The County of Grundy v. Hughes
| Decision Date | 31 December 1880 |
| Citation | 8 Bradw. 34,8 Ill.App. 34 |
| Parties | THE COUNTY OF GRUNDYv.ANTHONY HUGHES. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Grundy county; the Hon. GEORGE W. STIPP, Judge, presiding. Opinion filed February 28, 1881.
Messrs. JORDAN & STOUGH, for appellant; that in construing a statute the court should consider the surrounding circumstances and condition of things, cited Clark et al. v. The City of Janesville, 10 Wis. 136.
That the resolution passed by the County Board was void: Greenwood v. De Kalb County, 90 Ill. 600.
As to the grouud on which a law authorizing the payment of bounties to volunteer soldiers, is held to be constitutional, see Taylor v. Thompson et al. 42 Ill. 19.
Contemporaneous legislation may be referred to in the construction of a statute: Smith v. The People, 47 N. Y. 330.
That a statute that extends the power of corporations, or increases the burdens of taxation, should be strictly construed: Chestnutwood v. Hood et al. 68 Ill. 132.
That if the claim is legal and binding upon the county, the remedy is by a writ of mandamus: Giddings v. Quartermaster General, 25 Mich. 340; Dayton v. Rounds, 27 Mich. 82.
Counties are not liable to pay interest, except in case where there is an express agreement to do so: The County of Pike v. Hosford, 11 Ill. 170; City of Chicago v. The People ex rel. 56 Ill. 327.
Messrs. DOUD & WING, for appellee; that a remedial statute should be liberally construed, cited Wolcot v. Pond, 19 Conn. 597.
All laws and resolutions offering bounties to volunteers have been liberally construed by the Supreme Court of Illinois: Drake v. Phillips, 40 Ill. 388; Taylor v. Thompson, 42 Ill. 9; Henderson v. Lagow, 42 Ill. 360; Misner v. Bullard, 43 Ill. 470; Larimer v. McLean Co. 47 Ill. 36; Stebbins v. Leaman, 47 Ill. 352; Weir v. Leibert, 48 Ill. 458; Johnson v. Campbell, 49 Ill. 316; Elrod v. Bernadotte, 53 Ill. 369.
That the Supreme Court has construed the act of 1861: Fell v. Supervisors of McLean Co. 43 Ill. 216; Supervisors of McLean Co. v. Augustus, 63 Ill. 40.
That the statute is imperative: Malcomb v. Rogers, 5 Cowen, 185.
As to the motion to dismiss the suit, see Randolph v. Emerich, 13 Ill. 344; Fergerson v. Rawlings, 23 Ill. 69; Lindsay v. Stout, 59 Ill. 491.
Interest cannot be recovered in Illinois except where the statute authorizes it: Madison Co. v. Bartlett, 1 Scam. 67; City of Pekin v. Reynolds, 31 Ill. 530; City of Chicago v. Allock, 86 Ill. 385.
When interest may be recovered: LaSalle v. Simmons, 5 Gilm. 520; Wood v. Robbing, 11 Mass. 504; Commonwealth v. Crevor, 3 Binney, 121; Chaney v. Yeates, 1 N. H. 151; People v. Gasherie, 9 Johns. 71; Selleck v. French, 1 Conn. 32; Reid v. Renssellaer, 3 Cowen, 393; Ill. C. R. R. Co. v. Cobb et al. 72 Ill. 148.
Not having moved the court below for a re-assessment of damages, appellant is not in a position to question the allowance of interest: McCard v. Mechanics' National Bank, 84 Ill. 50.
This is an action of assumpsit brought by appellee on an alleged agreement by the county to pay him a bounty for military services in the late war.
The special facts averred in the first count of his declaration are, that on the 30th day of December, 1863, the Board of Supervisors adopted the following preamble and resolution:
“WHEREAS, the President of the United States, has lately made a call for three hundred thousand more volunteers, and upon the event of that number not being furnished by the 5th day of January, A. D. 1864, then a draft be made; therefore,
Resolved, That as an additional inducement to persons to enlist under said call, the sum of one hundred and ten dollars bounty be and hereby is appropriated to be paid to each and every volunteer who has been and may hereafter be regularly mustered into the service of the United States as Grundy County Volunteers, under said call and be credited to said county;” that relying on said resolution he did enlist on the 14th day of January, 1864, and was regularly mustered into the service of the U. S. as a volunteer from said county under said call and was so credited thereon as a member of Company I in the 55th Regiment of Illinois Infantry; and that on the 15th of February, 1864, he duly presented his claim for said bounty to said board.
The second count differs only in that after the averment of plaintiffs, it pleads and sets out in hæc verba an act of the legislature of Jan'y 18, 1865, entitled, “An act to authorize the levy and collection of taxes in the counties therein named for the payment of bounties to persons mustered into the service of the United States, and provide for the adjustment of claims relating to the same,” the first section of which enacts that the board of supervisors of said counties, including Grundy, “are hereby authorized at any regular or special session, to levy such special tax, not exceeding three per centum annually upon the taxable property in said counties, as may in their opinion be necessary to pay and discharge any part or all indebtedness now incurred, or which may by said board hereafter be created or incurred on account of any appropriation which has heretofore been made or which may hereafter be made by said board, for the payment of bounties to volunteers or drafted men who have been mustered into the service of the United States, or to volunteers who may hereafter enlist and be mustered into said service, and have been or may hereafter be credited to said counties.” Private Laws of 1865, p. 100.
A demurrer to these counts was overruled, and defendant abiding by it, there was judgment by nil dicit. Defendant then entered its motion to dismiss the suit for want of jurisdiction, which was also overruled, and thereupon the court assessed the plaintiff's damages at $215, of which $105 was allowed as interest from the time of presentation of the claim, and rendered final judgment therefor.
It was stipulated that there had been no express agreement to pay interest, and exception was duly taken to its allowance as well as to the other rulings of the court. The errors here assigned are the overruling of the demurrer and of the motion to dismiss and the allowance of interest.
It is objected to the first count that it fails to show any authority given to the defendant to pay or to contract to pay bounties for enlistments. Counties possess no powers except those “specially given by law,” or “necessary to the exercise of” some so given. Township Organization Law of 1861, Art. XIII. § 2; County of Hardin v. McFarlin, 82 Ill. 139. Unless, therefore, the power in question--which was certainly an extraordinary one--could be fairly derived under some act of the legislature of which the court could take judicial notice, the count was substantially defective.
And it is conceded that at the date of the adoption of this bounty resolution there was no such act, unless it was that of May 2, 1861, entitled “An act to encourage the formation and equipment of volunteer companies,” p. 24 of the laws of the extra session, in Pub. and Ex. Laws of Illinois, 1861, by the first section of which it is declared “that the corporate authorities of any town or city, and the county court or board of supervisors of any county in this State, is hereby authorized to appropriate such sum as they may deem expedient, for the purpose of aiding in the formation and equipment of volunteer companies mustered into the service of the United States or of the State, for the purpose of enforcing the laws, suppressing insurrection or repelling invasion, and to aid in the support of the families of members of such companies while engaged in such military services.”
The following sections authorize the levy and collection of a tax to raise the means required, direct the appointment of agents to disburse them, and legalize appropriations previously made for the purposes indicated in the first.
That it was not understood to be the intention or effect of this act to confer power to pay bounties is argued from the facts that they were no where offered until long after its passage--that numerous acts were afterwards passed expressly conferring it upon municipal corporations therein respectively named,--and that the Supreme Court held in Briscoe v. Allison, 43 Ill. 291, that bounties not embraced within the terms of a private law of 1865, were unauthorized.
Manifestly the legislature contemplated a definite end, stated--the formation and equipment of volunteer companies for certain military service-- and gave power to these corporate authorities to aid in its accomplishment by the appropriation of money to be raised by taxation. It may be that this or any other particular application of it, as necessary, was not in mind.
These would be various, depending upon the changing condition and circumstances of the country, and in May 1861, were to a great extent unforeseen. Accordingly no attempt was then made to specify them; but it cannot be held that because none was specified none was authorized. On the contrary it is therefore more clear that whatever application should be found to be necessary to the accomplishment of the end was as much within the grant of the power as if it had been specifically so declared. And whether necessary or not was a question which must be determined in the first instance by the corporate authorities. Hence the time when they first...
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