People v. Foster

• Citation: 133 Ill. 496,23 N.E. 615
• Parties: PEOPLE, TO USE, etc., v. FOSTER et al.
• Decision Date: 18 January 1890
• Court: Supreme Court of Illinois

133 Ill. 496

23 N.E. 615

PEOPLE, TO USE, etc.,

v.FOSTER et al.¹

Supreme Court of Illinois.

Jan. 18, 1890.

Appeal from appellate court, third district.

Suit by the people, for the use of Macon county, against William W. Foster, formerly sheriff of said county, and the sureties on his official bond. The twenty-second breach charged in the declaration alleged that said Foster ‘as sheriff, during said term, was the keeper of the jail, and, as such, employed and appointed an assistant jailer; that he, as keeper of the jail, then and there rendered accounts to the county board of the cost and expense of keeping. maintaining, and furnishing said jail, and of keeping and maintaining the prisoners thereof; that in said accounts he then and there fraudulently and falsely, with intent to cheat and defraud said county, claimed, represented, charged, and demanded as due him, as a part of the expenses of maintaining, etc., as aforesaid, the sum of $540 as pay, salary, and compensation for said assistant jailer, and the said county board being deceived thereby, and believing and relying upon said representations, etc., did then and there, by mistake, pay out of the county treasury to Foster, sheriff, as aforesaid, said sum of $540, by means,’ etc.

Crea & Ewing, Johns & Randolph, Mills

Bros.

, and Bunn & Park, for appellees.

E. P. Vail and W. C. Outten, for appellant.

SHOPE, C. J.

The questions arising upon this record involve a consideration of the liability of a sheriff and his sureties upon his official bond, and, as will be seen from the following statement, arise upon the pleadings. The first breach assigned, counted for certain moneys coming to the hands of the sheriff during his term of office, belonging to the county of Macon, and being fees earned by former sheriffs of that county. The defendants below, by their ninth plea, denied that said moneys came to the hands of the sheriff during his term of office, and averred that the same was voluntarily paid by the county board of the county to the sheriff after the expiration of his term of office. The correctness of the ruling of the circuit courtin overruling a demurrer to this plea is questioned. The condition of the bond is in the usual form, as follows: ‘The condition of this obligation is such that if the above-bounden William W. Foster shall well and faithfully perform all the duties required of him or to be required by law, as sheriff of Macon county, state of Illinois, then, and in that case, this bond is to be void, and of no effect; otherwise in full force and virtue.’ A surety is not to be held liable beyond the terms and letter of his contract. Such liability is strictissimijuris, and is not to be extended by construction or implication. It would seem clear that the sureties upon the sheriff's bond are liable only for the acts of the sheriff during his term of office, or while he is exercising the functions of his office pursuant to law. If, therefore, the money mentioned in the first breach was voluntarily paid to said Foster after the expiration of his term of office, as alleged in the plea, there would be no liability therefor against his sureties on his official bond, and the demurrer was properly overruled. The question was before this court in People v. Toomey, 122 Ill. 308, 13 N. E. Rep. 521, and it was there held that the sureties upon the bond of the county clerk were not responsible for his failure to pay over money paid to him by direction of the county board of his county, after the expiration of his term of office.

To the twenty-second breach the demurrer was properly sustained, for the reason that, while the sheriff is ex officio keeper of the common jail of the county, and the burden of that duty is by law cast upon him, it is entirely competent and lawful for the county, through its proper authorities, to provide for and pay all such assistants as in their discretion may in any emergence be demanded. The sheriff is by law (section 3, c. 75, Rev. St.) empowered to appoint an assistant jailer, and, as we held in Seibert v. Logan Co., 63 Ill. 155, when the sheriff appoints a jailer no right of action accrues to the person thus appointed against the county for his services; yet, where the county voluntarily pays such assistant, no recovery can be had from the sheriff therefor by the county. Section 24 of the same chapter of the statute provides that the cost and expense of keeping, maintaining, and furnishing the county jail, and keeping and maintaining the prisoners thereof, except as otherwise provided by law, shall be paid from the county treasury, the account therefor being first settled by the county board. The law has wisely vested in the county board a large discretion to make such provision as the exigency of keeping the prisoners may require, and if in the exerciseof reasonable discretion, for any cause satisfactory to the county board, additional guards or assistants should be found necessary, we know of no provision of law or principle of public policy that would prevent their making a reasonable allowance therefor from the county fund; and if it be within the scope of the authority conferred by the statute for the county board to pay such assistant jailer, and they did so, upon an account rendered therefor as alleged in the breach, there is no liability on the sheriff's bond.

One of the principal questions, however, arises in respect of the ruling of the court in sustaining a demurrer to breaches from 3 to 18, inclusive. As will be seen, breaches 3 to 10, inclusive, are for the recovery of money voted out of the county treasury to the sheriff, upon what are called by counsel the quarterly reports made by the sheriff to the chairman of the county board, and presented to the meeting of the board in March and September of each year during the sheriff's term of office, and which are not required by law, but which were received and acted upon by the board, and the several allowances made to the sheriff to make up the excess of his compensation and expenses over and above the amount of fees collected by him and allowances made by the board at the time of presenting such reports severally. Breaches 11 to 18, inclusive, are for money paid by order of the county board to the sheriff, upon his semi-annual report required by law to be made to the board. Each of these reports, after giving credit by all fees collected, and by the allowance upon the previous reports, shows, as alleged, that the compensation of the sheriff and expenses of his office exceed the amount collected and received by him; and that for such balance the county board, upon the claim and demand of the sheriff, as it is alleged, ordered the same paid out of the county treasury, and the same was received and converted by the sheriff. All of these reports, it is alleged, were duly and properly verified. It is insisted that the sheriff having wrongfully received the money, and the same having been wrongfully allowed and paid by order of the county board, and he having refused to pay the same into the treasury upon demand, a right of action accrued therefor upon his bond.

It is first insisted that the reports made in March and September, and called ‘quarterly reports,’ were made by the sheriff in violation of law, and that the county board was without authority to act upon such reports. Section 51, c. 53, Rev. St., provides that in counties under township organization, as this county was, officers who are paid in whole or part by fees shall make reports to chairman of the county board in June and December of each year; and on the coming in of such reports, if the officer shall have money remaining in his hands, he shall pay it into the county treasury. There is nothing in the statute prohibiting reports to be made at other times, or to any meeting of the board, or rendering it unlawful for the officer at any time to pay money into the county treasury. In no event is it shown that the county was or could have been injured by such action of the sheriff and board, if unauthorized. Nor is it anywhere alleged in these breaches that there were or were not fees of the sheriff, earned in criminal cases, where the defendant was acquitted or otherwise legally discharged, for and on account of which it is conceded the several allowances could have been made by the board to the sheriff, and as it is provided by the statute may be done, where the fees collected and reported are insufficient to pay the compensation earned; nor that there was any unlawful confederation of the sheriff and the county board to despoil the county. What is shown is simply that the sheriff presented reports, showing that the fees collected, and the allowances theretofore made, did not equal the amount of his compensation for the time stated in such reports, and a demand on the part of the sheriff that the county pay him such deficiency, and which the county board ordered paid out of the county treasury. It is clear the sheriff could not rightfully make such demand, for it is expressly provided in the statute that the compensation of the sheriff shall be paid, if at all, out of the fees and emoluments of his office; and it is equally clear that no allowance can be made therefor by the order of the county board out of the treasury, unless the same officer has theretofore made payments into the county treasury of fees and emoluments of his office, and not then in excess of such amounts so paid in, or in case where there are criminal fees earned of the character before mentioned. The illegal demand of the sheriff in no way justified the illegal act of the county board, for, whatever the character of the sheriff's report or demand, it was the plain and imperative duty of the county board, under the statute, to ‘carefully audit and examine every such report, and ascertain the exact balance of such fees, if any, held by such officer, after such expenses as the board may approve and allow, and such salary...