County of Franklin v. Layman

33 N.E. 1094, 145 Ill. 138

Opinion

Mr. Justice Shope

delivered, the opinion of the Court:

I. The first point made by appellant is that the court erred in admitting parol evidence of the contract of November 7, 1883, between the county and appellees. It is insisted that the instrument executed by appellees that day, and delivered to the county, was the best evidence of the agreement between the parties, and could alone be resorted to, to establish the agreement. This would undoubtedly be correct, if said written memorandum related to the subject matter sought to be proved by parol. By reference to that instrument, set out in the foregoing statement, it will be seen that it related only to such further litigation as might ensue upon appeal, or writ of error, by the defendants in the litigation theretofore prosecuted by the county, and such as pertained alone to the forty-nine bonds of the county, issued under the act of 1849. By an addendum, added at the suggestion of the county board, the $100,000.00 of bonds issued under the act of 1861, and the litigation in respect thereof, were expressly excluded from its operation. Moreover, appellees, members of the then county board, and perhaps others, testify, unequivocally,-that the memorandum in writing related solely to the litigation in respect of said forty-nine bonds, and that the contract, proved by parol, was separate and distinct, and related to a different subject matter than that intended to be covered by said writing. It is manifest, therefore, that the contract, in respect of the subsequent litigation designed to test the liability of the county through tax-payers, etc., to pay said 100 county bonds, was not merged in the writing.

II. It is also clear that resort was had to the best evidence obtainable in proof of said contract. It is shown by the testimony of appellees, and by a member of the board, that the board agreed, in open session, to have the contract that day entered into, by which appellees were to take charge of and prosecute to successful issue the question of the legality of a tax levied to pay said $100,000.00 of the bonds of the county, issued under the act of 1861, as before mentioned, spread upon their records. Which, however, was not done, and the matter, therefore, rested in parol.

III. It is next objected, that parol evidence was not admissible to prove the contract made by the county, etc. This case falls directly within the rule announced in The County of Vermilion v. Knight, 1 Scam. 97, and under the reasoning in-that case, which meets with our approval, the evidence ivas clearly admissible. It was the duty of the county board, independently of its agreement to do so, to enter its contract upon its records. And the contract having been clearly established, and appellees' having in good faith performed the service contracted to be rendered, without notice of the failure of the county authorities to perform that duty, and the county having received the benefit of such service, and appropriated the money received from the State treasurer, should not be permitted to take advantage of the non-feasance of its own agents, if the contract was otherwise valid.

IV. It is next objected, that the county could not lawfully enter into a contract to pay attorneys’ fees, etc., in carrying on the litigation in the name of Richeson, who, it is contended, defended as a tax-payer in his individual capacity, and not for or on behalf of the county. It is to be at once conceded, that if the purpose of the contract Avas to aid Richeson in his private litigation, it was ultra vires. The fact that it may have relieved him, in common Avith other tax-payers of the county, of his share of a public burden, would not necessarily render it his individual litigation, if the purpose and object sought to be attained was a public one, in which all tax-payers of the county were alike interested. It is contended, however, that as the county was not, and could not be,' a party to the litigation begun against Richeson by the county collector, that, therefore, the contract to pay expenses of such litigation was an undertaking of the county to pay the expense of his private litigation, and made without authority of law. It is broadly conceded that the county had the right to institute and carry on suits to test the validity of its doubtful obligations, and to defend suits brought to enforce the same. But it is said that the statute having provided that “it shall be the duty of the county boards, in each of the counties of this State, to take and order suitable and proper measures for the prosecuting and defending of all suits to be brought by or against their respective counties, and all suits which it may become necessary to prosecute or defend, to enforce the collection of all taxes charged on the State assessment” (Sec. 33, Ch. 34, R. S.), the power of the county board is thereby limited, in its employment of counsel, to suits in which the county is a party, and where it will become necessary to prosecute or defend a suit to enforce the collection of a tax charged on a State assessment. And as the suit of Bicheson was to resist the collection of a tax charged on a State assessment, the county was without authority to employ counsel therein.

We are not' disposed to give this section of the statute the construction contended for. It is manifest that the county authorities, having determined, on account of the delay, and possibly for other reasons, not to prosecute an appeal to the Supreme Court of the United States from the decree of the Circuit Court of the United States, which in effect determined said $100,000.00 of bonds issued under the act of 1861 to be valid, desired to test the validity of these bonds in a more expeditious way. They undoubtedly knew that in any subsequent bill brought by the county, against the taxing officers and the holders of such bonds, the determination upon the former bill might be held to constitute a bar. They, therefore, for the purpose of securing the benefits to be derived from a favorable decision by the State courts, if it could be obtained, undertook that Bicheson, or some other tax-payer, who might be found willing to resist the collection of the tax, should be used for the purpose of testing, in the State courts, the validity of said bonds. It was understood and agreed in advance, that if Eicheson, or other tax-payer, should refuse to pay the tax, and thereby raise the question in the courts, the county would assume the litigation and pay appellees for carrying it on. The purpose and object was not to relieve Eicheson of his tax, although a successful issue would have that result, but was to obtain a decision that said bonds were invalid, and thereby relieve the property of the county of the burthen of paying the same, the primary object being to obtain the benefit for the county at large of a favorable decision in the State courts. It may be conceded, that a decision in favor of a tax-payer would not have the same conclusiveness as a decree in a direct proceeding in behalf of the county, to have said'bonds declared void, without militating against the right of the county to prevent, in any lawful mode, the collection of taxes to pay county bonds illegally issued. The board is authorized to carry into effect the powers of the county, (Sec. 23, Ch. 34, R. S.), among which is: “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.” As we have seen, the power of the county board to resist the payment of an unjust claim against the county is unquestioned, y And the county board could lawfully, under its general powers, take steps and perform such acts as might, in the exercise of its discretion, defeat the collection of a tax assessed to pay a debt illegally charged against the county. It is not to be supposed that because the auditor, under the act of the legislature, assessed a tax to pay bonds of the county, that the county is thereby precluded from questioning the validity of such bonds in any'lawful manner. As said by the Appellate Court, a contract made for this purpose is within the object and spirit of the statute, and there is no good reason to hold that the county might not lawfully adopt the mode it did to test the validity of its bonds. That which is within the object, spirit and meaning of the statute, is as much within the statute, as if it were within its letter. Potter’s Dwar. 1170. The county had the right to have the statutes of this State, and the proceedings in pursuance of which said bonds were issued, passed upon and their validity determined by the courts of this State. This it had failed to do in the direct proceeding instituted by the county, but could procure in the mode shown to have been inaugurated by the county authorities, and carried through to final decision by appellees under their contract with the county. That the county was successful, we have already seen. And the State officers, and bondholders, so far as appears, acquiescing in such determination of the invalidity of the bonds, the State treasurer paid into the county treasury the taxes theretofore collected, under the levy by the auditor, to meet the accrued and accruing interest on said bonds.

We are of opininon, that such proceedings were within the spirit of the statute, and that the county board had authority to enter into said contract.

V. It is insisted that the contract was void for want of mutuality. This is a clear misconception of the contract. Appellees on their part agreed to perform the service, and performed it, and the county on its part agreed to pay for the same. The contention of counsel is undoubtedly predicated upon the assumption that the right to recover, if at all, is under the written memorandum, in reference to the forty-nine bonds, executed on the same day that the contract was entered into in reference to the 100 bonds issued under the act of 1861, of which the county board failed, as we have seen, to make a record. Treating the contract proved by parol as a subsisting and independent undertaking, there is no want of mutuality.

What we have said disposes of the questions raised upon the admission of evidence, instructions given and refused by the court. It only remains to consider the cross-error assigned.

It was insisted on oral argument that the court erred in not including in its judgment interest upon the sum found due from the date of demand of payment, until the rendition of the judgment, upon the ground and for the reason that the money had been “withheld by an unreasonable and vexatious delay of payment.” Sec. 2, Ch. 74, E. S. We are unable to say in this case that it is affirmatively shown that the “delay” has been “unreasonable and vexatious.” Mere failure to pay a claim or demand, or the defense of such claim, will not necessarily constitute the delay in payment unreasonable and vexatious. The delay must be both unreasonable and vexatious. Aldrich v. Dunham, 16 Ill. 403; Devine v. Edwards, 101 id. 138; Davis v. Kenaga, 51 id. 170. We are not satisfied that the county authorities have not refused payment in good faith, and with an honest belief that the county was not liable to appellees. If that be so, it was their duty to refuse payment, and to make every reasonble defense to the action. And it cannot be said, therefore, that the delay is vexatious.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.