Brush v. City of Carbondale

• Decision Date: 23 October 1907
• Citation: 82 N.E. 252,229 Ill. 144
• Parties: BRUSH v. CITY OF CARBONDALE.
• Court: Illinois Supreme Court

229 Ill. 144

82 N.E. 252

BRUSH

v.CITY OF CARBONDALE.

Supreme Court of Illinois.

Oct. 23, 1907.

Appeal from Appellate Court, Fourth District, on Appeal from Circuit Court, Jackson County; W. W. Duncan, Judge.

Action by Samuel T. Brush against the city of Carbondale. From a judgment for plaintiff, reversed by the Appellate Court, plaintiff appeals. Reversed, and judgment of circuit court affirmed.

O. A. Harker (W. P. Lightfoot and George M. Harker, of counsel), for appellant.

T. B. F. Smith, City Atty., and F. M. Youngblood, for appellee.

CARTWRIGHT, J.

In January, 1902, several suits were begun by the city of Carbondale in justice's court against James W. Wade, a saloon keeper, and others engaged in the same occupation, charging them with selling intoxicating liquors within said city without a license. There had been a city election held on September 24, 1901, at which the question of licensing the sale of liquor was in issue, and those who were opposed to the traffic prevailed. An ordinance was passed forbidding the sale of liquor, which took effect December 24, 1901, and the prosecutions were for violations of that ordinance. The defendants contended that the sales were legal under licenses previously granted, and the city claimed that the licenses had been revoked by the passage of the ordinance. Several cases were tried, but no convictions were had, and finally the city attorney and the attorney for the defendants agreed to make the case of City of Carbondale v. Wade a test case for the purpose of settling the question. In pursuance of that agreement a judgment was entered in the justice's court against the city in favor of Wade, and an appeal was taken to the circuit court of Jackson county. The case was tried in the circuit court, and resulted in a judgment against the city. The appellant, Samuel T. Brush, who was a resident and business man of the city and had resided there 53 years, had been interested in the prosecution as a citizen and had employed counsel to assist the city attorney before the justice and in the circuit court. He urged the city council to take an appeal to the Appellate Court, and agreed that, if the city would take the appeal, he would pay all the expenses that might be incurred on behalf of the city in the appeal, no matter how the case might be decided. The city council accepted the proposition, and an appeal was taken to the Appellate Court for the Fourth District, where the judgment of the circuit court was affirmed. Appellant again appeared before the city council, and urged that a further appeal should be taken to this court. Roy Spiller, the city attorney, was then claiming an attorney's fee of $500 against the city for services rendered in the prosecution, which the city council was disinclined to pay, and they were not disposed to go further with the case. Appellant offered to pay the $500 to Spiller, and all the costs and expenses from the beginning of the prosecution, and that the city should not be at any expense at all, if the city would appeal and he should be permitted to carry the suit to a final hearing in this court. The city council thereupon passed a resolution authorizing the city attorney to appeal from the judgment of the Appellate Court to this court, provided the city should be at no expense whatever, including all the costs from the beginning of the suit in the justice's court to a final determination of the case. The agreement was that the appellant should be allowed to prosecute the suit to a final determination in this court, which would settle the legal question involved concerning the validity of the licenses, and was to pay all the expenses. The appeal was perfected. Appellant paid the fee of $500 to Spiller, and also employed additional counsel to whom he paid a fee of $500, and he paid for printing abstracts and briefs and other expenses, which, with attorneys' fees, amounted in the aggregate to $1,121.35. Abstracts and beiefs were filed, but before the case was reached for hearing the city council passed a resolution directing the city attorney to dismiss the appeal, contrary to the agreement. The appeal was dismissed, and the case came to an end without any final decision by this court. The contract having been abandoned and brought to an end by the action of appellee without the consent of appellant, he brought this suit in assumpsit to recover from appellee the amount of his expenditures in pursuance of the agreement. A jury having been waived, the cause was tried by the court, and there was a judgment for appellant for the amount of his expenditures. Appellee appealed to the Appellate Court for the Fourth District, and that court reversed the judgment, without remanding the cause, and incorporated in the judgment of reversal what the court termed a finding of facts, as follows: ‘We find as a fact that the contract alleged in the declaration was contrary to public policy and void, and that there was no valid, binding agreement, expressed or implied, as alleged in the declaration.’ The appellant has brought the record here by appeal from the Appellate Court.

Section 87 of the practice act (Hurd's Rev. St. 1905, c. 110, § 88) provides that if any final determination of any cause shall be made by the Appellate Court as a result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment, or decree the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause. The view of the Appellate Court seems to have been that the question whether the contract alleged in the declaration was contrary to public policy and void was one of fact. But that is not so. The facts from which the question whether the contract was contrary to public policy must be decided were conceded and not in dispute, and the question was one of law, to be determined by the court. The public policy of the state is not to be determined by juries as a fact, but is to be determined by the courts from the Constitution, legislation, judicial decisions, the practice of the executive department, and the opinion of the court whether the contract under consideration is of a nature injurious to the public welfare. Bell v. Farwell, 176 Ill. 489, 52 N. E. 346,42 L. R. A. 804, 68 Am. St. Rep. 194;Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577,74 Am. St. Rep. 189, 64 L. R. A. 738; 9 Cyc. 483; 15 Am. & Eng. Ency. of Law (2d Ed.) 934. The facts being conceded, the finding incorporated in the judgment that the contract was contrary to public policy and void, and that therefore there was no valid, binding agreement, expressed or implied, was nothing else but a conclusion of law. The judgment of the Appellate Court cannot be sustained upon the ground that there was a finding as to any question of fact binding upon this court which would justify the reversal.

If the judgment of the Appellate Court can be sustained at all, it must be upon the ground that the action was not maintainable as a matter of law, and it appears from the opinion of the Appellate Court, as well as the supposed finding of facts, that such was the conclusion of that court. That is also the position of counsel for appellee, who do not contend that the facts were controverted, or that the trial court erred in its conclusion as to any matter of fact, but insist that appellee had no cause of action for several reasons. One of the reasons advanced is that the contract sued upon is void under both sections 26 and 27 of division 1 of the...