Elrod v. the Town of Bernadotte.

• Decision Date: 31 January 1870
• Citation: 53 Ill. 368,1870 WL 6212
• Parties: IRA F. ELRODv.THE TOWN OF BERNADOTTE.
• Court: Illinois Supreme Court

53 Ill. 368

1870 WL 6212 (Ill.)

IRA F. ELROD

v.THE TOWN OF BERNADOTTE.

Supreme Court of Illinois.

January Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Fulton county; the Hon. CHAUNCEY L. HIGBEE, Judge, presiding.

The opinion states the case. Mr. S. P. SHOPE and Mr. S. C. JUDD, for the appellant.

Messrs. ROSS & ROSS & WINTER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by appellant, in the Fulton circuit court, against appellee, to recover for services rendered and money expended in obtaining volunteers to enter the army, to save the town from a draft. On the trial, appellant introduced in evidence an act of the general assembly, entitled, an act to authorize the several towns of the county of Fulton to levy a tax. Its provisions were, to raise a fund to relieve the several towns of the county from the pending draft. Appellant, on the trial below, introduced evidence tending to prove that in the latter part of the month of February, 1865, the supervisor, collector and assessor of the town of Bernadotte, in pursuance of a vote and request of a special town meeting of the legal voters thereof regularly held, levied a tax of three per cent upon all the taxable property of the town, for the purpose of paying bounties to volunteers and substitutes who might be induced to enlist, twenty men being the quota of the town fixed by the military authorities.

Another town meeting was held in the following March, at which a vote was had upon the question of employing appellant as an agent to procure volunteers to fill the quota of the town, and by that vote the supervisor, collector and assessor were authorized to employ him for that purpose. They thereupon requested him to take the necessary steps for the purpose, and to advance and pay out such sums of money as might become necessary, and to make all contracts to accomplish the purpose; and they agreed to pay him a reasonable compensation, and to refund to him all sums of money he should have to advance for the purpose; that appellant thereupon entered upon the employment, and hired ten men to volunteer into the military service, who were accepted and duly credited to the town, and it was thereby relieved from the pending draft; that appellant paid to the ten men one thousand dollars to induce them to volunteer; that it was a reasonable sum for the purpose, and the lowest sum for which volunteers could be induced to enter the military service. Appellant paid out, in procuring the men, two hundred dollars in necessary expenses; that he afterwards reported his acts in the premises to the officers, and a meeting of the voters of the town, and the same was approved by them. Appellant demanded of the town officers payment of these sums of money, and also demanded of them an order on the town clerk, who had the custody of the money, but they refused to pay the same, or to give an order on the clerk for the money, and the money remains unpaid.

Appellee proved that four thousand dollars were raised by the three per cent tax levied on the property in the town, and that the town officers paid it out to ten other men, who were hired by them to volunteer into the military service, before the bounties and expenses were paid out by appellant to procure the ten men employed by him.

The court gave, at the request of the defendant below, these instructions:

“In this case, the court instructs the jury, in behalf of the defendant, that, under the law offered and read in evidence, the demand sued for is payable out of a special fund, and this action will not lie to recover the same.

The court instructs the jury, on behalf of the defendant, that if the defendant had expended all money raised on the tax levied, before the services of the plaintiff were performed, then the plaintiff can not recover, the same being payable out of a special fund, and not out of the general fund of the town.”

To the giving of which appellant excepted. The jury found the issues for the defendant, and judgment was rendered in its favor, from which this appeal is prosecuted. The act under which the officers of the town proceeded in this case was approved on the 9th of February, 1865 (Private laws, vol. 1, p. 124), and the first section declares that it shall be lawful for any town in Fulton county to levy and collect a tax of not more than three per cent in any one year, upon the taxable property of the town, to pay to volunteers, substitutes and drafted men, who might thereafter enlist or be drafted into the service of the United States, which tax, when collected, was to be known as the “bounty tax,” and the fund thereby created, the “bounty fund.” The other sections of the act provide the manner of levying, collecting and paying out the tax for the purposes contemplated in the first section.

This act does not seem to limit the amount that might be raised for the proposed purposes, but simply restricts the sum that could be levied in any one year to...