Ashton v. Cook Cnty.

• Decision Date: 11 November 1943
• Docket Number: 27169.,Nos. 27163,s. 27163
• Citation: 51 N.E.2d 161,384 Ill. 287
• Parties: ASHTON et al v. COOK COUNTY et al.
• Court: Illinois Supreme Court

384 Ill. 287

51 N.E.2d 161

ASHTON et al

v.COOK COUNTY et al.

Nos. 27163, 27169.

Supreme Court of Illinois.

PEOPLE ex rel. COURTNEY

v. ASHTON et al.Sept. 21, 1943.Rehearing Denied Nov. 11, 1943.

Action by Henry M. Ashton and others against the County of Cook and others to recover attorney fees, wherein defendant Edward M. Winston counterclaimed adopting plaintiffs' pleadings.

Proceedings on an information in equity by the People, on relation of Thomas J. Courtney, against Henry M. Ashton and others to compel defendant to account for attorney fees received from Cook County and to enjoin payment of certain county warrants issued for an additional sum wherein defendant Edward M. Winston counterclaimed. From a judgment against defendant Winston after his answer and counterclaim were stricken, defendant Winston appeals. Judgment for the County of Cook and Henry M. Ashton and others, and Edward M. Winston appeal. The appeals were consolidated.

In the equity proceeding, decree affirmed and cause remanded with directions. In the law action, judgment affirmed.Appeal from Circuit Court, Cook County; John Prystalski, judge.

S. J. Konenkamp and Butz, Hutchinson, Nutt & Murphy, all of Chicago (Daniel F. Murphy and S. J. Konenkamp, both of Chicago, of counsel), for appellants Henry M. Ashton and Ralph O. Butz.

Jacob G. Grossberg, of Chicago, (Franklin J. Stransky and Edwin Hamilton, both of Chicago, of counsel), for appellant Edward M. Winston.

Thomas J. Courtney, State's Atty., of Chicago (Marshall V. Kearney, Joseph Burke, and Neal J. McAuliffe, all of Chicago, of counsel), for appellees.

MURPHY, Justice.

Pursuant to an order entered in vacation, causes No. 27163 and No. 27169 were consolidated for oral argument and opinion. The primary question in each case is as to the liability of the county of Cook to pay appellants Henry M. Ashton, Edward M. Winston and Ralph O. Butz, all of whom are lawyers, for legal services performed by them for the county pursuant to the terms of contracts of employment. The contracts provided that appellants were to institute legal proceedings and take such steps as were necessary to collect forfeited real estate taxes and penalties. On behalf of the People, represented by the State's Attorney of Cook county, it was contended that the board of commissioners of the county acted without authority of law, that their acts were ultra vires and the contracts void. It is claimed that the action of the board in employing private attorneys to perform such service was in effect taking a power and duty given by the constitution and statute to the State's Attorney and conferring it on another. These contentions involve interpretation of certain provisions of our State constitution and this gives the court jurisdiction to review the cases on direct appeal.

On May 22, 1931, the board of commissioners of Cook county adopted a resolution purporting to employ Henry M. Ashton as an attorney, which resolution, with appellants' written acceptances and certain supplementary resolutions, constitutes the contracts involved in these cases. In the preamble to the resolution it was recited that there was more than $16,500,000 due in taxes on real estate in Cook county that had been forfeited to the State for nonpayment; that by statute it was the nominal duty of the State's Attorney of the county to prosecute actions for the collection of delinquent taxes, if and when the county board provided by budget for the same, but that in recent months the number of forfeitures had increased to such an extent that the appropriation for the current year to the State's Attorney was inadequate to enable him to perform the work involved in bringing such a large number of cases. It was stated that a large number of persons who had permitted their real estate to be forfeited for nonpayment of taxes were financially responsible; that a large amount was due as penalties, that in some instances the accumulated penalties exceeded the amount of taxes due, and that all penalties when collected were the property of the county. It was stated that the regular duties of the legal adviser of the county board were such that he did not have time to enforce the collection of forfeited real estate taxes, that during the last five years the State's Attorney had collected in forfeited taxes and penalties about $200,000 per year. In consideration of such premises, it was resolved:

‘That Henry M. Ashton, attorney at law be and he is hereby retained and employed to begin and prosecute foreclosure suits and such other suits or proceedings as may be deemed desirable in order to collect the revenue now due to the State of Illinois and other taxing bodies from real estate in Cook county that is now forfeited to the state:

‘That said Henry M. Ashton is hereby authorized and empowered to appear for and in behalf of and to represent the People of the State of Illinois and the County of Cook in all such suits as their attorney and solicitor; * * *

‘As the amount provided for in the 1931 budget to take care of this work of securing additional revenue from forfeited property in Cook county is not sufficient to insure a continuation of said work, the contract between this Board and the said attorney shall be considered a contingent one from the beginning of said attorney's employment. The sums to be paid by Cook county, as above set forth and as appropriated, shall be considered as an advance to said attorney for fee and expenses in order that said work may be properly started;

‘However, all sums paid to said attorney, as well as all sums paid to his assistant, for clerk hire, stenographic, and other expenses, shall be first deducted before any further money shall be paid to said attorney; * * *.’

Provision was made in the contract to pay Ashton $600 per month and an additional amount of $700 per month budgeted as follows: an assistant not to exceed $300, a clerk $250 and a stenographer $150. It also provided that Ashton should be paid a contingent fee, the same to be computed upon the taxes and penalties collected, but that such fee should not be paid except from the penalties so collected. Various contingencies were set forth upon which the contingent fee was payable, the lowest percentage being fifteen per cent (15%) of the tax and penalty where there was one penalty, and scaling upwards of twenty per cent (20%) where there were two penalties, and twenty-five per cent (25%) where there were more than two, with the further provision that if in any six months' period voluntary settlement was made with the county treasurer through the State's Attorney's office, where the sum received exceeded $150,000, then Ashton was to receive as further fee a sum equal to five per cent (5%) of such excess, with the provision that in computing the amount due under the five per cent (5%) clause the sums collected either by the State's Attorney or Ashton by suit or foreclosure should not be included. Claims for the regular monthly charges were to bepaid on Ashton's verified statement and settlements were to be made as specified. It provided that the board of commissioners reserved the right to determine the basis of settlement with the property owner and the amount of penalty to be paid in cases where there was an adjustment for less than the total allowed by statute. It was stated that the contract should be effective as of May 15, 1931, and should terminate on November 30, 1932, unless renewed by the county board and said attorneys.

On May 25, 1931, Henry M. Ashton addressed a communication to the board, which referred to the resolution of May 22 and stated that he accepted the employment on the terms outlined and would proceed with the work at once. The then State's Attorney approved the resolution as to form.

On April 16, 1932, Ashton addressed another communication to the board suggesting that Edward M. Winston, who is one of the appellants herein, be authorized to carry out Ashton's contract from that date until December 1, 1932. The request was approved April 27, 1932, and Edward M. Winston was given full power and authority to represent the board ‘in all suits heretofore brought under said contract and to carry such suits to completion; and authority is also given hereby to the said Edward M. Winston to begin and prosecute with full power as attorney for this Board all other suits and proceedings which he may deem necessary and desirable to collect delinquent taxes due and unpaid on real estate in Cook county under the terms and conditions as to compensation which were provided in the contract with Henry M. Ashton.’

On November 22, 1932, the board adopted a further resolution which recited: ‘That the authority heretofore granted by resolution of this Board to Edward M. Winston to represent said Board is hereby extended to March 15th, 1933, with full power to begin any suits for collecting of delinquent taxes which he may deem desirable during the said period and to prosecute them to completion, and that the terms and conditions set forth in the original contract with Henry M. Ashton, dated May 15, 1931, and the resolution of authority to Edward M. Winston, dated April 27, 1932, shall be in force except as herein modified.’

At the November election, 1932, another was elected to succeed the former State's Attorney and on July 22, 1933, he filed an information in equity in the circuit court of said county in which he made Ashton, Winston and the several members of the board of commissioners parties defendant. It was alleged that Ashton and Winston had received $20,000 pursuant to said contract, that another item of $7263.92 had been audited, county warrants issued and would be delivered unless enjoined by decree of court. It was charged that the several resolutions adopted by the board were ultra vires, that the contract was illegal and void. The prayer was that Ashton and Winston be required to account for the $20,000 previously received, that payment of...