People ex rel. Nauert v. Smith

• Court: Illinois Supreme Court
• Writing for the Court: DE YOUNG
• Citation: People ex rel. Nauert v. Smith, 327 Ill. 11, 158 N.E. 418 (Ill. 1927)
• Decision Date: 22 October 1927
• Docket Number: Nos. 18165–18168.,s. 18165–18168.
• Parties: PEOPLE ex rel. NAUERT v. SMITH, County Clerk (and 3 other cases).

327 Ill. 11

158 N.E. 418

PEOPLE ex rel. NAUERT

v.SMITH, County Clerk (and 3 other cases).

Nos. 18165–18168.

Supreme Court of Illinois.

Oct. 22, 1927.

Original petitions in mandamus by the People, on the relation of Charles G. Nauert, against W. J. Smith, County Clerk of Adams County; the People, on the relation of John H. Gillan, against Gilbert W. Skeeters, County Clerk of Iroquois County; the People, on the relation of Waldemar R. Weber, against R. C. Adams, County Clerk of St. Clair County; and the People, on the relation of Ernest S. Alden, against Paul H. Ellis, County Clerk of Union County.

Writs awarded.

Duncan, J., dissenting.

Brown, Hay & Stephens, of Springfield, (Logan Hay, R. Allan Stephens, and Leigh M. Kagy, all of Springfield, of counsel), for petitioners.

J. Leroy Adair, State's Atty., Mark A. Penick, and John T. Inghram, Jr., all of Quincy, for respondents.

DE YOUNG, J.

Pursuant to leave granted the people of the state, on the relation of Charles G. Nauert, filed in this court an original petition for a writ of mandamus against W. J. Smith, county clerk of Adams county. The relator alleged in his petition: That at the general election held on November 2, 1926, he was elected to the office of county judge of Adams county, and that he duly qualified and is acting as such. That by section 1 of an act entitled, ‘An act fixing and providing for the payment of the salaries of county judges, and to repeal all acts in conflict therewith,’ approved June 30, 1925 (Laws 1925, p. 398), the several county judges in the state thereafter elected are allowed the following annual salaries: In counties of less than 15,000 inhabitants, $1,800; in counties of 15,000 and less than 25,000 inhabitants, $2,500; in counties of not less than 25,000 and not more than 48,000 inhabitants, $3,600; in counties containing not less than 48,000 and not more than 100,000 inhabitants, $5,000; in counties containing not less than 100,000 and not more than 250,000 inhabitants, $6,000; and in counties containing more than 250,000 inhabitants a sum equal to the salary of circuit judges in such counties. That section 2 provides that the population of all counties, for the purpose of fixing such salaries, shall be based upon the last federal census immediately previous to the election of county and probate judges; and that by the third section of the act the salaries of such judges shall be paid out of the county treasury in monthly installments. The county commissioners or county board, as the case may be, are required to make provision for such payment, and the county clerk of each county at the end of every month shall draw a warrant for such salary in favor of the county judge on the county treasurer, whose duty it shall be to pay the warrant on presentation when properly indorsed. The petition further alleges that the population of Adams county, according to the last federal census previous to the election of November 2, 1926, was 62,188; that the county board of Adams county appropriated $2,500 for relator's salary for one year from December 1, 1926, and fixed his annual salary at that sum; that the county clerk has refused to issue a voucher for the relator's salary for the month of December, 1926, at the rate of $5,000 per annum, although the relator has demanded the voucher, and there was at the time of such demand and refusal sufficient money in the appropriate fund of the county treasury to pay the warrant; that the county clerks in a large number of the counties of the state refuse to recognize the act of June 30, 1925, and unless its constitutionality is determined by this court in an original proceeding for a writ of mandamus various county judges will be required to institute suits, many of which will result in judgments in their favor, which, if not reviewed, will not finally determine the question of the validity of the act; and that if this court will pass upon the constitutionality of the act in this proceeding the institution of a large number of suits in different counties of the state and delay in the administration of justice will be prevented. The prayer of the petition is for a writ of mandamus commanding W. J. Smith, the county clerk of Adams county, to issue a warrant upon the treasurer of that county, payable to the order of the relator, for his salary as county judge for the month of December, 1926, at the rate prescribed by the statute. To this petition the respondent filed a general demurrer.

Leave to file three other like petitions was also granted. One of these petitions, on the relation of John H. Gillan and against Gilbert W. Skeeters, county clerk of Iroquois county, alleged that on November 2, 1926, the relator had been elected to the office of county judge of Iroquois county; that the population of that county by the last federal census prior to his election was 34,841; that while the act of June 30, 1925, provided that his annual salary should be $3,600, yet per county board fixed his salary at $2,500 per annum and appropriated that sum therefor; and that the county clerk refused to issue a voucher for the relator's salary for the month of December, 1926, at the statutory rate. Another of these petitions, on the relation of Waldemar R. Weber and against R. C. Adams, county clerk of St. Clair county, alleged that on November 2, 1926, the relator had been elected to the office of county judge of St. Clair county; that the pupulation of that county by the last federal census prior to his election was 136,520; that while the act of June 30, 1925, provided that his annual salary should be $6,000 and the county board had appropriated that sum therefor, yet the same board fixed his salary at $4,000 per annum; and that the county clerk refused to issue a voucher for the relator's salary for the month of December, 1926, at the rate prescribed by the statute. The last of these petitions on the relation of Ernest S. Alden and against Paul H. Ellis, county clerk of Union county, alleged that on November 2, 1926, the relator had been elected to the office of county judge of Union county; that the population of that county by the last federal census prior to his election was 20,249; that while the act of June 30, 1925, provided that his annual salary should be $2,500, yet the county board first his salary at $1,200 per annum; and that the county clerk refused to issue a voucher for the relator's salary for the month of December, 1926, at the statutory rate. Neither an appearance nor a pleading of any character was filed by the respondents to the three petitions last mentioned, but since the question raised upon all the petitions is the same, they were heard and considered together.

The relators contend that the act of June 30, 1925, which fixes the salaries of the several county judges of the state, is authorized by sections 18 and 32 of article 6 of the Constitution. The respondents, on the contrary, insist that the county judge is a county officer; that the power to fix that officer's salary is vested solely in the county board by sections 8, 9, and 10 of article 10 of the Constitution; and, consequently, that the act of June 30, 1925, is void.

Section 1 of article 6 of the Constitution provides that the judicial powers, except as otherwise provided in the article, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporatedtowns. By section 18 of the same article it is provided that——

‘There shall be elected in and for each county, one county judge and one clerk of the county court, whose terms of office shall be four years. But the General Assembly may create districts of two or more contiguous counties, in each of which shall be elected one judge, who shall take the place of, and exercise the powers and jurisdiction of county judges in such districts. County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlements 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.’

Section 32 of article 6, so far as it is applicable, reads:

‘All officers provided for in this article shall hold their offices until their successors shall be qualified, and they shall, respectively, reside in the division, circuit, county or district for which they may be elected or appointed. The terms of office of all such officers, where not otherwise prescribed in this article, shall be four years. All officers, where not otherwise provided for in this article, shall perform such duties and receive such compensation as is or may be provided by law.’

[1] Article 6 of the Constitution covers the whole judicial power of the people of the state and is the source of all legislative authority respecting courts. People v. Olson, 245 Ill. 288, 92 N. E. 157;Missouri River Telegraph Co. v. First Nat. Bank, 74 Ill. 217. County courts constitute an essential part of the system of courts erected by the Constitution. The office of county judge is created by section 18 of...