Soble v. Gill

• Decision Date: 13 December 1934
• Docket Number: No. 22579.,22579.
• Citation: 193 N.E. 192,358 Ill. 261
• Parties: PEOPLE ex rel. SOBLE et al. v. GILL.
• Court: Illinois Supreme Court

358 Ill. 261

193 N.E. 192

PEOPLE ex rel. SOBLE et al.

v.GILL.

No. 22579.

Supreme Court of Illinois.

Oct. 22, 1934.

Rehearing Denied Dec. 13, 1934.

Original petition by the People, on the relation of Hirsch E. Soble and another, for a writ of mandamus to be directed to Joseph L. Gill, as clerk of the municipal court of Chicago. On respondent's demurrer to relators' petition.

Demurrer sustained, and petition dismissed.Hirsch E. Soble, and Albert Langeluttig, both of Chicago, for petitioners.

Frederick Arnd and Hiram T. Gilbert, both of Chicago, for respondent.

HERRICK, Justice.

Pursuant to leave granted, the relators filed their petition for mandamus in this court against the respondent, as clerk of the municipal court of Chicago. The petition challenges the constitutionality of an amendment to section 56 of the Municipal Court Act (Laws 1931, p. 420, Smith-Hurd Ann. St. c. 37, § 416, Cahill's Rev. St. 1933, c. 37, par. 449, pp. 956-958), which permits the city council of the city of Chicago, by a two-thirds vote of its members, upon the recommendation of two-thirds of the judges of the municipal court, by ordinance or ordinances, to make such changes in or additions to the provisions of such section with respect to costs as may be deemed expedient. The defendant has answered the petition. The answer raises no issue of fact, and we have treated it as a demurrer to the petition.

Prior to 1931, section 56 definitely fixed the fees of the clerk of the municipal court in connection with civil suits instituted in that court. (Laws 1905, p. 182, as amended by Laws 1907, p. 252). The change in such section made by the amendment of 1931 was to add the clause under consideration here. The act of 1931 amended not only section 56, but seventeen other sections. Laws of 1931, pp. 420-434. The entire series of amended sections was submitted, in accordance with the referendum contained in such act, to the legal voters of Chicago at the general election held November 8, 1932, and was consented to by them. Subsequent to the election two-thirds of the judges of the municipal court presented to the city council of the city of Chicago a schedule of costs applicable to the municipal court, with the recommendation of the judges that such schedule of costs be adopted. Thereafter the city council, by a vote of two-thirds of its members, passed an ordinance fixing the costs as so recommended by the municipal court judges in such schedule.

In determining whether such act violates any of the provisions of the State Constitution in the manner charged, we meet certain fundamental rules which are the sentinels always actively on duty in protecting the Constitution against attacks and whose challenges must be heeded. The presumption is that the act is valid. Before this presumption is overcome, there must be a reasonable belief that the Legislature has exceeded its authority. First Nat. Bank v. Wedron Silica Co., 351 Ill. 560, 184 N. E. 897;Mitchell v. Lowden, 288 Ill. 327, 123 N. E. 566;People v. McBride, 234 Ill. 146, 84 N. E. 865,123 Am. St. Rep. 82,14 Ann. Cas. 994;People v. Beak, 291 Ill. 449, 126 N. E. 201. It is only where there is a clear conflict between the terms of the act and some provision of the Constitution that the court is justified in holding the act unconstitutional. Doubt and uncertainty must yield to the legal presumption in favor of the validity of the act. Hunt v. Rosenbaum Grain Corp., 355 Ill. 504, 189 N. E. 907; People v. McBride, supra; Joel v. Bennett, 276 Ill. 537, 115 N. E. 5;Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173, Ann. Cas. 1918B, 627.

It is contended by the petitioner that the amendment to section 56 violates article 3 and section 1 of article 4 of our Constitution. In support of such charges it is urged that article 3 prohibits the judiciary from exercising legislative functions, and section 1 of article 4 reposes the entire legislative power of the state of Illinois in the General Assembly.

In passing upon the act in question, we must bear in mind that section 34 of article 4, being the constitutional amendment of 1904, empowered the Legislature to pass laws establishing a local municipal government in and for the city of Chicago, and, with the consent of the voters of the city, to pass any laws it deems requisite, limited only by the restrictions imposed by such amendment. The constitutional amendment was legally adopted. City of Chicago v. Reeves, 220 Ill. 274, 77 N. E. 237. The establishment of a municipal court for the city of Chicago is germane to and part of the plan contemplated by such constitutional amendment for the establishment of a local government for the city. People v. Olson, 245 Ill. 288, 92 N. E. 157; City of Chicago v. Reeves, supra.

One of the provisions of the constitutional amendment is that ‘the General Assembly may pass all laws which it may deem requisite,’ etc. The fact that an act properlywithin the purview of this constitutional amendment may be a local law pertinent or applicable to the city of Chicago alone does not render such act unconstitutional. City of Chicago v. Reeves, supra. Subdivision 5 of section 56, enacted prior to our present Practice Act (Smith-Hurd Ann. St. c. 110, § 1 et seq.), required a defendant, at the time of entering his appearance, if he desired a jury, to file a written demand therefor and pay the clerk $6. Although this statutory provision applied to no other court, it was held constitutional. Williams v. Gottschalk, 231 Ill. 175, 83 N. E. 141,12 Ann. Cas. 376;Morrison Hotel Co. v. Kirsner, 245 Ill. 431, 92 N. E. 285,137 Am. St. Rep. 335. The act creating the municipal court, which act was ratified by a vote of the people of Chicago, made the judges of the municipal court a part of the corporate authority for the administration of the act. People v. City of Chicago, 310 Ill. 534, 142 N. E. 161. Some of those corporate acts required to be performed by said judges are the determination of the number of deputy bailiffs of the court to be appointed by the bailiff (section 17 [Smith-Hurd Ann. St. c. 37, § 372]) and the number of deputy clerks and their salaries (section 15 [section 370]). In discharging these duties imposed upon them by the statute, such judges are not exercising ‘judicial powers' within the ordinary meaning of such term, but are functioning as a portion of the administrative corporate machinery set up by the Municipal Court Act for the administration of that act.

Numerous authorities are cited by the relators that judges and courts may not order costs taxed nor fix the amount thereof except as authorized by statute, and that the establishment of a schedule of fees payable to the clerk of the court is a legislative function. We have no quarrel with any of the authorities but they are not apropos of the issue here. No power in the legislative plan for the fixing of the fees of the municipal court is conferred upon any of the judges of that court. The only power granted them by the amendment is to recommend changes in or additions to the amount of legally taxable costs as such judges may deem expedient. The judges make no allowances of costs not authorized by the statute. No power is delegatedto the judges to fix costs. Under the terms of the amendment in question the judges of the municipal court act in an advisory capacity only. They pronounce no judgment, make no judicial order, interpret no law, perform no judicial functions, and as officers of such court they exercise no legislative powers.

We are next concerned with whether the Legislature could properly delegate to the city council the power to enact an ordinance fixing and regulating the fees to be charged litigants as costs in causes instituted in the municipal court. It is urged in support of this contention ‘that the operation of the municipal court of Chicago is a general and not a local concern.’ To fortify this position, counsel for the relators cite People v. Board of County Com'rs, 355 Ill. 244, 250, 189 N. E. 26. It is true that such statement, in substance, is made in the opinion in that case. In the connection in which the expression was made the statement is correct. The people of Chicago, alone, are not concerned with the operation of the municipal court, but the people of the whole state are in a broad sense concerned with the operation of such court and with every court in the state. The issue in People v. Board of County Com'rs, supra, involved the validity and constitutionality of the amendment to section 25 of the Municipal Court Act (Smith-Hurd Ann. St. c. 37, § 380), which provides that the fees of the jurors of such court should be paid by the county of Cook rather than by the city of Chicago, as was the law prior to the amendment. The amendment introduced no new principle into our statute law. The statute, which has been in force for over thirty years, providing for city courts generally, requires the fees of grand and petit jurors performing jury service in any such city court to be paid out of the county treasury. (Smith-Hurd Ann. St. c. 37, § 351, Cahill's Rev. St. 1933, c. 37, par. 383, p. 942.) Nothing said in the Board of County Com'rs Case tends to alter the position of the municipal court as a local court of the city of Chicago. It is fundamental that provision for the payment of costs or fees to be paid by the parties litigant in the municipal court are properly included in the act creating such court. While the fixing of costs to be charged by way of fees to be paid the clerk of the municipal court is in a comprehensive sense a matter of public concern, so within the same import are all laws of the state. The matter of costs as a means of providing revenue to assist in the payment of the expense of the maintenance and operation of the municipal court is a matter of local concern especially pertinent to the taxpayers of the city of Chicago, who must provide the funds necessary to discharge any deficit...