Rouse v. the County of Peoria.

• Decision Date: 31 December 1845
• Citation: 1845 WL 3912,7 Ill. 99,2 Gilman 99
• Parties: RUDOLPHUS ROUSEv.THE COUNTY OF PEORIA.
• Court: Illinois Supreme Court

2 Gilman 99

7 Ill. 99

1845 WL 3912 (Ill.)

RUDOLPHUS ROUSE

v.THE COUNTY OF PEORIA.

Supreme Court of Illinois.

December Term, 1845.

ASSUMPSIT in the Peoria circuit court, brought by the plaintiff in error against the defendant in error. The cause was heard at the October term, 1844, the Hon. John D. Caton presiding. There was a demurrer to the declaration, which was overruled, and the defendant abiding by the demurrer, the plaintiff took judgment for want of a plea. On an inquest of damages, a verdict was returned in favor of the plaintiff for $116, and judgment was rendered thereon by the court. A motion in arrest of judgment was made and sustained, and judgment rendered by the court against the plaintiff for costs.

The special causes of demurrer, the reasons for an arrest of judgment, and other proceedings in the cause are set forth in the opinion of the court.

H. O. MERRIMAN, for the plaintiff in error, made the following points:

1. The court had original jurisdiction of the suit. Vermillion Co. v. Knight, 1 Scam. 97, and the acts there referred to.

2. One overseer can bind the county. Laws of 1838-9, 139; Palmer v. Vanderburgh, 3 Wend. 183; Todd v. Birdsall, 1 Cowen, 260; Lee v. Deerfield, 3 New Hamp. 290; Cargill v. Wiscassett, 2 Mass. 548; Doggett v. Dedham, Ib. 564; Warren v. Isleborough, 20 Maine, (7 Shepley,) 445; Pittstown v. Plattsburgh, 18 Johns. 418; Story's Agency, §§ 304, 305.

3. No report of matters of this kind required by the act of 1839. Laws of 1838-9.

4. If a report is required by law, it is only directory, and can not affect the rights of third persons. King v. Butler, 15 Johns. 281; Wade v. Salem, 7 Pick. 333; Story's Agency, 314.

5. On motion in arrest of judgment, the promise laid in the declaration will be presumed to be an express promise. Beecker v. Beecker, 7 Johns. 99; Elting v. Vanderlyn, 4 do. 238. No motion of this kind should be entertained after a demurrer to the declaration. Edwards v. Blunt, 1 Strange, 426; Creswell v. Packham, 6 Taunton, 650. J. B. THOMAS, for the defendant in error:

I. The declaration shows no cause of action against the county.

1. The justices of the peace in each justice's district in the several counties of this State, in conjunction with some person appointed by the county commissioners' court, constitute the overseers of the poor. Laws of 1838-9, 138; Gale's Stat. 523, section one, and part of section four repealed by section seven of Act of 1839; Ib. 524; Laws of 1841, 190.

2. These overseers must, in every district, consist of at least three persons, and in some of four. Gale's Stat. 400, § 3.

3. The act of any one of these overseers is null and void, and therefore the county, in this case, is not liable to pay for services rendered to the pauper, Styles, by the request of Hamlin alone. Trustees of Williamsburgh v. Trustees of Jackson, 11 Ohio, 40. In the case of Downing v. Rugar, 21 Wend. 178, it was held that the assent of both overseers was necessary; but where one acted in a case of pressing emergency, it was considered that the assent of the other might, for the furtherance of the ends of justice, be presumed. Such presumption is, in the case at bar, negatived by the averment in the declaration that Hamlin was the only acting overseer of the poor in his district. Wicklaer v. Rockfeller, 6 Cowen, 276, 279, 280; Story on Agency 44-5, § 42; First Parish in Sutton v. Cole, 3 Pick. 243; Damon v. Granby, 2 do. 352; 6 do. 198; 12 Mass. 194-5.

In cases of public agents authorized to act jointly, all must join or the act is invalid, although the majority of a committee may act legally, etc. Co. Litt. 181, C.; Comyn's Dig. “Att'y.” C. 11; 2 Rolle's Abr. “Feoffment,” 8; 1 Bac. Abr. “Authority,” C. 319; Guthrie v. Armstrong, 5 Barn. & Ald. 628.

4. The law requiring at least three overseers, and there being but one, as the declaration shows, he has no power to act. Downing v. Rugar, 21 Wend. 178 ubi supra.

5. The contract with the plaintiff was illegal and void, as not being made in the mode appointed by law. Gomley v. Allen, 5 Cowen, 644; Hull v. Overseers of Oneida, 19 Johns. 256, 259; Comyn's Dig. “Att'y.” C.; Ib. C. 13, and in note (r); Evarts v. Adams, 12 Johns. 352; Voorhis v. Whipple, 7 do. 89; Flower v. Allen, 5 Cowen, 654, 664, 670; Story on Agency, §§ 165, 170, 172; Contra, ex parte Dow, 1 Cowen, 205, which is overruled by the case in 4 Cowen, 141.

6. If the charge is a legal one, there medy is by mandamus. 19 Johns. 259; ex parte Nelson, 5 Cowen, 423; Adams v. The Supervisors of Columbia Co. 8 Johns. 323, 326.

The plaintiff's authorities do not controvert any of these positions.

In the case of Vermillion Co. v. Knight, 1 Scam. 97, the contract was made under a law giving exclusive supervision of the poor to the county commissioners' courts. But those courts are to judge of, and settle all county matters. In that case, they did so. Palmer v. Vandenburgh, 3 Wend. 196.

The order to be made by a justice of the peace, by the law of New York, is analogous to the appropriation, etc., by the county commissioners' court under our law. Presumption in this case is rebutted by the declaration alleging Hamlin to be the only acting overseer.

In the cases from 20 Maine, 445--1 Cowen, 260--3 New Hamp. 290, the selectmen had absolute power to afford relief to paupers, the order of one being made, assent of others presumed. Here it is otherwise; there is no such unlimited discretion, the taking and reporting of the bond would evidence assent, and moreover, the presumption of assent of justices is rebutted by narr. King v. Butler, 15 Johns. 281, is explained by 6 Cowen, 276.

He says plaintiff need not look to see whether agent has made his report, etc. But the law is otherwise; acting with an agent, he must look into the agent's authority. Wade v. Salem, 7 Pick. 333; Story on Agency, 314.

To show that express promise will be presumed after verdict, he has cited Beecker v. Beecker, 7 Johns. 103, and Elting v. Vanderlyn, 4 do. 237. Contra,12 Johns. 352; 19 do. 256; 5 Cowen, 654. II. 1. The declaration showing no cause of action, the judgment was properly arrested. Where there are several counts in narr. and one or more are defective, and a general verdict is rendered, judgment should be arrested. 6 T. R. 377; 2 Mass. 406; 11 do. 59; Doug. 377; 12 Wend. 374; 2 Mass. 50, 53.

2. After judgment, a man may allege any thing on the record in arrest of judgment, which may be assigned for error after judgment. 5 Rol. 716, C. 30, 45; 1 Salk. 77; Gould's Pl. 496.

As to arresting judgment on return of the inquiry, see 1 Eng. Com. Law R. 650; 1 Strange, 425; 2 Mass. 326; 1 Caines, 104. The propriety is indicated of first raising the objection to the narr. on demurrer as a matter of convenience. It was done in this case.

MERRIMAN, in reply, cited Salem v. Andover, 4 Mass. 441; Downing v. Rugar, 21 Wend. 178; Olney v. Wicks, 18 Johns. 123; Cornwall v. Gould, 4 Pick. 446; Minot's Dig. title “Amendment.” As to the motion in arrest of judgment, 2 Duer's Pr.

YOUNG, J.^a1

This was an action of assumpsit, brought by Rudolphus Rouse against the county of Peoria, to the May term of the Peoria circuit court, A. D. 1844, on a special agreement made with Ralph Hamlin, an overseer of the poor for Peoria precinct, which is a justice's precinct, for the sum of $300, which he alleges is due and unpaid by said county, for medical services, labor and skill, performed and employed by the said plaintiff as a physician, in the curing of one Styles, who was a settled pauper in the said precinct for the six months next preceding the rendition of said services, for which the plaintiff insists that the county of Peoria is liable.

The declaration contains three counts to which there was a demurrer, and the following causes assigned as special causes of demurrer, to wit:

1. Because the overseer of the poor had no authority to bind the county by contract, except in conjunction with the justices of the peace of the district.

2. Because it does not appear that the overseers of the poor ever made any report to the county commissioners' court of the plaintiff's claim in the premises; or that the said Styles was a pauper, or entitled to any relief under the provisions of the third section of the act of February 19, 1839.

3. Because the action of assumpsit can not be maintained against the county under the circumstances, nor for the causes stated in the declaration; that the overseers of the poor, and not the county commissioners, have the exclusive control of the paupers, and are bound to make report to the county commissioners' court, and that after such report is made, that court can only be compelled by writ of mandamus to perform their duty, in making the proper appropriations. To this demurrer there was a joinder by the plaintiff, and the demurrer afterwards overruled by the court.

The defendant having abided by the demurrer, the plaintiff took judgment for want of a plea; a writ of inquiry was awarded, an inquisition of damages had by the sheriff, and a verdict returned in favor of the plaintiff for the sum of $116, in damages.

The defendant then moved in arrest of judgment, for the following reasons, to wit:

1. Because, by the law, the said Ralph Hamlin alone, had no power or authority to make any contract to bind the county;

2. Because an overseer of the poor can do no act binding the county, except in conjunction with his associates as a board;

3. Because it does not appear that the said Hamlin, or the overseers of the poor, confided the care of the said Styles to a householder, and took a bond, specifying the sum to be paid by the county for his keeping, etc., according to the second section of the act of February 2, 1839;

4. Because the declaration does not state that the said Hamlin, or any overseer or overseers, ever made any report in relation to the alleged pauper to the county commissioners' court, as required by the third section of the same act;

5. Because the county...