People v. Nedrow

• Decision Date: 27 September 1887
• Citation: 13 N.E. 533,122 Ill. 363
• Parties: PEOPLE v. NEDROW.
• Court: Illinois Supreme Court

122 Ill. 363

13 N.E. 533

PEOPLE

v.NEDROW.

Supreme Court of Illinois.

September 27, 1887.

Appeal from appellate court, Third district.

E. S. Smith

, for the board of pharmacy.

Oscar P. Bonney, pro se.

MAGRUDER, J.

The simple question in this case is whether district attorneys in this state have a lien for their fees upon the penalties mentioned in the fifteenth section of the pharmacy act. The twelfth section of that act, entitled ‘An act to regulate the practice of pharmacy in the state of Illinois.’ (Hurd, Rev. St. c. 91, p. 815,) provides that, ‘any person not being, or having in his employ, a registered pharmacist, within the meaning of this act, who shall * * * keep a pharmacy or store for retailing or compounding medicines, * * * shall for each and every such offense be liable to a penalty of $50.’ John H. Nedrow, the appellee herein, was prosecuted for a violation of the portion of said section as above quoted, before a justice of the peace of Adams county, and judgment was recovered against him for $50 on October 3, 1883. He appealed to the circuit court of that county, and after trial before a jury at the January term, 1884, a verdict of ‘not guilty’ was returned, and judgment entered in his favor. The people took an appeal to the appellate court, and there the judgment of the circuit court was reversed on January 16, 1885, and the cause remanded to the circuit court. After it had been placed upon the docket for trial at the October term, 1885, of said court, Nedrow dismissed his appeal from the justice of the peace to the circuit court, and paid into the hands of the clerk of the circuit court the $50 so recovered by the people against him before the justice. The clerk now holds the money, to be disposed of according to law.

On May 29, 1886, the people, by the state's attorney, moved for a rule on the clerk to pay the money to the state's attorney. The board of pharmacy entered a cross-motion for a rule upon the clerk to pay the fine to the board of pharmacy. The circuit court overruled the cross-motion, and sustained the motion of the people, entering an order that the clerk pay the $50 to Oscar P. Bonney, state's attorney. At the request of said board, it was further ordered that the questions involved should be certified to the appellate court of the Third district, in pursuance of the statute in such case made and provided, and the stipulation as to facts therein filed, the people assenting thereto. The board of pharmacy appealed from the judgment of the circuit court, and the questions involved were certified to the appellate court, which, after considering the cause upon the agreed case so certified, affirmed the judgment of the circuit court.

By the stipulation of the parties it was agreed that Mr. Bonney was not the state's attorney of the county when the case was tried before the justice, nor when it was tried on appeal before the circuit court, nor when it was heard before the appellate court, but was such state's attorney when the remanding order from the appellate court was filed in the circuit court, and when Nedrow dismissed his appeal from the justice; that, when the $50 was paid to the clerk, the unpaid fees due Bonney, as state's attorney, exceeded $500, and that he does not claim the $50 as payment of fees earned in said cause, but claims it should be applied in liquidation of said unpaid fees, to the extent of the amount of said judgment; that if the state's attorney should be entitled to the $50, or any part of it, the clerk shall be ordered to pay it to him; that if the board of pharmacy should be entitled to the money, or any part of it, the clerk should be ordered to pay it to the board; that either party might appeal without bond or bill of exceptions. An appeal is taken to this court by the board of pharmacy from the judgment of the appellate court; the latter court certifying that the cause involves questions of law of such importance, on account of principal and collateral interests, that the case should be passed upon by the supreme court.

The pharmacy act was approved May 30, 1881, and went into force July 1, 1881. Its fifteenth section is as follows: ‘All suits for the recovery of the several penalties prescribed in this act shall be prosecuted in the name of the ‘people of the state of Illinois,’ in any court having jurisdiction; and it shall be the duty of the state's attorney of the county where such offense is committed to prosecute all persons violating the provisions of this act, upon proper complaint being made. All penalties collected under the provisions of this act shall inure, one-half to the board of pharmacy, and the remainder to the school fund of the county in which the suit was prosecuted and judgment obtained.'

The eighty-second section of the school law, (Hurd, Rev. St. 1885, c. 122, p. 1118,) which was in force at the time the pharmacy act was passed, and had been in force for many years prior thereto, provided that all fines, penalties, and forfeitures imposed or incurred in courts of record, or before justices of the peace, in this state, except those for trespasses on school lands, and for violation of town and city ordinances, should be paid to the school superintendent of the county. The pharmacy act so far changed the existing practice as to provide that the school fund should only receive the...