Pike County Illinois GenWeb

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Court Record of Pike County vs People of the State

Source: Reports Of Cases Illinois
Written: 1849

The County Commissioners of Pike County v. The People of the State of
Illinois, on the relation of Benjamin B. Metz.

Error to Pike.

1. Mandamus — who relator. The question, as to who shall be the relator in an
application for a mandamus, depends on the object to be attained by the writ.
Where the remedy is resorted to for the purpose of enforcing a private right,
the person interested in having the right enforced must be the relator.

2. Same — office of relator. The relator is considered as the real party, and
his right to the relief demanded must clearly appear. A stranger is not
permitted officiously to interfere and sue out a mandamus in a matter of
private concern.(1)

3. Same—public right. Where the object is the enforcement of a public right,
the people are regarded as the real party, and the relator need not show that
he has any legal interest in the result. It is enough that he is interested as
a citizen, in having the laws executed, and the right in question enforced.(2)

4. Same—costs. By the express provisions of the statute, the successful party
in the proceeding for a mandamus, recovers costs in all cases.(3)

5. Statute—construed: The act of February 28th, 1845, authorizing counties to
apply such portions of the internal improvement fund received by the counties,
under the act of February 27th, 1837, and which had been loaned by them,
to "any and all purposes they may think proper," does not extend to the county
of Pike; a specific appropriation having been made by the legislature of that
fund, by the act of February 9th, 1839.(4)

6. Mandamus—to restore diverted fund. Where a specific fund given to a county
by the legislature, to be held in trust for certain purposes, is diverted from
that purpose and mixed with the general funds of the county, it is not error
in the court to award a mandamus, to compel such fund to be paid over to the
person entitled to it, and to direct an order te be drawn upon the general
funds of the county in the treasury. (5)

This was a proceeding by mandamus in the Pike county circuit court, instituted
by the relator against the county commissioners of that county, to compel the
payment to him of the sum of one hundred and twenty-five dollars, and
interest, which had been originally appropriated by the legislature to the
county, and by a subsequent law set apart for the improvement of the
navigation of M'Kee's creek, in said county, to be expended by the relator.

By the fifteenth division of the eighteenth section of the act to establish
and maintain a system of internal improvements, in force 27th February, 1837,
it was enacted, that "there shall be appropriated the sum of two hundred
thousand dollars, of the first moneys that shall be obtained under the
provisions of this act, to be drawn by the said counties, in a rateable
proportion to the census last made, through which no railroad or canal is
provided to be made at the expense or cost of the state of Illinois; which
said money shall be expended in the improvement of roads, constructing of
bridges, and other public works." Under this provision, Pike county received
about twenty thousand dollars, which, by an act of the legislature to provide
for certain improvements in that county, in force February 9, 1839, was
specifically appropriated to certain roads, bridges, etc., by name; stating
the amount to be expended on each, dividing the county into districts, and
naming a commissioner for each district, to superintend the works within the
same. This act appropriated "five hundred dollars to the improvement of the
navigation of M'Kee's creek, as far up as Chambersburg, and that B. B. Metz be
commissioner to superintend said work." Each of the commissioners, before
entering upon the duties assigned them, was to enter into bond, with sureties,
in such sum as the county court should direct, conditioned for the honest and
faithful discharge of his duties, etc., and for the proper application of all
moneys which should come to his hands, under the provisions of this act; the
bond to be approved and filed with the clerk of the county court. The money
was to remain in bank, to the credit of Pike county, to be drawn upon the
order of the county commissioners. The county commissioners were to draw one-
fourth part of the money appropriated, and apportion the amount among the said
commissioners of each district, and when he should have expended that amount,
and certified under oath to its faithful application, the county commissioners
were to continue to draw the residue, in fourth parts, until the whole should
be expended. Vacancies occurring in the commissioners for the districts, were
to be filled by the county court, and the commissioners were to receive two
dollars and fifty cents as a compensation for each day they should be actually

On the twenty-eighth day of February, 1845, the legislature passed the
following act:

"Section 1. That the acts of the county commissioners' courts of the several
counties of this state, in loaning at interest that portion of the internal
improvement fund, which fell due said counties under the act of February
twenty-seventh, one thousand eight hundred and thirty-seven, establishing a
general system of internal improvements, be, and the same is hereby, legalized.

"Sec. 2. That said county commissioners' courts are also empowered to collect
the money so loaned, as is provided for by law for the collection of other

"Sec. 3. That it shall be the duty of said county commissioners' courts, and
they are hereby required, to cause to be renewed, all bonds given as evidence
of indebtedness to said fund, with good and sufficient security.

"Sec. 4. That upon the debtor's compliance with the third section of this act,
no higher interest shall be collected from said debtor, from and after the
renewal of any such bond, than six per cent, per annum; provided, that this
provision shall not extend to any portion of said funds which have, by law,
been constituted a portion of the common school fund of any county in this

"Sec. 5. That the county commissioners of the several counties of this state,
may apply all such money, when collected, to any and all purposes they may
think proper. This act to be in force from and after its passage."

In his application for the mandamus, the relator sets forth his appointment
under, and compliance with, the requisitions of the second of the foregoing
laws; and that the county commissioners of said Pike county have, from time to
time, paid over to him three installments of the five hundred dollars,
appropriated to the improvement of said creek, for which he has faithfully
accounted; and that he is informed and believes that the county commissioners,
shortly after the passage of the said law of 1839, drew the amount
appropriated to M'Kee's creek from the bank, and that the unexpended fourth
instalment has been loaned by them, with his assent, for the last four or five
years, at interest. That the expenditure of the residue of the appropriation
is necessary, etc.; that he has frequently applied to the county court for it,
and that it has been refused him; the court alleging as a reason for the
refusal, that the foregoing act of 1845, had given them discretionary power
over the fund, and that they should appropriate it to other objects. Upon this
statement, an alternative mandamus was awarded. To this writ, after service
upon them, the county commissioners answered, admitting the appropriation, and
the specific direction of its use, as set forth in the law of 1839, but insist
that this was subject to subsequent and other dispositions of the fund by the
legislature, and to be diverted from the special objects stated in the law of
1839, in like manner as the fund due to other counties. They set up the act of
1845, as placing the fund at their disposal; and claim, that, by the fifth
section of that act, unless with their consent, the fund was no longer subject
to the special objects of improvement enumerated in the law of 1839. That they
do not think proper to make any further appropriation of the fund to the
improvement of M'Kee's creek, and design to appropriate it otherwise, to more
useful improvements, and prayed the opinion of the court, believing that the
fund sought by the relator to be obtained from them, is the same money placed
by the provisions of the law of 1845 under their control, and that the
relator, not having any claim thereto, that they the respondents, should be
discharged. Upon this answer the rule was made absolute, and, on motion of the
relator, a peremptory mandamus was awarded, commanding the payment of the said
sum of one hundred and twenty-five dollars, with the interest accumulated
thereon, by an order on the county treasurer, since the money originally came
under the control of the commissioners, and all costs. These proceedings were
heard before Purple, judge. - The respondents sue out this writ of error, and
seek a reversal of the order and judgment, upon the peremptory mandamus, and
assign for error, the awarding of the peremptory mandamus, and the judgment
for costs.

R. S. Blackwell, for plaintiffs in error: 1. Metz has no legal interest in the
fund he seeks to reach in this case by mandamus, and can not therefore be
permitted to prosecute this suit. Putnam v. Valentine, 5 Ohio E., 117; Sanger
v. Co. Com'rs of Kennebec, 25 Maine E., 291; Smith v. Heuston, 6 and 7 Ohio
Cond. R., 52; Harper v. Ragan, 2 Blackf. R., 39. 2. If he has such interest in
the fund, assumpsit for money had and received will lie. The rule is, that a
mandamus will not lie where there is any other specific legal remedy. People
v. Bradwell, 2 Cow. R., 444; 1 Wend. R., 318; 10 John. R., 484. 3. The return
shows that money is loaned out. It is, therefore, not subject to the order of
the relator. If the county commissioners are required to draw an order on the
particular fund, it would be unavailing. A general order to pay out of any
funds in the treasury can not be required or given under the law. State v.
Township 4, 1 and 4 Ohio E., 368; Universalist Church v. Columbia Township, 6
and 7 Ohio E., 192. 4. The appropriation of the fund in controversy, was a
mere gratuity by the state, which did not become perfect until an actual
delivery of the money to the commissioner appointed to expend it. 2 Kent Com.,
438. Therefore, no action can lie for the money thus appropriated, though
withheld by the county. Pearson v. Pearson, 7 John. R., 26; Pinkw. Cox, 18
John. R., 145. Again the legislature revoked the gift before delivery, which
every donor has a right to do. R. S., 605, sec. 5; 2 Kent, 439. 5. The county
court have a discretion as to the application of the fund, and the rule is,
that where an inferior tribunal has a discretion, it can not be coerced by

M. Hay, for the relator and defendant in error: 1. That the relator, Metz, was
not the party plaintiff in this proceeding. The people are the real party,
both nominally and really, in theory and in fact. The object of this
proceeding is to enforce a public statute, upon the suggestion that the
officers appointed to carry it out had refused to do their duty. In such a
case, the wrongful refusal of the officers to act, is no more the concern of
one citizen than another. All are alike interested, and any person may become
relator. The people can not act except through individual information; either
by the attorney general, or some private person. In matters of public right,
founded on a public statute, it is unnecessary for the relator to show any
interest in the matter distinct from that of other citizens. As the relator in
this case was more conversant with the facts than any other person, it was
peculiarly proper that he should become relator. People v. Collins, 19 Wend.,
64. 2. The people have no other adequate remedy in this case. Neither an
action of assumpsit nor an appeal could be prosecuted. 3. The return to the
alternative mandamus, shows the money to be in the county treasury; if so, the
order is in the proper form; no other could be made. The original fund had
been converted into money, and was in the county treasury. 4. The duty to be
performed by the county commissioners in this case, was entirely ministerial,
involving no discretion whatever. Sections 8 and 9 of the act of 1838-9,
appropriating the fund. 5. If there was any discretion to be exercised, having
refused to exercise that discretion, mandamus was the proper remedy. Officers
appointed to the performance of a duty, involving the exercise of a
discretion, will be compelled to exercise that discretion, although the court
will not direct how they are to use it. 5 Halsted, 57; 3 Binn., 273. 6. The
proper construction of the acts of the legislature of 1836-7, establishing a
general system of internal improvements, the act of 1838-9, appropriating the
fund in Pike county, and the act of 1845, "in relation to certain counties
therein named," shows the relator to be entitled to this money as commissioner
under the law of 1838-9; in other words, that the act specifically
appropriating the money in Pike county, was not repealed by the act of
1845, "in relation to certain counties."

Treat, C. J. It is contended that the relator has not such an interest in the
fund sought to be recovered, as will authorize him to prosecute this peculiar
remedy. The question, who shall be the relator, in an application for a
mandamus, depends upon the object to be attained by the writ. Where the remedy
is resorted to for the purpose of enforcing a private right, the person
interested in having the right enforced, must become the relator. He is
considered as the real party, and his right to the relief demanded must
clearly appear. A stranger is not permitted officiously to interfere, and sue
out a mandamus in a matter of private concern. But where the object is the
enforcement of a public right, the people are regarded as the real party, and
the relator need not show that he has any legal interest in the result. It is
enough that he is interested, as a citizen, in having the laws executed, and
the right in question enforced. See the case of The People v. Collins, 19
Wendell, 56, where this question is much discussed, and the foregoing
conclusions are clearly stated. No doubt is entertained of the right of Metz
to become the relator, and pursue this remedy. The object of the suit is not a
matter of individual interest, but of public concern. Any citizen of the
county, especially of the locality interested in having the improvement
prosecuted, could become the relator, and obtain the mandamus. There is a
manifest propriety in permitting Metz to give the information, and conduct the
proceeding. He has the direction of the improvement, and the money, when
received, is to pass into his hands, and be disbursed by him.

It is insisted that the act of the 28th of February, 1845, repealed the act of
the 9th of February, 1839, and vested the county commissioners with full
discretion over the fund in controversy; and this presents the main question
in the case. The act of the 27th of February, 1837, gave the fund to the
county, to be expended in the construction of such public works, within its
limits, as the county commissioners, in their discretion, might direct. Before
this discretion was exercised, and before the money was received from the
state, the legislature, by the act of the 9th of February, 1839, withdrew the
fund from the discretion and control of the county commissioners, and required
it to bo expended in the construction of certain designated improvements, and
under the direction of certain persons named in the act. The money was
required to remain in the bank, to the credit of the county, but was only to
be drawn out by the county commissioners, from time, as it should be
needed for the prosecution of the improvements, and paid over to the persons
having the superintendence thereof. The fund was appropriated to certain
specified purposes, over which the county commissioners were to have no other
control than to receive the money, and pay it out in the manner prescribed by
the act; and in doing that, they were to act merely as the trustees of the
state, and of those beneficially interested in the proper expenditure of the
money. The improvements were to be constructed under the authority of the
state, and not in pursuance of any directions of the county commissioners.
From the passage of the act, the fund ceased to be the property of the county,
and subject to the control of the county commissioners. It was recalled by the
state, and another and different disposition made of it. It became another
fund, devoted to specific objects, and to be expended under different
authority, and by different agents. In the opinion of the court, the act of
1845 was not intended to repeal, or in any manner affect the act of 1839; but
was only designed to apply to counties that had actually received their
portion of the fund falling due them, under the provisions of the internal
improvement act; and which, instead of expending it as directed by that act,
had loaned it out on interest; or, in other words, the act only embraced cases
where the fund still belonged to the county, and was subject to its
disposition and control. The act legalized the acts of the county
commissioners, in such cases, in loaning the money, instead of applying it as
originally designed; and empowering them to call it in, under certain
restrictions, and. then to make such application of it as they, in their
judgment, might deem best for the interests of the county. It was confined in
its operation to moneys that had gone into the possession of a county, in
pursuance of the internal improvement law; and did not extend to moneys that
might pass into the hands of the county commissioners, as mere trustees, for
the purpose of being paid over to the agents of the state. This was the entire
scope and design of the act. Its object was twofold; first, to legalize the
loaning of the fund which a county had obtained from the state; and, second to
vest the county commissioners with a larger discretion over it when collected.
In the case of Pike county, there was nothing on which the act could operate.
It never, in point of fact, received the fund that fell due it by the act of
1837. Before the money was obtained, the power to receive it was recalled, and
the fund was diverted by the state. There was no such fund belonging to the
county; no portion of which could have been loaned. There were no loans to be
legalized; no further discretion to be conferred on the county commissioners.
The proviso in the fourth section of the act of 1845, was probably designed to
apply to the fund which the county of Bond received under the internal
improvement law. By a special act, passed on the 12th of February, 1839, that
county was expressly authorized to loan the fund, and expend the income on the
objects for which the appropriation was made. By an act of the 21st of
February, 1843, this fund was added to the school fund of the county, and the
county commissioners were required to pay over to the school commissioner, the
amount of the same in money, or "good solvent notes, well secured." In
complying with these directions, it is highly probable, that many of the notes
given for indebtedness to the fund, were transferred to the school
commissioner, and were, in fact, unpaid on the passage of the act of 1845.
Under the general language of the act, the debtors might demand a renewal of
these securities, at the reduced rate of interest; and the proviso was
inserted to avoid such consequences.

The circuit court properly required the county commissioners to draw a general
warrant on the treasurer, for the payment of the sum in dispute. The money
drawn from the bank had been mingled with the funds of the county, and could
not be restored in kind. The course adopted was the only way in which payment
could be enforced.

The relator was entitled to his costs. The judgment for costs is not against
the county, but against the commissioners personally. By the express
provisions of the statute, the successful party in the proceeding for a
mandamus recovers costs in all cases.

The judgment of the circuit court must be affirmed, with costs.

Judgment affirmed.

Cited—Richland Co. v. Lawrence Co., 12 Ill., 9; Whitney v. Mayo, 15 Ill., 251;
Dennis v. Maynard, 15 Ill., 477; People v. Auditor, 30 Ill., 434; Ottawa v.
People, 48 Ill., 233; People v. Macoupin Co., 54 Ill., 217; Hall v. People, 57
Ill., 307; Sch. Trust v. People, 71 Ill., 559; Vill. of Glencoe v. People, 78
Ill., 383.

(1) When it appears petitioner is presenting a matter in which he has a direct
personal interest, the petition must contain proper allegations to bring
himself favorably before the court to give him a locus standi in court, School
Trustees v. People, 71 Ill., 559.

(2) Followed in Hall v. People, 57 Ill., 307; Village of Glencoe v. People, 78
Ill., 383; but, such person must show residence, School Trustee's v. People,
71 Ill., 559.

(3) See R. S., 1874, p. 691, § 5; Cothran's Stat., ch. 87, § 5; Rogers v.
People, 68 Ill., 154; People v. Waynesville, 88 Ill., 469; People v. Dulaney,
96 Ill., 503.

(4) See Richland Co. v. Lawrence Co., 12 Ill., 9.

(5) Where the statute prescribes no remedy for the refusal to perform a duty
made imperative thereby, or in a case of doubt as to the effectual character
of the remedy, the writ will issue; Ottawa v. People, 48 Ill., 233; People v.
Cover, 50 Ill., 100. For general rules governing the issuance of the writ, see
People v. Forquer, Breese (ed. 1885), 68, note 2.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.