Klokke v. Dodge

• Decision Date: 31 May 1882
• Parties: E. F. C. KLOKKEv.JOHN H. P. DODGE.
• Court: Illinois Supreme Court

103 Ill. 125

1882 WL 10298 (Ill.)

E. F. C. KLOKKE

v.JOHN H. P. DODGE.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.Rehearing denied May Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding.

Messrs. CONDEE & BLISS, for the appellant.

Mr. H. T. GILBERT, and Mr. D. B. SNOW, for the appellee.

Mr. JUSTICE SCOTT in announcing the judgment of the Court said:

Section 1 of “An act to extend the jurisdiction of county courts in counties in which probate courts are or may be established,” in force July 1, 1881, provides, “that in all counties in which probate courts are or may hereafter be established, * * * county courts shall have concurrent jurisdiction with the circuit court in all cases at law and in equity, except criminal cases where the punishment may be death, or confinement in the penitentiary.” Under the provisions of this statute complainant exhibited his bill in the county court of Cook county, for relief against certain taxes alleged to have been illegally assessed against his property. The county court entertained the bill and granted the relief. By an agreement of parties, entered of record, an appeal was taken from the decision of the county court to the Supreme Court, sitting in the Southern Grand Division. The only questions discussed in this court have relation to the constitutionality of the section of the statute conferring extended or increased jurisdiction on county courts in counties in which probate courts are or may hereafter be established. Unless the act cited is constitutional, it is not claimed the county court had jurisdiction to entertain the bill.

Section 18, art. 6, of the constitution, which provides for the election of county judges in the several counties of the State, also declares county courts shall be courts of record, and shall have jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law. Under this section of the constitution county courts were organized in the several counties of the State, having and exercising uniform powers and jurisdiction. Section 20, of the same article of the constitution, confers power on the General Assembly to establish probate courts in counties having a population of over fifty thousand inhabitants. No doubt this power could be exercised by the General Assembly at any time whenever the interests of the inhabitants of the counties embraced in the class indicated might, in its judgment, require probate courts to be established. Probate courts, when established under the constitution, shall have original jurisdiction in all matters of probate, the settlement of estates of deceased persons, the appointment of guardians and conservators, and the settlement of their accounts, in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts. It will be noted the constitution makes no provision for giving probate courts, when established in counties having over fifty thousand inhabitants, exclusive original jurisdiction in matters over which they may exercise jurisdiction. All county courts, by the express terms of the constitution, (sec. 18, art. 6,) have original jurisdiction in all matters of probate, settlement of the estates of deceased persons, the appointment of guardians and conservators, and in other matters enumerated, and it is not apprehended it is in the power of the General Assembly to take away from county courts jurisdiction conferred upon them by the constitution. Probate courts may be established in a class of counties indicated by their population whenever the legislature may see proper to do so, and such courts will have original jurisdiction in certain matters, but there is no authority in the constitution for making that jurisdiction exclusive. Both courts have, and may continue to have, original jurisdiction in a class of cases designated. Nothing contained in the constitution is inconsistent with the existence of two courts in the same county having original jurisdiction in the same class of cases. More than once this court has had occasion to apply this construction to county and circuit courts. It has been decided the General Assembly has no power to take from circuit courts original jurisdiction, which they have under the constitution, and transfer it to the exclusive jurisdiction of county courts. Concurrent jurisdiction with the circuit courts in certain matters might be conferred on county courts, but that jurisdiction could not be made exclusive in the latter courts. ( Myers v. The People, 67 Ill. 503; Mapes v. The People, 69 Id. 523.) It is needless to say that such jurisdiction as the legislature may rightfully confer upon any court may be revoked at any time by the same authority, but jurisdiction given by the constitution to a court can not be taken from it by the legislature and transferred to another court.

This construction is conclusive against the correctness of the proposition, so confidently stated, that county courts in counties where probate courts have been or may be established, are a different class of courts from county courts in counties having no probate courts. Such is not the fact, and there is no warrant for any distinction. Although a probate court may be established in any county having a population of over fifty thousand inhabitants, yet the county court of that county will retain all the jurisdiction given it by the constitution, even in matters that may also be within the jurisdiction of the probate court. It is for the unanswerable reason the constitution has declared what jurisdiction a county court may exercise, and it has not provided any portion of that jurisdiction may be taken away or transferred to the exclusive jurisdiction of a probate or any other court. It is apparent, then, that county courts in all the counties of the State have, and must have under the constitution, the same powers and jurisdiction, whether probate courts are established in some of them or not, and hence constitute a ““class of courts,” within the meaning of that instrument, concerning which all laws must be general, and of uniform operation. The section of the statute cited, in terms, applies only to county courts in counties in which probate courts are or may be established, giving to such courts concurrent jurisdiction with circuit courts in certain matters in law and in equity. Judicial notice will be taken of the fact but few counties in the State have a population of over fifty thousand inhabitants, and by reason of that fact may have a probate court. It is plain, therefore, the law that purports to confer increased or extended jurisdiction on county courts in counties where probate courts are or may hereafter be established, applies only to a part of a class or grade of courts, and falls within the inhibition of that clause of section 29, art. 6, of the constitution, which declares, “all laws relating to courts shall be general, and of uniform operation, and the organization, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform.” Had the convention which framed the constitution intended, as the argument maintains, the effect of establishing probate courts in counties having the requisite population would be to deprive county courts in such counties of that jurisdiction they previously had under the constitution, and which probate courts might thereafter exercise, it is singular such language was not employed as would have made that intention clear. But that was not done. The constitution contains nothing that in the slightest degree indicates that probate courts shall have exclusive jurisdiction over matters within their jurisdiction, when established. Probate courts, when established, the constitution itself limiting their powers, can only have concurrent jurisdiction with county courts in certain matters, and that is all. The intention of the framers of the constitution can only be accurately ascertained from the words employed to express their meaning, and the words employed are to be understood in their ordinary and usual signification, otherwise there could be no safe or uniform interpretation of such instruments. Courts are not at liberty to suppose one thing or another was meant, unless it is plainly expressed, or arises by necessary implication from unambiguous terms employed.

The question now being considered, whether the jurisdiction county courts had in probate matters under the constitution, passed exclusively to probate courts when they should be established, was not raised or discussed in The People v. Loomis, 96 Ill. 377. It does not appear that phase of the case was presented to the court. The only point decided was, whether the county court of Cook county, since a probate court was established in that county under the provisions of the act of 1877, still had jurisdiction to foreclose a mortgage made by a guardian on behalf of his ward, and it was held that under the act of 1869, applicable to all county courts in the State, irrespective of the fact whether probate courts had been established or not, the court had jurisdiction to entertain a bill for that purpose. It was thought that neither the section of the constitution that provides for the establishment of probate courts, nor the act of the legislature, had deprived the county court of jurisdiction in such cases.

In the views here expressed only two other members of the court concur with the writer. A majority of the...