this tendency be shown, and we have not to wait for the appearance of detrimental results. Positive law, or the express terms of a statute, are not necessary to its declaration. The welfare and security of civil society, for which government is constituted and laws are made, are the common foundation of public policy and statute law, and necessity guides them both.' "The government of the Confederacy had no existence except as organized treason," says the United States Supreme Court in Spott v. United States, "but the acts of the States in rebellion, in the ordinary course of administration of law, must be upheld in the interest of civil society, to which such a government was a necessity." If recusant to its duty, the disorders which government should prevent are present, and peace and liberty of action and rights of property may be invaded under the guise of authority from unlawfully constituted bodies which the law cannot recognize, or by an irregular strife for the benefit of individuals working a public injury.

It is superfluous to multiply examples. The Buffalo strike against railroads, the Homestead riots against iron industry, and the Tennessee outbreak of miners within one year, when half the militia force of each of these States was brought into the field to restore peace within its own fold, show what fearful consequences flow immediately from a disregard of experience from precedents, and a neglect of principles vindicated in the history of English and American law. "A conspiracy of any kind is illegal, though the matter about which they

1 Spott v. U. S., 20 Wall. 459; Walker's Ex'rs v. U. S., 106 U. S. 413; Lamar v. Micou, 112 U. S. 476; Austin v. Searing, 16 N. Y. 112; Leroy v. Hill, 3 H. & N. 702; Mitchell v. Reynolds, 1 P. Wms. 181; 1 Smith's L. Cases and note, 508; The People v. Fisher, 14 Wend. 10.

conspired might have been lawful for them to do without a conspiracy,” is the rule from modern reports. Upon the rule found that a conspiracy to raise wages is an act injurious to trade and commerce, the King v. Journeymen Tailors of Cambridge, and The Tubwomen v. The Brewers of London, are quoted from, in People v. Fisher, with the statement that the latter case has been cited by all subsequent writers on criminal law.' These are again used as authority for important recent decisions. In People v. Trequier and others, the defendants, journeymen hatters, were indicted and convicted, who, being persons of evil minds and dispositions, did conspire and combine, confederate and agree together to prevent and hinder one Daniel Acker from being employed in his business as a hatter, and to cause him, the said Daniel Acker, to be discharged from his employment as a hatter. This trouble was because Acker had not agreed to certain rules and regulations framed by other hatters, and was accused of working for "knocked down wages," which he denied.

These cases seem to hold that journeymen may simply refuse to work unless they receive an advance of wages; but if they do so by preconcert or association, they may be punished for a conspiracy.

A combination and agreement between the East India Company's officers to resign was declared unlawful, and the parties might be indicted for conspiracy. If several go to a theatre by previous agreement to hiss an actor, or cry down a play, they are guilty of a conspiracy. So, also, a combination to raise the price of funds by false rumors is indictable. In conspiracy under the common law the crime may be complete by the unlawful agreement. It is not necessary by the common law that any act be done in pursuit of it, and it may be inferred from the circumstances of the case. As was said in the Early case: "It was not for the denial to work they were indicted, but a conspiracy of any kind is illegal." The same opinion adds: "Among these we find precedents at common law against journeymen for conspiring to raise their wages and lessen the time of labor, and to compel masters to pay a whole

1 King v. Journeymen Tailors, S Mod. 11; Tubwomen v. London Brewers, 8 Mod. 11, note to 1 Wheeler's Cr. Cases, p. 149; Ibidem, People v. Trequier, The Cr. Rec., p. 142, January, 1823; see 5 T. R. 636; Rex v. Bykerdyke, 1 M. & Rob. 179; 1 Wh. Cr. Cases, 151; 4 Burr. 2472; 2 Campbell, 358; 3 M. & S. 67; 1 Salk. 174; 1 Stra. 144; 3 Chitty Cr. L., note 9. In England it was not necessary to allege or prove any overt act in pursuance of the conspiracy. O'Connell v. Regina, 11 Cl. & Fin. 155. The rule of the common law was changed in New York. An overt act is required in New York to complete the offense. 2 R. S. 692, § 19; Penal Code, § 171; People v. Sheldon, 54 N. Y. St. R. 513; see note 2, Chap. IX. "An agreement to engage in a prize fight is a conspiracy to commit a crime." Seville v. State, 49 Ohio, 117.

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day's work; against journeymen lamp-lighters, for conspiring to raise wages, and for journeymen carriers for the like offense; against salt makers, for conspiring to enhance the price of salt; against journeymen serge-weavers, for refusing to work for a master who had employed a man contrary to certain rules entered into by conspiracy; against journeymen leather dressers, for conspiring to induce a man to turn a person out of his employment; against master rope-makers, for conspiring not to employ journeymen who had left their last master without his consent. Some of these offenses seem to have had for their object the oppression and injury of an individual; others were calculated to injure the public. The immediate object in those cases, as in this, probably was to benefit the conspirators themselves; but if their individual benefit is to work a public injury, a conspiracy for such an object is against the spirit of the common law."

Many important considerations, brought to view by the circumstances of a recent case, are stated in the opinion of the United States Supreme Court.' It says: "Ordinarily the law leaves to parties the right to make such contracts as they please, demanding, however, that they shall not require either party to do an illegal thing, and that they shall not be against public policy, or in restraint of trade." There are certain fundamental rights which no man can barter away, and which government cannot deny to him; "a contract not to set up any defense whatever to any suit that may be begun upon fifty different causes of action, is in violation of public policy. Some private rights, such as defenses under usury laws, or statutes of limitation, or to contracts having for their objects the perversions of the ordinary operations of the government, or the rights to life and personal freedom, are founded in public policy, which is promoted when the defense is made to adverse claims, and is contravened by the refusal to make such defense." Again, the action of courts is to decree a specific performance of agreements, and at times a mandatory injunction issues to prevent a refusal to perform a covenant, or stipulated duty, while on other occasions all interference is refused, because the parties are in equal fault, neither

1 The Pope Mfg. Co. v. R. Phillip Gormully, 144 U. S. 224-254; Knowlton v. Congress and Empire Sp. Co., 57 N. V. 518; Colles v. Troy City D. Co., 11 Hun, 397; Divas v. Nicholls, 2 C. B. 501; Hayes v. Rudd, 83 N. Y. 251; Leonard v. Poole, 114 N. Y. 371; Harvoy v. Merrill, 150 Mass. 1; Hobbs v. Cons. Gas Co. of Balt., 130 U. S. 396; The St. Louis, V. & T. H. R. R. Co. v. T. H. & I. R. R. Co., 145 U. S. 393; Rogers v. Maddock, Eng. Ct. App., 67 L. T. R. (N. S.) 329; Mills v. Dunham, 64 L. T. R. (N. S.) 712; Judd v. Harrington, 139 N. Y. 105.

can ask for aid, and the court will not enter upon their differences. The public interest often is paramount.

This appears in the exaction of full performance of conditions beneficial to the public, or in the refusal to enforce provisions of injurious effect.' In Gibbs v. Consolidated Gas Company of Baltimore the court said, "A corporation cannot disable itself by contract from performing the public duties which it has undertaken, nor by agreement compel itself to make public accommodations subservient to its private interests." This was the rule governing the case of Arnot v. Pittston and Elmira Coal Company where the contract was to keep out of the market a supply of coal. In Oliver v. Gilmore, where the public interest was merely in the restriction of trade, through a contract, binding the party not to use his plant for the production of strap and T hinges for five years, the contract was held void as against public policy. In Atcheson v. Mallon, where a contract for public work was to be awarded to the bidder thereon who offered the most favorable terms, any agreement between parties to restrain, or lessen rivalry or competition between them, was declared to be void, although no detrimental result was shown. Separate sealed proposals were filed, but two of the parties agreed to share the profits and the losses, if the contract was awarded to either of them, and this agreement was held contrary to public policy and void.

Mills v. Mills in the State of New York was of this public character. The consideration of the contract in suit was that one of the parties would give "all the aid in his power, spend such reasonable time as was necessary, and generally use his influence and exertions to procure the passage into a law" of a bill introduced in the legislature."Such contracts," the court said, "tend to subject the legislature to secret improper and corrupt influences, and will not be enforced. A like disposition was made, in an action on an agreement entered into in the State to gamble in the legalized lotteries of another State.

The enforcement of contracts with water companies was before the Supreme Court of Kansas in March, 1893. The company contended, that inasmuch as payment was required only from the city, for the use

1 Gibbs v. Cons. Gas Co. of Balt., 130 U. S. 396; Arnot v. P. & E. Coal Co., 68 N. Y. 558; Oliver v. Gilmore, 52 Fed. R. 562; Atcheson v. Mallon, 43 N. Y. 147; Mills v. Mills, 40 N. Y. 543; Goodrich v. Houghton, 134 N. Y. 115. McLanahan v. Mott, N. Y. Sup. Ct., Gen. T., 1st Dept., Nov. 17, 1893, 25 N. Y. Supp. 892, holds that a sale of the N. R. Bridge Company bonds on the plan proposed is a lottery scheme and to be restrained. See chap. IX, p 175. Greentield v. Gilman, 140 N. Y. 168.