Wulff v. Aldrich

• Decision Date: 09 May 1888
• Citation: 124 Ill. 591,16 N.E. 886
• Parties: WULFF v. ALDRICH.
• Court: Illinois Supreme Court

124 Ill. 591

16 N.E. 886

WULFF

v.ALDRICH.

Supreme Court of Illinois.

May 9, 1888.

Appeal from circuit court, Cook county.

H. S. Mecartney, for appellant.

E. R. Bliss, for appellee.

MULKEY, J.

On the 22d day of November, 1887, J. Frank Aldrich filed a petition in the circuit court of Cook county against Henry Wulff, county clerk of said county, praying for a peremptory writ of mandamus to compel him, as county clerk, to draw a warrant on the county treasurer for the amount of an allowance made the petitioner by the board of county commissioners on account of his services as a member thereof, and of mileage in going to and returning from the meetings of said board, the compensation being so fixed at the rate of five dollars a day, and five cents a mile going and returning. The court overruled a demurrer to the petition, and, the defendant declining to answer further, the court entered an order awarding a peremptory writ of mandamus as prayed, to reverse which this appeal is prosecuted. The appellant's refusal to draw his warrant on the treasurer is based entirely on the provisions of section 39, c. 53, Rev. St., which fix the per diem compensation of a commissioner at $2.50, instead of $5, as allowed by the board, which of course affords a complete answer to the action if that section is a valid law. Judge TULEY, who heard and decided the case in the circuit court, in holding the section of the statute unconstitutional, delivered the following opinion, which we fully approve, and reproduce it as an expression of our own view on the subject:

‘The question presented by the pleadings in this case is as to the constitutionality of an act of the general assembly of this state, in force July 1, 1872, section 39 thereof providing that the pay of a member of the board of commissioners of Cook county shall be $2.50 per day, for the time actually and necessarily engaged in discharging the duties of a member of such board, and five cents each way for necessary travel. The question is whether or not this act is in conflict with section 10, art. 10, Const. 1870, or, in other words, whether the legislature or county board of Cook county has the power to fix the pay of the commissioners of the board. The fact that the legislature, a co-ordinate branch of the government, has, by the passage of the act in question, given a practical construction to the constitution, must have great weight with the court in determining the question here presented. The provisions of the constitution bearing upon this question are sections 5, 7, 8, 9, and 10 of said article 10, but more particularly sections 8, 9, and 10. Section 7 provides that the county affairs of Cook county shall be managed by a board of commissioners of 15 persons, 10 of whom shall be elected by the city of Chicago, and 5 by the towns outside of said city. Section 8 provides that in each county there shall be elected the following county officers: A county judge, a county clerk, a sheriff, and treasurer, and in counties having more than 60,000 inhabitants a recorder of deeds. As this section stood at the time of the passage of the act of 1872 it included among such county officers the county surveyor. Section 9 provides that clerks of all the courts of record, the treasurer, sheriff, coroner, and recorder of deeds of Cook county, shall receive as their only compensation for their services salaries to be fixed by law, which shall in no case be as much as the lawful compensation of the judge of the circuit court of said county, and shall be paid respectively out of the fees of the office, when collected, the number of deputies and assistants to be determined by a rule of the circuit court. Section 10 provides ‘that the county board, except as provided in section 9, shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel, and other expenses; and in all cases where fees are provided for, such compensation shall be paid out of, and shall in no instance exceed, the fees actually collected. They shall not allow either of them more per annum than $1,500 in counties not exceeding 20,000 inhabitants, and $4,000 in counties containing more than 100,000 inhabitants, and not exceeding 150,000inhabitants, and not more than $1,000 additional compensation for each additional 100,000 inhabitants: provided, that the compensation of no officer shall be increased or diminished during his term of office.’ It is a settled law that the presumption is in favor of the constitutionality of every legislative act; that in cases of doubt every possible presumption and inference will be made in favor of the constitutionality of the act in question; and that the courts will only interfere in cases of clearly unquestioned violation of the fundamental law. Our supreme court say, in Lane v. Dorman, 3 Scam. 238: ‘The courts will not interfere unless it is clear that the legislature has transcended its authority;’ and that the question for the court is ‘whether the will of the representative as expressed in the law is or is not in conflict with the will of the people, as expressed in the constitution.’

‘The particular words relied upon as giving the power of fixing the compensation of the commissioners of the county board are found in section 10: ‘The county board, except as provided in section 9 of this article, shall fix the compensation of all county officers.’ It must be admitted that the commissioners of the county board of Cook county are not only officers, but are county officers, and the term ‘all county officers' is certainly broad enough to include them. But, in the construction of the constitution as well as of laws, the constitution is not to be interpreted strictly according to the words used in a particular clause or part of a clause. The whole clause, and in fact the entire constitution, must be referred to, with a view to ascertain the sense in which the words were employed. Let us first consider section 10 in all its parts. Section 10 appears clearly to embrace county officers to whose offices fees are attached, and those having no fees. The limitation upon the amount of the allowance, that ‘they shall not allow either of them more per annum’ than the specified amounts, varying with the number of inhabitants, is clearly a limitation upon the salaries of officers with and officers without fees. The officers clearly may be officers who may or who may not need an allowance for clerk hire, stationery, fuel, or other expenses. It would appear, then, to be clear, from the consideration of section 10 alone, that the county officers referred to there are all the officers of the county except those specified in section 9. Section 9, in effect, provides that the legislature shall fix the compensation of all clerks of courts of record, of the treasurer, sheriff, coroner, and the recorder of the county of Cook; but these are not all the county officers of Cook county. Not included are the county surveyor, the superintendent of schools, the county judge, the probate judge, and the commissioners of the county board of Cook county. If the county officers enumerated in section 8 were the only officers whose election is provided for, there might be some reason to contend that the county officers referred to in section 10 were those enumerated in section 8. But section 6 provides for the election of certain county officers, to-wit, three commissioners in counties not under township organization, to be known as the ‘Board of County Commissioners;’ and section 7 provides for the election of 15 commissioners to compose the board of county commissioners of Cook county. The term ‘all county officers' must be held to embrace all county officers of each county in the state, including the county officers of Cook county, that are not specified in section 9. There would be no question, for instance, that the county board of Cook county had power to fix the compensation of the surveyor of Cook county, he being one of the officers enumerated in section 8, but omitted from the enumeration of Cook county officers in section 9, whose compensation is to be fixed by the legislature. This alone would demonstrate that section 10 was intended to refer to Cook county as well as to all other counties. The question occurs, then, is there any other provision in regard to the appointment of county officers contained in this article upon counties, or elsewhere in the constitution, which will throw any reasonable doubt upon the intention of the legislature to confer the power on the county board to appoint all county officers? Because, if there exists such reasonable doubt, the legislative act must stand. Except in section 10 there is not to be found in article 10, on counties, any words which by any possible construction can be said to relate to the fees, compensation, or salaries of the members of the board of county commissioners of Cook county, or of the county board of any county in the state. (A large number of counties in this state are governed, under the present constitution, by a board of three county commissioners, provided for in section 6 of article 10.) There can be no doubt but that the legislature would have the power to fix the compensation of any public officer, without express words in the constitution conferring such power. Without constitutional limitation the power of the general assembly to make laws is absolute. Was it the intention of the convention that this general power should be exercised by the legislature as to the salaries or compensation of the members of the different county boards? A reference to the...