Burke v. Wood

TOULMIN, District Judge

(after staling the facts as above). The counsel for the defendant in his argument on this motion limited his contention in support of the motion to two grounds, to wit: That the verdict was contrary to the evidence relating to the character of the work and labor done by the plaintiff, and to the charge of the court thereon; and that the court erred in refusing to give the general affirmative charge for the defendant. The contention on the part of the defendant is that the evidence clearly showed that the work and labor done by the plaintiff, compensation for which he claims in this suit, was work and labor done by him as a lobbyist, and that any services rendered by him in his efforts to sell the Bienville Water Supply Company’s property were principally lobby services; and it is insisted on the part of the defendant that on the undisputed evidence in the case no other conclusion could have been justly or reasonabl)- reached.

What is a “lobbyist” ? A lobbyist is defined to be one who frequents the lobby or the precincts of a Legislature or other deliberative assembly with the view of influencing the views of its members. Sometimes defined as a person who hangs around legislators, and solicits them for the purpose of influencing legislation. “To lobby” is to solicit members of a legislative body, whether in the lobby or elsewhere, with the purpose to influence their votes. Webster’s Diet.; Worcester’s Diet.; Century Diet. tit. “Lobby-Lobbyist.” “To lobby” is for a person not belonging to the Legislature to address or solicit members of the legislative body, in the lobby or elsewhere away from the house, with a view to influencing their votes. Chippewa Valley & S. R. Co. v. Chicago, St. P. M. & O. R. Co., 75 Wis. 224 , 44 N. W. 17 , 6 L. R. A. 601. “Lobbying services” are generally defined to mean the use of personal solicitations, the exercise of personal influence, and improper or corrupt methods, whereby legislative or official action is to be the product. A contract for such services is void, and cann’ot be enforced. Dunham v. Hastings Pavement Co., 56 App. Div. 244 , 67 N. Y. Supp. 632, 634 ; Trist v. Child, 88 U. S. (21 Wall.) 441 -448, 22 L. Ed. 623 ; Oscanyan v. Arms Co., 103 U. S. 261 , 26 L. Ed. 539 . According to the lexicographers and the decisions of the courts, we find that lobbying signifies tq.solicit members of a legislative body, in the lobby or elsewhere, with the purpose of influencing their votes; and’ the authorities hold that a contract for lobbying is void as against public policy. Authorities, supra. The Supreme Court of the United States, in Trist v. Child, supra, said:

“In our jurisprudence a contract may be illegal and void because inconsistent with sound policy and good morals. But Lord Mansfield has said: ‘Many contracts which are not against morality are still void as being against the maxims of sound policy.’ ”

*538 The court held that within the condemned category of contracts is one to pay for procuring á contract from the government. The court further held that, where legal and valid services are blended and confused with those which are forbidden, the whole is a unit and indivisible. That which is bad destroys the good, and they perish -to? gether. Trist v. Child, supra.

As I understood the contention on the part of the plaintiff in the argument on this motion, it was that the work and labor done by him was not as a lobbyist, in that the city council was not a legislative body, at least, so far as its action in connection with the purchase of the Bienville Water Supply Company’s works was concerned; that the council acted in that matter as the agent or representative of the people of the city of Mobile to execute their wishes and authority in relation to said purchase thereto expressed and conferred by their votes, and hence the plaintiff’s work with the council did not come within the purview of the policy forbidding lobbying. That the council of a city or corporate town is the local Legislature of that city or town I take it will not be questioned. A legislative body is any body of persons authorized to make laws or rules for the community represented by them. A legislative body is one capable of or pertaining to the enactment of laws. A legislator is one who makes laws for a state or community. . It is a matter of judicial or common knowledge that the council enacts laws; establishes rules of action. They are called ordinances, but they are no less laws. There is no question that the council had legislative authority to purchase waterworks, and by one act of the Legislature of the state to purchase these particular works. It is, however, not contended by the learned counsel for the plaintiff that it did not have authority to purchase the waterworks, but it is suggested that the action of the council had to be approved or ratified. I do not so understand the law applicable to this case. Under the general powers conferred by the charter of the city of Mobile of 1901, considered in connection with the subsequent legislation of the state, I think the council had the right to purchase the waterworks without submit-tirg the matter to the vote of the citizens of Mobile for approval. But, while the city had the right to purchase, through its council, the waterworks, it had no authority to issue bonds with which to pay for them, unless such issue of bonds be first authorized by a majority vote of the qualified voters of the city. The proposition required to be submitted to the voters of the city was the bond issue only. It may be true, doubtless was true, that it was necessary in this instance to issue bonds in order to make the purchase determined on by the council and mayor effective, but it is not apparent how that in any way affected the right of the council to make the purchase. Without the authority of the voters to issue bonds, the city may have lacked the ability to consummate the purchase, but it in no way, as it seems to me, affected its right or authority to purchase the waterworks. The legislative department of the city of Mobile is vested by its charter in a mayor and general council. That charter provides that it shall be the duty of the council to prevent crimes, and protect the rights of persons and properly, to guard the public health, etc. How can this be done without the enactment of laws for the purpose ? The council is authorized to *539 contract for, build, or purchase waterworks. How can it act in such case except in its legislative capacity, either by the adoption of an ordinance or resolution? Its legislative action is evidenced by its ordinances and resolutions, which are its laws.

Now, the question arises: Was the principal work and labor done by the plaintiff in his efforts to effect the sale of the Bienville Water Supply Company’s works done by him as a “lobbyist” ? Were his services in the matter principally “lobby services”? These questions must be answered by the evidence in the case. In my opinion they are affirmatively answered by the evidence of the plaintiff himself, and by his letters -which were in evidence, corroborated and emphasized by the testimony of members of the council and the mayor of the city who were witnesses in the case. In referring to his efforts to effect the sale, the plaintiff testified that he discussed the matter with members of the council all the time, the mayor and others; worked whenever he had the opportunity, at night or in daytime, for several years; got up the meetings, and appeared before committee No. 6 (shown to be the water committee of the council); “arranged the bringing about the sale, and felt that he had accomplished it.” He also did general work around, getting up public opinion to help him to carry out his efforts to effect a sale. He further testified that his “principal work was with the council of the city and to bring influence to bear on them”; that “he kept the work up with each succeeding mayor and each succeeding council down to the time the waterworks were sold,” and “in that way was instrumental in bringing about the sale.” In letter of June 20, 1902, to the defendant, the plaintiff says:

“This report I send you. as recommended by committee No. G, will be acted, on the next resillar meeting. * * * I could have had called a special meeting for the purpose of having the matter passed, but preferred to wait for the regular meeting.”

In letter of July 4, 1902, to the defendant he writes reporting the arrival of Mr. Craft as chairman of committee, and says:

, “Have also seen the committee as a whole, and they are now ready and have instructed mo to notify you. * * * ”

In letter of November 20, 1902, to the defendant, referring to a remittance from defendant, plaintiff says:

“Whether you increase ihe amount or not, I will finish my. work and use that energy I possess, and continue to have the influence as in the past to bring about the desired result. Had I the fluids, 1 would not apply to you.”

In letter September 12, 1905, to A. W. MacCallum, the plaintiff says:

“I reconciled my friends in the council, and after good work they became calm, and now I can inform you that I have the majority of the council, and will bring it up at the November meeting, and will show* you that I alone, without the aid of anyone, except the council, can sell, and accomplish the sale. * * * I am noiv bolter than ever, and you will see who has done the work. The council stands io-day for me as follows: [naming 10 persons; and adds] Will have Craft and Tacón in line at November meeting.”

Witness A. S. Lyons testified:

“Mr. Burke rendered services in negotiating the sale of the Bienville Waterworks. He was very active, and I am frank to say I don’t think the pur *540 chase would have been made if it was not for Mr. Burke. I think, if Mr. Burke had not interested the city council in the proposition to take it up, the people would never have voted on it. His work was to a great degree with the council.”

Witness Craft said:

“Mr. Burke did work' looking to the sale of the Bienville Water Supply Company. He' wanted me to consent as a member of the city council to buy it. I was chairman of the water committee known as No. 6. I finally brought the committee together, and Mr. Burke came before it.”

Witness stated that “Burke was very active and was after him all the time.”

Witness Norville testified that:

“Mr. Burke was very active in trying to sell the Bienville Water Supply Company to the city. It was very largely through Mr. Burke the property was purchased from his untiring efforts from the beginning to the time of purchase.”

Witness Carrell testified that:

“Mr. Burke was very active in trying to sell the Bienville Water Supply Company’s works; in fact, it was due to his activity with the general council and mayor they were sold to the city. Mr. Burke was active all the time. Mr. Burke would arrange committee meetings and was continually after the mayor and the council to purchase the waterworks; to get them to vote for it. I think Mr. Burke’s influence exerted more power than the-public opinion of the city of Mobile on the council.”

Witness Pat J. Lyons testified that:

“Mr. Burke was very active about the city buying the Bienville Water Supply Company works. Whenever a measure relating to that subject came up, he would seek out the members of the council to get their influence to support any measure that was in favor of the purchase. He would stop the members on the street, and talk to thorn about it. He took the matter up with me a good many times, and was persistent in seeking out the members of the council personally and talking with them about the matter.”

This was substantially all the evidence relative to the work and labor done or services rendered by the plaintiff.

The court, among other things, charged the jury:

“If you believe from the evidence that there was a contract made by the plaintiff with the defendant under which the plaintiff was to procure by lobbying services, if possible, the making of a contract of purchase by the city of Mobile, through its mayor and council, of the Bienville Water Supply Company’s waterworks, and for which services the plaintiff was to be paid, then the court charges you that such contract would he void as against public policy, and the plaintiff cannot recover on said contract; or, if you believe from the evidence that there was no such exp>ress contract, but that the plaintiff did, at the request of the defendant, perform work and labor, and render services for him, in the effort to effect a sale of the Bienville Water Supply Company’s waterworks, and you further believe from the evidence that the work and labor so done by the plaintiff was done as a ‘lobbyist’ and the services rendered were ‘lobby’ services, then the court charges you that the plaintiff cannot recover for the work and labor so done; and the court further charges you that if this suit is brought to recover compensation for work and labor done as a ‘lobbyist,’ and for services other than ‘lobby services,’ rendered by him, and these services were blended with the services as ‘lobbyist,’ the plaintiff cannot recover in this case. Pay for ‘lobby services,’ or for work and labor done as ‘lobbyist,’ irrespective of an express contract tberefor, is not recoverable in a.court of justice.”

*541 The court further charged the jury in substance as follows:

“A ‘lobbyist' is one who frequents the lobby or the precincts of a Legislature or oilier deliberative assembly with the view of influencing its members, by personal solicitation, the exercise of personal influence, or by improper methods, whereby legislative or official action is to he procured. To ‘lobby is to try to influence sncli members, and to solicit their votes, whether in the lobby or elsewhere. ‘Lobby services' are defined to be solicitations by persons supposed to have personal influence with the members of a legislative body to procure certain legislativo action.”

The jury returned a verdict for the plaintiff for $4,000.

We have seen that a “lobbyist” is a person who solicits members of a legislative body, in the lobby or elsewhere, with the purpose of influencing their votes, one who hangs around legislators for the purpose of influencing such legislators whereby legislative action is to be procured; and that “lobby services” are personal solicitations with members of a legislative body to procure certain legislative action; to solicit votes from such members, whether in the lobby or elsewhere, for said purpose, i think the evidence abundantly shows that the plaintiff solicited members of the council in the lobby or precincts of their place of assembly, and elsewhere, with the purpose of influencing their votes in support of a measure to purchase the Bienville Water Supply Company's works; that he personally solicited their votes in that behalf, and exerted an influence over them in their legislative action in the premises. And my opinion is that the evidence establishes, beyond controversy, that the principal work and labor done by the plaintiff in his efforts to sell said waterworks was done by him as a "lobbyist” ; and that his services rendered in connection therewith were principally “lobby services.” There is a prohibition to the courts of the United States to re-examine any facts tried by a jury in any other manner than according to the rules of the common law. Const. U. S. Amend. 7. The only mode known to the common law to re-examine such facts arc the granting of a new trial by the court where the issue was tried. Lincoln v. Power, 151 U. S. 438 , 14 Sup. Ct. 387, 38 L. Ed. 224 . Where the evidence offered for the party for whom a verdict is rendered, conceding to it the greatest probative force to which, according to the laws of evidence, it is fairly entitled, is insufficient to support or to justify the verdict, it is the duly of tire court to set it aside and grant a new trial. Southern Pac. Co. v. Hamilton, 54 Fed. 168 , 4 C. C. A. 441 ; Pleasants v. Fant, 22 Wall. (U. S.) 120, 22 L. Ed. 780 .

iu my judgment the verdict in this case is manifestly against the evidence and the charge of the court; and a more thorough examination and consideration of the evidence, tested by the law of the issue, than was afforded me during the progress of the trial, has satisfied me that the court erred in refusing to give the general affirmative charge requested by the defendant. Justice, therefore, requires that the verdict be set aside and a new trial granted. And it is so ordered.