Berk v. Will County

• Decision Date: 16 June 1966
• Docket Number: No. 39663,39663
• Citation: 34 Ill.2d 588,218 N.E.2d 98
• Parties: Sammy BERK et al., Appellants, v. The COUNTY OF WILL et al., Appellees.
• Court: Illinois Supreme Court

Page 98

218 N.E.2d 98

34 Ill.2d 588

Sammy BERK et al., Appellants, v. The COUNTY OF WILL et al., Appellees.

No. 39663.

Supreme Court of Illinois.

June 16, 1966.

Paul E. Hamer, Northbrook, for appellant.

George E. Sangmeister, State's Atty., Joliet, for appellees County of Will and Will County Bd. of Supervisors.

Paul F. Brumund and Harry D. Leinenweber, Joliet, for appellee City of Joliet.

Donald J. Tracy and Robson, Masters, Ryan, Brumund & Belom, Joliet, and A. Edmund Peterson and J. Leonard Higley, Chicago, (Frank H. Masters, Jr., Joliet, of counsel), for appellee Will County Public Building Commission.

HERSHEY, Justice.

Appellant, Sammy Berk, as a taxpayer on behalf of himself and other taxpayers of Will County, filed a complaint in the circuit court of Will County challenging the constitutionality of the Public Building Commission Act insofar as it applied to the construction of the Will County courthouse, county jail, and city hall for the city of Joliet. The complaint was dismissed on motion, and appellant appeals directly to this court. The only constitutional question raised by appellant in this court is that he was denied a jury trial in violation of section 5 of article II of the Illinois constitution, S.H.A., which provides that '(t)he right of trial by jury as heretofore enjoyed, shall remain inviolate'. He asserts that this presents a substantial constitutional question which furnishes a basis for this direct appeal.

The rule stated in earlier cases by this court is that before this court will take jurisdiction in direct appeal on the ground that a constitutional question is involved, it must appear from the record that a fairly debatable constitutional question was urged in the trial court, and ruling thereon must be preserved in the record for review and error assigned upon it. (Saxmann v. Allen, 410 Ill. 31, 101 N.E.2d 69.) More recently, under the new judicial article and our rules adopted to implement the judicial article, we have said that a 'substantial constitutional question' must be involved. First National Bank & Trust Co. v. City of Evanston, 30 Ill.2d 479, 197 N.E.2d 705.

In the instant case, appellant filed a complaint for declaratory judgment for a declaration that the Public Building Commission Act (Ill.Rev.Stat.1963, chap. 34, pars. 3301 et seq.) was void and unconstitutional, and that the court retain jurisdiction to enter any and all orders, writs and judgments necessary to enforce its judgment. Plaintiff filed a demand for jury trial. Defendants, County of Will, the Will County Board of Supervisors, City of Joliet, and the Will County Building Commission, filed a motion to dismiss, supported by affidavit, under section 48 of the Illinois Civil Practice Act. This motion was allowed and the complaint dismissed.

Subsection 3 of section 48 (Ill.Rev.Stat.1963, chap. 110, par. 48(3)) provides that the court may hear the case upon such motion and affidavit and determine it, either granting or denying the same. Further, if a material and genuine disputed question of fact is raised, the court may decide the motion or may deny it without prejudice. This section makes it mandatory, however, that the court shall deny the motion, without prejudice, if it is an action at law and a jury demand has been filed by the opposite party in apt time. We do not understand this statute to make the mere filing of a jury demand determinative of the right to jury trial, as this section is procedural only and does not of itself create the substantive right of jury trial.

The determination of whether an action is an action at law and one in which there is the constitutional right of jury trial can only be resolved by an examination of the proceedings. Declaratory judgment procedure in Illinois first was authorized in 1945 when the legislature added section 57.1 to the Illinois Practice Act, (Ill.Rev.Stat.1965, chap. 110, par. 57.1). Subsection (4) of the Declaratory Judgment Act provides that 'If a proceeding under this section involves the determination of issues of fact triable by a jury, they shall be tried and determined in the same manner as issues of fact are tried and determined in other civil actions * * *.' This procedure is strictly remedial and does not create new rights or duties, but affords a new, additional and cumulative procedure. This remedy has been adopted by virtually all States. Such proceedings are neither legal nor equitable actions, but have characteristics of both types of actions. While it is the practice in many courts to docket such cases as law cases and in other courts as equity cases, such practices are administrative only. This does not determine the matter of the right to jury trial, nor does the mere fact that there is an issue of fact create a right to jury trial.

As we held in determining this question in Lazarus v. Village of Northbrook, 31 Ill.2d 146, 199 N.E.2d 797, the Illinois constitution guarantees 'the right to trial by jury as it existed in common law actions when the constitution was adopted. There was then and there is now no constitutional right of trial by jury in equity. * * * When a declaration alone is sought, and no further relief is requested, the right to a trial by jury must be determined by an examination of the disputed issues and an appraisal of their predominant characteristics as indicating the appropriateness of legal or equitable relief. But when, as is ordinarily the case, relief in addition to the naked declaration of rights is sought, the nature of that relief determines the right to a trial by jury.'

The issues presented in this case and the relief prayed are not of such a nature as would entitle a party to jury trial under the common law at the time of adoption of our constitution. The trial court correctly held that there was no right to trial by jury in this case, and no constitutional right of plaintiff was violated by such denial of jury trial or the dismissal of the complaint upon motion. See Kaye v. Kremer, 20 Ill.2d 148, 169 N.E.2d 357.

The question of whether there was a right to jury trial in this case was neither a debatable nor a substantial constitutional question. Hence, there was no right of direct appeal to this court on the basis of a constitutional question being involved.

It is evident, however, that this is a case of extraordinary importance where immediate decision is necessary, as it involves facilities for housing local government of a populous city and county of this State. Under the rules of this court in such a case, had the appeal been filed in the appellate court, this court could have ordered that appeal be taken directly to this court and proceed as though the case had been appealed directly. (Ill.Rev.Stat.1965, chap. 110, par. 101.28--1, subd. E; Electrical Contractors Association of City of Chicago, Inc. v. Illinois Building Authority, 33 Ill.2d 587, 213 N.E.2d 761). No good reason appears for transfer of this case to the appellate court, and the importance of immediate decision within the meaning of the rule requires our direct decision.

The facts of the case disclosed by the pleadings are: The Will County Board...