Smith v. Applegate

The Chief Justice

delivered the opinion of the court.

The only question in this cause is, whether the evidence offered on the part of the defendants below, and overruled by the court, showed that the note was founded upon an illegal consideration.

The payee of the note was one of the caveators against a public highway and one of the freeholders over whose land the road was laid out. The makers of the note were applicants for the road, and personally interested in having it opened. The surveyors (appointed on the petition of the applicants) *356 had made their return laying out the road. The freeholders, appointed on the application of the caveators, had made their return, certifying “ that the road, as laid out by the surveyors, was unnecessary and injurious.” The applicants for the road had obtained a rule to show cause why the certificate of the freeholders should not be set aside, and evidence under the rule had been taken by the parties. Under this state of facts, three of the applicants for the road gave the note in question, in order to induce Applegate, the payee, to withdraw his opposition to recording the return of the road. Applegate agreed, in consideration of the note, to withdraw his opposition to the road, and it was further agreed by his attorney, in his presence, to consent that the certificate of the freeholders should be set aside, and the return recorded. Pursuant to this agreement, the certificate of the freeholders was subsequently set aside by consent, and the return of the road, as laid out by the surveyors, was recorded.

There can be no doubt of the right of the land holder over whose land a highway is proposed to be laid out to sell either the land itself, or the right of way over it. Nor is it perceived that there can be any impropriety in the applicants for the road purchasing either the land or the right of way. But it is clear, from the evidence, that neither a sale of the land itself, nor of the right of way over it, formed the consideration of the note in question. No offer was ever made, either by the land holder to sell, or by the makers of the note to purchase. The evidence shows that the consideration of the note was of a totally different character. It was to remove the opposition made by the payee, as a caveator, to the laying out of the road, and to obtain his consent to setting aside the certificate of the freeholders, that the road was unnecessary and injurious, and thereby to obtain a confirmation of the return of the road.

Was such consideration legal ? If the contract on the part of the payee was repugnant to sound policy, or in contravention of the policy of the statute, the consideration of the note was illegal, and the contract founded upon it was void. 2 Kent’s Com. (2d ed.) 466 ; Chit. on Bills 92 ; Sharp v. Teese, 4 Halst. 352 ; Gulick v. Ward, 5 Halst. 87.

*357 The laying out of highways is peculiarly a matter of public concern. Its design is to promote not private rights, but the public convenience. Private interests are affected, but incidentally only, in pursuit of the public good. Public highways, indeed, are one of the few objects for which the state exercises the right of eminent domain in taking private property for public use. It is clearly a matter of public policy that highways should be laid out whenever and wherever the public good requires it. It is equally a matter of public policy that such roads as are unnecessary and injurious should not be laid out. They are to be opened and maintained at the public expense. The opening, therefore, of an unnecessary road is a public injury, no less than a wrong to the individuals whose property is immediately affected. It increases needlessly the public expenditure and the burthen of taxation ; hence the law, while it intrusts the laying out of roads to the surveyors of the highways, subjects their decision to a review by the chosen freeholders, who are specially charged, and are presumed to be familiar with the pecuniary interests of the county.

It is true that in opening or vacating a highway individual interests are unavoidably involved. It is equally true that the law intrusts the application for the road aud the opposition to private hands. It presumes that the public good will be most effectually promoted through the instrumentality of private interests. No public officer is charged with the duty of having necessary highways laid out, or of vacating such as are unnecessary. Any one whose convenience will be promoted may become an applicant for the laying out of a road. Any one aggrieved may caveat against it. Nor is the right to caveat confined, as was suggested upon the argument, to the land holder whose land is taken for the road. “ Any person injured or aggrieved by the laying out of a road ” may file a caveat. The comprehensive phraseology of the statute clearly includes not only every land holder whose land is taken for the use of the road, but every citizen whose taxes would be increased by the laying out of a useless or unnecessary highway.

But although the application be made, and the caveat filed exclusively from considerations of private interest or conve *358 nience, the proceeding is essentially of a public character. The public are directly and immediately interested in the result. The applicants for the road, and the caveators against it, do not occupy the position simply of actor et reus. They are public procurators ; voluntarily so, it is true. They are at liberty toassume it or not.- They may abandon it at their pleasure ; but while they occupy it, they act no less for the public than for themselves.

Nor does the legality of the contract depend upon the question, whether private rights only are primarily affected. Though the controversy involve merely a question of private right, public policy may prohibit certain modes of adjustment. Thus the opposition made by a creditor to the discharge of an insolvent debtor is a controversy purely of a private character. It affects only individual interests. The creditor is seeking the payment of his debt. He is not bound to oppose the discharge of his debtor as an insolvent. He may, at his pleasure, abandon his opposition ; but upon the clearest considerations of public policy, he may not bind himself to abandon the contest, nor stipulate to receive a price for so doing. The grounds of the rule are clearly and forcibly stated by Chief Justice Ewing-, in Sharp v. Teese, 4 Halst. 352.

The same considerations apply with increased force to a controversy touching the laying out of a public highway. Any one aggrieved is at liberty to caveat against the road. He is under no obligation to do so. He may, at his pleasure, abandon his opposition. But he may not lawfully bind himself to withdraw his opposition, nor may he contract to receive a price for so doing. The obvious and unavoidable tendency of such practice to unjust litigation, the lure it would hold out to private cupidity, to the great detriment of public interests, render it necessarily repugnant to the policy, and subversive of the beneficent designs and provisions of the statute.

It is very clear that the contract in question never could have been enforced against the caveator. If the caveator, having agreed to withdraw his opposition, and having received a price for so doing, had refused to comply with his contract, and persisted in his opposition to the road, this court *359 surely never would, and never could have enforced a compliance with the contract on his part, nor awarded damages for his noncompliance. The contract upon him would not have been obligatory. This consideration, alone, demonstrates that the contract is illegal, as against public policy. The contract, moreover, to be valid, must be binding upon both parties. If not binding upon one, it is binding upon neither. And if the contract of the caveator is illegal, and by reason of its illegality forms no valid consideration for the contract of the applicants, the execution of the illegal contract constitutes no better consideration. When the note in question was given there was no consideration for the promise on the part of the makers, but a promise upon the part of the payee, illegal, inoperative, and not binding upon him. The contract was void. The fact that it has been executed by one of the parties, will not authorize the enforcement of an illegal contract as against the other.

The present case affords a most striking instance of the impolicy and danger of sanctioning the contract. The road in question had been pronounced by the freeholders (the tribunal designated by law for the final settlement of that question) unnecessary and injurious. So far as appears by the case, there was no ground to set aside their proceedings as illegal or invalid, and yet the court are induced, by the consent of an individual over whose land the road was laid out (and that consent, as it now appears, purchased by a pecuniary consideration), to order the return of a road, adjudged by the only competent tribunal unnecessary and injurious, to be recorded. The expense of opening an unnecessary and injurious road, and it may be of building costly bridges, is thus imposed upon the community. And the wanton injury of taking private property not required for the public use without compensation, is inflicted upon every land holder over whose land the highway is laid out, except the individual by whose instrumentality the wrong was inflicted. It is impossible to regard the contract otherwise than as prejudicial to the public interests, and directly in contravention of the policy of the statute. The eases of Sharp v. Teese, 4 Halst. 352, and of Gulick v. Ward, 5 *360 Halst. 87, and the principles upon which those eases were decided, must control the ease now under consideration.

It may be that the transaction, as between the parties, was fair, and that no fraud was meditated or actually committed. It may be that the makers of the note have received a full equivalent for the price which they assumed to pay. It may be that the owner of the land would receive, by the payment of the note, no more than a fair equivalent for the land taken for the road. Rut courts cannot lend their aid nor the sanction of the law to enforce a, contract in contravention of sound policy and subversive of the interests of the public.

The judgment below must be reversed, and a venire de novo awarded.

Cited in State v. Stout, 4 Vr. 43 ; Church v. Muir, 4 Vr. 322 ; State v. City of Elizabeth, 6 Vr. 357 .