63 Ill. 32 | Ill. | 1872
delivered the opinion of the Court:
The declaration, in this case, contained two special counts and the common counts.
The facts agreed upon and necessary to a comprehension of the case, are the following: That appellant, by a series of resolutions adopted in January, 1865, offered a bounty of four hundred dollars to each soldier who might enlist in the military service of the United States, and be credited to any of the towns of the county; on the 7th of February, 1865, an act was passed by the legislature, authorizing the payment of bounties to enlisted men, and providing all the machinery to make it effectual; on the 5th of February appellee signed a written agreement to enlist, and on the 8th was mustered into the service, and credited to Clark county; the county order sued on was delivered after the passage of the act, and prior to the 25th of March—the exact day is not mentioned in the agreement; and on the 15th of March, 1865, the board of supervisors, by a series of resolutions, referred to the resolutions of January previous, and substantially re-adopted them, only the latter series are more full than the former.
It is not necessary to determine whether the special counts are good or bad. The agreement between the parties shows that the order was executed in conformity to law so far as the form is concerned. It was signed by the county clerk and countersigned by the treasurer. The genuineness of the signatures was not disputed; and, the order, having been executed in accordance with the requirements of the statute, it was evidence of an indebtedness on the part of the county, for which the board of supervisors was liable to be sued, and to which, as the corporate authority of the county, it must respond, and could only defeat by proof of, a substantial defense. The county order was therefore competent evidence under the common counts.
It is also urged that, as the enlistment was previous to the passage of the' act, therefore the county order is a nullity; that the soldier was never credited to any of the towns of the county; that no tax was ever levied for the payment of the order; and that the order is illegal, because issued outside the county.
The enlistment contemplated by the resolutions, was not before the passage of the act. The tenor, as well as the language of the resolutions, were, that the bounty should be paid when the person had enlisted and been mustered into the military service. The enlistment referred to in the argument, was a mere agreement to enlist. This did not release the county from its liability to the draft. Nothing could accomplish this result but the inspection of the man, and the entry of his name upon the muster-roll. Then he was credited to the county, and a certificate of the provost marshal given, to that effect.
Though the agreement to enlist was on the 5th of February, the actual mustering in—the essence of the resolutions—was on the 8th, and subsequent to the passage of the act.
The record states that, after the enactment, the order in question was issued and delivered to the soldier. The officers, therefore, had the authority of law for its issue, for the purposes intended by the act. If it was issued prior to the 15tli of March, it was sanctioned and ratified by the resolutions of that date.
But this court, in Briscoe v. Allison, 43 Ill. 294, decided, in relation to this identical class of orders, that they were not invalid.
It is rather difficult to apprehend the point that the soldier was never credited to any of the towns of the county. The agreement, which is a part of the record, states that he was, when mustered in, credited to the county. As the towns composed the county, one or all of them derived á benefit from the enlistment.
The neglect of the board to levy a tax for the payment of the order, could, under no circumstances, invalidate the order. The contract was perfect rvhen the enlistment was complete, the county properly credited, and the order delivered. No subsequent failure to comply with the law could change or weaken the contract w'hen made.
The issuance and delivery of the order in another county, where the agreement was consummated, does not make it illegal. Those orders need not have attached to them any seal of office. They are properly executed when signed by the clerk and the treasurer. This mere clerical duty might be performed in one place as well as in another, if circumstances rendered it necessary or more convenient.
From the record before us the county has been benefited by services which it has never remunerated. This is against both good law and sound morals.
"We think that the judgment should be affirmed.
Judgment affirmed.