Stevens v. Henry Cnty.

Decision Date20 December 1905
Citation218 Ill. 468,75 N.E. 1024
CourtIllinois Supreme Court


Appeal from Appellate Court, Second District.

Bill by Charles F. Stevens against the county of Henry and others. From a judgment of the Appellate Court, reversing a decree in favor of complainant, complainant appeals. Reversed.N. F. Anderson and Henry Waterman, for appellant.

Charles E. Sturtz, State Atty., and Searle & Marshall, for appellees.

Henry county is under township organization. It has a population of less than 125,000. On January 6, 1904, said Henry county, by its board of supervisors, by resolution duly entered of record, contracted with George H. Manlove ‘to make diligent and careful search in this and other counties and states for such omitted and unassessed taxable property the taxes upon which are lawfully in this county, and upon the discovery thereof to report same to the proper officials, who shall proceed, as directed by the statute of the state of Illinois, to place same on tax rolls, and to collect taxes therefrom, and also to make diligent and careful search for money due from other sources.’ Said Manlove was to receive as compensation for such services ‘a sum equal to twenty per cent. of all money collected as a result of such services, but in no event to exceed the county's share of the amount so collected,’ and ‘to have one year, or such time as may be necessary, to complete such services,’ and was to furnish bond to keep safe and harmless the county from all costs, expenses, and damages which may arise by reason of his doing anything under such agreement. By the order of employment it is also provided: ‘The county clerk is ordered to issue a warrant to the said George H. Manlove for any sums of money due him, on proper verified accounts to be filed with him.’ Appellant, a citizen, resident, and taxpayer of said county, in March, 1904, exhibited his bill in the circuit court of said county for an injunction to restrain said county, the county clerk, the county treasurer, and said Manlove, the appellees herein, from executing said contract. On notice to appellees, a temporary or interlocutory injunction was issued March 7, 1904. The bill alleged the making of the contract, and that appellee Manlove had executed the indemnity bond to the country in compliance with the order of employment, and that said Manlove and the county were about to enter upon the execution of the contract; that said contract is unlawful, null, void, ultra vires, contrary to law and public policy, and if permitted to be executed the moneys of the county would be unlawfully wasted and misappropriated, to the injury of the taxpayers. In his bill appellant stated that he is not advised whether there is any omitted or unassessed taxable property in the county upon which taxes are due, but, if there is any such property, it is the duty of the township officers and supervisor of assessments and board of review to place the same upon the tax books of the county, and, in event of the unlawful failure or refusal, there is a remedy to compel them so to do. In August, 1904, appellees filed there joint and several answer, in which they admitted the making of the contract between said Henry county and said Manlove, and admitted that said Manlove had filed his bond conditioned in pursuance of said contract, and that appellees were ready and intended to carry out and execute said contract. Appellees, further answering, say that John S. Smith, the supervisor of assessments, intended and expected to appoint said Manlove deputy supervisor of assessments for said county for the ensuing year after date of such contract, and that said Manlove was to receive and accept such appointment, to make careful and diligent search for property omitted from assessment of taxes due said county and its subordinate municipalities, and to make report of the same to proper officials of the county for assessment and taxation; and that the board of supervisors for the county expected to approve and consent to such appointment' and that when they made the contract mentioned in the bill they intended to advise such appointment of Manlove by the supervisor of assessments, and said board expected to ratify the appointment, and fix his compensation as the same was fixed by said contract. They further state in their answer that they are informed and believe it to be true that a large amount of personal property, representing hundreds of thousands of dollars of various kinds of securities that should be listed in said county, is unlawfully and corruptly secreted and held from the assessment roll; that many of said securities are of record in other counties of this state and in other states, and that, unless some one is employed to make diligent search for such property, the taxes thereon will be wholly lost. Appellant excepted to so much of the answer as set up the intention of the supervisor of assessments to appoint Manlove his deputy, and of the county board to approve the appointment and fix the salary the same as it was fixed in the contract, and the court sustained the exception. The case was heard at the September term, 1904, on the bill and answer, and a decree was entered perpetually enjoining the execution of the contract. An appeal was prosecuted to the Appellate Court for the Second District, where the decree of the circuit court was reversed, and the cause remanded, with directions to the circuit court to dissolve the injunction and dismiss the bill. From the judgment of the Appellate Court, this appeal is prosecuted.

RICKS, J. (after stating the facts).

The appellees, to sustain the judgment of the Appellate Court, question the right of appellant, as a private citizen and taxpayer, to prosecute the bill in question, and, among other things, urge that because appellant stated in his bill that he was not advised whether there was property that had been omitted from taxation, therefore he did not show that he would be injured. We have no doubt of the right of a private citizen and taxpayer to enjoin the enforcement or execution of a void contract, made by a county or any municipality in which he resides and pays taxes, that would affect the rights generally of the taxpayers. Under the contract in question, there remained nothing to be done except that appellee Manlove should enter upon the performance of it, and when he performed in whole or in part and rendered an account to the county clerk, the latter is directed by the contract and order of employment to issue to Manlove an order for the payment of the money. The contract did not contemplate any further action by the county board. In its order of employment, the county, by its board of supervisors, recited that a public necessity existed for the employment of experienced and competent persons to make diligent search for omitted, unassessed, taxable property. We do not feel it necessary to enter into a further discussion of this phase of the case, as, if we shall conclude that this contract was void, then we are not uncertain as to appellant's right to maintain his bill, or the sufficiency of the allegations thereof.

We quite agree with appellees that the correct rule as to the powers of a county is announced in Wheeler v. County of Wayne, 132 Ill. 599, 24 N. E. 625, where it is thus stated (page 604 of 132 Ill.,page 626 of 24 N. E.): ‘Counties can only exercise such powers, first, as are granted by express words; second, those necessarily or fairly implied in, or incident to, the powers expressed; and, third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable. * * * Of every municipal corporation the charter or statute by which it is created is its organic act. Neither the corporation nor its officers can do any act, or make any contract, or incur any liability not authorized thereby.’ The powers and duties of counties and county boards are declared and found in sections 22-26, c. 34, Hurd's Rev. St. 1903. There a county is declared to be a body corporate, and that the powers of the county as a body corporate shall be exercised by the board of supervisors. By paragraph 3 of section 24 it is provided that counties shall have power ‘to make all contracts and do all other acts in relation to the property and concerns of the county, necessary to the exercise of its corporate powers.’ By paragraph 2 of section 25 it is provided that county boards shall have power ‘to manage the county funds and county business, except as otherwise specifically provided,’ and by paragraph 3, ‘to examine and settle all accounts against the county and all accounts concerning the receipts and expenditures of the county.’ These powers are pointed out and relied upon by appellees as authority for a county entering into the contract here complained of. It has not been pointed out, nor do we think it can be, that the assessment of property for taxation, either omitted or otherwise, is the business or concern of a county, as such. In counties under township organization, the primary assessment is made by the local assessors elected by the people of the township. Their work is supervised by the county treasurer, who by law is made supervisor of assessments. When the books are returned by the local assessors, they pass into the hands of the board of review, which...

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