County of Muscatine v. Carpenter , 33 Iowa 41 ( 1871 )

Miller, J.

Section 293 of the Revision of 1860 provides : . “ That where money has been, or shall be appropriated by the county court (now board of supervisors) for any_work of internal improvement in any county, for the erection of any bridge, or the construction of any highway, no part of said appropriation shall be drawn from the county treasury, for the purpose aforesaid, until the work shall have been actually commenced in good faith, and then only in such sums as may be necessary to pay for the work as it progresses, on regular certified estimates made by the engineer, superintendent, or agent having charge of the work.”.

It is claimed by appellants that this provision of the statute was violated by the board of supervisors when they directed their clerk to draw the warrant for $200, in favor of McDaniel; and by the county treasurer in paying the money on the order, the answer averring that the work ordered had not been commenced, etc., and that the bond is therefore void. It is a general and .well-settled rule of law that contracts made in violation of law, or upon an illegal consideration, or which have for their object any thing which is repugnant to the common law, or contrary to -the provisions of a statute, are void. See Marienthal v. Shafer, 6 Iowa, 223; Cole v. Parker, 7 id. 167; Gunther v. Dewein, 11 id. 133; Reynolds v. Nichols, 12 id. 398; Pike v. King, 16 id. 49; Allison v. Hess, 28 id. 388. And contracts which are against public policy, though not prohibited by statute, the courts generally refuse to enforce. Boardman and Brown v. Thompson, 25 Iowa, 487, and cases cited.

We are of opinion, however, that the bond in this case does not come within the rule. Conceding that McDaniel drew the money from the county treasury in violation of the statute, the object and purpose of the bond was that he should disburse it for lawful objects, and account to the board of supervisors for its expenditure. It would hardly be contended that a public officer, who makes an illegal use of public funds, cannot be made to pay it back in an action against him. Aud where he has done this, and executes a bond with sureties to pay over, the case would not be different.

Again this bond was made for the purpose of protecting the public — the county — against loss of its funds, which had been legally appropriated for lawful objects. Now, that one set of officers may have enabled another officer to draw these funds from the county treasury, in a manner not allowed by law, cannot prejudice the public — the political corporation — and deprive it of the right to recover for the misapplication of its funds. If all the county officers had united in the violation of the law, in respect 'to the county funds, and had actually robbed the treasury of its entire contents, the illegal act of one would afford no shield against the legal responsibility of the others or of their sureties. So the illegal acts of the board of supervisors, clerk and treasurer, in respect to the manner of paying oiit the moneys of the county, which had been regularly appropriated for legal purposes, can afford no defense to an action on a bond given to secure the faithful disbursement of the moneys thus appropriated. There was, therefore, no error in the order of the court below sustaining the demurrer, and its judgment is

Affirmed.