People ex rel. Walsh v. Bd. of Commissioners of Cook Cnty.

• Decision Date: 16 September 1947
• Docket Number: No. 30034.,30034.
• Citation: 74 N.E.2d 503,397 Ill. 293
• Parties: PEOPLE ex rel. WALSH, Sheriff, v. BOARD OF COMMISSIONERS OF COOK COUNTY et al.
• Court: Illinois Supreme Court

397 Ill. 293

74 N.E.2d 503

PEOPLE ex rel. WALSH, Sheriff,

v.BOARD OF COMMISSIONERS OF COOK COUNTY et al.

No. 30034.

Supreme Court of Illinois.

May 22, 1947.

Rehearing Denied Sept. 16, 1947.

Petition by the People, on the relation of Elmer Michael Walsh, Sheriff of Cook County, for a writ of mandamus against the Board of Commissioners of Cook County and others to compel the board to expunge a certain resolution from its records and to compel the Circuit Court to determine the number of assistants required by the sheriff to discharge his duties of custody and care of the court house and criminal court building, and to compel the board of commissioners to provide the necessary compensation therefore.

Writ awarded.Thomas I. Underwood, George W. Ott and Werner W. Schroeder, all of Chicago, for petitioner.

William J. Touhy, State's Atty., and Alan E. Ashcraft, Jr., both of Chicago (Jacob Shamberg, Gordon B. Nash and George B. Duggan, all of Chicago, of counsel), for respondents.

PER CURIAM.

At a previous term of this court we granted leave to Elmer Michael Walsh to file, in his capacity as sheriff of Cook county, a petition for writ of mandamus against the following municipality and public officials: the board of commissioners of Cook county, the individuals composing the board, Michael J. Flynn, county clerk of said county, and the circuit court and the several judges of said court. Petitioner was elected sheriff of Cook county at the November election, 1946, and assumed the duties of his office on December 2. Respondents' answer to the petition presents a question as to whether certain official acts of the circuit court and the board of commissioners deprives petitioner of a part of the functions of his office.

Section 9 of article X of the Constitution, Smith-Hurd Stats., directs that the circuit court shall fix by rule the number of deputies and assistants that certain county officers shall have the power to appoint, which provision includes a sheriff. The same constitutional provision empowers the county board to fix the compensation such appointees shall receive. In the exercise of the power thus conferred and in performance of its official duties, the circuit court, on January 6, 1947, determined, by rule entered of record, that petitioner should have 523 deputies and assistants, but the court declined to make provision for assistants to perform janitorial duties in and about the county courthouse and the county criminal court building. This included employees to perform services in and about such buildings, such as engineers' services, operating elevators, sweeping floors, washing windows, and other similar janitorial duties. Petitioner had requested the circuit judges to allow him 211 for such janitorial duties. No question is raised as to the number necessary to perform the service. The question is as to whether the circuit court was acting within the scope of its power in refusing to determine by rule the number necessary for janitorial service, and this relates back to a further question as to whether the sheriff or the board of commissioners of the county has the authority to make the appointments.

For many years the practice in Cook county has been for the circuit court to fix, by rule of court, the number of deputies and assistants for janitorial service the sheriff could appoint and the board of commissioners fixed the compensation and made proper appropriations and levies to pay the same.

In 1943, the General Assembly amended the Counties Act by adding thereto section 61.17-2 (Ill.Rev.Stat.1945, chap. 34, par. 64.17-2). It provides: ‘The Board of Commissioners shall have the authority to create and maintain a department of maintenance and operation to which may be assigned such powers as the board may deem necessary for the proper maintenance and operation of all buildings owned or controlled by the County and used for County purposes.’

The board of commissioners and other respondents rely upon said act and contend that whatever power the sheriff had as custodian of the building prior to 1943, the same has been taken away by the statute and conferred on the board of commissioners. On November 27, 1946, the commissioners adopted a resolution in which it was stated that the Chicago Civic Federation Survey had made a report to the commissioners in which they recommended that the janitorial forces of the county buildings be consolidated in the department of maintenance and operation. It was stated that the recommendation was made in the interest of economy and better business administration. The resolution contained a recital that the commissioners found the transfer of employees recommended by the civic federation was feasible, that it would be more economical, and it was resolved that the custodial functions of all county buildings be consolidated into such department. The resolution grouped the several employees according to the nature of their janitorial duties and fixed the compensation each should receive. The circuit court, when called upon to determine by rule the number of deputies and assistants the sheriff should appoint, recognized the resolution of the board of commissioners and declined to fix any number of employees that petitioner could appoint for janitorial duties in and about said buildings.

The prayer of the petition is (1) that the board of commissioners be commanded to expunge its resolution of November 27, 1946; (2) that the circuit court be commanded to determine by rule the number of assistants required by the sheriff to discharge his duties of custody and care of the courthouse and criminal court building for the county's fiscal year beginning December 2, 1946, and (3) that the board of commissioners be commanded to appropriate for and provide for the payment of compensation to the assistants appointed by the sheriff, the same to be in numbers according to the rule of court.

Before considering the contentions of the respective parties as to the purpose and effect of section 61.17-2, it is well to refer to certain statutes which have been in force for many years and the construction and application given them by this court and the Appellate Court.

Section 25 of the Counties Act (Ill.Rev.Stat.1945, chap. 34, par. 25) provides that the county board of the several counties shall have power, among other things, ‘to take and have the care and custody of all the real and personal estate owned by the county. Second. To manage the county funds and county business, except as otherwise specifically provided.’ The first subparagraph of section 26 of the Counties Act authorizes the county board to erect or otherwise provide when necessary, and the finances of the county will justify it, and keep in repair, a suitable courthouse, jail and other necessary county buildings, and to provide proper rooms and offices for the accomodation of the several courts of record of the county, the county board, State's attorney, county clerk, county treasurer, recorder, sheriff, and the clerks of said courts, and to provide suitable furniture therefor. The second subparagraph of section 26 authorizes the county board to provide and keep in repair, when the finances of the county will permit, suitable fireproof safes in the several county offices, including the sheriff; and by the third subparagraph it is authorized to provide suitable books, stationery, printing and postage for the use of the county board, sheriff and other county officers.

Section 14 of the Sheriffs Act (Ill.Rev.Stat.1945, chap. 125, par. 14) provides that the sheriff shall have the custody and care of the courthouse and jail of his county except as is otherwise provided. Section 24 of the act directs that when the sheriff retires from his office, he shall deliver to his successor papers, property levied on, etc., ‘and also the possession of the courthouse and jail of his county.’

In Dahnke v. People, 168 Ill. 102, 48 N.E. 137,39 L.R.A. 197, a controversy arose as to which of certain judges of the circuit and superior courts of Cook county should occupy a particular room in the courthouse, the said room being used in connection with the judges' official duties. After one of the judges had used said room and had adjourned court for the day to the following morning, Dahnke, acting on the order of the board of commissioners, changed the locks on the door and when the judge returned the following day to hold court, he was refused admission. Dahnke was fined for contempt of court, which order was sustained by the Appellate Court, 57 Ill.App. 619, and affirmed by this court. In determining who had the authority to assign the courtrooms in the courthouse to the various judges, it was held that such matter rested with the judges for final arrangements. In the examination of the question as to whether Dahnke was protected in his act of closing the door against the judge by the order of the board of commissioners, reference was made to subparagraph 1 of section 25 of the Counties Act, and section 14 of the Sheriffs Act, both of which are referred to above. The apparent conflict of authority of the sheriff to exercise custodial powers over the courthouse and the authority of the board of commissioners in that behalf was resolved in favor of the authority of the sheriff under section 14 of the Sheriffs Act. The rule of construction applied was one that is well established in the law. It is that where there are two statutory provisions in apparent conflict, one of which is general and designed to apply to cases generally, and the other is particular and relates only to one subject, the particular provision must prevail and be treated as an exception to the general provision. By application of this principle, it was held that the provision of subparagraph 1 of section 25 of the Counties Act, that the county board was ‘to take and have the care and custody of all the real and personal estate owned by the county,’ gave way to the...