95 Ill. 352 | Ill. | 1880
delivered the opinion of the Court:
Appellant sued appellee, in assumpsit, in the circuit court of Jackson county, to recover the amount claimed to be due on the following county orders:
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Treasurer of said County:
Pay James W. Hall, or bearer, $1592.52, for making collector’s book, and interest ou the following county orders : Nos. 5048, 4966, 3597, 4950, 125, and 3598, with ten per cent interest from January 2, 1872, out of moneys in the treasury not otherwise appropriated.
James W. Hall, County Cleric.
No. 443. Countersigned by Gill J. Bure, Treasurer.
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Treasurer of said County:
Pay James W. Hall, or bearer, $586.75, for official services, and bearing interest at the rate of ten per cent per annum, out of moneys in the treasury not otherwise appropriated.
James W. Hall, County Cleric.
No. 526. Countersigned by Gill J. Bure, Treasurer.
Judgment was rendered by the circuit court in favor of appellant for $1074.31. From that judgment an appeal was prosecuted by. the.present appellant to the Appellate Court for the Fourth District. That court reversed the judgment of the circuit court, and rendered judgment there iu favor of the appellant for $1174.22, and this judgment being still unsatisfactory to appellant, he brings the present appeal.
The declaration contained four special counts and the common counts. Objection is urged because the circuit court refused to allow the orders to be read in evidence, under the special counts. This we think unimportant, since the court permitted them to be read in evidence under the common counts. Whether the court admitted them in evidence, as the counsel say, as evidence of an account stated only, and not as orders, it appears that in one way or the other appellant got his whole case before the court, and so was not prejudiced by any ruling in that regard.
Appellant, after reading in evidence the orders in controversy, also read in evidence certain orders of the county court of Jackson county, authorizing them to be issued. He then called one Abel C. Davis, and proved by him that he was a member of the county court of Jackson county at the time of the allowance of the claim,, and the issuing of the order Ho. 443 for the sum of $1592.52, and proposed to prove by him that the county court ordered the county clerk to issue an order of this amount, to be interest bearing. But the counsel for appellee objected to the introduction of such evidence, and the court sustained the objection, to which appellant then excepted, and he now insists that this ruling was erroneous, and refers to County of Vermilion v. Knight, 1 Scam. 97, Washington County v. Parlier, 5 Gilm. 232, Ryan v. Dunlap, 17 Ill. 40, and Bartlett et al. v. Board of Education, 59 id. 364. This is a misapprehension. Those cases related to contracts which it was competent for the board to make by parol, and of which it was not indispensable that a record should be made.
But it is provided by sec. 8, chap. 36, Rev. Stat. 1874, p. 324: “The county treasurer shall liot countersign any county order before the same is filled up, nor until he shall have ex-aniined the records of’the county board, and ascertained that the issuing of such order is warranted thereby.” And sec. 9 of the same chapter is this: “Ho money or funds shall be paid out of any county treasury except in accordance with an order of the county board, or where payment is specifically authorized by law to be made.”
It is not pretended these orders are such whereof payment is specifically authorized by law to be made, and so, necessarily, they must be authorized by an order of the county-board, which can only be shown by the record. The evidence was very clearly properly excluded. The clause promising to pay interest on these orders was entirely unauthorized by any order of the county court, as disclosed by the records, and to that extent they were null and void.
A considerable portion of these orders is made up of interest on other orders, and it was conceded as a fact, upon the hearing, that certain sums had been paid by the county and credited on these orders as interest, so that, deducting the interest paid, and also the interest added in and made a part of the principal sum of these orders, the judgment of the Appellate Court is confessedly as large as it ought to be. And the only question, therefore, that remains to be noticed is, was it competent for the county court to allow or pay interest on common county orders issued for current county expenses ? This has been settled in the negative, by Hardin County v. McFarlan, 82 Ill. 138, and we perceive no necessity for reopening the question.
There is no assignee, here, before maturity to be protected, and the case is totally unlike those referred to by counsel, where it has been held that a corporation will be estopped to set up the plea of ultra vires. Without saying that those cases can have no application to counties, it is sufficient to say they can have no application to the facts of the present case. The county has not here borrowed money, which it retains and refuses to pay, nor in any other respect obtained that which it could not have obtained had its want of power in the respect here urged been made known.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.