People ex rel. Bussey v. Gaulter

• Decision Date: 16 January 1894
• Citation: 149 Ill. 39,36 N.E. 576
• Parties: PEOPLE ex rel. BUSSEY v. GAULTER, Clerk.
• Court: Illinois Supreme Court

149 Ill. 39

36 N.E. 576

PEOPLE ex rel. BUSSEY

v.GAULTER, Clerk.¹

Supreme Court of Illinois.

Jan. 16, 1894.²

Petition for mandamus by William H. Bussey against Frank J. Gaulter. Writ denied.

James A. Peterson, for relator.

James Maher, for respondent.

MAGRUDER, J.

This is a petition for mandamus filed by the relator, William H. Bussey, against the respondent, Frank J. Gaulter, clerk of the circuit court of Cook county, to compel the latter to issue a summons in a suit brought by the relator against the Chicago & Northwestern Railway Company. The petition alleges that relator tendered to the respondent the sum of $6, alleged to be the amount of his legal fees, and demanded of him that he issue said summons, but that he refused to do so. The answer avers that respondent was elected to the office of clerk of the circuit court of Cook county, and entered upon the duties thereof on December 5, 1892, and that on September 5, 1893, when relator tendered said sum of $6, and demanded the issuance of the summons, the law required a party commencing a suit in said county to pay the sum of $10, and that it was the duty of the respondent to require the payment of said sum of $10, which the relator refused to pay.

The object of this proceeding is to test the validity of an act of the legislature of Illinois which was approved June 26, 1893, and went into force on July 1, 1893, entitled ‘An act to amend section 33 of an act entitled ‘An act concerning fees and salaries and to classify the several counties of this state with reference thereto,’ approved March 29, 1872; in force July 1, 1872; title as amended by act approved March 28, 1874; in force July 1, 1874; as amended by act approved May 21, 1877; in force July 1, 1877.' Laws Ill. 1893, p. 104. Said section 33, as amended by the act of 1893, provides that ‘at the time of the commencement of every suit at law or in equity in any court of record in counties having a populationexceeding seventy thousand inhabitants, in this state, the party or parties commencing such suit * * * shall pay to the clerk of the court the sum of ten dollars, to be taxed as costs in the suit, which said sum shall be in full payment for all services of such clerk on behalf of the plaintiff or plaintiffs, complainant or complainants, * * * in the progress of such suit from the commencement to the final termination thereof, except the making of copies of papers or orders, a complete record, or a record for a higher court.’ The provision thus quoted is exactly the same as it was in the original act of 1872, and in that act as amended in 1874 and again in 1877, except that the sum mentioned in the latter act was $6. The change made by the act of 1893 is in requiring a payment of $10 instead of $6.

First. It is contended that the act of 1893, by thus increasing the amount of costs to be paid to clerks of courts of record, violates those provisions of the constitution which prohibit any increase in the fees, salary, or compensation of certain officers during their terms of office. As the present respondent is clerk of the circuit court of Cook county, his salary is fixed by law, and hence is not affected by an increase in the amount of costs to be paid by suitors. Section 9, art. 10, of the constitution of 1870, provides that ‘the clerks of all the courts of record, the treasurer, sheriff, coroner and recorder of deeds of Cook county, shall receive as their only compensation for their services, salaries to be fixed by law, which shall in no case be as much as the lawful compensation of a judge of the circuit court of said county, and shall be paid, respectively, only out of the fees of the office actually collected. All fees, perquisites and emoluments (above the amount of said salaries) shall be paid into the county treasury.’ It has been held that this section 9 has application to Cook county only. Jennings v. Fayette Co., 97 Ill. 419;Wulff v. Aldrich, 124 Ill. 591, 16 N. E. 886. In pursuance of this constitutional requirement, the legislature, in section 31 of said act of 1872, fixed the salary of the clerk of the circuit court of Cook county at $3,000 per annum. 1 Starr & C. Ann. St. p. 1134. In 1887 section 31 was amended, and the salary of said clerk was fixed at $5,000 per annum. Laws Ill. 1887, p. 185; 3 Starr & C. Ann. St. pp. 621, 622. When respondent entered upon the duties of his office on December 5, 1892, his salary, as thus fixed by the act of 1887, was $5,000 per annum. This salary was not in any way increased by the act of 1893. By the terms of said section 9 all the fees, perquisites, and emoluments of the clerk of courts of record in Cook county, above the amounts of their salaries, are required to be paid into the county treasury. The increased amount of costs received by the clerk of the circuit court of Cook county under the act of 1893, after deducting his salary of $5,000, belongs to the county, and not to the clerk. The object of the constitutional prohibition is to prevent an increase in the compensation actually received by the officer; and, in the present case, that compensation remained the same, although each suitor, on beginning his suit, was required to pay $10 instead of $6. It is true that the salary of the officer is to paid ‘only out of the fees of the office actually collected;’ and, if the fees collected were insufficient to pay the salary, there might be a temptation to the officer to obtain from the legislature an increase of fees or costs. But such increase could in no event affect the amount of his salary, as fixed by law, for the term then held by him, and the evil aimed at by the constitution is not the obtaining of a compensation already fixed, but the addition thereto of an amount not theretofore allowed. We do not think that the act is unconstitutional as providing for an increased compensation.

Second. It is claimed that the act of 1893 is unconstitutional upon the alleged ground that it changes the classification of counties into a larger number of classes than is authorized by the constitution for the purpose of regulating fees according to class. This branch of the case has given us considerable trouble, and we have not been favored with any argument upon it by the counsel for the respondent, his brief being directed only to the first ground upon which the constitutionality of the act is attacked. We have concluded, however, to sustain the act, as against the second objection made to its validity, for the reasons hereinafter stated. Section 11, art. 10, of the constitution provides that ‘the fees of township officers, and of each class of county officers, shall be uniform in the class of counties to which they respectively belong.’ Section 12 of said article 10 provides that ‘the general assembly shall, by general law, uniform in its operation, provide for and regulate the fees of said officers [that is, state, county and township officers] and their successors, so as to reduce the same to a reasonable compensation for services actually rendered. But the general assembly may, by general law, classify the counties by population into not more than three classes, and regulate the fees according to class.’ Accordingly, by section 13 of said act of 1872, for the purpose of fixing the fees and compensation of county and township officers, the several counties in the state were divided into three classes, according to population as ascertained by the federal census of 1870, known as the first, second, and third classes; the first embracing counties containing a population of not exceeding 20,000 inhabitants, the second embracing counties containing a population over 20,000 and not exceeding 70,000, the third embracing counties containing a population exceeding 70,000. Hurd's Rev. St. 1874, p. 503. Then follow provisions fixing the fees of officers in the first and second classes, and of other officers, until we come to said section 33, above referred to. This section, as it appears in the Revised Statutes of 1874, is prefaced by these words: ‘Fees and compensations of clerks of courts of record except in probate matters, in counties of the third class;’ and the section then proceeds to declare that ‘at the time of the commencement of every suit * * * in any court of record, in counties having a population exceeding 70,000 inhabitants, * * * the party * * * commencing such suit * * * shall pay to the clerk of the court the sum of six dollars,’ etc. It will be noticed that section 33 does not say, ‘in counties of the third class,’ but it says, ‘in counties having a population exceeding 70,000 inhabitants.’ Hurd's Rev. St. 1874, p. 515. But inasmuch as said section 13 had classified counties into three classes, and the third class consisted of ‘counties containing a population exceeding seventh thousand inhabitants,’ the two expressions, ‘counties of the third class' and ‘counties having a population exceeding 70,000 inhabitants,’ meant the same thing; and suitors were to pay $6 in counties of the third class. Hence, the act of 1872, including said sections 13 and 33, was an exercise by the legislature of its constitutional power ‘to classify counties by population, and to regulate, by general law, fees and salaries of certain local officers, according to class.’ Devine v. Commissioners, 84 Ill. 590;Bank v. Cheney, 94 Ill. 430. Said section 33 established a uniform fee of $6 to be paid to clerks of courts of record in counties of the third class. But in 1883 the legislature passed an act amending said section 13 by making a new classification of counties into three classes, according to population, as ascertained by the federal census of 1880,-the first class consisting of counties containing a population of not exceeding 25,000 inhabitants, the second class, of counties containing a population over 25,000 and not...