Jackson v. Walker — 5 Hill & Den. 27

Majority

p. 27

Jackson vs. Walker.

Headnote

Every contribution of money intended to promote the election of any person or ticket is prohibited by the statute, (1 R. S. 136, § 6,) except for defraying the expenses of printing, and the circulation of votes, handbills and other papers previous to such election; and this, whether the immediate pmpose for which the money is designed be in itself corrupt or not.

Accordingly, where the defendant agreed to pay the plaintiff $1000, in consideration that the latter, who had built a log cabin, would keep it open for the accommodation of political meetings to further the success of certain persons nominated for members of congress &c.; held, that the agreement was illegal and could not be enforced.

Error to the superior court of the city of New-York. Walker sued Jackson in the court below, and declared that in the year 1840 the plaintiff erected a certain building on Broadway, in the city of New-York, commonly called a log cabin, the same being intended and calculated for public and other meetings of a certain political party known and designated as the whig party, and for the sale of refreshments: that he suffered great loss and damages by erecting and continuing the log cabin, and was about to tear it down; and that in consideration that the plaintiff would suffer the log cabin to remain and be kept open for the benefit of the said whig party until after the election of members of congress and electors of president and vice-president and other officers to be elected in November 6f

p. 28

that year, the defendant promised to pay the plaintiff one thousand dollars on the 20th day of November. On the trial it was proved that the plaintiff built the log cabin in 1840 at an expense of $1600 or $1800. In August of that year he said he would take it down unless a certain sum of money was' raised. A subscription was opened, and nearly $200 were subscribed. The plaintiff and defendant then met, and the defendant told the plaintiff that “ the log cabin must not be taken down until after the election; that he (the defendant) would not permit the whig flag across Broadway to he struck,” and that he would raise the balance of the $1000, or pay it out of his own pocket by the 20th of November. The plaintiff said “ he wished no ifs and ands about it, but wanted the money to he forthcoming for certain,” and requested the defendant to give him his note. The defendant replied that his “ word was his bond,” and said to the plaintiff, “I will pay you the $1000 out of my own pocket on the 20th of November next.” The plaintiff then agreed to it, and “ the log cabin was kept open until after the election, and was used by the whig party for political meetings, and was the whig head quarters, in a measure.” It was kept open to promote the election of the electoral ticket in favor of General Harrison for president; and after the election it was removed. On this evidence, the plaintiff claimed to recover the $1000. The defendant moved for a nonsuit, on the ground that the contract was illegal, being a violation of the election law. Motion denied and exception taken. The defendant then insisted that the jury had a right to determine from the whole evidence whether the contract was or was not within the meaning of the statute. The court charged the jury that the contract as proved was not within the statute, and if the jury believed the evidence, the plaintiff was entitled to recover. Exception. Verdict and judgment for the plaintiff of $1000. The defendant sued out a writ of error.

S. Stevens, for the plaintiff in error,

insisted that the contract proved at the trial was void, as having been entered into contrary to the statute relating to elections. (Sess. Laws of ’29, p.

p. 29

565, ch. 373; 1 R. S. 136, 7, § 6, 8, 2d ed.) He cited and commented on De Groot v. Van Duzer, ( 20 Wend, 390 ,) and Langton v. Hughes, (1 Maule & Sel. 593.)

S. Sherwood, contra, contended

that the statute referred to (1 R. S. 136, 7, § 6, 8) was not applicable to the contract in question. The 5th subd. of the 6th section does indeed forbid the contribution of money “ for any other purpose intended to promote an election of any -particular person or ticket, except for defraying the expenses of printing” &c.; but this was designed to suppress corrupt practices tending to interefere with the regular and due exercise of the elective franchise, and must be construed accordingly. The legislature could not have intended to prohibit the payment of the expenses incident to lawful meetings of the people for the discussion of political topics. If the doctrine contended for by the plaintiff in error be correct, it will follow that the contribution of money for hiring a room in which to hold such meetings would be illegal, and subject the contributors to an indictment for a misdemeanor under the 8th section of the statute.

Stevens, in reply.

The true meaning of a statute is primarily to be sought by considering the language which the legislature have used; and where that is unambiguous, there is no propriety in resorting to other modes of interpretation. (1 Kent’s Com. 461; 2 Ruth. Inst. ch. 7, § 2.) Such is the case with the statute under consideration. It prohibits, in terms, the contribution of money “for any other purpose intended to promote an election &c., except for defraying the expenses of printing, and the circulation of votes, handbills, and other papers previous to any such election.” Unless the phraseology of this provision be changed by substituting or adding other words, it can by no possibility be made to import less than a declaration that, to contribute money for promoting an election shall be deemed illegal in all cases save those which are expressly excepted. The question, therefore, whether the means intended to be employed by the use of the money now claimed were in themselves corrupt, does not arise; for the statute virtually says that, though

p. 30

these he innocent, money shall not be contributed for the purpose of putting them in requisition.

The first section of the act of 1829, “to preserve the purity of elections,” is in these words: “ It shall not be lawful for any candidate for an elective office, with intent to promote his election, or for any other person, with intent to promote the election of any such candidate, either, 1st. To provide or furnish entertainment at his expense to any meeting of electors, previous to, or during the election at which he shall be a candidate: or, 2d. To pay for, procure, or engage to pay for any such entertainment: or 3d. To furnish any money or other property to any person, for the purpose of being expended in procuring the attendance of voters at the polls: or 4th. To engage to pay any money, or deliver any property, or otherwise compensate any person for procuring the attendance of voters at the polls: or 5th. To contribute money for am/y other purpose intended to promote an election of any particular person or ticket, except for defraying the expenses of printing, and the circulation of votes, handbills, and other papers previous to any such election.” The third section declares, that “ every person offending against the provisions of this act shall be deemed guilty of a misdemeanor.” (Stat. 1829, p. 565, ch. 373.)^[1] If, at the time the promise was made, it would have-been unlawful for the defendant “ to contribute money” for the purpose of preserving and keeping open the log cabin, it is quite clear that his promise to pay money for that purpose at a future day cannot be enforced. Now, to what end was the log cabin to remain? The plaintiff tells us in the declaration that the building, besides the sale of refreshments, was “ intended and calculated/or public and other meetings of a certain political party, known and designated by the name of the whig party;” and the consideration for the promise was, that the plaintiff would not tear down or remove the log cabin, but would suffer the same to remain, and would keep or cause the same to be kept open “for the benefit of the said whig party

(a) (a) 1 R, S. 136, 7, 2d ed.

p. 31

until after the election” of members of congress, presidential electors &c. The plaintiff then avers that he performed the agreement on his part; and so is the proof. The witness says, “ the log cabin was kept open until after the election, and was used by the whig party for political meetings, and it was the whig head quarters, in a measure. It was kept open to promote the election of the electoral ticket in favor of General Harrison for president.” The statute, after forbidding several things, declares that money shall not be contributed “ for any other purpose intended to promote an election of any particular person or ticket.” It requires no argument to prove that this money was to be paid to promote the election of particular persons, to wit, General Harrison, and the whig candidates for congress &c.; and a particular ticket, to wit, the electoral ticket in favor of General Harrison for president, and the ticket for whig members of congress &c. The parties intended to accomplish the very thing which the statute declares to be illegal. No one can wink so hard as not to see it. Every contribution of money “ intended to promote an election of any particular person or ticket” is forbidden, except “ for defraying the expenses of printing, and the circulation of votes, handbills, and other papers previous to any such election.” There can be little doubt that large sums of money are expended upon elections for other purposes; but the statute says, “ it shall not be lawful” to do so, and the enactment should either be enforced or repealed.

It is said that the statute only forbids the contribution of money for corrupt purposes. But the statute says nothing about corruption. It declares that the thing shall not be done. With two specified exceptions, it provides that money “intended to promote an election” shall not be contributed. The legislature evidently thought that the most effectual way “ to preserve the purity of elections,” was to keep them free from the contaminating influence of money. They said, you may contribute money to pay for printing and circulating votes and information, but not for any other purpose.

If this contract is void, it is said that money cannot be contributed to hire a room for holding political meetings. That is

p. 32

undoubtedly true, if the object be “to promote an election of any particular person or ticket.” I will not discuss the policy of the law. The legislature have said that the thing shall not be done, and that is enough.

Judgment reversed.