Vanderburg v. Brady

• Decision Date: 24 October 1916
• Docket Number: No. 10884.,10884.
• Parties: PEOPLE ex rel. VANDERBURG v. BRADY, Auditor, et al.
• Court: Illinois Supreme Court

275 Ill. 261

114 N.E. 25

PEOPLE ex rel. VANDERBURG

v.BRADY, Auditor, et al.

No. 10884.

Supreme Court of Illinois.

Oct. 24, 1916.

Mandamus by the People, on the relation of Henry R. Vanderburg, against James J. Brady, Auditor, and others. Respondents. demur to the petition. Writ denied.

Farmer and Cooke, JJ., dissenting.

George B. Gillespie, of Springfield (Gillespie & Fitzgerald, of Springfield, of counsel), for relator.

P. J. Lucey, Atty. Gen., and George P. Ramsey, of Springfield, for respondents.

DUNN, J.

Upon leave granted at the June term, 1916, Henry R. Vanderburg filed a petition for a writ of mandamus against the auditor of public accounts and the state treasurer, commanding the auditor to draw and the treasurer to pay warrants at the rate of $125 per month from December 1, 1915, to June 1, 1916, for the salary of the petitioner as docket clerk and bookkeeper in the office of the clerk of the Supreme Court during that time. The cause has been submitted upon a demurrer to the petition, and the question to be determined is whether the position held by the petitioner is one within the classified service of the state and subject to the provisions of the Civil Service Act.

On behalf of the petitioner it is contended that the Civil Service Act cannot constitutionally apply to officers in the judicial department of the state government. Article 3 of the Constitution provides:

‘The powers of the government of this state are divided into three distinct departments-the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.’

The Civil Service Act provides for the classification of all the offices and places of employment in the state service, with certain specific exceptions, which do not include the position of the petitioner. It provides for the examination of applicants for the offices or places so classified, and for the making of a register by the civil service commission of persons eligible to appointment to the various positions in the classified service in the order of their relative excellence as determined by the examination. Whenever a position in the classified service is to be filled, the act requires the appointment of the person standing highest on this register, except in the case of laborers. The civil service commission, by the making of the list and its certification to the appointing officer, thus names the person appointed to each place in the classified service of the state. The Constitution provides for the election of a clerk of the Supreme Court. A clerk of a court is an officer of the court who has charge of the clerical part of its business and keeps its records and seal, issues process, enters judgments and orders, makes certified copies from the record, etc. Such an officer manifestly belongs to the judicial department of the state. He has no duties in connection with the legislative or executive department. It is therefore insisted that to make the appointment or removal of the deputy of such an officer dependent on the action of an officer in the executive department is an encroachment upon the power properly belonging to the judicial department.

The three departments of our government, under the Constitution, stand upon an equal footing. Neither may exercise any power of or control over another except as expressly permitted by the Constitution. To the judiciary are committed the power and duty of interpreting the laws and the Constitution. The creation of officers, the delegation and regulation of their powers and duties, and the prescribing of the manner of their appointment or election are functions of the Legislature, which are restrained only by the constitution. People v. McCullough, 254 Ill. 9, 98 N. E. 156. The Constitution does not specifically confer the power to appoint officers on any department, and does not provide that the officers or employés of any department of the government can only be appointed by that department. The Legislature has frequently conferred on the courts the power of making appointments of officers not belonging to the judicial department, as in People v. Morgan, 90 Ill. 558, where a judge of the circuit court of Cook county was authorized to appoint the South Park commissioners, with power to assess, levy, and collect takes, which are certainly not judicial powers, and People v. Hoffman, 116 Ill. 587, 5 N. E. 596,8 N. E. 788,56 Am. Rep. 793, where it was held that the power to appoint election commissioners, who are not judicial officers, under the City Election Law, might be constitutionally vested in the county courts. In many cases the power of the county courts to appoint drainage commissioners has been sustained. Moore v. People 106 Ill. 376;Blake v. People, 109 Ill. 504;Huston v. Clark, 112 Ill. 344. In Witter v. Cook County Com'rs, 256 Ill. 616, 100 N. E. 148, it was held that the appointment and removal of a probation officer of the juvenile court of Cook county were the exercise of judicial power, on the ground that the judicial power includes the authority to select persons whose services may be required as assistants to the judge in the performance of judicial duties and the exercise of judicial power. Such officers were likened to attorneys, masters in chancery, receivers, referees, and to similar officers, as merely assistants of the courts in the performance of judicial functions, but it was not held that the power extended to all officers and employés engaged in the service of the judicial department. It was said that a sheriff and a clerk are essential to a court and to the exercise of judicial power; but the one performs executive and the other clerical duties merely. The judicial power is exercised by the judge, with such assistants as...