public policy

The truth is that the theory of public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as the basis of a judicial determination, if at all, only with the utmost circumspection. The public policy of one generation may not, under changed conditions, be the public policy of another.

The criterion by which the courts condemn contracts as opposed to the public will, or as tending to subvert the public welfare. Thus, public policy invalidates contracts tending to immorality, as for the rental of a brothel (27 Mo. App. 649), or in consideration of future illicit cohabitation (58 Ala. 303; 57 Hun [N. Y.] 292); contracts facilitating divorce (89 111. 349; 25 Minn. 72); contracts in unreasonable restraint of trade (49 N. J. Eq. 217); combinations to restrict competition (90 Cal. 110; 68 N. Y. 568); contracts to unfairly influence an appointment or election to public ofiice (8 Kan. 601; 23 Mo. App. 555); to unlawfully influence legislation (88 Mass. 152); to limit the jurisdiction of courts, as by agreeing not to sue in a particular court (94 U. S. 535); to compound a criminal offense (83 111. 418); to restrict competition at a public sale, as by agreeing not to bjid thereat (47 Ga. 479). And the agreement need only tend to illegality. Thus, an agreement for witness' fees contingent on the success of the party for whom the witness is to testify (10 Ala. 206), or for a fee to a private prosecutor contingent on a conviction (62 Ky. 207), or by an attorney to defend against offenses to be committed in the future (41 Kan. 364), are void as against public policy.

That principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good. 4 H. L. Cas. 1; Greenh. Pub. Pol. 2. It has been designated by Burroughs, J., as "an unruly horse pursuing us, and when once you get astride of it you never know where it will carry you." 2 Bingh. 229. "Public policy is a variable quantity; it must and does vary with the habits, capacities, and opportunities of the public." 36 Ch. Div. 359. Public policy is manifested by public acts, legislative and judicial, and not by private opinion, however eminent; Giant-Powder Co. v. R. Co., 42 Fed. 470, 8 L. R. A. 700. See Police Power; Statute; Constitutional. It is said to be determined from legislative declarations, or, in their absence, from judicial decisions; Picket Pub. Co. v. Connors, 36 Mont. 188, 92 Pac. 524, 13 L. R. A. (N. S.) 1115, 122 Am. St. Rep. 352, 12 Ann. Cas. 986.

The principles under which the freedom of contract or private dealings is restricted by law for the good of the community. Wharton. The term "policy," as applied to a statute, regulation, rule of law, course of action, or the like, refers to its probable effect, tendency, or object, considered with reference to the social or political well-being of the state. Thus, certain classes of acts are said to be "against public policy," when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state, apart from illegality or immorality. Sweet. And see Egerton v. Earl Brownlow, 4 H. L. Cas. 235; Smith v. Railroad Co., 115 Cal. 584, 47 Pac. 582, 35 In R. A. 309, 56 Am. St. Rep. 119; Tarbell v. Rnilroad Co.., 73 Vt 347, 51 Atl. 6, 56 In R. A. 656, 87 Am. St. Ren. 734; Hartford F, Ins. Co., v. Chicago, etc.. R. Co.., 175 U. S. 91, 20 Sup. Ct. 33. 44 L. Ed. 84; Enders v. Enuers, 164 Pa. 266, 30 Atl. 129, 27 L. R. A. 56, 44 Am. St. Rep. 598; Smith v. Du Bose, 78 Ga. 413, 3 S. E. 309, 6 Am. St. Rep. 260; Billingsley v. Clelland, 41 W. Va. 234, 23 S. El 812.

Defined under Policy in Black's Law Dictionary.