{
  "id": 5470234,
  "name": "Road District No. 44, of Perry County, Illinois, Plaintiff in Error, v. D. B. Ervin, Defendant in Error",
  "name_abbreviation": "Road District No. 44 v. Ervin",
  "decision_date": "1920-10-28",
  "docket_number": "",
  "first_page": "394",
  "last_page": "398",
  "citations": [
    {
      "type": "official",
      "cite": "222 Ill. App. 394"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 405,
    "char_count": 7984,
    "ocr_confidence": 0.521,
    "sha256": "4794e8d8766b35fa22b63656896024fc2225242d35d08118caebdbe85c4b6573",
    "simhash": "1:17e4845842c98a9d",
    "word_count": 1368
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  "last_updated": "2023-07-14T18:22:09.223782+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Road District No. 44, of Perry County, Illinois, Plaintiff in Error, v. D. B. Ervin, Defendant in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Higbee\ndelivered the opinion of the court.\nThis suit was brought by Boad District Number 44, of Perry county, to recover money which it is claimed D. B. Ervin, defendant in error, illegally paid to himself while serving as highway commissioner of said district, from April, 1914 to April, 1917, Under the Roads and Bridges Act of 1913, it became optional with the voters of any road district whether the single highway commissioner system be adopted in that district. The record does not clearly disclose whether the district, plaintiff in error, had adopted the single highway commissioner system, but it appears from the record to have been taken for granted that such was the fact and the case was tried on that basis, so we will presume that at the time in question plaintiff in error was operating under the single highway commissioner system and will also take notice of the fact that Perry county was not under township organiz\u00e1tion at the time. Paragraph \u201cB\u201d of section 165 of that Act [Callaghan\u2019s 1916 St. [\u00b6] 10000(165)] provided: \u201cIn any town or road district adopting the provisions of this \"article, the single highway commissioner herein provided for shall receive for each and every day he is necessarily employed in the discharge of his duties a salary to be fixed by the county board in counties not under township organization and by the board of town auditors in counties under township organization * * * upon a sworn statement to be filed by such commissioner in the office of the town or district clerk, showing the number of days he was employed and the kind of employment, and giving the dates thereof.\u201d\nIt seems to be conceded by attorneys for both parties to this action that defendant in error was entitled to $3 per day for lawful services rendered, so we assume that amount was fixed by the county board of Perry county under this section as salary. The district contends that the evidence shows the money sought to be recovered was paid defendant in error upon warrants drawn on the road treasurer by himself and were for manual labor done on the roads by defendant in error himself and for the use of his teams on the roads. Upon the trial plaintiff in error placed the district road clerk and Ervin, the defendant in error, upon the witness stand and identified a number of warrants on the road treasurer issued by him. These warrants having been introduced in evidence, plaintiff in error rested and defendant in error offered no evidence. The jury rendered -a verdict for defendant in error and there was a judgment against the district for costs. The road warrants introduced in evidence coVered the period from May, 1914 to April, 1917; were all signed by defendant in error as commissioner and made payable to himself. A number of these warrants designated in the record as Exhibit \u201cA\u201d and amounting'to over $750 stated on their face they were in payment \u201cfor commissioner.\u201d Others designated as Exhibit \u201cB\u201d and amounting to over $1,000 stated they were in payment for various services such as \u2018 \u2018 grading, \u201d \u201c dragging, \u201d \u201c slip work, \u2019 \u2019 \u201crepairs,\u201d \u201cbridges and culverts\u201d and other services clearly of a manual nature and some contained the words \u201cwith team.\u201d-\nIt is the contention of plaintiff in error that Ervin could only legally charge and receive pay for his services as commissioner in directing or superintending work or the like, and that in charging and receiving pay for manual work of himself and team he violated section 72 and other sections of the Roads and.Bridges Act of 1913. This is not directly denied by defendant in error, but it is contended that the evidence does not show that the orders were for labor performed by him, and his teams, but that for all the evidence shows the money may have been drawn by defendant in error and cash paid to other parties who had actually done the work. He testified that he received the money on each of the orders made out to him and it was stipulated on the trial that the orders showed correctly the object or purpose for '.which each was issued. The orders in question are all made payable to defendant in error and state that they were given for work done., One for example states it was given for \u201cgrading an,d slip work\u201d and opposite the words \u201cwith team\u201d is given the number of hours employed and price. Another names the work done as \u201cfixing bridges and culverts,\u201d \u201cwith team.\u201d These orders on their face plainly appear to have been given defendant in error for labor performed by him and his teams, and while he was a witness on the trial he never made any explanation of the wording of the orders tending to show that they were in fact given for labor performed by other persons and for the use of teams belonging to others, as he might readily have done had such been the case.\nThe general duties and powers of highway commissioners under the act of 1913, are detailed in subdivision \u201cB\u201d of section 50 of that Act (Cahill\u2019s Ill. St. ch. 121, \u00b6 56, subd. B). Paragraphs 5 and 6 of that subdivision read as follows: \u201c (5) To direct the construction and repair of roads and bridges within the town or district, to let contracts, employ labor and purchase material and machinery therefor, subject to the limitations herein, provided: Provided, however, that no contract shall be let for the construction or repair of any road or bridge or- part thereof in excess of the amount of $200, nor shall any machinery or other appliances to be used in road construction in excess of such amount be purchased without the approval of the county superintendent of highways. (6) To have general charge of the roads and bridges of their town or district, to keep the same in repair and to improve them so far as practicable.\u201d\nSection 72 of the Act of 1913 (Cahill\u2019s Ill. St. ch. 121, \u00b6 79), provides: \u201cIn letting contracts, employing labor, or in purchasing tools, machinery or materials, neither the highway commissioners nor the county superintendent of highways shall have, directly or indirectly, any personal pecuniary interest therewith.\u201d If a commissioner charges and collects pay for his own labor on the road, and that of his teams, he certainly has a direct \u201cpersonal pecuniary interest\u201d in \u201cemploying labor\u201d which is clearly in violation of the spirit and letter of section 72 above quoted.\nThe court gave the following instruction for defendant in error: \u201cThe court instructs the jury that a highway commissioner is entitled to receive for his services as such, while engaged in actual service for such district, the sum of $3.00 per day irrespective of whether such work so performed be grading, hauling, use of team, or simply superintending the work of others.\u201d If we are correct in holding that a commissioner cannot legally charge and collect pay for his own labor, and that of his teams, as distinguished from fees for services as a commissioner, it necessarily follows that this instruction stated the law incorrectly and it was error for the court to give it.\nThe judgment is accordingly reversed and the cause remanded.\nReversed cmd remanded.",
        "type": "majority",
        "author": "Mr. Justice Higbee"
      }
    ],
    "attorneys": [
      "Nelson B. Layman, for plaintiff in error.",
      "Marion C. Cook, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Road District No. 44, of Perry County, Illinois, Plaintiff in Error, v. D. B. Ervin, Defendant in Error.\ni Roads and bridges\u2014right of highway commissioner to charge for labor of his teams and himself. Under section 72 of the Roads and Bridges Act of 1913 (Cahill\u2019s Ill. St. ch. 121, \u00b6 79),' providing that in letting contracts employing labor or purchasing tools, machinery or materials the highway commissioner shall have no pecuniary interest therein, the commissioner was not entitled to charge and collect for labor performed by himself and his teams, as distinguished from fees for services as commissioner in a supervisory capacity. '\nError to the Circuit Court of Perry county; the Hon. Louis'Bernreuter, Judge, presiding. Heard in this court at the October term, 1918.\nReversed and remandedv\nOpinion filed October 28, 1920.\nNelson B. Layman, for plaintiff in error.\nMarion C. Cook, for defendant in error."
  },
  "file_name": "0394-01",
  "first_page_order": 424,
  "last_page_order": 428
}