| Ill. | Sep 30, 1881
delivered the opinion of the Court:
This was a suit upon a county order issued by the board of county commissioners of Jackson county to Isaac Rapp, December 24, 1877. The order was drawn for the sum of $500, “for work done on court house, as per contract, ” payable “with interest at ten per cent per annum, payable annually.” The circuit court rendered judgment for the plaintiff in the sum of $500, refusing to allow interest upon the order. On appeal to the Appellate Court for the Fourth District the judgment was reversed and the cause remanded, and on petition of the defendant the court granted an appeal to this court, making the requisite certificate.
The facts, as shown by the record, are, that about the first of June, 1877, the county board, having determined on certain repairs on the court house of the county, including the building of two fire-proof vaults, caused notices to be published in a number of newspapers that sealed proposals for doing the work would be received by them until the 22d of that month; that the plans and specifications of the work were on file in the county clerk’s office, and that the work would be paid for in county orders of the county, bearing interest at the rate of ten per cent per annum. On June 22, on opening the numerous bids sent in under the notices, Isaac Rapp was found to be the lowest bidder, his bid being $10,850. The board then awarded him the contract, on condition of his filing a bond, etc. On July 2 the board again met, and approved Rapp’s bond, and unconditionally awarded him the contract for that sum, to be paid in the orders of the county, bearing interest at the rate of ten per cent per annum, and entered the same of record. The work was done, and the orders issued accordingly, of which the order in suit was one, which was duly assigned to the plaintiff. Rapp testified, that if the county had proposed to pay for the work in common county orders, he would not have-undertaken the work at any price, and that no one would have done the work for less than $6000 or $7000 more than the contract price; that common county orders were then worth about sixty cents to the dollar, while these interest-bearing orders could be “handled” at ninety cents.
The liability of the county to pay interest on the order is the only question made upon the record.
By section 26, page 307, Rev. Stat. 1874, it is made the duty of the county board of each county, “to erect or otherwise provide, when necessary and the finances of the county will justify it, and keep in repair, a suitable court house, ” etc., and “to provide and keep in repair, when the finances of the county permit, suitable fire-proof safes ” for the county offices. By section 24, page 306, counties are given the power “to make all. contracts and do all other acts in relation to the property and concerns of the county necessary to the exercise of their corporate powers.”
In County of Hardin v. McFarlan, 82 Ill. 141, which was an action to recover the interest at ten per cent per a.nm-im on certain bonds which had been issued by the county of Hardin, this court said: “We fail to discover in any statute in force when these bonds were issued, any power in the several county courts to issue interest-bearing orders, and we are satisfied no such power existed. The county court could exercise no discretion in this matter,—it was controlled by positive law. ”
But this language is to be taken with reference to the particular case in which it was used. The county of Hardin, there, had taken up an amount of preexisting indebtedness, common non-interest-bearing county orders, and issued to the holders in lieu thereof the bonds there involved, payable with ten per cent interest per annum. There was at the time a law in force entitled, “An act to enable counties owing debts to liquidate the same, ”—the mode being by the levy of a special tax. And in Hall v. Jackson County, 95 Ill. 352" date_filed="1880-06-14" court="Ill." case_name="Hall v. Jackson County">95 Ill. 352, it was held that it was not within the powers of a'county board to allow or pay interest on common county orders issued for current county expenses, referring to the County of Hardin case as so deciding.
The present is unlike the cases cited. The orders here were not issued for some prior indebtedness which had been incurred with no reference to being paid by interest-bearing orders, but they, with their interest clause, were the contract price which had been agreed to be paid for work afterwards to be performed.
The county board certainly had authority to contract for the repair of the court house and building the fire-proof vaults, and there being no restriction of law as to the amount of the price they should pay or its mode of payment, we do not see why it was not open to them to contract to pay in interest-bearing orders, as well as in non-interest-bearing orders. There is no prohibition against counties issuing, interest-bearing orders, and this court has never decided that counties had no power, under any circumstances, to make a valid contract for the payment of interest. The cases cited above are the extent to which it has gone in that direction. The interest clause in the orders here was a part of the contract price of the work. It was under the agreement that the orders should bear ten per cent interest that the work was contracted to be done, and was performed. The interest provision regulated the amount of the price bid, and contracted to be taken, for the work. With such provision the county has got the work done at a less price than it would have done without it. The work has been done as it was contracted to be performed, and the contract price should be paid as it was contracted to be paid. We see no legal obstacle in the way of its being done.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Mr. Justice Walker: I am unable to concur in the judgment in this case.