City of Chicago v. Cook Cnty.

• Decision Date: 26 May 1948
• Docket Number: Gen. No. 43950
• Citation: City of Chicago v. Cook Cnty., 334 Ill.App. 323, 79 N.E.2d 749 (Ill. App. 1948)
• Court: Appellate Court of Illinois

334 Ill.App. 323

79 N.E.2d 749

Gen. No. 43950

Appellate Court of Illinois. First District Third DivisionCity of Chicago

v.Cook County

May 26, 1948.

Action to recover fees of clerk and bailiff of Municipal Court of Chicago by the City of Chicago, a municipal corporation, against the Cook County, a municipal corporation. From the judgment, the plaintiff appeals and the defendant cross-appeals.

Reversed in part, affirmed in part, and remanded with directions.Appeal from Circuit Court, Cook County; John Prystalski, Judge.

Barnet Hodes, Corp., Counsel of City of Chicago, and Joseph F. Grossman, Acting Corp. Counsel, both of Chicago (L. Louis Karton, Norman N. Eiger and Herman Smith, Asst. Corp. Counsel, all of Chicago, of counsel), for appellant.

William J. Tuohy, State's Atty., of Chicago (Jacob Shamberg, Gordon B. Nash, Jacob L. Sheer and George B. Duggan, Asst. State's Attys., all of Chicago of counsel), for appellee.

LEWE, Presiding Justice.

This is an action to recover fees of the clerk and bailiff of the Municipal Court of Chicago under the provisions of Section 57 of the Municipal Court Act (Ill.Rev.Stats.1945, ch. 37, Sec. 417) in certain criminal and quasi-criminal cases filed in that court during 1944, aggregating the sum of $276,392.

On plaintiff's motion a summary judgment was entered on April 23, 1945 against the defendant county for $242,221. This judgment is not challenged by either party. The present controversy involves only the balance of the City's claim against defendant of $34,171.

After issues were joined all the material facts were stipulated by the parties. According to Paragraph 2 of the amended stipulation the controverted claims for fees of the clerk and bailiff of the Municipal Court of Chicago fall into four classes: “A” where a capias was served upon the defendant by a police officer and a return was made by such police officer in his own name and not in the name of Albert J. Horan, bailiff of the Municipal Court. The total amount involved in cases of this nature aggregates the sum of $6,062.

“B” where a capias was issued by the clerk by order of the court and delivered to a police officer who attempted to serve the defendant but in each of said cases the defendant could not be found and the capias was in each of said cases returned “not found” but not in the name of Albert J. Horan, bailiff of the Municipal Court. The total amount involved in cases of this nature aggregates the sum of $3,858.

“C” where a capias was served upon the defendant by a police officer where the police officer making the service filed a return which was incomplete in that it failed to contain the name of Albert J. Horan, bailiff of the Municipal Court of Chicago or the name of the police officer or the name of any other person executing the writ. The total amount involved in cases of this nature aggregates the sum of $36.

“D” where the court found an offense had been committed and there was probable ground to believe the defendant guilty and the defendant was held over by a judge of the Municipal Court to the Criminal Court of Cook County. The total amount involved in cases of this nature aggregates the sum of $24,215.

Upon a hearing the court found the issues for the defendant and against the plaintiff upon the amounts claimed by plaintiff in the classes of cases designated in the amended stipulation as “A”, “B”, and “C”, for the sums of $6,062, $3,858, and $36, respectively; and found the issues for plaintiff and against defendant for the fees claimed in cases described as class “D” amounting to $24,215, and entered judgment accordingly.

Plaintiff appeals from that portion of the judgment which found for defendant in the first three classes of cases “A”, “B”, and “C” aggregating $9,956; and defendant has filed a cross appeal from that part of the judgment finding the issues for the plaintiff in its claim for fees against defendant in cases described as class “D”, amounting to $24,215.

In all the cases described as class “A” in the amended stipulation each capias was served upon the defendant by a police officer of the City of Chicago and the return was made in his own name.

The first question presented is whether the return by a police officer in his own name bars the city from recovering the bailiff's statutory fees.

Section 57 of the Municipal Court Act provides that “The fees of the clerk and the bailiff in the foregoing criminal and quasi-criminal cases and proceedings, when not collected from the defendants upon their conviction, or when defendants are acquitted or discharged, and which remain unpaid at the end of each year, shall be paid out of the county treasury.”

Section 17 of the Municipal Court Act provides that every “police officer of the City of Chicago * * * shall be ex officio a deputy bailiff of the municipal court” and “shall perform from time to time such duties in respect to cases within the jurisdiction of the court as may be required of him by the court or any judge thereof.”

The County maintains that a police officer has a right to serve a capias in his own independent capacity and authority as a police officer by virtue of Section 2, division VI of the Criminal Code (Ill.Rev.Stats.1945, ch. 38, § 655).

Section 2 provides in substance that “It shall be the duty of every * * * policeman * * * having the power of a sheriff or constable * * * execute all warrants, writs, precepts and other process to him lawfully directed.”

The office of policeman was unknown to the common law and wherever such office exists it is the creation of statute law or municipal ordinance. Bullis v. City of Chicago, 235 Ill. 472, 85 N.E. 614;Moon v. Mayor, 214 Ill. 40, 73 N.E. 408.

Since Section 2, upon which the county relies, merely defines the duties of a policeman but it does not empower him to perform the acts of a sheriff or constable, we think that in the absence of a statute a police officer is without independent authority as contended for by the County, and that his right to serve a capias rests solely upon Section 17 of the Municipal Court Act.

In their brief the County argues that even though police officers of the City of Chicago are deputy bailiffs by virtue of Section 17 the City cannot recover because the returns were not made in the name of the principal bailiff Albert J. Horan but in the name of the deputy, citing Ryan v. Eads, Breeze, 217, 1 Ill. 217, and Ditch v. Edwards, 1 Scam. 127,2 Ill. 127, 26 Am.Dec. 414.

County organizations are created in this State with a view to aid in carrying out the policy of the State at large for the administration of matters of political government, finance, education, taxing, care of the poor, military organizations, means of travel, and the administration of justice. County of Cook v. City of Chicago, 311 Ill. 234,142 N.E. 4512,31 A.L.A. 442.

In the instant case, according to the stipulation, all of the fees claimed by the bailiff involve “criminal and quasi-criminal cases instituted in the Municipal Court in the name or by the authority of the People or in the name of a state or county officer in his official capacity.” With respect to those criminal and quasi-criminal proceedings the County is the alter ego of The People and occupies a status not unlike that of a plaintiff in a civil suit. In the Ryan and Ditch cases last cited, upon which the County relies to support its position, the objections to the returns were there made by the defendant, and are therefore not in point.

Moreover the stipulations shows no question was raised, when the proceedings were instituted or at the trial, by either the...