People v. Warren

• Decision Date: 31 December 1883
• Citation: People v. Warren, 14 Ill.App. 296, 14 Bradw. 296 (Ill. App. 1883)
• Parties: THE PEOPLEv.CHARLES C. WARREN ET AL.
• Court: Appellate Court of Illinois

14 Ill.App. 296

14 Bradw. 296

THE PEOPLE

v.CHARLES C. WARREN ET AL.

Appellate Court of Illinois, Second District.

December Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Bureau county; the Hon. J. MCROBERTS, Judge, presiding. Opinion filed February 29, 1884.

This action is brought upon the official bond of appellee, Warren, as State's attorney of Bureau county, and the breach alleged is his failure to pay into the treasury of the town the fines collected by him from offenders against the criminal code, for crimes committed within the corporate limits of said town.

A trial was had before the court, a jury being waived, and a finding and judgment for the defendants, from which this appeal is prosecuted. It appears that Warren reported that he had collected fines to the amount of $574.85, which, under the charter of said town, should be paid by him into the town treasury, less the fees and commissions that, under the statute, he was authorized to retain out of it, and the contention is, whether he has properly accounted for all of said sum.

Mr. OWEN G. LOVEJOY, for appellants; that the statute allows municipal corporations to appeal without giving bond, cited R. S., Ch. 110, § 71; Emerson v. Clark, 2 Scam. 490; Caton v. Harmon, 1 Scam. 581; Brockway v. Rowley, 66 Ill. 99.

Payment of the fines to Kyle was a breach of the bond, and defendants are liable for the $198, unless they can show that the town received the money, and for nominal damages at least: People v. Yeazel, 84 Ill. 540; George v. Bischoff, 68 Ill. 237; Dehler v. Held, 50 Ill. 491.

As the charter and ordinances of the town directed that the fines should be paid to the treasurer, the resolution directing the payment to Kyle contravened the charter, and was therefore void: 1 Dillon on Municipal Corporations, § 251; City of Placerville v. Wilcox, 35 Cal. 21; McCormick v. Bay City, 23 Mich. 462; Daniels v. Mun. Council, 10 Upp. Can. Q. B. R. 80.

The town may plead ultra vires: 1 Dillon on Municipal Corporations, § 381; Cumberland Co. v. Edwards, 76 Ill. 545.

The State's attorney and his sureties are concluded by his receipts upon the record of the court and his reports under oath, as required by law: Gage v. Chicago, 2 Bradwell, 333; Morley v. Metamora, 78 Ill. 394; R. S. 1874, Ch. 53, § 9; People v. Christerson, 59 Ill. 157; Simmons v. Bradford, 15 Mass. 83. Messrs. ECKLES & KYLE and Messrs. FARWELL & WARREN, for appellees; that the doctrine of estoppel in pais is applicable to municipal corporations, and a plea of ultra vires will not avail after performance, and when the other party can not be placed in statu quo, cited Logan Co. v. City of Lincoln, 81 Ill. 156; Bradley v. Ballard, 55 Ill. 413; Chicago Building So. v. Crowell, 65 Ill. 453; West v. Madison Co., 82 Ill. 205; Darst v. Gale, 83 Ill. 136; East St. Louis v. E. St. L. G. L. & C. Co., 98 Ill. 415; P. & S. R. R. Co. v. Thompson, 103 Ill. 187.

Technical breach without injury does not authorize suit for the town, and if the town received, though in an indirect way, all it was entitled to, it can not recover it again: R. S., Ch. 14, § 1; People v. Yeazel, 84 Ill. 539.

The presumption is that all public officers in the discharge of official duties pursue the course pointed out by law; hence the court must presume that there was some sufficient reason why the money was paid to the town attorney and not to the treasurer: Todemier v. Aspinwall, 43 Ill. 406; People v. Auditor, 2 Scam. 567; Ballance v. Underhill, 3 Scam. 453; People v. Walsh, 96 Ill. 232.

PILLSBURY, J.

Objections have been taken by both parties to the action of the court below in its judgments upon the pleadings of the respective parties, but, as all the evidence was heard in the case that could have been introduced under the proposed pleadings, we shall confine ourselves to a discussion of the effect of the evidence upon the rights of the parties.

By section 17, Art. 7 of the charter of the town of Princeton, Sess. L. 1857, p. 1415, “All fines and penalties recoverable by indictment or action for any offenses committed within the limits of said town and which are now required by law to be paid unto the county treasurer or the school commissioner of said county, shall hereafter be paid unto the town treasurer for the use of said town.”

As to such fines and penalties, the parties concede that it became the official duty of Warren to pay them to the town treasurer under such provision of the charter.

It is objected that the court below credited Warren with $198, one half of certain fines collected by him, and which he paid to one John T. Kyle, then town attorney, for his services in assisting the State's attorney in the prosecutions in the circuit court from which the fines were derived, upon the ground that the town had no authority to order its attorney to assist Warren in such cases.

The town of Princeton is authorized to appoint an attorney to attend to its legal business, and it having a special interest in the prosecution of offenders, beyond that of the general public, as it receives all fines imposed, no reason is perceived why it may not order its attorney to assist the State's attorney in such prosecutions and pay him therefor.

The question does not arise here whether the town would be authorized to employ counsel to assist the State's attorney and pay him out of corporate funds where the town had on different interest than the general public in the enforcement of the criminal code, and we decline the discussion of such question.

In these cases the town had a direct pecuniary interest in the successful prosecution of them, and we must conclude that the town council deemed the causes of sufficient importance to the town to pay additional counsel, and we are not aware wherein it exceeded its powers or violated any law in so doing.

It sufficiently appears from the record that Mr. Warren, while consenting to the employment and assistance of Mr. Kyle in such prosecutions, still retained the general control of them, and so far as shown, neglected no duty that he owed to the public.

Warren having collected the fines, the town council, by resolution, directed him to pay one half thereof to Mr. Kyle as compensation for his services, and he did so, taking Kyle's receipt, and the court allowed this amount, $198, to him as payment upon the fines.

The statute required Warren to pay these fines to the town treasurer, and it could be no justification to him for not doing so, that the council requested...