Schilb v. Kuebel

• Citation: 264 N.E.2d 377,46 Ill.2d 538
• Decision Date: 07 October 1970
• Docket Number: No. 42845,42845
• Parties: John SCHILB et al., Appellants, v. Vincent P. KUEBEL, Circuit Clerk, et al., Appellees.
• Court: Supreme Court of Illinois

Page 377

264 N.E.2d 377

46 Ill.2d 538

John SCHILB et al., Appellants, v. Vincent P. KUEBEL, Circuit Clerk, et al., Appellees.

No. 42845.

Supreme Court of Illinois.

Oct. 7, 1970.

Rehearing Denied Dec. 3, 1970.

Sam S. Pessin, Belleville (John J. O'Toole, Chicago, Cornelius F. Dore and John C. Castanes, Chicago, of counsel), for appellants.

Robert H. Rice, State's Atty., Belleville (Eugene H. Widman, Belleville, of counsel), for appellees.

Edward V. Hanrahan, State's Atty., Chicago (Daniel P. Coman, Chief of Civil Division and Theodore A. Shapero, Asst. State's Atty., of counsel), for amicus curiae, Matthew J. Danaher and Edmund J. Kucharski.

BURT, Justice.

Plaintiffs appeal from an order of the circuit court of St. Clair County dismissing their complaint against defendants, clerk of the circuit of St. Clair County, county treasurer of St. Clair County and county of St. Clair, in a class action wherein plaintiffs alleged that the cost retention provisions of section 110--7(f) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1963, ch. 38, par. 110--7(f)) are unconstitutional and sought recovery on behalf of all those who had been charged with and had paid bail bond costs under the statute in question in the circuit court of St. Clair County from and after the effective date of the act. The case involves substantial constitutional questions, giving this court jurisdiction on direct appeal.

The cause was submitted in the trial court on a stipulation of facts which we summarize here to the extent necessary for purposes of this decision. The act in question was adopted on August 14, 1963. Since that time Vincent P. Kuebel, clerk of the circuit court of St. Clair County, and Maurice J. Joseph, treasurer of said county, and their predecessors in office, acting under the statutory provisions, have collected from plaintiff, John Schilb, and many other defendants in criminal actions, who were acquitted by trial courts of their respective charges, a sum equal to 10% Of their respective deposits of bail security. These collections were made in good faith by these officials in accordance with their oaths of office as understood by them and under color of authority of the act. The exact account of all of said collections are present in the records of said offices and should be agreed upon by the parties for subsequent purposes in the event the court shall award the relief sought by plaintiffs.

On January 16, 1969, Schilb was arrested and charged with leaving the scene of an accident, on which he posted $50 cash bail security and obstructing traffic on which $25 cash bail was posted. He was found guilty of one charge and not guilty of the other. He was charged and paid, in addition to any fine, $5 and $2.50, or a total of $7.50 as cost charges for such bail. A large number of other defendants have paid the 10% Bail charge required by the statute after being found guilty (whether by trial or on plea) or upon being found not guilty (either by trial or dismissal.) It was agreed that the essential questions of fact, as concerns the issue, are similar as to all defendants in all criminal cases in said circuit court, since the effective date of the act, who posted cash bail security, and that questions of law are similar in all such cases also as they pertain to the particularly the claim of unconstitutional collection of bail bond costs which is common to the interest of such defendants in criminal cases in said court.

The parties further agreed that there was a Bona fide dispute between them brought without collusion; that it is impractical if not impossible to join all members of the class to which plaintiff belonged as parties; that this action would avoid undue and unnecessary multiplicity of actions and that plaintiff, Schilb, brings the action in a representative capacity for and on behalf of each member of the class whose interests are similar who would proportionately share in the expenses of the litigation.

In addition to including in their stipulation the entire provisions of section 110-7, the parties refer to section 110--8 (Ill.Rev.Stat.1969, ch. 38, par. 110--8) and state that it provides in essence for depositing of cash, stocks or bonds in the full amount of bail or pledging interests in real estate in double the amount of bail fixed without payment of any fee and that actual costs of administering the provisions of sections 110--7 and 110--8 are substantially the same but that there may probably be a slightly higher cost attendant upon administering section 110--8.

Finally, the parties agreed that the amount of bail in each particular case is not fixed by the clerk or treasurer but by a judge whose discretion is not guided by statute, rule of court or any fixed standard; that various judges fix the amount of bail for the same types of offenses at various and divers amounts, without relationship as to guilt or innocence of the particular defendant and without relationship of the particular offense and the bail fixed.

Plaintiffs contend that the cost retention provision of section 110--7(f) of the Code of Criminal Procedure is unconstitutional because it violates the equal-protection and due-process clauses of the fourteenth amendment to the Federal constitution and section 2 of article II of the constitution of Illinois, S.H.A. Specifically it is urged that the cost retention provision creates a discriminatory disparity within a homogeneous class; that it operates to create an unconstitutional disparity between the affluent and nonaffluent and that it is unconstitutional as creating a disparity among those obtaining release by the deposit of 10% Of the amount of bail. Additionally it is claimed that the provision is illegal and void as in violation of section 19 of article II of the Illinois constitution because it amounts to requiring an assessment of costs against a discharged defendant. Defendants argue that these claims of unconstitutionality are without merit. They also suggest that there is no basis for the bringing of a class action under the facts here involved.

In 1963 the General Assembly enacted the Code of Criminal Procedure (Ill.Rev.Stat.1963, ch. 38, pars. 100--1 et seq.) Among its comprehensive provisions are those of article 10 relative to bail in criminal cases. (Ill.Rev.Stat.1963, ch. 38 pars. 110--1 to 110--5 inclusive.) Section 110--2 provides for the release of an accused on his own recognizance where from all the circumstances the court is of the opinion that the accused will appear as required either before or after conviction. The statute imposes criminal sanctions for failure to appear as required as well as provisions for forfeiture and collection. (Ill.Rev.Stat.1963, ch. 38, par. 110--2.) Section 110--7 represents a new departure in dealing with the problems of bail in this State. It provides that a person for whom bail has been set shall execute a bail bond and deposit with the clerk of the court a sum of money equal to 10% Of the bail upon the deposit of which he shall be released subject to the conditions of the bond which involve forfeiture of the full amount for nonappearance as well as the imposition of a criminal penalty. Section 110--7(f) provides for a return of 90% Of the bail deposit when the conditions of the bond have been performed and the accused has been discharged from all obligations with the stipulation that the clerk shall retain as bail bond costs 10% Of the amount deposited. (Ill.Rev.Stat.1963, ch. 38, pars. 110--7(a), (b), (f).) The amount retained represents one percent of the amount of bail originally set by the court. Section 110--8 provides for a different type of procedure in posting bail from that prescribed in section 110--7. It provides that 'in lieu' of the bail deposit provided for in section 110--7 any person for whom bail has been set may execute the bail bond with or without sureties, which bond may be secured by a deposit with the clerk of an amount equal to the bail, of cash, or stocks and bonds, or by real estate situated in this State with unencumbered equity not exempt, owned by the accused or sureties worth double the amount of bail set in the bond. (Ill.Rev.Stat.1963, ch. 38, par. 110--8.) With the exception of certain changes not directly involved in the questions presented in this appeal the foregoing statutory provisions remain substantially the same at this time and the three alternative means or methods specified in article 110 constitute the only ways in which release on bail can be had in this State. See: Ill.Rev.Stat.1969, ch. 38, pars. 110--2, 110--7, 110--8.

The above legislative enactments represent substantial reforms in bail practices in this State and came about only after extensive studies of certain evils inherent in our former system and a comparison with practices in the Federal courts and in other jurisdictions. (See Committee Comments, S.H.A., ch. 38, § 110-1 et seq., p. 298 et seq.) From this rather extensive and revealing discussion it appears that the central purpose of the legislature in enacting sections 110-7 and 110-8 was to severely restrict the activities of professional bail bondsmen who customarily collected 10% Of the amount of a bond as a fee which was retained whether or not the conditions of the bond were met by the accused. The prevalence of this practice was noted in our opinion in People ex rel. Gendron v. Ingram, 34 Ill.2d 623, 626, 217 N.E.2d 803, in which this court sustained the constitutionality of the 1965 amendment to section 110-15 of the Code of Criminal Procedure making sections 110-7 and 110-8 the exclusive means of posting bonds in criminal cases in this State. In short, as the Committee Comments show, the object of the statutes was to reduce the cost of liberty to arrested persons awaiting trial. One of the matters noted in connection with the former practice was that the pecuniary loss deterrent to jumping bail which was its central idea was simply not working in...