People ex rel. Smith v. Rodenberg

• Court: Illinois Supreme Court
• Writing for the Court: CARTWRIGHT
• Citation: People ex rel. Smith v. Rodenberg, 254 Ill. 386, 98 N.E. 764 (Ill. 1912)
• Decision Date: 17 June 1912
• Parties: PEOPLE ex rel. SMITH v. RODENBERG.

254 Ill. 386

98 N.E. 764

PEOPLE ex rel. SMITH

v.RODENBERG.

Supreme Court of Illinois.

April 18, 1912.

Rehearing Denied June 17, 1912.

Error to Circuit Court, Marion County; James C. McBride, Judge.

Information in the nature of quo warranto by the People, on the relation of June C. Smith, against Albert D. Rodenberg. From a judgment dismissing the information, relator brings error. Reversed and remanded, with directions.W. D. Smith, State's Atty., and Noleman & Smith, for plaintiff in error.

W. F. Bundy, J. J. Bundy, L. B. Skipper, and C. F. Dew, for defendant in error.

CARTWRIGHT, J.

The people of the state of Illinois, by an information filed in the circuit court of Marion county, called upon Albert D. Rodenberg, the defendant in error, to show by what warrant he held and executed the office of judge of a pretended city court of the city of Centralia. By his plea he alleged the establishment of a city court in said city in pursuance of the provisions of an act in relation to courts of record in cities (Laws of 1901, p. 136), and his election and qualification as judge of said court. To this plea the people filed four replications, alleging that the city of Centralia was situated partly within the county of Marion and partly within the county of Clinton; that the city hall where the court was established and held, was in the county of Marion; and that all grand and petit jurors had been selected and drawn from Marion county and all the fees and expenses had been paid by that county. The defendant in error filed a general demurrer to these replications and it was sustained by the court. The people elected to stand by the replications and refused to plead further, whereupon the court dismissed the information and entered judgment against the relator for costs. The record has been brought to this court by writ of error.

[1][2][3] Counsel for defendant in error contend that the information would not lie because it failed to aver the legal existence of the office of judge of the city court of Centralia. They say that, while the decisions are in hopeless conflict, their position is supported upon satisfactory grounds by the decision in Hedrick v. People, 221 Ill. 374, 77 N. E. 441,5 Ann. Cas. 562. The law is that, where the people question the legal appointment or election of an individual to an office or his qualification to fill the office, the information must allege the legal existence of the office to be filled, which is the doctrine of the case relied upon by counsel. If the object of the information is to question the legal existence of a corporation, body, or thing to which the office pertains, the information is to be filed against the individual assuming to hold and exercise the duties and powers of the office. If the information alleges the usurpation of a franchise, right, or privilege exercised through individuals as officers, it is not necessary to make the inconsistent allegation that the office exists. Hinze v. People, 92 Ill. 406;People v. City of Spring Valley, 129 Ill. 169, 21 N. E. 843;People v. City of Peoria, 166 Ill. 517, 46 N. E. 1075;People v. Bruennemer, 168 Ill. 482, 48 N. E. 43;People v. Central Union Telephone Co., 192 Ill. 307, 61 N. E. 428,85 Am. St. Rep. 338;People v. Anderson, 239 Ill. 266, 87 N. E. 1019. The information in this case challenged the existence of the court, which was characterized as a pretended court, and called upon the defendant in error to show by what warrant he claimed to exercise the powers of a judge of a court having no legal existence.

[4] It is further contended that, if the act for the creation of city courts does not apply to the city of Centralia, the whole act is unconstitutional and void, and every city court organized under the act will be destroyed. The argument seems to be that the act must apply to every city in the state of the required population or to none, and if it does not apply to the city of Centralia because the jurisdiction, powers, proceedings, and practice of the court of that city cannot be uniform with that of other city courts, the act cannot apply to any city. A law may be enacted in such general terms as will apply to all conditions of fact and not be prohibited by any provision of the Constitution, and yet if applied to particular conditions of fact it would destroy constitutional rights and the application of the law be unconstitutional. Such a law would be entirely valid as to some classes of cases and clearly void as to others. A law so general in its terms as to include past offenses would be void as to them but valid as to the same kind of offenses in the future. An act within the legislative power might, if applied to a certain state of fact, impair the obligation of a contract, interfere with vested rights, or infringe upon some constitutional right. In such a case the law cannot be applied to a particular condition, and if the act in question, which is general in its terms, cannot, without violating constitutional rights, be applied to a city on account of its location, the act as a whole is not thereby rendered void. The constitutionality of the City Court Act was sustained in Chicago Terminal Transfer Railroad Co. v. Grier, 223 Ill. 104, 79 N. E. 46,114 Am. St. Rep. 313; but the question in this case is whether the act can be effective as to a city located in two counties.

[5] There are several provisions of the Constitution affecting the question. Section 1 of article 6 declares that the judicial powers, except as in that article otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns. Section 29 of the same article provides that the organization, jurisdiction, powers, proceedings, and practice of all courts of the same class or grade, so far as regulated by law, shall be uniform. Section 5 of the Bill of Rights provides that the right of trial by jury as heretofore enjoyed shall remain inviolate, and section 9 guarantees to the accused in all criminal prosecutions the right to an impartial, speedy trial by a jury of the county or district in which the offense is alleged to have been committed. The Constitution creates certain courts with defined jurisdiction, but limits and restrains the authority of the General Assembly with respect even to them by the other provisions for uniformity and preservation of the right of trial by jury, and that the trial shall be by a jury of the county or district in which the offense is alleged to have been committed.

[6] The power to create courts in and for cities and incorporated towns is permissive in its nature, and necessarily can only be exercised upon the condition that there will be no infringement of the rules applicable to courts or of rights protected by the Constitution. The right of trial by jury guaranteed by the Constitution is the common-law right as enjoyed at the adoption of the Constitution, and includes the right of one accused of crime to be tried by jurors selected from the county or district in which the offense is alleged to have been committed. Such a jury is therefore a necessary part of a legally organized court of original jurisdiction for the trial of criminal offenses. Harris v. People, 128 Ill. 585, 21 N....