It has previously been seen 35 that the directors of a private corporation may, if there is no fraud in fact or unfairness in the transaction, contract on behalf of the corporation with one of their number. A stricter rule is laid down in regard to public corporations, and it is held that a member of an official board or legislative body is precluded from entering into a contract with that body, and this is often enacted in statutes.36 But there are decisions holding that if the contract was in fact fair, and the interested party either did not vote for it or his vote was unnecessary the contract is not unlawful unless made so by statute.37 When there is such a statute it has been held that even though the agreement has been carried out, the municipality may recover what it has paid.38 If the personal interest of a public official is not that of a direct contractor, but only indirect, there is more reason for considering each case on its special facts, and for holding those illegal only where lack of proper disclosure, fraudulent intent or some unfairness exists.39 But if a contract is for the mere performance or in consideration of the mere performance by a public official of his official duty,40 or for the non-performance or in consideration of the non-performance of his official duty,41 it is in every case opposed to public policy.

29 Colburn v. County Commissioners, 5 Colo. App. 90. 61 Pac. 241; Gale v. Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80; Edwards v. Goldsboro, 141 N. C. 60, 53 S. E. 652, 4 L. R. A. (N. S.) 589. See also Spence v. Harvey, 22 Calif. 336, 83 Am. Dec. 69; Elkhart County Lodge v. Crary, 98 Ind. 238, 49 Am. Rep. 746. But see contra, Currier v. United States, 184 Fed. 700, 106 C. C. A. 654; Davis v. Board of Commissioners (Okla.), 158 Pac. 294.

»Bush v. Russell, 10 Ala. 590, 61 So. 373; Woodman v. Inner, 47 Kan. 26, 27 Pac. 125, 27 Am. St. 274; Hare v. Phaup, 23 Okl. 575, 101 Pac. 1050, 138 Am. St. 852; Davis v. Bolon (Okl.), 177 Pac. 903. But see contra, Fearn-ley v. De Mainville, 5 Colo. App. 441, 39 Pac. 73; B. S. Green Co. v. Blodgett, 159 11I. 169, 42 N. E. 176, 50 Am. St. Rep. 146; Beal v. Polhemus, 67 Mich. 130, 34 N. W. 532; and cf. Campbell v. House (Okl.), 176 Pac. 913.

31 Electric Plaster Co. v. Blue Rapids City, 77 Kan. 580, 96 Pac. 68; Board v. Piedmont Realty Co., 134 N. C. 41, 46 S. E. 723.

32 Doane v. Chicago Ry. Co., 160 11I. 22, 45 N. E. 507, 35 L. R. A. 588 (see also Farson v. Fogg, 205 111. 326, 68 N. E. 755); Maguire v. Smock, 42 Ind. 1; Howard v. F. I. Church of Baltimore, 18 Md. 451. See also Glenn v. Southwestern Gravel Co. (Okl.), 177 Pac. 586. Cf. Makemson v. Kauffman,

35 Ohio St. 444, 445.

33Corns v. Clouser, 137 Ind. 201,

36 N. E. 848; Slocum v. Wooley, 43 N. J. Eq. 451, 11 Atl. 264.

34A promise to pay money to one through whose land a road has been laid out, for withdrawing his opposition to opening it, was held valid in Weeks v. Lippencott, 42 Pa. 474. A contrary decision is Smith v. Apple-gate, 3 Zabr, 352, and see Pingry v. Washburne, 1 Aiken, 264,15 Am. Deo. 676.

35 Supra, Sec. 1533.

36 Fort Wayne v. Rosenthal, 75 Ind. 166, 39 Am. Rep. 127; Noble v. Davison, 177 Ind. 19, 96 N. E. 325; Pipe Creek School Tp. v. Hawkins, 49 Ind. App. 595, 97 N. E. 936; Bay v. Davidson, 133 la. 688, 111 N. W. 25, 9 L. R. A. (N. S.) 1014; Nunemacher v. Louisville, 98 Ky. 334, 32 S. W. 1091; Goodrich v. Waterville, 88 Me. 39, 33 Atl. 659; Young v. Mankato, 97 Minn. 4, 105 N. W. 969, 3 L. R. A. (N. S.) 849; Drake v. Elizabeth, 69 N. J. L. 190, 54 Atl. 248; Beebe v. Sullivan County, 64 Hun, 377, 19 N. Y. S. 629 (aff'd without opinion, 142 N. Y. 631, 37 N. E. 566); Snipes v. Winston, 126 N. C. 374, 35 S. E. 610, 78 Am. St. 666; Davidson v. Guilford County, 162 N. C. 436, 67 S. E. 918; Norbeck Ac. Co. v. State, 32 S. Dak. 189, 142 N. W. 847, Ann. Cas. 1916 A. 229; Northport v. Northport Town-site Co., 27 Wash. 543, 68 Pac. 204. See also Brennan v. Purington Paving Brick Co., 171 111. App. 276; Dillon on Municipal Corporations, Sec.Sec. 772,773.

37 Ensley v. Hollingsworth, 170 Ala. 396, 54 So. 95, Ann. Cas. 1912 D. 652 (three judges dissenting); Reclamation Dist. v. Turner, 104 Cal. 334, 37 Pac. 1038; Niles v. Muzzy, 33 Mich. 61, 20 Am. Rep. 670.

38 In Bangor v. Ridley, 117 Me. 297, 104 Atl. 230, it was held that under Me. Rev. St., c. 4, Sec. 43, prohibiting a member of a city government being interested in any contract and making agreements in violation thereof void, a city alderman, who furnished teams and received payment for services, was liable to the city for the amount so received, the money having been paid under an implied agreement made void by the statute; and that the fact that the city received full value for the money paid, and no harm came to the public, was immaterial. See also Marshall v. Ellwood City, 189 Pa. 348, 41 Atl. 994.

39 In People's Savings Bank v. Big Rock Stone, etc., Co., 81 Ark. 599, 99 S. W. 836, it was held against public policy to permit a bank of which the mayor of a city was a stockholder and president to take an assignment of the claim of a contractor against the city for the price of work which he had performed for the city, when the work was required to be inspected and accepted for the city by a board of which the mayor was chairman. On the general question when an indirect interest of a public official will invalidate a contract to which he assented in his representative capacity, see O'Neill v. Auburn, 76 Wash. 207, 135 Pic. 1000, 50 L. R. A. (N. S.) 1140, and note thereto.