People ex rel. Courtney v. Rochelle

• Decision Date: 24 October 1934
• Docket Number: 22430.,Nos. 22412,s. 22412
• Citation: 358 Ill. 146,192 N.E. 820
• Parties: PEOPLE ex rel. COURTNEY, State's Atty., v. ASHTON et al. SAME v. LA ROCHELLE et al.
• Court: Illinois Supreme Court

358 Ill. 146

192 N.E. 820

PEOPLE ex rel. COURTNEY, State's Atty.,

v.ASHTON et al.

SAME

v.LA ROCHELLE et al.

Nos. 22412, 22430.

Supreme Court of Illinois.

Oct. 24, 1934.

Error to Circuit Court, Cook County; Hugo M. Friend, Judge.

Separate informations by the People, on the relation of Thomas J. Courtney, State's Attorney of Cook county, and individually as a resident and taxpayer of the county, against Henry M. Ashton and others, and against Lee R. La Rochelle and others. Judgments dismissing the informations, and relator brings error in the two cases, which were consolidated for review.

Reversed and remanded, with directions.

Thomas J. Courtney, State's Atty., of Chicago (Hayden N. Bell, Robert S. Cushman, Brendan Q. O'Brien, Jacob Shamberg, William J. Tuohy, Gerald E. Hornidge, and William P. Kearney, all of Chicago, of counsel), for plaintiff in error.

Poppenhusen, Johnston, Thompson & Cole, William F. Struckmann, David K. Tone, and Tim G. Lowry, all of Chicago (Floyd E. Thompson, Edward J. Fleming, and Albert E. Jenner, Jr., all of Chicago, of counsel), for defendants in error.

STONE, Justice.

The people of the state of Illinois, on the relation of Thomas J. Courtney, state's attorney of Cook county, and on his relation individually as a resident and taxpayer of that county, filed in the circuit court of Cook county two informations against the members of the board of commissioners of Cook county, the county treasurer, the county clerk, and certain attorneys therein named as defendants, seeking to enjoin the payment to the attorneys of county funds under alleged contracts entered into between the county board and those attorneys.

The informations, so far as the questions here are concerned, are in effect the same, and need not be set out separately. In one case the alleged contract was for the collection of delinquent personal taxes and in the other for the collection of delinquent real property taxes. The two causes are consolidated here for review.

The informations averred that Courtney is the state's attorney of Cook county, and that on the 22d day of May, 1931, and on June 6, 1932, the board of commissioners, without power or authority, went through the form of passing resolutions which are set out in the informations, attempting in case No. 22412 to employ Henry M. Ashton and others to prosecute suits and collect delinquent real estate taxes and to authorize him to appear on behalf of and represent the people of the state and the county of Cook as attorney and solicitor, and fixed his compensation on a contingent basis. By amendment Edward M. Winston was substituted for Ashton. In case No. 22430 the charge is that the board illegally sought to authorize the employment of defendant in error La Rochelle and three other attorneys, to be chosen as prescribed in the purported contract, to bring suits and collect delinquent personal property taxes, compensation also being on the basis of a percentage of the amount collected. The informations allege that these contracts were ultra vires the power of the board and null and void, because (1) at the time the resolutions were passed and the purported contracts entered into no appropriation therefor had been previously made, as required by statute, and there was none in existence, and that the contracts were not made to meet unforeseen casualties by fire, flood, or otherwise; (2) that the legal services enumerated and provided for in the resolution and contract are and were part of the duties and powers of the state's attorney of Cook county, which the county board or other official authority is without power to transfer to other official or nonofficial persons or to take away from the state's attorney; (3) that the state's attorney was not unwilling or unable to act, sick, absent, interested, or in any way disqualified; that there were no suits pending in which it became necessary to appoint an attorney or attorneys to continue the prosecution because of the sickness, absence, or interest of the state's attorney; that the contracts were not authorized under the Constitution and the statutes of this state; that the state's attorney was conducting similar suits on behalf of the people for the purpose of collecting delinquent taxes, and was not unable nor disqualified to prosecute all suits necessary. The informations also charge that certain of the county officers who are made defendants have paid out large sums of money under these alleged contracts, and that other large sums, as claims, have been allowed by the county board, and, unless enjoined, the defendant county officers would pay out the same and thus divert public funds; that, under the alleged contracts, vouchers had been drawn and warrants issued; that under the Winston contract the sum of $7,263.92 had been ordered paid; that under the La Rochelle contract approximately $122,202.40 had been paid and claims against the county amounting to $235,100.40 had been approved by the county board; and that, unless restrained, the moneys would be paid as directed by the board.

The defendants filed a general and special demurrer to each of the informations, which demurrers were sustained, and, plaintiff in error abiding the informations, they were dismissed.

The demurrers raised the following questions: (1) Whether Courtney, under the Constitution and statutes, has authority to institute the present actions in his official capacity as state's attorney; (2) whether there has been a misjoinder of parties complainant and the informations are multifarious; (3) whether by an allegation in the informations that the money expended and about to be expended belongs to the county of Cook, a party defendant, the complainant is precluded from maintaining an action to protect the property interests of that defendant. These questions are presented here.

The demurrers admit the truth of material allegations of the informations well pleaded, among which are that there was no antecedent appropriation by the county board by which to support these contracts, and in argumentcounsel admit that for that reason the contracts were not valid, but they say this is not a case which the state's attorney can institute, and that in any event the employment of private counsel to collect taxes was within the power of the county board.

Counsel for defendants in error have filed in this court a motion to transfer the cause to the Appellate Court for the First District, for the reason that there are no questions involved which give this court jurisdiction on direct review. Counsel for plaintiff in error reply that the revenue is involved; that the state is an interested party; that the construction of the Constitution pertaining to the powers of the state's attorney and Attorney General is involved; and that therefore this court has jurisdiction on review. An examination of the briefs shows that the power of the state's attorney to bring this suit and the power of the county board to transfer the duties of the state's attorney are attacked on both constitutional and statutory grounds. A construction of the Constitution is invoked, and so, regardless of argument pertaining to other elements of jurisdiction, this court has jurisdiction, and the motion to transfer will be denied.

We come, then, to the primary question involved in this case-whether the state's attorney has power to bring this suit. This and procedural questions counsel for defendants in error insist are the only questions involved. They say that the demurrers raise only a question of authority of the state's attorney to maintain these actions against them, the question whether the people had any interest in the subject-matter of the action which the state's attorney was authorized to protect, and whether there was a proper joinder of parties complainant and defendant.

It is argued that, although the suit is brought on behalf of the people, no injury nor threatened injury to the people is alleged in the informations; that the informations show no interest which the state's attorney is authorized to protect and no basis for granting injunctive relief prayed; also that the informations are multifarious and that there is a misjoinder of parties complainant.

Section 22 of article 6 of the Constitution provides for the election of a state's attorney. Section 32 of that articleconcerns the residence, performance of duties of the state's attorney and other officers, and the filling of vacancies in the office. Those duties are to be as prescribed by law. The question arising in this connection is whether the county board has power to deprive the state's attorney of those duties or transfer them to private counsel. In Fergus v. Russel, 270 Ill. 304, 110 N. E. 130,...