201 Ill. App. 232 | Ill. App. Ct. | 1916
delivered the opinion of the court.
This is an appeal from a judgment of the Circuit Court of Fulton county in a suit in assumpsit, brought by appellant to recover from appellee as Highway Commissioner of the Township of Harris, in Fulton county, under the single highway commissioner system adopted in that township in April, 1914. The basis of the suit is a warrant drawn in November, 1913, by the then commissioners’ of highways of that township, for $1,240.23, payable April 1, 1914, without interest, out of the funds in the hands of the treasurer of that township not otherwise appropriated. This warrant was drawn to pay for a carload of sewer pipe and other materials purchased in October, 1913, from the Reliable Iron & Metal Company, by the then highway commissioners. It was made payable to that company and was assigned by that company to appellant. The declaration contains two counts, one a special count based on the above facts, and the other certain of the common counts. Appellee filed his plea of nonassumpsit and a special plea in bar, denying liability on the ground that at the time the warrant was issued there were not sufficient funds in the treasury to pay the same, that could be used for that purpose; that the warrant was not on its face made payable from taxes then levied, and that the warrant and the indebtedness it was given to pay were unlawful and contrary to the express provisions of the statute. The case was tried by the court without a jury. The finding of the court was for appellee, and judgment was rendered against appellants for costs.
The warrant sued on was not payable on demand but was what is termed an anticipation warrant. Such warrants are void unless they are made payable solely from taxes already levied, and show on their face that they are to be paid from such taxes only. County of Coles v. Goehring, 209 Ill. 142-162. Laws 1913, page 608 [Cal. Ill. St. Supp. 1916, ¶ 11527(1) et seq.].
Appellants urge that the trial court in rendering judgment against them for costs ignored the rule that when a warrant for the payment of money is introduced in evidence it makes a prima facie case of liability against the body issuing it, on the principle that it amounts to a recognition or admission that a valid indebtedness exists. As we understand the rule referred to, it only applies when the warrant relied on is regular on its face, or, in other words, when such warrant lacks nothing which the law requires it shall contain. This warrant fails to show on its face that it is to be paid solely from taxes already levied. The rule laid down in the County of Coles v. Goehring, supra, must therefore be applied.
Appellants urge as error that the court failed to hold as law the following proposition requested by them, viz.:
“Unless it appears affirmatively in evidence that a County Superintendent of Highways had been appointed by the Board of Supervisors under the Act of July 1st, 1913, prior to November 18th, 1913, then the right and authority of the Commissioners of Highways of Harris Township, Illinois, to make purchases of sewer pipe for use on roads of said Township in an amount in excess of two hundred ($200) dollars existed and would not be affected by said law.”
Section 8 of the Act in regard to “Roads and Bridges,” approved June 27, 1913, in force July 1, 1913, page 524, Laws of 1913 [Cal. Ill. St. Supp. 1916, ¶ 10000(8)], creates the office of county superintendent of highways, and provides that such an office shall be appointed by the county board. Section 68 of that Act, page 551, Laws of 1913 [Cal. Ill. St. Supp. 1916, ¶ 10000(8)], provides, first, that the commissioners of highways may make certain contracts when the amount to be expended -does not exceed $200, and then provides: “When any contract shall be for a sum in excess of $200 the said commissioners shall not let the same without the approval of the County Superintendent of Highways.” The contract in question did involve the expenditure of more than $200.
The proposition submitted does not deny the law to be that, if there was a superintendent of highways in Fulton county at the time the contract for the sewer pipe in question was made, it would be void without the approval of such superintendent, but announces the law to be that, unless such officer had been appointed when the contract was made, the commissioners of highways could make a valid contract without the approval of a county superintendent of highways.
The act in question makes no such exception. Its operation was not deferred or suspended until a superintendent of highways should be. appointed. It speaks from July 1, 1913, when it went into force. It says that after July 1, 1913, no contract shall be made by the commissioners of highways involving over $200, without the approval of the county superintendent of highways. It is a familiar rule that when a statute speaks, implicit reliance must be placed on it. In our opinion it is a salutary law, and well calculated to con - serve the rights and property of the people. Even if the highway commissioners did not approve of it, they had no power to add to it or take from it. It stands on the statute books for their guidance in the performance of their duties. It is a rule to govern their action prescribed by a superior authority, and which they as inferiors are bound to obey. We think the commissioners were without authority to make the contract for the sewer pipe to pay for which this warrant was issued without having it approved as provided by the act referred to. If a county superintendent of roads had not been appointed, contracts involving the expenditure of over $200 must wait until one was appointed. Besides that, ample time in which such officer could and should have been appointed elapsed between the 1st day of July, 1913, and the time in October of that year when the commissioners attempted to contract for the sewer pipe. It was the official duty of the county board to make such appointment, and in the absence of proof to the contrary, the presumption must be indulged in that the county board had performed its duty. 29 Cyc., page 1437.
It follows that the proposition of law requested by appellants was properly refused. It also follows that the contract of October, 1913, involving the expenditure of more than $200 and not approved by the county superintendent of roads, was void and created no obligation on the Township of Harris.
We desire to mention one further fact. The warrant sued on is not negotiable. Appellants sue as assignees in their own name. Section 18 of the Practice Act (Cal. Ill. St. Supp. 1916, ¶ 8555) provides that suits on non-negotiable choses in action may be begun in the name of the assignee, but that when so begun the plaintiff “shall in his pleading on oath, * * *" allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title.” The declaration does not conform to the requirements of that section of the Practice Act. It is not therein averred that the plaintiffs are the actual bona fide owners of the warrant sued on, or how they acquired title thereto. Neither is it verified. The judgment of the Circuit Court is affirmed.
Judgment affirmed.
Mr. Justice Thompson took no part.
