People ex rel. Christiansen v. Connell

• Decision Date: 17 March 1954
• Docket Number: No. 33015,33015
• Citation: 2 Ill.2d 332,118 N.E.2d 262
• Parties: PEOPLE ex rel. CHRISTIANSEN. v. CONNELL.
• Court: Illinois Supreme Court

Page 262

118 N.E.2d 262

2 Ill.2d 332

PEOPLE ex rel. CHRISTIANSEN. v. CONNELL.

No. 33015.

Supreme Court of Illinois.

March 17, 1954.

Benjamin B. Davis, William C. Boyden, and Rothschild, Stevens & Barry, Chicago (John Paul Stevens, Joseph W. Baer, and John S. Jones, Chicago, of counsel), for appellant.

John Gutknecht, State's Atty., Chicago (Gordon B. Nash, and Jordan Jay Hillman, Chicago, of counsel), for appellee.

Latham Castle, Atty. Gen. (Grenville Beardsley, John L. Davidson, and William C. Wines, Chicago, of counsel), for amicus curiae.

Werner W. Schroeder, pro se, and Albert E. Jenner, Jr., pro se, Chicago (Wesley G. Hall, Chicago, of counsel), amici curiae.

PER CURIAM.

The People of the State on the relation of Borghild Christiansen, a citizen and resident of Cook County, filed a petition for mandamus in the circuit court of that county seeking to compel the respondent, Francis X. Connell, clerk of the circuit court of Cook County, to do every act necessary to accept and file a certain complaint for divorce which had been tendered for filing by the petitioner, together with the requisite filing fee, but refused on the ground that petitioner had failed to comply with the requirements of 'An Act in relation to actions for divorce, separate maintenance and annulment of marriage', enacted by the Sixty-eighth General Assembly as Senate Bill 407 and approved June 12, 1953. Laws of 1953, p. 284; Ill.Rev.Stat.1953, chap. 40, pars. 23 through 29; S.H.A. ch. 40, §§ 23-29; Jones Ann.Stat. 109.188(1) through 109.188(7).

The petition for writ of mandamus had attached thereto as exhibits the tendered complaint for divorce, a copy of a letter written by one of the judges of the circuit court of Cook County addressed to the judges of Illinois and the clerks of the courts with whom suits for divorce, separate maintenance and annulment are filed, and the full text of Senate Bill 407 and the full text of Senate Bill 646, the latter being 'An Act authorizing counties and cities to employ qualified administrative aids to the court in said counties and cities in the administration of divorce, separate maintenance and annulment of marriage proceedings', enacted by the Sixty-eighth General Assembly and approved July 10, 1953. (Laws of 1953, p. 1011; Ill.Rev.Stat.1953, chap. 40, pars. 7a through 7c.) The petition challenges the constitutionality of Senate Bill 407 and Senate Bill 408 of the Sixty-eighth General Assembly, the latter being 'An Act to amend Section 6 of 'An Act to revise the law in relation to divorce', approved March 10, 1874, as amended.' (Laws of 1953, p. 243; Ill.Rev.Stat.1953, chap. 40, par 7.) Various grounds of unconstitutionality under the constitutions both of the State of Illinois and of the United States are alleged. Though a copy of Senate Bill 646 was attached, the petition did not allege its unconstitutionality. Respondent filed an answer which by stipulation of the parties is to be taken as a motion to dismiss. The answer admitted refusal to accept the complaint and denied the various grounds of unconstitutionality alleged. The trial court entered its order dismissing the petition and the appeal is brought directly to this court, the validity of a statute being involved. This court has been favored by extensive briefs and arguments of amici curiae filed by leave of court, as well as by the briefs and arguments of the parties to this appeal, in considering the questions presented.

Section 1 of Senate Bill 407 provides that, subject to the exceptions thereinafter provided, any person desiring to commence an action for divorce, separate maintenance or annulment of marriage, shall not less than sixty days nor more than one year before filing a complaint, file with the clerk of the court in which the action is intended to be commenced, a written statement reciting his intention to file the complaint. Section 2 provides that the court may, by order, waive compliance with all or any part of the provisions of section 1 on written motion supported by one or more affidavits setting forth facts which satisfy the court that immediate action is required to protect the interests of any person who could be affected by a decree in the proceedings; that where such compliance is waived the final order or decree shall recite the facts constituting the grounds of such waiver. Section 3 requires every complaint for divorce, separate maintenance or annulment to recite, in the initial paragraph thereof, the date upon which and the court in which the declaration of intention was filed and the file number assigned by the clerk to the statement of intention, but excepts those cases in which leave to file has been granted under section 2. Section 4 sets out the requirements of the statement of intention, including the names and addresses of all prospective parties, the date and place of marriage, whether or not the husband and wife are living together, and the names, sex, age, whereabouts and custody of any child or children born of the marriage or adopted. It is provided that promptly following the filing of the statement of intention, the clerk shall cause the same to be delivered to the judge for his inspection of the contents. Section 5 provides that the judge may, after inspection of the statement of intention, invite the prospective parties and their counsel, if any, to confer with him in his chambers; that no testimony shall be taken at the conference or any record made of the statements of any party; that attendance shall be voluntary and that nothing therein is an authorization to compel the attendance of a party by process or order of court. Section 6 allows the clerk to charge a filing fee of not to exceed $1 for the filing of the statement of intention, and section 7 empowers the court to adopt such rules as it may deem necessary or expedient to carry out the provisions of the act.

Senate Bill 646, by way of implementing certain portions of Senate Bill 407, provides in section 1 that the legislative authorities in counties and cities may provide for the employment of qualified administrative aids to assist the courts within the territorial limits of such counties and cities in the administration of divorce, separate maintenance and annulment of marriage proceedings, such aids to be appointed by the legislative authority subject to the approval of a majority of the judges in each court involved, to serve such terms and receive such compensation as provided by ordinance. Section 2 allows the court, at any time after a statement of intention to file a complaint for divorce, separate maintenance or annulment has been filed, to engage such administrative aids to assist him, with the view of safeguarding the family's best interests, the aids to perform such duties as the court may direct. Compliance with the section by the parties to any proceedings is to be voluntary only. Section 3 empowers the legislative bodies to make the necessary appropriations to carry out the purposes of the act. Senate Bill 408 amends section 6 of the Divorce Act so that the same shall read: 'The process, practice and proceedings under this Act shall be the same as in other civil cases, except as otherwise provided by law or rule of court.'

By way of defining the issues and delineating the scope of this inquiry, it should be said that the constitutionality of Senate Bill 646 is not directly involved in this appeal. Though a copy of the bill was attached as an exhibit, its constitutionality was neither mentioned nor challenged in appellant's petition. Its validity was not passed upon by the trial court. It cannot be questioned for the first time here. People v. Hagopian, 408 Ill. 618, 97 N.E.2d 782; People v. Brickey, 396 Ill. 140, 71 N.E.2d 157. Senate Bill 646 is an act complete in itself. While it may be said that Senate Bills 407 and 646 are in pari materia and, therefore, are to be construed together, People ex rel. Tilley v. New York, Chicago & St. Louis Railroad Co., 364 Ill. 456, 4 N.E.2d 867, and while, if Senate Bill 407 is unconstitutional, Senate Bill 646 will become inoperative, the validity of Senate Bill 407 does not depend upon nor is it affected by Senate Bill 646. Senate Bill 407 is also complete in itself. It is an operative statute independent of the companion legislation. Therefore, though counsel have at some length dwelt upon the provisions of Senate Bill 646, we do not believe that an analysis or examination of its provisions are necessary or proper on this appeal.

The petition challenged the validity of Senate Bill 408 upon the same grounds urged against Senate Bill 407 and the trial court expressly held that the former statute as well as the latter was constitutional. However, the arguments presented in this court have not attacked Senate Bill 408 except by inference and upon the theory, apparently, that it is somehow related to or connected with the other statute. This assumption appears to be contrary to the provisions of the act itself and to the history of legislation concerning section 6 of the Divorce Act which preceded its enactment. Senate Bill 408 amends section 6 by deleting the paragraph added by the General Assembly in 1949 referring to the act of 1949 relating to divorce divisions (Ill.Rev.Stat.1949, chap. 37, pars. 105.19 et seq.,) which was held unconstitutional by this court in People ex rel. Bernat v. Bicek, 405 Ill. 510, 91 N.E.2d 588. As amended by Senate Bill 408, the provisions of section 6 are, for all practical purposes, the same as they were in 1935 when amended by the legislature to conform to the provisions of the Civil Practice Act. The 1935 act was one of many pieces of legislation enacted by the Fiftieth General Assembly, either conforming the practice and procedure of various special statutory proceedings to the Civil Practice Act or bringing them under that act. (Ill.Rev.Stat.1935, chap. 40, par. 7.) As amended in 1935, section 6 of the Divorce Act reads: 'The...