The County of Schuyler v. the County of Mercer.

• Decision Date: 31 December 1847
• Citation: 4 Gilman 20,9 Ill. 20,1847 WL 3835
• Parties: THE COUNTY OF SCHUYLERv.THE COUNTY OF MERCER.
• Court: Illinois Supreme Court

4 Gilman 20

9 Ill. 20

1847 WL 3835 (Ill.)

THE COUNTY OF SCHUYLER

v.THE COUNTY OF MERCER.

Supreme Court of Illinois.

December Term, 1847.

DEBT, in the Mercer circuit court, brought by the defendant in error against the plaintiff in error. The defendant was defaulted at the May term 1845, and a writ of inquiry of damages awarded. At the September term, 1845, the Hon. THOMAS C. BROWNE presiding, the jury returned a verdict in favor of the plaintiff for the sum of $112.89, and the court rendered a judgment accordingly.

R. S. BLACKWELL, for the plaintiff in error. The court below had no jurisdiction.

1. Because there is no averment in the declaration, that the cause of action accrued, or was specifically made payable in the county of Mercer, where the plaintiff resided, and where this suit was instituted. Rev. Stat. 413, sec. 2; Clark v. Harkness, 1 Scam. 56; Key v. Collins, ib. 403; Wakefield v. Goudy, 3 do. 133; Brown v. Bodwell, 4 do. 302; Clark v. Clark, 1 Gilm. 33.

2. Because by statute it is provided that “all actions, local or tran sitory, against any county, may be commenced, etc., in the circuit court of the county against which the action is brought,” etc. Laws of 1827, 109, sec. 6; R. L. 140, sec. 6; Rev. Stat. 132, sec. 18.

This statute, we insist, is compulsory and not permissive. All actions against counties must be commenced, etc., in the circuit court of the county against which the action is brought. In statutes of a public nature and relating to public rights and duties, the word may means shall. Cro. Jac. 134; Cro. Eliz. 655; King v. Barlow, 2 Salk. 609; Malcom v. Rogers, 5 Cowen, 188; Miner v. Mec. Bank, etc., 1 Peters, 46.

3. The declaration is insufficient. Salem v. Andover, 3 Mass., 436; Bath v. Freeport, 5 do. 326-7; Laws of 1841, 190-1.

4. The verdict and judgment are erroneous for not distinguishing between the debt and damages. Williams v. Bank of Illinois, 1 Gilm. 671; Mager v. Hutchinson, 2 do. 270.

5. The court had no power to award an execution against the county of Schuyler, the only way of enforcing a judgment against a county being by mandamus, or attachment. Rev. Stat. 133, sec. 20.

A. WILLIAMS, for the defendant in error. It is insisted by the counsel for the plaintiff, that the court below had not jurisdiction of the parties, because it is not averred that the cause of action accrued in the county of the plaintiff below. It is stated that the pauper became chargeable as such in the county of Mercer, to that county; that the county commissioners of Mercer county notified the county commissioners of the county of Schuyler, of that fact, and requested them to remove said pauper; that they neglected to do so; that thirty days next preceding said pauper so becoming chargeable to the county of Mercer, she was a resident of the county of Schuyler. From this it appears conclusively, that the cause of action did accrue in the county of Mercer, but it is insisted that the formal averment should have been made that the cause of action accrued in the county of Mercer, and that the county of Mercer resided in the county of Mercer. This is required by no principle of reason, or rule of positive or technical law.

But it is said that the county of Schuyler could only be sued in that county, and this is founded upon the notion that the provision that counties may be sued in the circuit court of the county sued, means, ex vi termini, ““ shall be sued there, and not elsewhere.” The word “may” when used in statutes should be construed as permissive, or imperative, according to the intention of the legislature, in each case where it is so used. In its grammatical construction, it is permissive, and not imperative, and there is nothing to show that in this case it was intended to be imperative. It is not the provision by which counties are subjected to suit. Counties are subjected to suit by other provisions in as general and extensive terms as individuals, courts being established and clothed with jurisdiction to try cases between counties as well as individuals.

The practice act is enacted for the guidance of the court in the exercise of its jurisdiction. It is provided in this act, in terms that include counties as well as individuals, that when the cause of action accrues in the county of the plaintiff, suit may be commenced in that county. There is nothing in the words, or spirit of this provision to exclude from its operation cases in which counties are parties.

Opinion of the court by PURPLE, J.^a1

On the 21st day of October, A. D. 1843, the defendant sued the plaintiff in an action of debt in the circuit court of Mercer county to recover a sum of money, which, as the declaration alleges, the defendant had expended in maintaining a pauper, who, at the commencement of thirty days immediately preceding the time she became chargeable as a pauper to the county of Mercer, was a resident of the county of Schuyler; which last mentioned county thereby became liable, upon notice having been given to remove said pauper, for such maintenance. No appearance was entered by the plaintiff; a judgment by default was rendered; a writ of inquiry of damages awarded, which was executed in vacation; returned, and judgment entered against the county of Schuyler upon the verdict of the jury of inquest for $112.89 and costs.

The plaintiff seeks to reverse this judgment.

Only one point, made in the case (being decisive of the question), will...