227 Ill. 453 | Ill. | 1907
Lead Opinion
delivered the opinion of the court:
It will be seen from the pleas above set out in substance, that the defenses sought to be made are, substantially, that the moneys sued for were not the moneys and property of the State; that said moneys came into the hands of Wulff as registered bond funds and hot as taxes and revenues raised, for and belonging to the people of the State, but that said moneys belonged to the various municipalities from which they had been collected; that Wulff had a lawful right to retain or pay to himself, out of said fund, the costs and expenses of its collection and disbursement; that by contemporaneous construction of the statutes relating to the registered bond funds by the administrative and executive officers of the State and by the legislature for a long period of years, Wulff had a right to receive and retain the amount annually estimated to cover the costs and expenses of collecting and disbursing the registered bond funds, the same as had been done by his predecessors in office, and that no recovery can therefore be had against plaintiff in error; also, that the suit is not for the recovery of money in which the public is interested, and' therefore the action is barred by the five year statute of limitations, and that if, as alleged in the pleas, the moneys sued for were not State revenues but belonged to the various municipalities, then plaintiff in error, as surety for Wulff, as State Treasurer, could not be liable for a misappropriation of said funds.
It is necessary to an understanding of plaintiff in error’s contention that we set out the substance of the statutes involved relating to the registered bond funds. They are sections 5, 6 and 7 of chapter 113, (Hurd’s Stat. 1905, p. .1553,) entitled “Railroad and Improvement Aid Bonds.” The original act relating to this subject was passed February 13, 1865. It was amended by the act of 1877 and again by the act of 1879. There are some differences between the original and present acts, but .these differences do not relate to the portions of said act involved in this controversy. The provisions of said act, as it now exists, which are involved in this action are not materially different from the original act of 1865. Section 5 provides that when the bonds of any of the municipalities mentioned shall be registered; the Auditor shall annually ascertain the amount of principal and interest due and to accrue for the current year on such bonds, and shall ascertain the rate percentum upon the valuation of the property of the municipalities necessary to pay said interest or said interest and principal, “together with the ordinary cost to the State of the collection and disbursement of the same, to be' estimated by the Auditor and State Treasurer.” He is then required to make and forward to the proper officer of the municipality a certificate setting forth the estimated percentum required, “and the said percentum shall thereupon be deemed added to and a part of the percentum which is or may be levied, or provided by law, for the purposes of State revenue, and shall be so treated by such clerk, officer or authority in making such estimates and books for the collection of State taxes; and the said taxes shall be collected with the State taxes, and all laws relating to the State revenue shall apply thereto, except as herein otherwise provided.” By a proviso to said section 5 the county collector is authorized, before settling with the State Treasurer, to pay coupons for interest due, and to pay from any surplus not required for the payment of interest the principal of any registered bond presented to him for payment, and in his settlement with the State Treasurer the county collector is allowed credit for such payments. Section 6 provides that “the State shall be deemed the custodian only of the tax so collected, and shall not be deemed, in any manner, liable on account of such bonds, or other evidences of indebtedness; but the tax and funds so collected shall be deemed pledged and appropriated to the payment of the principal and interest of the registered bonds, and evidences of indebtedness,” etc. Section 7 provides: “The State may, out of such fund, first retain or satisfy the ordinary cost to the State, of the collection and disbursement thereof; and in case of the non-presentment of any such bond, or evidence of indebtedness, * * * at the times and when and where the interest on the State debt is or may be paid, then, on the beginning of the next year, the moneys by reason thereof undisbursed, together with any surplus for any cause remaining, shall be carried to the fund of such county, city, town, township, school district or other municipal corporation of the current or ensuing year, and be considered by the Auditor in making his next estimate for taxation therein for such year under this act, and shall be applied accordingly.”
It is contended by plaintiff in error that under these provisions of the statute the money paid into the registered bond fund belonged to the various municipalities from which said fund was collected and the State had no interest in or title thereto, and that if Wulff was not entitled to the moneys sued for, this suit cannot be maintained because the moneys belonged to the various municipalities whose names are attached to the warrant filed with the declaration. In Dunnovan v. Green, 57 Ill. 63, it was contended that the registered bond fund tax was in violation of the constitution of 1848, which prohibited the State from in any manner giving its credit to or in aid of any individual, association or corporation, and it was there held that such tax was not a State tax or revenue and the constitutionality of the act was sustained. A distinction, however, must be made between the tax collected for the payment of principal and interest of registered bonds and that collected to compensate the State for costs incurred by it in collecting and disbursing the fund for the payment of principal and interest of said bonds. This cost to the State is required, as will be seen by section 5, to be estimated by the Auditor and State Treasurer, and becomes a part of the rate percentum certified to the local or municipal authorities to be levied and collected as taxes. Section 7 authorizes the State to retain out of the funds collected the ordinary cost to the State of the collection and disbursement of said fund. Whether the State has such title to or interest in the fund collected for the payment of principal and interest of registered bonds as would authorize it to maintain a suit for the recovery thereof is not involved in this record, and a determination of that question is unnecessary to a decision of this case. This suit is based on the right claimed by the State to recover moneys alleged to have been received by Wulff, as Treasurer, which were raised by taxation and paid to said Wulff, as such Treasurer, as the ordinary cost to the State of collecting and disbursing the fund for the payment of principal and interest of registered bonds. Whether this portion of said fund be denominated State revenue or called by some other name, by the plain and unequivocal terms of the statute it belonged to the State.
That the State may lawfully exercise the powers conferred by the act of the legislature referred to, with reference to the registering and payment of municipal bonds, is not denied. Neither is it questioned that it may collect and receive from the municipalities it is aiding, the ordinary cost and expense incurred by it for the service rendered. As. soon as the amount which has been determined by the Auditor and Treasurer to be necessary to pay the State its cost for collecting and disbursing the registered bond fund has been received by the Treasurer it becomes the money of the State, and can only be paid out upon an appropriation made by the legislature for that purpose. “No money shall be drawn from the treasury except in pursuance of an appropriation made by law and on the presentation of a warrant issued by the Auditor thereon.” (Const. of 1870, art. 4, sec. 17.)
It is not controverted that the money received by the State Treasurer for the payment of principal and interest of registered bonds could lawfully be paid to the holders of the said bonds without the requirement of an appropriation for that purpose, and it is insisted by plaintiff in error that it necessarily follows the moneys received as costs and expenses of the State for collecting and disbursing the fund may also be paid out without an appropriation. We think, as before stated, that there is a substantial difference between the two funds. One belongs to the State for the service rendered by it for the municipalities. As to the other, the State is the custodian for its payment to the bond owners. As to one fund the title of the State is absolute; as to the other it is qualified. As to the one fund the money goes into the State treasury for the benefit of the State and cannot be withdrawn from the treasury unless authorized by an appropriation, while as to the other the money is received by the Treasurer for the purpose of paying it to the persons to whom it is properly due and for whom it was collected, and no appropriation is required to authorize such payment. We do not think the act of 1874, relating to the application of the surplus of any registered bond fund, or the act of 1883, making provision for the refunding of any surplus fund, has any application to the fund in issue in this case, for the reason that this is not a suit for the benefit of any municipality to recover a surplus. Section 7 of chapter 130 (Hurd’s Stat. 1905, p. 1943,) reads: “The State Treasurer shall receive the revenues and all other public moneys of the State, and all moneys authorized by law to be paid to him, and safely keep the same.” The moneys sued for in this case belonged to the State, and were paid to Wulff, as Treasurer of said State, by authority of law, and it was his duty to safely keep said fund and not appropriate or convert it to his own use.
Some of the pleas allege that the moneys sued for were taken by Wulff to re-pay to himself the actual cost he had been put to in the collection and disbursement of the registered bond funds. It is contended by the plaintiff in error that if Wulff paid out of his own private means the cost of collecting and disbursing this fund, he had a right to retain or pay to himself, out of the treasury, the amount so expended without any appropriation having been made for that purpose. We cannot agree with this position of plaintiff in error. Section 23 of article 5 of the constitution confers upon the legislature authority to fix the salary of the State Treasurer and prohibits it being increased or diminished during the official term of such Treasurer, and also prohibits such officer from receiving to his own use “any fees, costs, perquisites of office, or other compensation.” Said section requires such officer to pay all fees that may be collected for any service performed by him, into the State treasury. By act of the legislature in 1872 the annual salary of the State Treasurer was fixed at $3500, “in lieu of all other salary, fees, perquisite, benefit or compensation, in any form whatsoever.” Said act also required said officer to pay all fees collected by him, as such officer, into the State treasury as revenue. These provisions of the constitution and the statute so plainly prohibit the State Treasurer from receiving any other compensation, directly or indirectly, than the annual salary of $3500, as to leave no room for discussion or debate upon this question, and it is not claimed that Wulff was entitled to the moneys sued for as additional personal compensation.
It is contended, as before stated, that if Wulff advanced the costs and expenses to the State of collecting and disbursing the registered bond funds he was entitled to retain or draw out of the treasury an amount sufficient to reimburse him for such expenditures. This position is untenable, for the reason that Wulff, as State Treasurer, had no right to incur or pay any expenses of his office beyond what had been provided for by appropriation acts of the legislature. Section 18 of article 4 of the constitution requires the General Assembly to provide for all the appropriations necessary for the ordinary and contingent expenses of the government. In pursuance of said provision of the constitution, the General Assembly, by its appropriation act of 1893, which covered a portion of the term of office of Wulff as Treasurer, appropriated for the use of the Treasurer in the conduct of the business of his office, for clerk hire, $4000 per annum; stenographer and typewriter, $750 per annum; watchmen, $3200 per annum; messenger and clerk, $800 per annum; and for repairs, express charges, postage, telegraphing and other necessary and incidental expenses, not exceeding $1000 per annum. By the appropriation act of 1895, which covered the residue of the term of office of Wulff as Treasurer, the General Assembly appropriated for the use of the Treasurer, for clerk hire, $7500 per annum; for watchmen, $3200 per annum; messenger, $800 per annum; repairs, express charges, postage, telegraphing, etc., a sum not exceeding $1000 per annum. The services performed by the Treasurer in connection with the collection and disbursement of the registered bond funds were a part of the duties of the office of State Treasurer required to be performed by the person holding that office. The expenses attendant upon the discharge of those duties are not by law distinguished from or placed upon a different basis from the other expenses incurred in the discharge of the duties of the office of Treasurer. All expenses for the conduct of said office are provided for by the appropriation acts of the General Assembly and limited to the amount by the said acts appropriated.
The principles here involved are the same as those announced in Hughes v. People, 82 Ill. 78, Daggett v. Ford County, 99 id. 334, Wheelock v. People, 84 id. 551, Jennings v. Fayette County, 97 id. 419, and Marion County v. Lear, 108 id. 343. Those cases related to duties and liabilities of county officers, but in principle they are analogous and applicable to the questions here involved. Section 10 of article 10 of the constitution makes it the duty of the county board to fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel and other expenses. The cases above cited hold that when an amount for clerk hire and expenses has been fixed by the county board, the officer is not entitled to receive from the county anything for money actually expended for clerk hire in excess of the amount allowed him by the county board for that purpose. In the Daggett case, supra, it was held that the exclusive power and authority to fix and determine the amount of necessary clerk hire and other expenses was lodged by the constitution in the county board, and it was said (p. 342) : “When the county board has thus fixed an officer’s compensation, we conceive that that is all to which he is entitled. It has been fixed by the authority which the constitution has appointed to fix it. Although it is the amount of their necessary clerk hire, etc., which the county board is to fix, it is for the board to decide what amount is necessary. It is the amount necessary which they are to fix, and it is their duty to allow all that is necessary. Still, they are to fix the amount which is necessary, and of necessity are to determine what is necessary. And when they have acted and fixed what in their judgment is the necessary amoúnt for clerk hire, etc., we do not see that under the constitution there is any other power which has authority to increase it, The power of fixing the amount of necessary clerk hire, etc., is devolved by the constitution on the county board, as a fair and impartial tribunal, and it is to be supposed that they will perform the duty in good faith, as it rests upon them under the constitution. Should it be found at any time that the board had committed an error in judgment and not allowed an amount sufficient for necessary clerk hire, etc., the construction which we have heretofore adopted, that the amount once fixed for necessary clerk hire, etc., when it is fixed separate from the allowance for personal services, is subject to be changed from time to time during the term of office, as the board may see fit, will enable the board to afford any suitable relief in this regard, and it may be expected that this will be sufficient for the avoidance of any serious injustice being done to officers in any underestimating by the county board of the necessary expenses of their offices.” In the case at bar, power to determine and fix the necessary clerk hire and other expenses of the office of State Treasurer is by the constitution conferred upon the General Assembly. This power was exercised by the appropriation acts above referred to, and Wulff, as State Treasurer, had no authority to incur or pay any expenses of his office beyond the amounts fixed in said acts. There are cases holding that where the county board has failed to fix the necessary clerk hire, etc., of a county officer, such officer is entitled to receive the expenses necessarily incurred and paid out. But those cases can have no' application to this case, for the reason that here the General Assembly did fix the amount of expense to be incurred and paid out by Wulff as Treasurer of said State of Illinois.
It follows, therefore, that the circuit court properly sustained the demurrer to pleas 2, 5, 6, 8 and 11.
It is next contended by plaintiff in error that the Auditor and State Treasurer, who were administrative officers, had for a period of nearly forty years construed the statutes relating to registered bond funds to authorize the Treasurer to retain out of, or pay to himself from the treasury, the costs and expenses incurred in the collection and disbursement of the registered bond funds, and that this construction was known to and ratified by the executive officers and the legislature of the State of Illinois. This question is presented by the fourteenth, fifteenth, sixteenth and seventeenth pleas, called “pleas of contemporaneous construction.” The Attorney General contends, on behalf of defendant in error, that no issue of fact is tendered by these pleas but an issue of law, and that the doctrine sought to be invoked by the pleas as a defense is not the proper subject matter of special pleas. But even if such a defense can ever be the subject matter of special pleas in any case, the pleas here filed presented no defense to the cause of action. The aid of contemporaneous construction can only be invoked where the language of the statute is ambiguous or doubtful. It can have no application where the language of the act and the intent of the legislature are plain. (Jarrot v. Jarrot, 2 Gilm. 1; Burke v. Snively, 208 Ill. 328; 2 Lewis’ Sutherland on Statutory Construction, sec. 472.) In section 473 of the authority last cited it is said: “Long usage is of no avail against a plain statute; it can be binding only as the interpreter of a doubtful law and as affording a contemporary exposition.” In section 474 the same author says: “If the meaning of a statute is clear and unambiguous, a practical construction' inconsistent with that meaning will have no weight and will not be followed. A practical construction will not be followed when it would defeat the obvious purpose of the statute.” The author concludes this section with this quotation from Commonwealth v. Railroad Co. 95 Ky. 60: “If the language of an act be certain, its object can never be frustrated by any amount of contemporaneous interpretation, no matter how consistent or how widely adopted it may have been.”
The language of the statute here involved is so plain as to not require the aid of interpretation or construction. It is inconceivable how the statutes relating to the registered bond funds could be construed to authorize the payment to the State Treasurer, and the retention by him, under any circumstances, of the cost to the State of collecting and disbursing said funds. The plain language of the statute is, that in addition to the amount necessary to pay the principal and interest of the bonds there shall be estimated by the Auditor and State Treasurer, and collected, “the ordinary cost to the State” incurred in the collection and disbursement of said fund. The act further authorizes the State, out of the registered bond fund collected, to “first retain or satisfy the ordinary cost to the State of the collection and disbursement thereof.” By the terms of the act the taxes collected to pay the principal and interest of the registered bonds are deemed pledged and appropriated for their payment, but the cost of collection and disbursement belongs to the State. In no part of the act do we find anything doubtful or ambiguous as to the ownership of the moneys collected for the cost to the State of collecting and disbursing the registered bond fund. Said act is so plain and unequivocal as to be incapable of being reasonably construed to authorize the person holding the office of Treasurer to retain the fund collected as costs and expenses to the State.
In United States v. Graham, 110 U. S. 219, on the subject of contemporaneous practical construction, the Supreme Court said: “If there were ambiguity or doubt, then such a practice, begun so early and continued so long, would be in the highest degree persuasive, if not absolutely controlling in its effect. But with language clear and precise and with its meaning evident there is no room for construction, and consequently no need of anything to give it aid. The cases to this effect are numerous.” The same court, in Studebaker v. Perry, 184 U. S. 258, reiterated the same rule and quoted section 69 from Cooley on Constitutional Limitations, which reads, in part, as follows: “When, however, no ambiguity or doubt appears in the law, we think the same rule obtains here as in other cases, that the court should confine its attention to the law, and not allow intrinsic circumstances to introduce a difficulty where the language is plain. To allow force to a practical construction in such a case would be to suffer manifest perversions to defeat the evident purpose of the law-maker.” This rule has been repeatedly announced and never departed from in many other decisions of the Supreme Court of the United States and has been consistently followed by this court.
Much reliance is placed by plaintiff in error upon Nye v. Foreman, 215 Ill. 285, and County of Cook v. Healy, 222 id. 310; but those cases are not in conflict with the previous decisions of this court nor with the great weight of authority as announced by other courts of last resort and as laid down by text writers. In the Nye case, supra, it was held that contemporaneous, long, uniform and practical construction placed upon a statutory provision by the legislative department and by the officers charged with the duty of applying and enforcing the provisions of the statute would be given great weight by the judiciary, and would, in general, control, “whenever the question is in a degree doubtful or open to reasonable debate,” and the case was held to be a proper one for the application of the doctrine of contemporaneous and practical construction. The Healy case, supra, involved the construction of a constitutional provision relating to the compensation of the State’s attorney of Cook county. It was there held that on account of the ambiguous terms and uncertain meaning of the language of said constitutional provision, the practical construction placed upon it for a long term of years by the State’s attorney and other officers connected with the administration of justice was' applicable, but it was said, on page 317: “If it could be said that the language of the constitution was clear and free from any doubt, a contrary legislative and administrative construction would have no weight.” In discussing the weight and effect to be given by courts to contemporaneous practical construction, the Supreme Court of the United States, by Mr. Justice Story, said in United States v. Dixon, 15 Pet. 158: “But it is not to be forgotten that ours is a government of laws and not of men, and that the judicial department has imposed upon it, by the-constitution, the solemn duty to interpret the laws in the last resort, and however disagreeable that duty may be in cases where its own judgment shall differ from that of other high functionaries, it is not at liberty to surrender or to waive it.”
The Circuit court committed no error in sustaining the demurrer to the fourteenth, fifteenth, sixteenth and seventeenth pleas.
The pleas of the Statute of Limitations are based upon the contention that the moneys sued for were not the property of the State of Illinois but belonged to the various municipalities from which they had been collected, and that no public right or interest is involved which prevented the running of the statute against such municipalities. It is not contended the Statute of Limitations would be a good plea if the money sued for belonged to tlie State. We have held that it did belong to the State, and this .court has frequently held that unless specially named the State is not embraced within the Statute of Limitations. (People v. Brown, 67 Ill. 435; Catlett v. People, 151 id. 16; People v. Gary, 196 id. 310.) The demurrer was properly sustained to the pleas of the Statute of Limitations.
It follows from what we have said that the sureties on the bond of Wulff, as Treasurer, would be liable for his misappropriation or conversion of the moneys sued for.
The circuit court allowed interest on the amount received by Wulff on the warrant described in the declaration from the date of its payment, January 29, 1896, and it is insisted this was erroneous. At common law, in the absence of an agreement to pay interest it could not be recovered. (Fowler v. Harts, 149 Ill. 592; Madison County v. Bartlett, 1 Scam. 67.) By section 2 of our statute in relation to interest, a creditor is allowed interest on moneys “after they become due on any bond, bill, promissory note or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge ; and on money withheld by an unreasonable and vexatious delay of payment.” In addition to the cases where interest is provided for by statute it has been held that interest will be allowed as a penalty where money has been secured and retained by a tortious act and where it has been fraudulently taken and its conversion concealed. This case is not embraced in the class of cases where interest is allowed by statute. Although Wulff received the money sued for nearly ten years before suit was brought, it does not appear from this record that any demand for payment was ever made by the State before this action was commenced. The fact that he had the money all that time was not concealed by him, and it is not claimed he did anything that caused the State to delay demanding payment or suing for the recovery of the money. This is not unreasonable and vexatious delay within the meaning of the statute. “To make the delay both unreasonable and vexatious, the debtor must in some way have thrown obstacles in the way of the collection of the demand, or by some circumvention or management of his own have induced the creditor to prolong taking proceedings to collect the debt longer than he would otherwise have done.” (Hitt v. Allen, 13 Ill. 592.) The indebtedness did not result from the commission of a tort nor was the fact of the taking and conversion of the money fraudulently concealed. The defense set up by a number of the pleas was, that Wulff collected and appropriated the money because he claimed he had a right to it,—that it belonged to him. We have held this claim was not well founded; but if the money was taken and converted under the honest belief on his part that he was entitled to it, which was one of the defenses sought to be made by pleas, no interest could be allowed until after demand made for the payment. The judgment was rendered on the declaration. There is no averment of any demand in the declaration nor of any facts that would justify the allowance of interest before the commencement of the suit. In Cassady v. Trustees of Schools, 105 Ill. 560, which was a suit on the official bond of a school treasurer, it was held that where a public officer appropriates and converts to his own use moneys held in his official capacity, and refuses, on demand, to pay the same over to the proper party, in a suit to recover on the bond interest is allowable from the time of the conversion. It is apparent from the facts in that case, and from the opinion, that the time of conversion referred to was the time when demand was made. The demand was made by the defaulting treasurer’s successor in office. To support the proposition there laid down, the court cites Stern v. People, 102 Ill. 540, where the court quotes with approval the rule announcéd in United States v. Curtis, 100 U. S. 119, that in a suit on the bond of a paymaster in the army, no demand having been made before bringing suit, interest could only be allowed from the date of the service of the writ. That case was cited with approval in United States v. Denvir, 106 U. S. 36. We are of opinion that as no demand for payment was made on Wulff before the suit was begun, interest should have been allowed only from the date the writ was served, which was December 22, 1905.
There being no other error in the record, and the sum received and appropriated by Wulff being undisputed, it will not be necessary to remand the case.
The death, since this cause was submitted, of Floyd K. Whittemore, has been suggested and his executors substituted as plaintiffs in error.
Judgment will be entered in this court for the sum received by Wulff on the warrant described, with five per cent interest thereon from December 22, 1905, amounting in all to $4579, to be paid in due course of administration.
AKrmed in part and reversed in part.
Dissenting Opinion
dissenting:
I do not concur in this decision. If the determination of the case depended upon the language of the constitution and the statute itself there could be little doubt that the conclusion reached by the court was correct; but other considerations enter into this decision. The statutory and constitutional provisions now under consideration differ somewhat from the wording of the statutes and the provisions of the constitution passed upon in Nye v. Foreman, 215 Ill. 285, and Cook County v. Healy, 222 id. 310, but here, as there, the public officials concerned with the enactment and enforcement of the statute have-by contemporaneous, long, uniform and practical construction accepted and acted upon the law as having a definite and particular mean-, ing; here, as there, great injury and injustice will follow a change in such construction and meaning. All the facts and circumstances indicate that the construction placed upon this statute during forty years by those charged with its enforcement has been in good faith, with the full belief that not only the letter but the spirit of the law was being observed. In some jurisdictions long continued, contemporaneous and practical construction by the legislative and executive departments has been followed, even though the courts believed the language under consideration clear and unambiguous. (8 Cyc. 737; 26 Am. & Eng. Ency. of Law,—2d ed.— 634.) This court has stated that such construction will govern only where the language of the statute is doubtful, yet an examination of the decisions in this State will disclose that in almost every instance such contemporaneous, uniform and long continued construction by public officials in the execution of the law has been followed by this court. From the time this statute was enacted, in 1865, the construction placed upon it by State Treasurers, State Auditors and other public officials has never been challenged by any citizen or any department of the State government until the institution of these proceedings.
While the lack of clearness in the statutory and constitutional provisions involved in the Nye and Healy cases was, perhaps, more marked than in this case, yet there is, in my judgment, sufficient ambiguity in the statute here under consideration to call for the application of the rule as to long continued and contemporaneous construction. The underlying principles invoked in those cases apply to this case and should control in its decision.