La Salle Cnty. v. Milligan

• Citation: 143 Ill. 321,32 N.E. 196
• Parties: LA SALLE COUNTY v. MILLIGAN, Sheriff.
• Decision Date: 18 October 1892
• Court: Supreme Court of Illinois

143 Ill. 321

32 N.E. 196

LA SALLE COUNTY

v.MILLIGAN, Sheriff.¹

Supreme Court of Illinois.

Oct. 18, 1892.

Appeal from circuit court, La Salle county; GEORGE W. STIPP, Judge.

Assumpsit by William R. Milligan against the county of La Salle to recover a balance claimed to be due him for fees and expenses of his office as sheriff. The county brought a separate suit against him to recover for money claimed by it to have been illegally paid out of the county treasury to him on account of fees and salary. The two cases were consolidated by agreement, a jury waived, and the cause tried by the court, resulting in a finding and judgment against the county for the sum of $1,891.89. This judgment was affirmed by the appellate court. The county appeals. Affirmed.M. T. Moloney, W. H. Stead, and Brewer & Strawn, for appellant.

Mayo & Widmer and Thos. C. Fullerton, for appellee.

The other facts fully appear in the following statement by SHOPE, J.:

This was assumpsit in La Salle circuit court, brought by appellee, to recover compensation, fees, etc., alleged to be due him from La Salle county, and earned as sheriff thereof. Declaration was filed, to which the county pleaded, but the parties stipulated that the cause should be tried before the judge presiding without a jury, waiving all questions of pleading, and agreeing that each party should be allowed on the trial to introduce any evidence that would be competent to establish a cause of action or defense if well pleaded, and that the trial be had upon an agreed state of facts then filed, each party having the right to introduce such further evidence as they desired. Stipulation of facts was filed, and the parties at the hearing introduced much evidence, oral and documentary. The defendant (appellant) asked 35 propositions to be held by the court as the law, and the court held propositions 1, 2, 4, 7, 12, 14, 15, 16, 17, 20, 25, 26, 27, 29, 30, 32, 33, and 35, and refused to hold propositions 3, 6, 10, 19, 22, 28, 31, and 34, as asked, but of its own motion modified the same, and held the same to be the law as modified, and marked ‘Refused’ propositions numbered 5, 8, 9, 11, 13, 18, 21, 23, and 34. The trial court rendered judgment in favor of the plaintiff and against the county for $1,891.89 and costs. Proper motions and exceptions were interposed and taken to the rulings. On appeal to the appellate court the judgment was affirmed, and the county prosecutes this further appeal. 34 Ill. App. 346. The facts, so far as necessary to understand the propositions determined in this court, will be found in the opinion.

SHOPE, J., ( after stating the facts.)

This case having properly come to this court through the appellate court, no assignment of error can be allowed which calls in question the determination of the circuit and appellate courts of controverted questions of fact. By section 89, par. 90, c. 110, Rev. St., it is provided that the supreme court shall examine such cases as to questions of law only, and no assignment of error shall be allowed calling in question the determination of controverted questions of fact by the lower courts. Kerfoot v. Mound Co., 115 Ill. 502, 25 N. E. Rep. 960; Railroad Co. v. Lewis, 109 Ill. 120; Brown v. City of Aurora, Id. 165; Railroad Co. v. Bell, 112 Ill. 360;Felix v. Scharnweber, 119 Ill. 445, 10 N. E. Rep. 16; Cable Co. v. Lathrop, 131 Ill. 575, 23 N. E. Rep. 583. It has been so often held that the facts are ‘controverted,’ within the meaning of this statute, whenever they tend, either as evidentiary or subordinate facts or as the ultimate facts, to sustain the issue made by the pleading in the cause, irrespective of whether the evidence in itself is or is not conflicting, that there is no necessity for restating the rule, or the reasons in support of it. See American Exch. Nat. Bank v. Chicago Nat. Bank, 131 Ill. 547, 22 N. E. Rep. 523; Cothran v. Ellis, 125 Ill. 496, 16 N. E. Rep. 646; and cases cited page 505, 125 Ill., and page 650, 16 N. E. Rep. It has also become the settled rule that, where the trial is had before the court without the intervention of a jury, and no questions of law are raised in the trial court in regard to the admission of testimony, or by motion to exclude the evidence, or by propositions of law submitted to be held or refused under the forty-second section of the practice act, and the judgment of the trial court is affirmed in the appellate court, no questions of law can arise on the record in respect of the holding of the trial court, and the judgment of the appellate court, being conclusive of the facts, must be affirmed in this court as a matter of course. Tibballs v. Libby, 97 Ill. 552;Hobbs v. Ferguson's Estate, 100 Ill. 232;Stock Yards v. Ferry Co., 102 Ill. 514;Farwell v. Shove, 105 Ill. 61;Hardy v. Rapp, 112 Ill. 359;Association v. Hall, 118 Ill. 169, 8 N. E. Rep. 764; McIntyre v. Sholty, 121 Ill. 660, 13 N. E. Rep. 239; Montgomery v. Black, 124 Ill. 57, 15 N. E. Rep. 28; Bank v. Bornman, 124 Ill. 200, 16 N. E. Rep. 210; American Exch. Nat. Bank v. Chicago Nat. Bank, supra; Insurance Co. v. Butterly, 133 Ill. 534, 24 N. E. Rep. 873; Merrimac Paper Co. v. Illinois Trust & Sav. Bank, 129 Ill. 296, 21 N. E. Rep. 787. In the absence of propositions submitted to the court, it will be presumed that the law was correctly applied to the facts of the case. Section 41, par. 42, Starr & C. St. c. 110. It will follow as a necessary result that with propositions of law submitted to be held or refused, as with instructions asked, the party submitting them cannot complain of error committed at his own instance; and also that, if the law is correctly held, the question of whether the evidence sustains the finding is purely one of fact, in respect of which the ultimate and final power of review is, by law, vested in the appellate court.

The appellee, having been elected sheriff of La Salle county, duly qualified and entered upon the discharge of the duties of the office the first Monday in December following, and continued in office the full term of four years. On the trial the record of the board of supervisors of the county was introduced in evidence, showing that the salary of the sheriff was fixed for said term at $2,000 per annum, the salary of one deputy at $900 per annum, and of five deputies at $750 per annum each; and also allowing to the sheriff the necessary traveling expenses of himself and deputies, and requiring him to keep an accurate account thereof. The provision for deputies was, it appears, made under the apprehension that there was no law authorizing the appointment of bailiffs, and that it was necessary to appoint a sufficient number of deputies to discharge the public duty; but this misapprehension is of no possible importance, for the reason that the amount allowed for deputy and clerk hire and expenses of the office is largely in the discretion of the county board, and might be changed at any time, as, in its judgment, the exigency of the public service demanded. Cullom v. Dolloff, 94 Ill. 330;Briscoe v. Clark County, 95 Ill. 309;People v. Foster, 133 Ill. 509, 23 N. E. Rep. 615; Daggett v. Ford Co., 99 Ill. 334. While it was not in the power of the board of supervisors to hamper or obstruct the business of the courts by limiting the number of sheriff's officers in attendance thereon, or sheriffs acting under their authority, the courts having ample power to require the attendance of as many bailiffs as may be reasonably necessary for the convenient and orderly transaction of the public business, (People v. Foster,) yet the board were authorized to order and fix the salary of deputies in their discretion. The sheriff, during his term of office, made eight semiannual reports at the times required by the statute, and in apparent compliance therewith, showing, among other things, fees earned in criminal and civil cases uncollected, fees collected, amount of salary earned by himself and his deputies, jail expenses, including guard for the jail, and jailer, expense of himself and deputies, etc., and amount paid into county treasury, etc.; the first six of which were approved by the county board, and orders aggregating many thousand dollars drawn on the treasury for balance shown. The two last were not approved, and the board refused payment from the county treasury thereof. This suit was brought to recover such balances, and for other items, for which appellee claimed he was entitled to recover. On the other hand, it was claimed that the county owed appellee nothing; that many of the items allowed appellee were overcharges; that many others were illegal, and that appellee by fraud had induced the board to allow them; that there was no fund out of which such items as were otherwise lawful could lawfully be paid by the county; and that, allowing appellee all that he was lawfully entitled to, he had received from the county illegally many thousand dollars in excess of any just claim, and which the county might lawfully recover back; and asking for judgment over therefor. The declaration and plea, with the stipulation filed, presented these issues.

The questions presented and arising under the propositions submitted by appellant to be held as the law naturally fall into two classes: First, those pertaining to items allowed by the board for the first three years, and which it is claimed should be allowed for the fourth year, for which the payment has been or would be made to appellee as part of his salary and of the expenses of the office, such as money expended in washing and mending for prisoners, guarding the jail, and the like; and, second, those relating to the earnings of the office, which, while not payable to the officer, may be treated as a fund out of which his salary and expenses may be paid. We will consider these questions practically in the order presented by counsel, having regard for convenience to the foregoing classification.

1. No proposition of law was asked or...