Euziere v. Highway Com'r of Town of Rockville

• Decision Date: 03 December 1931
• Docket Number: No. 20745.,20745.
• Parties: EUZIERE v. HIGHWAY COM'R OF TOWN OF ROCKVILLE.
• Court: Illinois Supreme Court

346 Ill. 131

178 N.E. 397

EUZIERE

v.HIGHWAY COM'R OF TOWN OF ROCKVILLE.

No. 20745.

Supreme Court of Illinois.

Oct. 23, 1931.

As Modified on Denial of Rehearing Dec. 3, 1931.

Action by Carter Euziere against Highway Commissioner of Town of Rockville. From a judgment of Appellate Court (260 Ill. App. p. 29), affirming a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Appellate Court, Second District, on Appeal from Circuit Court, Kankakee County; Arthur W. De Selm, Judge.

Hunter & Minor, of Kankakee, for appellant.

Alexis L. Granger and Claude M. Granger, both of Kankakee, for appellee.

DE YOUNG, J.

Carter Euziere brought an action of assumpsit in the circuit court of Kankakee county against the highway commissioner of the town of Rockville, in the same county. The defendant interposed a general and special demurrer to the declaration and the demurrer was overruled. He elected to abide by his demurrer and judgment was rendered against him for $1,290.18 and costs. On appeal to the Appellate Court for the Second District the judgment was affirmed. A certificate of importance was granted by that court and the case is here on a further appeal.

The declaration consists of the consolidated common counts and a special count. The counts for goods bargained and sold and goods sold and delivered conclude with the allegation that the defendant used the goods or materials ‘in and about the reasonable repairing and improving of the roads of the town of Rockville.’ In the special count it is alleged that the appellant is a quasi corporation whose duty it is to keep the roads and bridges of the town of Rockville in repair and to improve them so far as practicable; that the appellant levied annually, for road and bridge purposes, a general tax and also a special tax, the latter of which was authorized by a vote of the people; that at the appellant's request, the appellee delivered certain goods, chattels, and effects which were used by the appellant in repairing and improving the roads and bridges of the town; and that the appellant has refused to pay therefor. The affidavit of claim, attached to the declaration, shows one hundred thirty-one items or charges ranging in amount from thirty cents to $40.85. These charges were made for coal, stone, tile, and cement delivered to the appellant during the period from February 1, 1924, to June 30, 1927.

The assigned causes for demurrer and the contentions that the declaration fails to state a cause of action against the appellant may be reduced to the following: First, the commissioner of highways had no power to make the contracts upon which suit is brought; second, there is no allegation that, at the time the purchases were made, there was money available or a tax levied to discharge the liabilities incurred; and, third, allegations that the appellee applied to the appellant, as the commissioner of highways, to issue a warrant upon the treasurer for the sum claimed, that he had the warrant countersigned by the clerk, and that he presented it to the treasurer for payment are wanting, and hence that the contracts were not fully executed by the appellee.

The powers and duties of commissioners of highways are defined by section 50 of the Roads and Bridges Act. The pertinent provisions of that section, effective during the period of the delivery of the materials in question (Cahill's Stat. 1927, pp. 2172, 2173; Smith-Hurd Rev. St. 1927, p. 2354, c. 121, § 56), are the following:

‘(b) The highway commissioner of each town or road district shall have power and it shall be his duty: * * *

‘(5) To direct the construction, maintenance and repair of roads and bridges within the town or district, to let contracts, employ labor and purchase material and machinery therefor, subject to the limitations herein provided: Provided, however, that no contract shall be let for the construction or repair of any road or bridge or part thereof in excess of the amount of $200.00, nor shall any material, machinery or other appliances to be used in road construction or maintenance of roads in excess of such amount be purchased without the approval of the county superintendent of highways.

‘(6) To have general charge of the roads and bridges of his town or district, to keep the same in repair and to improve them so far as practicable. * * *

‘(9) To issue his warrant or order on the treasurer for the payment of all moneys paid out by such treasurer, provided such warrants or orders are countersigned by the town or district clerk. * * *

‘(c) The highway commissioner shall annually make report in writing, showing: * * *

‘(2) The amount of road and bridge money received by him and a full and detailed statement as to how and where expended and the balance, if any, unexpended. * * *

‘(4) The amount of liabilities incurred and not paid; and if such liabilities are undetermined they shall be estimated.’

A highway commissioner is a statutory officer and can exercise only such powers as are conferred upon him by statute. People v. Hedges, 289 Ill. 378, 124 N. E. 620;Ohio & Mississippi Railway Co. v. People, 123 Ill. 648, 15 N. E. 276;Townsend v. Gash, 267 Ill. 578, 108 N. E. 744. Yet a legislative grant carries with it, by implication, the powers necessary to make the grant effective. People v. Drainage Com'rs, 143 Ill. 417, 32...