City of Chicago v. Knobel

• Decision Date: 06 February 1908
• Citation: 83 N.E. 459,232 Ill. 112
• Parties: CITY OF CHICAGO v. KNOBEL.
• Court: Illinois Supreme Court

232 Ill. 112

83 N.E. 459

CITY OF CHICAGO

v.KNOBEL.

Supreme Court of Illinois.

Dec. 17, 1907.

Rehearing Denied Feb. 6, 1908.

Error to the Municipal Court of Chicago; John C. Scovel, Judge.

Action by the city of Chicago against John E. Knobel for a violation of a smoke ordinance. Judgment for plaintiff, and defendant bring error. Reversed and remanded.

Edward B. Esher, for plaintiff in error.

George H. White, City Pros. Atty. (J. Kent Green and Henry M. Seligman, of counsel), for defendant in error.

CARTER, J.

This is a proceeding brought by the city of Chicago against plaintiff in error in the municipal court of Chicago for the recovery of a penalty for the violation of the ‘smoke ordinance.’ Trial was had before a jury, and judgment and verdict rendered for $300 and costs. The plaintiff in error moved for a new trial, which the court overruled. Thereupon he prayed an appeal to this court, which was denied, and a writ of error was then sued out from this court.

It appears that the plaintiff in error is manager of an 18-story office building located on Madison street, in Chicago, known as the ‘Heyworth Building.’ One of the deputy smoke inspectors for the city testified that on a number of occasions each day for three days in February, 1907, in the course of his official duties he observed dense smoke coming from the smokestack of the building. This, with some evidence from the chief smoke inspector as to the routine of his office, and the reading of the ordinance, constituted substantially the city's case.

Plaintiff in error insists that section 25 of the municipal court act of the city of Chicago (Hurd's Rev. St. 1905, p. 644, c. 37, § 288) is unconstitutional, in that it requires that the petit jurors for the trial of cases in the municipal court shall be provided by the jury commissioners of Cook county in the same manner and from the same lists, as near as may be, as petit jurors are for the circuit, superior, and criminal courts of that county, instead of providing that such jurors should be drawn only from within the limits of the city of Chicago. The claim is that this provision is in conflict with that part of section 5 of article 2 of the Constitution which reads, ‘The right of trial by jury as heretofore enjoyed shall remain inviolate,’ and section 9 of the same article, which provides that the accused in all criminal prosecutions shall have a right to trial by an impartial jury ‘of the county or district in which the offense is alleged to have been committed.’ We think it is clear that this action, being one to recover a penalty for violation of a city ordinance, is not a criminal prosecution, but a civil suit; that such a penalty could not be recovered in criminal proceedings. Hoyer v. Town of Mascoutah, 59 Ill. 137;Ewbanks v. Town of Ashley, 36 Ill. 177;Town of Jacksonville v. Block, 36 Ill. 507;Baldwin v. City of Chicago, 68 Ill. 418;Town of Partridge v. Snyder, 78 Ill. 519. This being so, said section 9 of article 2 cannot be here invoked. However that may be, under the common law, in both civil and criminal cases, the jury were to be taken from the visne or neighborhood-from among the neighbors and equals of the litigants or the accused; and by long usage this came to mean from the body of the county. 2 Sharswood's Blackstone's Com. book 3, *360-379; 17 Am. & Eng. Ency. of Law (2d Ed.) p. 1120; Proffatt on Jury Trial, § 80; Watt v. People, 126 Ill. 9, 18 N. E. 340,1 L. R. A. 403. The rule seems to have been considered more important as applying to criminal than to civil trials. 2 Sharswood's Blackstone's Com. book 4, *349. This difference in the enforcement of the rule between the two classes of cases is seen in our own state in allowing a change of venue. In criminal cases change of venue can only be had at the request or by consent of the accused, while in civil cases either party, if he brings himself within the provisions of the statute, may have a change of venue from the county. In this state the question seems to have been raised only in criminal cases, and it has been held that the word ‘district,’ as to such cases, means ‘county.’

In Miller v. People, 183 Ill. 423, 56 N. E. 60, this court held that a grand jury, under the city court act, should be drawn from the body of the county, and not from within the limits of the city in which such city court had jurisdiction. Under the recent decision of Miller v. People, 82 N. E. 521, this court, in considering the constitutionality of another section of the municipal court act of the city of Chicago, held that the court provided for under that act was substantially the same, in jurisdictional features, as the courts held under the city court act. Comparing the reasoning of this last decision with that found in Ladies of Maccabees v. Harrington, 227 Ill. 511, 81 N. E. 533, it is obvious that any claim that courts under the city court act (Hurd's Rev. St. 1905, p. 631, c. 37) and the municipal court act of the city of Chicago, now under consideration, have different powers, under the Constitution, as to the selection of grand or petit jurors, cannot be upheld. While the case of Miller v. People, 183 Ill. 423, 56 N. E. 60, only discusses the question as to the grand jury of the city court, manifestly the reasoning in that decision is decisive of the question here under discussion. While the service of original process for the commencement of suits under both of these laws is confined to the city limits wherein such court is located, it has been held that such court could send its process beyond the city limits to serve a juror, and that, when jurisdiction of the cause once attached, the court might issue process beyond the limits of the city to enforce any judgment. People v. Barr, 22 Ill. 241;Reid v. Morton, 119 Ill. 118, 6 N. E. 414. Not only by the common law but by the practice in this state the rule is well established that jurors in courts of record can be legally drawn from the body of the county. This practice preserves the right of trial by jury as enjoyed before the present Constitution was adopted, and therefore does not violate sections 5 and 9 of article 2 of the Constitution. The cases of Weyrich v. People, 89 Ill. 90, and Buckrice v. People, 110 Ill. 29, do not in any way conflict with this conclusion.

It is also urged that said section 25 of the municipal court act of the city of Chicago is unconstitutional, because it provides that the expense of summoning the jurors by the sheriff of Cook county shall be paid by the county, and because the county pays the expenses of the jury commissioners' office in drawing the jurors for the municipal court; that, as the municipal court has been created and is maintained solely for the convenience of and in the interests of the people of the city of Chicago, the city of Chicago should bear the entire expense; that to provide otherwise is in violation of section 2 of article 2 of the Constitution, in that it deprives the taxpayers of the county outside of the city of their property for the purpose of paying these taxes without due process of law, and is also in violation of section 9 and 10 of article 9 of the Constitution, which govern the method of levying and collecting taxes in and by municipal corporations. The question, then, is whether these provisions of the Constitution apply to the taxation by the county government. In Harris v. Board of Supervisors, 105 Ill. 445, at page 451,44 Am. Rep. 808, this court said: ‘Counties are mere political divisions of the territory of the state, as a convenient mode of exercising the political, executive, and judicial powers of the state. They were created to perform public, and not private, functions. They are wholly public in their character, and are a portion of the state organization. All their powers are conferred and duties imposed by the Constitution and statutes of the state.’ In People v. Power, 25 Ill. 169, this court, in discussing the division of the revenue for certain purposes between the city of Springfield and the county of Sangamon, said (page 174): ‘The revenues of a county are not the property of the county in the sense in which the revenue of a private person or corporation is regarded. The whole state has an interest in the revenue of a county, and for the public good the Legislature must have the power to direct its application. The power conferred upon a county to raise a revenue by taxation is a political power, and its application, when collected, must...