Whittemore v. People
| Decision Date | 15 June 1907 |
| Citation | 227 Ill. 453,81 N.E. 427 |
| Parties | WHITTEMORE v. PEOPLE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Sangamon County; Robert B. Shirley, Judge.
Action by the people against Floyd K. Whittemore. From a judgment for plaintiff, defendant brings error. Affirmed in part and reversed in part.
H. J. Hamlin, James M. Graham, and Hugh Crea, for plaintiff in error.
W. H. Stead, Atty. Gen. (Edgar Eldredge and B. F. Lincoln, of counsel), for defendant in error.
This suit is an action of debt begun in the circuit court of Sangamon county on the bond of ex-State Treasurer Henry Wulff to recover from plaintiff in error, Floyd K. Whittemore, one of the sureties on the official bond of said State Treasurer, the sum of $4,295.88, which it is claimed said Henry Wulff, during his term of office, wrongfully and unlawfully drew out of the state treasury and appropriated and converted to his own use, in addition to his salary as fixed by law, and in addition to all appropriations made for clerk hire, expenses, etc., of his side office.
The declaration contained five counts. The first three in different phraseology charged Wulff with appropriating and converting to his own use $4,295.88 of moneys belonging to the state which he had collected as Treasurer under the statutes relating to registered bond funds as costs and expenses to the state of collecting and disbursing said funds, which amount was in excess of his salary and in addition to all appropriations made by law to him as Treasurer. The fourth count charged him with drawing out of the treasury of the state of Illinois $4,295.88 upon a certain warrant signed by the Auditor of Public Accounts and countersigned by said Wulff, as Treasurer; that said sum of money was not drawn upon said warrant in pursuance of any appropriation made by law, but was unlawfully drawn by said Henry Wulff and converted to his own use. The fifth count charged that January 29, 1896, the state owned and had in its treasury a large sum of money, to wit, $20,000, that had been raised by taxation, in accordance with law, to reimburse the state for the costs and expenses it had incurred in collecting and disbursing the registered bond funds collected by taxation for the purpose of paying principal and interest upon certain registered bonds; that said Henry Wulff then and there unlawfully procured the Auditor of Public Accounts to issue and deliver to him a warrant for the sum of $4,295.88; that said Henry Wulff, as Treasurer, unlawfully countersigned said warrant and paid to himself the amount thereof out of money belonging to the state of Illinois, and that said sum was not paid to or received by him in pursuance of any appropriation made by law. The plaintiff in error demurred to the declaration. The court overruled the demurrer, and he thereupon filed 17 pleas. No pleas were filed by Wulff. Defendant in error demurred to all of the pleas, which demurrer was sustained by the court, and, the plaintiff in error electing to abide by his pleas, the court rendered judgment against him for the amount of the warrant mentioned in the declaration, together with interest thereon, and the case has been brought here for review by writ of error.
It will not be necessary to set out plaintiff in error's pleas Nos. 1, 3, 4, 7, and 13, as the correctness of the trial court's ruling in sustaining the demurrer to these pleas is not discussed or questioned in the brief and argument of plaintiff in error.
The second, fifth, sixth, and eighth pleas are not identical, but are so nearly alike in substance that, for the sake of brevity, it may be stated that the defenses set up by these pleas are that the moneys sued for were not the moneys of nor a part of the revenues of the state, but belonged to the various municipalities therein; that said Henry Wulff, as Treasurer, in receiving and disbursing the moneys of said municipalities, ths said registered bond funds, was required to employ additional help and expend various sums on account of receiving and disbursing said funds, amounting in the aggregate to the sum named in the warrant, and that he had a lawful right to draw out and retain, to cover his said necessary expenses, the sum of money mentioned in said warrant, without any special appropriation therefor.
Plea No. 9 sets up and relies upon the five-year statute of limitations. Said plea avers that the moneys mentioned in the declaration came into the hands of Henry Wulff as registered bond funds, and not from taxes and revenues raised for and belonging to the people of the state of Illinois; that said registered bond funds were raised for paying principal and interest of registered bonds due from counties, cities, towns, townships, school districts, and other municipalities, and were payable to people other than the state of Illinois; that said registered bond funds belonged to and were the property of the respective municipalities from which they had been collected, and not the property of the state of Illinois, and were at no time in the treasury of said state, but were private funds belonging to the various municipalities; that the suit was not for the recovery of money belonging to the people of the state of Illinois, but was for the benefit of the municipalities, and concludes by setting up and relying on the five-year statute of limitations.
The tenth plea is, in principle, substantially like the ninth. The twelfth is similar to the ninth and tenth, except that by oversight no period of limitation is named.
The eleventh plea in substance averred that said registered bond funds were at all times the property of the respective municipalities from which they had been collected, and were not the property of the people of the state of Illinois and were never in the treasury of the said state; that said funds were in the custody of said Henry Wulff for the payment of principal and interest of said registered bonds and for the payment of the ordinary and necessary costs of the collection and disbursement of said funds, to be estimated and ascertained by the Auditor and Treasurer of the state of Illinois. The plea further avers that Henry Wulff, not as Treasurer, but personally, paid from said registered bond funds the ordinary and necessary costs incurred in their collection and disbursement, which costs had before that time been estimated and ascertained by said Auditor and State Treasurer according to law, and that the moneys paid for said costs and expenses are the same moneys in the declaration named and demanded.
The fourteenth, fifteenth, sixteenth, and seventeenth pleas were pleas of contemporaneous construction. The fourteenth averred that the moneys sued for were charged to have come into the possession of Wulff, as Treasurer, as registered bond funds by virtue of acts of the Legislature of 1865, 1877, and 1879; that said moneys were not taxes and revenue raised for the people of the state of Illinois, but were funds raised for the payment of registered bonds of various municipalities, together with the cost to the state of the collection and disbursement of said funds; that since the passage of the acts of the Legislature mentioned the severalState Treasurers and State Auditors of Illinois, they being administrative officers of said state, so construed and carried into effect the statutes relating to the payment of costs and expenses in the collection and disbursement of registered bond funds that they paid from said funds, annually, to said officers, an amount estimated by said officers as necessary for the payment of the costs and expenses in the collection and disbursement of the said registered bond funds, and that the money in the various counts of the declaration mentioned were paid by Wulff as the ordinary costs and expenses incurred in the collection and disbursement of said funds as estimated by the State Treasurer and State Auditor, the same as had been theretofore paid by the various administrative officers of said state since the passage of the acts of the Legislature mentioned, and that said Wulff had paid the amount in the declaration mentioned in full payment and satisfaction of said costs and expenses.
The fifteenth plea is substantially the same as the fourteenth, except it avers that in accordance with the construction placed upon the acts of the Legislature mentioned, relating to the collection and disbursement of the registered bond funds by the State Treasurers and State Auditors of Illinois, the sums of money mentioned in the declaration were held and retained by the said Wulff as the ordinary costs and expenses of the collection and disbursement of the registered bond funds as estimated by the State Treasurers and State Auditors, the same as had been theretofore done by the various administrative officers of the state of Illinois since the passage of the acts relating to the said funds.
The sixteenth plea avers that after the passage of the acts of the Legislature referred to the State Treasurers and State Auditors of the state of Illinois, acting under their construction of the acts of the Legislature, kept an account of the payment of the costs and expenses of collecting and disbursing the registered bond funds and spread said accounts upon the records of the said offices during each year, and did at stated intervals, as required by law, make public report of their action in that behalf, whereby the construction placed upon the acts of the Legislature by said officers became known to the executive and legislative departments of the state and was by them ratified and approved; that the moneys mentioned in the declaration were held and retained by said Wulff as the ordinary costs and expenses, as estimated by the Treasurer and Auditor, in the collection and disbursement of the registered bond funds, the same as had been theretofore held and retained by the various administrative officers of said state...
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