
    
      FAURIE vs. MORIN’S SYNDICS & AL.
    
    Appeal from the court of the first district.
    A promise in consideration of the governor being prevailed on by the promisee to appoint the promisor to an office, is not binding.
    This action was grounded on a written contract, the preamble of which sets forth that at the death of Joseph Faurie, the plaintiff’s husband, “ the protection of government granted to his widow, the usufruct of part of the office of a public auctioneer, which the deceased had filled, by a declaration that no person should be appointed thereto, who would not take the widow as a partner; and on the resignation of Bailly Blanchard, who had the office during thirty-one months, Morin obtained it on the same terms.”
    Morin afterwards binds himself with Debon, as his surety, to pay to the plaintiff, in lieu of part of the profits to which she had a right in the partnership, the sum of $1,200 per annum, in monthly payments. He further undertakes to refund to Bailly Blanchard the sum of $350, the residue of a sum by him paid to J. Pilot, his predecessor, for which he is to retain monthly 
      $15 till payment. He further engages not to resign without giving the plaintiff three months notice: and it is provided, that on quitting the office, his successor shall refund to him such a part of the advances made to B. Blanchard as may remain unpaid.
    East'n. District.
    
      Dec. 1815.
    The answer sets forth that the contract was obtained without any valid or legal consideration, and through misrepresentation and fraud; that the principal obligor, and his surety, were imposed upon by deceitful representations made by the plaintiff and the then governor of the territory of Orleans, that government had the right of granting away one half of the profits of the office of auctioneer, and so the obligation is illegal and void. It is further answered, that the commission thus obtained by Morin, is dated February 11th, 1811, and expired on the same day in 1812. The sum of $1,200 was by him paid to the plaintiff for that year, and so nothing is due to her.
    The court of the first district gave judgment for the defendant, being of opinion that “the second appointment of Morin was not a continuance of his first commission, but placed him in the situation of a successor; so that any engagement of partnership or otherwise, made in relation to his office, must be construed to be only co-extensive with the commission held at the time, and Morin having complied with his contract, under the first commission, is no further liable.”
    From this judgment the plaintiff brought the present appeal.
    As part of the statement of facts, the depositions of Pitot, Blanchard and Dubourg, come up with the record.
    The first states that, after Faurie’s death, having been concerned with him in the auction, he was appointed an auctioneer, and from motives of benevolence, allowed to the widow the share of the profits which her husband had in his life time. He promised her not to resign, except in favor of such a person as would extend the same advantage to her, and reimburse the advances which he had made to her. Accordingly, arrangements having been made, with Blanchard, who had objections to have a partner, especially a woman, he agreed to pay her a stated sum yearly; on which, he was commissioned.
    Blanchard deposes that application was made to him by Pitot, as before stated, and knowing that the plaintiff had many friends, and was patronized by the governor, he conceived he would no be much the loser by giving her a fixed sum and finally came to an engagement similar to that on which the present suit is brought. Having concluded this, he was told to wait on the governor for his commission. He went and gave his name to that officer, who ordered his secretary to fill up a commission. On its being perfected, the deponent was sworn in and the commission handed to him. The governor now inquired whether the widow was to be his partner, and he answered by disclosing his bargain with her. He never had spoken to the governor till then. The commission was applied for by the plaintiff or her friends: and it was well known that the governor made it a sine qua non that the candidate should be presented by her.
    Dubourg deposes that he waited on the plaintiff to the governor’s to solicit Morin’s commission; he believed it would not have been granted without the condition that the grantee should take the plaintiff as a partner. He knows the governor had told her to present a candidate and he would inquire into his capacity. He knows that Blanchard’s commission was granted at the solicitation of the plaintiff, but cannot say that the governor knew of any bargain between Blanchard and her.
    The statement of facts states that Morin’s first commission bears date of February 11, 1811— the second, of February 12, 1812. He was two years in office, but gave no bond on the second commission. He paid Blanchard $353 22, on the 25th of February 1811, and to the plaintiff at sundry times $1445. The contract on which the suit is brought bears date February 13, 1811.
    Morin made a cession of his goods to his creditors.
    
      Turner for the defendant.
    The plaintiff in this case cannot recover: for the contract which is the ground of the action is not a valid one.
    A valid contract is one which has a lawful purpose. Civil Code, 260, art. 8. It is void if it be without a cause, or has a false or an unlawful one. Id. 264, art. 31. The cause is unlawful, when it is forbidden, when it is against moral conduct, or contrary to public order. Id. art. 33.
    The plaintiff then is bound to shew that the contract under which he claims has a lawful purpose. The averred purpose of this is the procuring a commission of auctioneer for Morin. Now, this is an unlawful purpose; it is unlawful, against moral conduct, and against public order.
    The rule of the common law is equally in point. Considerations against the rules of law the policy of the law or the directions of a statute are void. Mackarell vs. Todderick, Cro. Car. 337, Thos Jones vs. Blytheman, Yelverton, 197, Parsons vs. Thompson. H; Blackstone, 322, Garfort vs. Fearon, id. 327, Blackford vs. Preston. 8 T. R. 89, Nerot vs. Wallace, 3 T R. 22, Smith vs. Bromley, Douglas, 676, Waynel vs. Reed, 5 T. R. 599, Vandike vs. Hewit, 1 East, 98, Boothe vs. Hodgson, 6 T. R. 405, Mitchel vs. Cockburn, 2 H. Bl. 379, Aubert vs. Mace, 2 Bos. & Pul. 371.
    
      Ex turpi causa non oritur actio. Crisp vs. Churchill, Selw. N. P. 95 Girardy vs. Richardson, 1 Esp. N. P. R. 13, Howard vs. Hodges, Selu. N. P. 60.
    The sole consideration of the promise in the present case, is the exercise of the plaintiffs’ influence with the governor.
    In the case of Rex vs Pollman and others, the defendants were indicted for a conspiracy to obtain money, by procuring from the Lords of the Treasury the appointment of a person to an office in the customs, and the court held that the offence charged in the indictment was clearly a misdemeanor: 2 Campbell, 331. In the case of Norman vs. Cole, which was brought to recover the sum of 130, deposited as a reward for services to be rendered in procuring a pardon, the court held that the plaintiff should shew what means were to be used in order to procure it, and he was nonsuited. 3 Esp. N. P
    
    In this case it is clear that what is claimed is in fact the price, the consideration money of a sale—the thing sold an auctioneer’s commission. Now nothing was legally sold, for nothing can be the object of a contract of sale, but what is an object of commerce. Code civil 264, art. 28.
    The right, to which the plaintiff pretends,of being a partner, cannot have a legal existence. Authorised auctioneers alone can sell, and there cannot be more than three in the city of Orleans, 1805, c. 4. They are officers appointed by the executive under an act of the legislature—receive a commission—take an oath—give sureties, and a bond to account quarter yearly on oath. Are not these some of the civil functions and engagements which the law declares women incapable of fulfilling? Civil code 8. art. 1 & 2.
    Partnership is a contract by which two or more persons agree to put something in common with a view to divide the benefit which they expect from the same. Civil art. 1. Now what did she put in common?
    
      Admitting the legality of the contract, it ceased with the commission of Morin in February 1811, and the plaintiff is indebted to the latter for all she received above the sum of $1200, stipulated to be paid for the first year: every thing, above this, being paid through a mistake. There is no contract for it, it was received without a consideration. Morin is bound by no moral obligation to pay any thing farther.
    Neither is Debon, the surety. For he may oppose to the plaintiff all the exceptions belonging to the principal, which are inherent to the nature of the debt. Code civil 432, art. 21.
    
      Livingston for the plaintiff.
    There cannot be any doubt that an auctioneer may have a partner. In fact, most of the auctioneers in this and every commercial city in the United States have. They require aid, and may as well pay for it by a participation in their emoluments,as by a fixed salary. Ministerial officers often have deputies, who are compensated for the services they render to their principal, by a portion of his fees: and what are these officers, but partners? May not judicial officers procure aid in the same manner? If a justice of the peace, to whom his inexperince or convenience may render the employment of a clerk useful, see fit to reward it by the allowance of a part of his emoluments of office, is there any thing illegal in this? Yet, what are a sheriff's deputy, and this justice’s clerk, but partners in the profits of the offices of their principals? Notaries often do the like, and a woman able to write, as many often are, with sufficient neatness, accuracy & expedition, might doubtless demand from a notary who might have employed her (on a fixed portion of the emoluments of office) a merited compensation, as a partner in the profits of, though she might be incapable of holding the office. She might well allege, that the notary and herself had put in common, he his right of exercising the office of a notary, his skill and learning, and she her skill in penmanship, labour, and industry, with a view, in the language of the Code, to divide the profits which they expected from the same Though this rarely, perhaps never does happen, it is not easy to shew any illegality in it.
    But the appointment of an auctioneer, confers on him who receives it, rather a privilege than an office. Before the act establishing it, any one could sell at auction. The act created a monopoly or privilege, which was granted to a certain number of persons, in consideration of their engagement to pay into the treasury a sum equal to two and one half per centum on 
      the amount of their sales. In offices, government pays the incumbent to perform his duties: here the incumbent pays government.
    The partnership therefore mentioned in the pleadings, was a lawful one. The plaintiff put in the good will of the store of her former husband, the customers of which it was expected would be induced to employ the person who took her in partnership, in preference to any indifferent auctioneer. Many rich merchants took an interest in her helpless situation. Yielding to compassion and aiding a distressed family, was a consideration to which the governor might properly yield, if the person pointed out by the plaintiff was in every respect properly qualified.
    If the partnership was a lawful one, of which no doubt can be entertained, if it appeared, after it had been entered into, inconvenient or disadvantageous to the parties, they were certainly at liberty to put an end to it and substitute thereto the agreement which is the ground of the present suit. This was done, two days after Morin had obtained his commission: this document bears date of the 11th, and the agreement of the 13th of February. This agreement thus substituted to the partnership, was in the contemplation of the parties to be commensurate in its duration with the intended partnership. So did the parties understand it.
   Martin, J.

delivered the opinion of the court. It appears to this court, that the promise of the defendant, Morin, cannot support the action. From the instrument itself, it is manifest that the only consideration on which it rests, is the illegal condition, on which it is stated that the office was obtained. This condition is contrary to sound policy. Offices are to be granted absolutely, without any condition. It is not in the power of the grantor to lessen the emoluments which the law has affixed to the discharge of official duties. It matters not to what use the share of emolument, thus carved out, is applied. The public will be ill served, if the circle, within which an officer is to be selected, is narrowed by a reduction of the legal emoluments. If these are withdrawn from the incumbent, he may be placed under the temptation of compensating himself by speculation, extortion and fraud.

The condition, under which the office was obtained, being illegal and void, it follows that the promise cannot support an action.

It is therefore ordered, adjudged and decreed, that the judgment of the district court, be affirmed with costs.  