159 Ill. App. 135 | Ill. App. Ct. | 1910
delivered the opinion of the court.
The legal difficulties, which presented themselves to the clerk of the Municipal Court and which undoubtedly induced him to file the bill of complaint herein and which are now presented to us, arise entirely from the passage and the language of the Municipal Court act. That act was first passed in 1905. It having soon become apparent that as first passed it needed revision, an act amending various sections thereof and adding other sections thereto was passed in 1907 and approved on June third of that year. The act establishes a new court in and for the City of Chicago for the purposes, besides others, of transacting a great part of the judicial business theretofore transacted in the Criminal Court of Cook County, some of the business of other courts of record of that county, and principally, perhaps, all the judicial business theretofore transacted by the justices of the peace and police magistrates in the City of Chicago. The legislature by these two enactments. established a new court or agency of the judicial department of the State. This new court, although limited in its territorial jurisdiction of the City of Chicago, is, nevertheless, as are all the courts of the state, a state agency for the administration of justice. It is, to a large extent, separate and distinct from the other branches of the city government. The Municipal Court is a city court, but it is, in no sense, the city’s court. “A state acts by its legislative, its executive or its judicial authorities. It can act in no other way.” Ex Parte Virginia, 100 U. S. (10 Otto) 339. See also C. B. & Q. R. Co. v. Chicago, 166 U. S. 226, 234. In the exercise of its judicial functions this new court acts as a governmental agency for the state and is as much a state agency as are the several Circuit Courts and the Superior Court of Cook County. The state alone —in no instance a city—is the sovereignty which the several courts within the territorial limits of the state represent in the exercise of their various functions and their powers.
In the arguments before us the status of the Municipal Court appears to be somewhat misapprehended. Particularly does this seem to be so with reference to that court’s relation to the executive and legislative branches of the city government of Chicago. The legislature has required that substantially all the expenses of the court must be borne by the city and the purport of much of the argument on behalf of the city seems to be that because this financial “burden” was placed upon the city some right arose in favor of the city, the legal nature of which is not made clear, to be “reimbursed,” that is, to receive sufficient of the moneys from fines, penalties and forfeitures imposed in this new court upon offenders against the law and from costs collected by its clerk in the civil and the criminal cases instituted in the court to reimburse the city for its outlay. No principle of law is referred to and no authority is cited to the effect that any such right could so arise. The legislature is the sole and exclusive authority in the distribution of the burdens of government and in the appropriation of funds for the maintenance of necessary courts for the administration of justice in the different parts of the state, and this maintenance is one of the burdens of government. The legislature is also the sole and exclusive authority for the appropriation of the funds of the state, whether such funds arise from fines and forfeitures imposed in its courts upon violators of its laws, from costs paid in civil and criminal eases instituted in these courts, or otherwise. The courts have ho power equitably to distribute these funds. The several parties contesting in this litigation are all only different agencies of our state government and wholly subordinate to and dependent upon the legislature not only for their maintenance but for their very existence. Judicial cognizance cannot be taken of mere equitable claims or rights as between different governmental agencies of the state government in or to the state’s funds. The appropriations made by the legislature to these agencies are final and conclusive, and if there be no appropriation by legislative enactment the principles of equity, applied by the courts, cannot take the place thereof.
It is a fundamental principle of our government that the governmental powers of the state are divided into three distinct divisions or departments, namely, the legislative, the executive and the judicial. This division is made by article III of our constitution. Cities, in their public capacity, are mere agencies whereby the state may conveniently administer local government. County v. Bloomington, 106 Ill. 209, 214. By means of the agency of cities the state exercises only its executive and its legislative powers. Ordinarily, when a city government is referred to, the authorities only of executive and legislative character, and not the courts held in the city, are meant: Cities exercise the legislative power of the state in the enactment of ordinances and they exercise the executive power of the state in the enforcement, through the mayor and the police, or otherwise, of all state laws and all local laws or ordinances in force within their respective territorial jurisdictions. But it is by means only of its courts that the state exercises its judicial power. A city court, although the limits of its territorial jurisdiction are co-extensive with the limits of the city, like all other courts existing under our constitution, represents the state directly in the exercise of its function and its power. While such court, in a general sense, is a part of the government of the city wherein it sits, it is not so in precisely the same sense as are the executive and legislative agencies of the city government. City courts are a part of the judicial department or branch of the state government and exist by provision of the constitution itself, while the executive and legislative branches of a city government exist without such constitutional provisions, solely by legislative enactment, and exercise power only to the extent delegated to them by the legislature. Judges of the city courts are not city oEeials in the same sense as are the mayor, the city treasurer and other similar city oficers.
Section 34, article IV", of the state constitution, adopted in 1904 as an amendment, is not, as some appear to suppose, the authority for the creation or establishment of the Municipal Court of Chicago by the General Assembly. Our Supreme Court, in Harris v. Board, etc., 105 Ill. 445, 450, and on many other occasions, has said that the constitution, in view of section one, article IV thereof, is an instrument of limitation of power in respect to the legislature and not an instrument of grant of power. The legislature did not need the amendment of the constitution by the adoption of section 34, article IV, in order to have authority to create or establish the Municipal Court of Chicago. The Municipal Court is a city court, that is, a court created in and for a city. The judicial powers of the state are wholly distributed by section one of article VI of the constitution. It was held in Rowe v. Bowen, 28 Ill. 116, 119, that section one of article V of the constitution of 1848 distributed and disposed of all of the judical powers of the state and exhausted the subject. Section one of article VI of our present constitution takes the place of section one of article V of the constitution of 1848 and, so far as now material, is similar to and performs the same office as did the latter section. In Mascall v. Commissioners etc., 122 Ill. 620, 623, wherein the opinion was rendered since the adoption of the present constitution, our Supreme Court considered section one, with other sections, of article VI of the constitution of 1870 and upon consideration of these sections arrived at the conclusion that all the judicial power of the state is vested in the courts. Section one of article VI of our constitution, in distributing the judicial powers of the state, provides that the same shall be vested in several courts and among these “such courts as may be created by law in and for cities and incorporated towns.” The legislature required no authority other than this to create the Municipal Court of Chicago. Without an amendment, revoking the inhibition in article VI relative to the distribution of the state’s judicial power, the legislature could create no court except under that article. The purpose served by section 34, article IV is to exempt the City of Chicago from the operation of certain provisions of the constitution which require legislative enactments to be general in their operation. It was required, in order that the General Assembly should not be inhibited from providing for Chicago a scheme or charter or local municipal government. By the adoption of that section certain previously existing constitutional inhibitions or limitations upon legislative power were to an extent withdrawn. There is no language used in section 34 which expressly authorizes or directs the establishment of the Municipal Court of Chicago; neither is the context nor the language used such as to necessitate the inference that the section is an amendment to section one of article VT, relative to the discrimination of the state’s judicial power. True, the section provides that “in case” (that is, if) the General Assembly shall create municipal courts in Chicago it may then abolish the offices of justices of peace, police magistrates and constables within the city and also limit the jurisdiction of the justices of the peace in Cook County outside of the city, so that their jurisdiction shall not extend within the city, and that, if municipal courts be established, then the jurisdiction and practice of such courts shall be such as the General Assembly shall prescribe. The part of this provision relative to abolishing certain justices of the peace, relative to the exclusion of the jurisdiction of other justices of the peace and relative to abolishing police magistrates and constables is but the same partial withdrawal above referred to of certain constitutional inhibitions upon the legislative power. That is, the amendment contemplated the substitution of a city court for the justice of the peace system, prevalent within the City of Chicago at the adoption of the amendment. This change, however, did not require that the legislature be authorized to anew distribute among courts the judicial powers of the state. No new class of courts became necessary. It merely became requisite that there be a withdrawal, as to a small area within the state, that is within a portion of Cook County, of the operation of certain constitutional provisions requiring certain legislative enactments to be general and of uniform operation over the entire state. The subject dealt with by article VI of the constitution, namely the judicial powers of the state, is incidentally affected by said section 34 and impliedly amended, but only so far as absolutely necessary for carrying out the purpose of expressly amending the special subject dealt with by article IV of the constitution. The only change effected in article VI was clearly in respect to a subject matter germane both to that article and to article IV. "What we have said, we believe is in perfect harmony with the decision rendered in Chicago v. Reeves, 220 Ill. 274. The provisions in section 34, relative to the jurisdiction and practice of the new city court, gives the legislature no power that it did not already possess, except in so far as those provisions¡ operate to-withdraw the constitutional inhibitions mentioned above.
Section 57 of the Act of 1907, relative to the Municipal Court, provides what the costs in that court shall be in criminal cases, quasi-criminal cases, preliminary examinations and in proceedings instituted in the name or by authority of the People of the State of Illinois or in the name of some state or county officer in his official capacity; that in criminal or quasi-criminal cases no costs shall be required in advance but that in case of final judgment against the defendant the court may in its discretion award the costs against him; that in the proceedings for the prevention of crimes, when the complaint is not sustained and the court is of the opinion that the prosecution was commenced maliciously without probable cause, judgment may be given against the complainant for the costs of the prosecution; that in preliminary examinations where the court finds an offense has been committed and that there is probable ground to believe the defendant guilty the clerk shall certify the costs to the criminal court of Cook County to be there charged as part of the costs if the defendant is convicted; that in search warrant proceedings, if it appears there was no probable cause, the court may tax the costs against the complainant'; and that in bastardy proceedings the costs shall be taxed against the defendant if judgment is rendered against him, but if he is acquitted then the court may tax the costs against the complaining witness. The section concludes as follows:
“All moneys collected upon judgments of the Municipal Court in the criminal and quasi-criminal cases provided for in this section shall be paid to the clerk, who shall * * * apply the same, or so much thereof as may be necessary, to the payment of the uncollected costs * * * in criminal cases, quasi-criminal cases instituted in the Municipal Court in the name of the people or in the name of any state or county officer in his official capacity, and also the uncollected costs * * * in cases of the sixth class, and pay over the balance, if any, to the officer entitled by law to receive same. ’ ’
By section 58 provisions are made for costs in quasi-criminal cases instituted in the name of the City of Chicago, by any of its officers and by any park board within the city.
The above quoted paragraph from section 57 relates solely to proceedings and to cases prosecuted by or for and on behalf of the people of the state in the exercise of the police power of the state. The paragraph provides that all money collected upon judgments in such proceedings and cases shall be paid to the clerk, who shall, at the end of every three months, apply all, or such portion as may be necessary, of such collected money to the payment of the “uncollected costs” in such proceedings and cases, and the balance, if any, he shall at such stated periods pay over to the officer entitled by law to receive the same. “All moneys collected upon judgments” rendered in such cases refers to money collected for fines, penalties and forfeitures and to costs imposed in such people’s proceedings and cases.
Section 59 requires the clerk to pay over to the city, monthly all costs collected by hi-m.
Generally stated, the city’s position in this case is the broad one that by the enactment of the Municipal Court act sufficient of the fines, penalties and forfeitures to be collected in these the people’s proceedings and cases in this new court was appropriated to these “uncollected costs” to pay the same; that this appropriation included all the particular fines, penalties and forfeitures which, previous to the enactment of that act had been specifically appropriated for special purposes, as, for instance, to the maintenance of the Board of Pharmacy, the Board of Dental Examiners, humane societies, societies for the prevention of cruelty to children and animals, lodging house inspectors or public informers; and that this enactment operates to displace the liens, given by previous statutes to‘state’s attorneys upon the judgments procured by them to secure the payment of their “fees and charges.” In the present appeal we shall, however, only concern ourselves with the question of whether the passage of the act affected the state’s attorneys’ liens. Whether it affected the specific appropriations to the boards, societies or persons referred to, will be considered in the disposition, by another opinion, of the separate appeals by the State Board of Pharmacy and others which were taken from the same decree. In this appeal the important feature of the city’s position is its contention that this appropriation, of sufficient of the collected fines, penalties and forfeitures to pay the “uncollected costs,” is entitled to priority of payment out of the fund involved, as was held by the chancellor in the decree rendered. In the brief and argument on behalf of the city it is said: “Clearly the Municipal Court act does not take away the lien of. the state’s attorney” and that “The lien of the state’s attorney attaches to the moneys collected upon judgments in criminal and quasi-criminal cases after the clerk’s and bailiff’s costs have been paid.” The practical result of carrying out that theory in the present case would be that while the state’s attorney would not be deprived of the lien he would be deprived of the money.
Neither sections 7 and 8, presently to be quoted, of the chapter of the Bevised Statutes entitled Fees and Salaries, by virtue of which Healy claims, nor the aforementioned section 57, by virtue of which the city claims, purports to dispose of all of these fines, penalties and forfeitures to be collected in the people’s proceedings and cases in this new court, that is, so far as we can know from the action of the legislature it was not the intent or design of the legislature to appropriate or dispose of all of the state’s funds from which appropriation was made by these two enactments. Sections 7 and 8 do not purport to dispose of the whole fund hut expressly give a lien thereupon to secure the state’s attorneys the receipt of their earnings and section 57 expressly recognizes and contemplates a residuum for it provides that the clerk shall pay over the balance, if any, “to the officer entitled by law to receive the same.” Obviously this officer so entitled is the county superintendent of schools for the benefit of the common school fund because by the School Law, section one article XIV, chapter 125 of the Bevised Statutes, it is provided that:
“All fines, penalties and forfeitures imposed or incurred in any of the courts of record, or before any justice of the peace of this State, except fines, forfeitures and penalties incurred or imposed in incorporated towns or cities for the violation of the by-laws or ordinances thereof, shall when collected, be paid to the county superintendent of schools of the county wherein said fines, penalties or forfeitures have been imposed or incurred, and the said county superintendent of schools shall give his receipt therefor to the person from whom such fine, forfeiture or penalty was received. _ The said county superintendent shall annually distribute such fines, penalties or forfeitures in the same manner as the common school fund of the State are distributed.”
So long as neither of the two enactments under which the respective claims are made disposes of the whole of the fund involved, there is no - such conflict or inconsistency between the earlier and the later enactment as will permit the invocation of the doctrine of repeal by implication. Indeed the only occasion apparent for the present controversy was the insufficiency of the fund to satisfy the claims made upon it. It being clear that both enactments must stand it follows, necessarily, that both must stand in their entirety and in their full force and effect.
By its assignment of cross-errors the city claims a sufficient amount of the fund, which had arisen in complainant’s hands, from collections of fines, penalties and forfeitures imposed or accrued in those people’s eases wherein judgments were rendered against defendants, to pay the city the costs in those other people’s criminal and quasi-criminal cases wherein the defendants, upon trial or otherwise, had been acquitted or discharged. The city’s contentions are that the language of this new act, relative to costs, requires the charging of costs where the charging of costs was not theretofore permissible, for instance, in criminal or quasi-criminal prosecutions terminated by the discharge or acquittal of the accused in the Municipal Court; and that the term “uncollected costs,” used in the quoted paragraph, is sufficiently comprehensive to embrace, besides adjudged costs uncollected from defendants, such items or amounts in cases of discharge or acquittal as go to make up the costs in cases of conviction, so far as accrued. This latter contention is evidently upon the theory that these items or amounts are “earned” by the court although there is no judgment rendered therefor and the same should be paid by some one in order that the court may have credit for such earning. An instance of the application of this theory arises when there has been a preliminary examination in the Municipal Court wherein the defendant has been held to the Criminal Court and the Municipal Court clerk has certified to the clerk of the Criminal Court the items or amounts of the preliminary examination which go to make up the costs, but the defendant is discharged or acquitted in the Criminal Court, and no judgment for- costs is ever rendered.
The contention aims at reaching and acquiring for the city a larger portion of the fines, penalties and forfeitures imposed in the Municipal Court and, to the extent the city’s portion would be enlarged, the common school fund’s portion would be diminished. The change in the law claimed has more aspects and is more radical than would appear upon superficial consideration. These fines, penalties and forfeitures are a source of income of the state and, anticipated or collected, are subject to appropriation, as are all of the state’s funds. Under the conditions herein involved, to adopt the city’s view would be to hold that by the enactment of this court act the legislature changed the appropriation it had previously made of those fines, penalties and forfeitures which would be affected by the adoption of the city’s view. This should not be held without a clear indication that there was such intention by the legislature or any more readily than we would hold a statute repealed by implication.
- The people of the State of Illinois cannot be mulcted in costs in their own courts for unsuccessfully prosecuting those charged with crime or the violations of their laws. This is the rule under the constitution, under the statute and upon principle. Neither can costs be imposed against the prosecutor in an unsuccessful prosecution, when the same has been conducted on behalf of the people but in the name of some state or county officer in his official capacity.
The common law does not authorize the taxing or allowance of costs in any case and hence no costs are taxable in our courts unless statutory warrant be found therefor.
“The court must, in taxing and allowing costs, look to the statute as its warrant of authority. While the court of equity has a discretion in awarding costs in chancery cases, it must confine that discretion to the fees allowed by the statute.” Constant v. Matteson, 22 Ill. 546, 560.
“Judgements for costs rest upon statutes, and where the legislature has not authorized them they should not be awarded.” Dobler v. Village, 174 Ill. 92, 95.
“The general rule is, that statutes which impose costs are to be construed strictly as such statutes are penal in their character and are regarded as creating liabilities which did not exist at common law.” Gehrke v. Gehrke, 190 Ill. 166, 170.
“Costs are not given at common law, and are hot taxable or recoverable when not awarded by statute.” Fish v. Farwell, 33 Ill. App. 242, 244.
“Costs are purely matters of statutory regulation and the courts have no power to adjudge them as against any one on mere equitable or moral grounds.” Union County v. Axley, 53 Ill. App. 670, 673.
The courts cannot merely by inference or implication assume the power and exercise the authority to impose costs against the state. The intention on the part of the state to authorize the imposition of costs or the rendition of judgments for costs against it must be made to appear clearly before courts will impose them. Tucker v. State, 39 Tenn. (2 Head) 555.
The warrant in this state for taxing costs in criminal cases is to be found in section 13 of Division XIV of the Criminal Code, which provides that: “When any person is convicted of an offense under any statute, or at Common Law, the court shall give judgment that the offender pay the costs of the prosecution.”
Neither in section 57 nor elsewhere in the Municipal Court act is any warrant to be found for the imposi tion of costs against the people or against any state or county official, prosecuting in his official capacity.
It is an elementary principle of the common law that without consent previously expressed the sovereign state cannot be sued and that without such consent, it is not amenable to the exercise of the judicial power either of its own courts or of the courts of any other jurisdiction. This principle is stated generally in In re City of Mt. Vernon, 147 Ill. 359, 365. Section 26 of Article IV of the constitution provides that the state shall never be made a defendant in any court of law or equity. Section 17 of chapter 33, entitled Costs, of our Revised Statutes provides that in all suits and actions for and on behalf of the people of this state, the governor thereof, for or on behalf of any county therein, or in the name of any person for the use of the people or any county, if the plaintiff suffers a discontinuance or be nonsuited or non-pros’d or verdict pass against such plaintiff, the defendant shall not recover any costs whatever. In Reeside v. Walker, 11 How. (U. S.) 272, 290, it was held that: “The sovereignty of the government not only protects it against suits directly but against judgments even for costs, when it fails in prosecutions,” and that: “Such being the settled principle in our system of jurisprudence, it would be derogatory to the courts to allow the principle to be evaded or circumvented.” Moore v. People, 37 Ill. App. 641, is a case illustrative of the rule that the state is not amenable to the judicial power in the taxing of costs or the rendition of judgments for costs. In that case Moore, a justice of the peace, being sued by the county superintendent of schools for the recovery of fines, forfeitures and penalties imposed and collected by Moore in suits prosecuted before him in the name of the people of the State of Illinois, sought to set-off fees or costs which he claimed he was entitled to in the like suits wherein the defendants had been discharged. The court held that no right or authority existed to tax costs against the people, whether a defendant was convicted or discharged; that Moore could have no claim against the people for fees in cases wherein prosecutions instituted in the name of the people failed; and that Moore had no pretense of a legal or valid claim to set-off fees or charges made or claimed by him against fines collected which the statute directed him to turn over to the county superintendent of schools.
This rule that costs cannot be imposed upon the people or the state by judgment is conceded on behalf of the city. But it is argued, nevertheless, that the fees fixed for the Municipal Court’s clerk and the Municipal Court’s bailiff by said section 57 are in that section called costs and therefore they are costs and, when unpaid, are within the term “uncollected costs,” regardless of whether there be a judgment of conviction or not or whether there be a judgment rendered for costs or not, and that under this statute these fees, in all instances when unpaid, must be taken out of the collected fines, penalties and forfeitures, as costs, and paid to the city. In support of this contention counsel adduce authorities holding it to be a well settled rule of law that the state may be made liable to pay costs by statute. Undoubtedly that is the rule, but the question raised by the contention is not thereby disposed of in favor of the city. In the first part of section 57 the amounts of the clerk’s and bailiff’s fees and other fees which shall go to make up the costs in these people’s proceedings and cases are fixed, and, introducing that subject, the language used is “the costs in criminal cases and quasi-criminal cases * * * shall be as follows:” (here follows a schedule, fixing the amounts of clerk’s and bailiff’s and other fees). The fees or charges of the clerk and bailiff are here called “costs,” but by the context of the section it appears that the word “costs” was not invariably used with discrimination. Later in the section, for instance, it is said “in case judgment is rendered against the defendant, the costs shall be taxed against him as a part of the costs in such case.” While costs and fees are essentially different, the word “costs” is sometimes used where either the word “fees” or the word “charges” would have been more accurate, as would have been the case in this instance. With reference to preliminary examinations conducted in the Municipal Court, section 57 provides that when defendants are held to the Criminal Court the Municipal Court clerk shall certify the amount of the costs to the Criminal Court to be there taxed against the defendant as a part of the costs in the cause if the defendant is convicted. Numerous cases indicate that there has been a tendency in the profession to confound the two words costs and fees. In the ordinary legal sense, “Costs are an allowance to a party for expenses incurred in conducting his suit: fees are compensation to an officer for services rendered in the progress of the case.” Howard, etc. Ass’n. v. Philadelphia, etc. R. R. Co., 102 Pa. St. 220; Tillman v. Wood, 58 Ala. 578.
We do not agree with the contention of the city in regard to the comprehensiveness of the term “uncollected costs.” We regard the term to include only costs collectible by means of legal process, that is to say, costs for which judgment has been rendered but which the proper officer has failed or been unable to collect. When a final judgment rendered in a case by the court is of a kind in which the law does not authorize the collection of costs against either party,, it must be conceded that it would ordinarily be considered that there would then be no collectible costs in that case. And there being in such case no collectible costs, there would be no costs that in the ordinary use of the term would be called “uncollected costs.” It is our opinion that nothing in section 57 justifies a holding that items or amounts, which are in the nature of fees or charges prior to the final judgment in these people’s cases and proceedings, are costs, within the meaning of the word “costs” in the term “uncollected costs,” until a judgment has been rendered by the court for costs against some party against whom the law authorizes the rendition of a judgment for costs. Where the law does not provide for a judgment for costs or no judgment for costs is rendered, we can find no warrant for taking any amount from the fund involved herein and thereby diminishing this fund to the detriment of the several governmental agencies or governmental purposes to which the same had previously been appropriated.
In the case at bar the learned chancellor correctly .decreed that where the defendants had been acquitted or discharged the City of Chicago was entitled to receive nothing out of the fund involved, and the city’s cross-errors are not well assigned.
The decree finds that in preliminary examinations, wherein defendants had been held to the criminal court, “costs” had been taxed and fee bills had been duly certified by the clerk of the Municipal Court to the Criminal Court to the amount of $64,088. In regard to these certified items it is decreed that they are “chargeable by law as costs earned” and that they were uncollected and that the decree requires that this amount be taken from the funds in the hands of the complainant and paid to the city, upon the theory that the items so certified are “uncollected costs.” From what we have already said, it follows that this holding was erroneous. We think the word “costs,” when used in section 57 in connection with preliminary proceedings in the Municipal Court, where final judgment of conviction is not rendered, is used tentatively or in place of “fees” or “charges.” That the items certified would become costs could not be definitely determined until there was a judgment of conviction in the Criminal Court, in which event the judgment would be for costs against the defendant. In case of the acquittal or discharge of the defendant, there would be no judgment for costs. As we find the record, there is no showing as to what subsequently became of the cases wherein the items were “certified.” The record fails to disclose what happened in the cases where the defendants were held to the Criminal Court. For aught that appears, these may still be pending.
Incidentally it may be noted that if the interpretation of the language used in the above quoted paragraph of section 57 claimed by the city were adopted, that is, that the language authorizes, in the absence of any judgment for costs and when judgments of discharge or acquittal of defendants are rendered, the taking from collected fines, penalties and forfeitures-certain items on the theory that they are “chargeable by law as costs earned” then, in such case, a statutory rule would thereby be established which would have existence nowhere in the entire state except in that portion of Cook County within the territorial jurisdiction of the Municipal Court.
In the present appeal the contest for priority of payment out' of the fund in the hands of complainant is between the city and appellant John J. Healy. After the payments of the claims of the park commissioners, which are not disputed in this appeal, there remains in complainant’s hands $99,911.25 of principal, $3,960.73. for interest and such additional interest as may have accrued since the date to which interest was computed. The right to interest in this case follows the ownership of the principal upon which the interest has been earned and the interest should be distributed accordingly from the time it began to accrue. The city’s claim, predicated upon the provisions of the above mentioned section 57, is for $64,-088 on account of the above mentioned items certified to the Criminal Court by the clerk of the Municipal Court for which there are no judgments, and for $38,-185.20, found by the decree to be for uncollected costs in cases where convictions were had in the Municipal Court wherein judgments for costs were rendered against the defendants. These two sums make $102,-273.20, the aggregate of the city’s claim. The claim of Healy is that he has a lien on the fund in complainant’s hands and that he should be paid out of that fund the sum of $51,103.79, which sum the decree finds to be due him for fees and commissions. The amount of the fund in the hands of the complainant is insufficient to pay both the aggregate of the city’s claim and the amount due Healy. Furthermore, other parties defendant claiming various amounts out of the fund, whose claims were denied by the decree, are in this court by separate appeals upon the same record asserting such denials to be erroneous. As to those other defendants, besides denying them relief, the decree found that they were each justly entitled to various amounts, but that the fund in complainant’s hands was insufficient to pay all the parties the amounts to which they were respectively entitled. The decree adjudicates and requires that complainant pay to the city $99,911.25, the remainder of principal in his hands and also all interest. As we understand this decree, the court gave to the city a priority of right over all the other claimants to the entire fund arising out of the fines, penalties and forfeitures. We have stated our opinion to be that the city has failed to establish any right whatever in the fund, so far as the above mentioned amount of $64,088 is concerned. But as the record discloses the existence of evidence which will show whether or not the city is entitled to any of its claim for that amount, and, if to any, how much, we shall be obliged to remand the cause for another hearing. As this case, in view of the fact that the amounts found to be due the several claimants aggregate more than the amount of the fund involved, has been heard and argued mainly, if not entirely, upon the question of priority of right in the fund, we have considered that question. This consideration is desirable also in order to avoid another appeal in this same case, as the city may establish a right in a sufficient portion of its claim for $64,088 to require the right of priority to be determined.
Healy’s claim is that his statutory lien—securing to him the receipt of his “fees and earnings’’ for his services as state’s attorney—upon judgments for fines and forfeitures, entitles him to be paid first out of the fund involved. Healy’s term of office began on the first Monday of December, 1904. Chapter 53 of the Eevised Statutes is entitled “Fees and Salaries.” Sections 7 and 8 of that chapter became in force,July 1,1872, and they were in force when Healy’s term began. Those sections are as follows:
Section 7. “There shall be allowed to the several state’s attorneys in this state, for services to be rendered by them, the following fees and salaries to wit: To each state’s attorney the sum of $400; which salary shall be paid to them respectively, in quarter-yearly installments, on the warrant of the auditor, out of any money in the treasury not otherwise appropriated: * * * Provided, that the provisions of this act shall not prevent the payment of such additional compensation to the state’s attorney of Cook County, out of the treasury of said county, as is or may be provided by law.”
Section 8. “State’s attorneys shall also be entitled to the following fees: * * *
All the foregoing fees shall be taxed as costs to be collected from the defendant, if possible, upon conviction. * * *
Ten per cent, of all moneys, except revenue, collected by them and paid over to the authorities entitled thereto, which per cent, together with the fees provided for herein that are not collected from the parties tried or examined, shall be paid out of any fines and forfeited recognizances collected by them. State’s attorneys shall have a lien for their fees on the judgments for fines and forfeitures procured by them, until such fees and earnings are fully paid.”
Section 61 of chapter 53 is also section one of an act entitled “An Act providing for the payment, by the County of Cook, of further compensation to the judges of the circuit and superior courts and the state’s attorney of said county, respectively,” which became in force July 1, 1871, and was also in force when Healy’s term began. That section is as follows:
‘ ‘ Section 1. That the judges of the circuit and superior courts and the state’s attorney of Cook county, shall each be paid, by the said county, in addition to the salaries which may be paid to them from the state treasury, such further compensation as will make their respective salaries amount to the sum of $7,000.”
This section one of the act of 1871 was repealed by the passage of an act amendatory of that act. This amendatory act was passed in 1901 and related to the salaries of the judges and the state’s attorney of Cook County. This act of 1901 consisted of three sections. It was by that act enacted that the act containing section one last above quoted “be and the same is hereby amended to read as followsand thereupon the three sections followed. The first of these sections relates to the salaries of the judges. By the second section the salary of the state’s attorney of Cook county was increased to $10,000 per year and it contained a provision that that amount “shall be in full for all services of the state’s attorney of Cook county, and all fees as provided by statute and earned by the state’s attorney of Cook county, shall be paid into the county treasury of Cook county.” As appears from two decisions of our Supreme Court, People v. Olsen, 222 Ill. 117, and Cook County v. Healy, 222 Ill. 310, the second section of the act of 1901, which increased the state’s attorney’s salary and cut off his fees, was not properly enacted and it was held not to be valid.
In Cook County v. Healy the opinion, was rendered October 3d, 1906, and it was therein held that: “The provisions of the salaries of the judges and state’s attorney were contained in a single section of the act of 1871, and if this amendatory act of 1901 is valid with the exception of section 2, there is no act in force under which the state’s attorney is entitled to any salary whatever from the county of Cook.” In People v. Olsen the opinion was rendered June 14, 1906, and the act of 1901, with the exception of section 2, was thereby held valid.
As a consequence of the ■ enactment of the act of 1901 the aforesaid section one of the act of 1871 was, as already stated, repealed. By reason of the invalidity of that part of the repealing act which fixed a salary for the state’s attorney of Cook county, Healy, whose term as state’s attorney of that county began in 1906, depended solely upon the general law of the state, namely sections 7 and 8 aforementioned, for his compensation as state’s attorney. True, by an act approved May 17, 1907, and in force July 1, 1907, the salary of the state’s attorney of Cook county was fixed at $10,000, to be in full payment for his services, but this act was passed after Healy’s term of office had begun and could not affect his compensation. A change in his compensation during his term of office was prohibited by two constitutional provisions, viz., first, by section 25 of article VI which is as follows:
“The judges of the superior and circuit courts, and the state’s attorney, in said county [Cook], shall receive the same salaries, payable out of the state treasury, as is or may be paid from said treasury to the circuit judges and state’s attorneys of the state, and such further compensation, to be paid by the county of Cook, as is or may be provided by law; such compensation shall not be changed during their continuance in office;”
and, second, by section 22 of article IV, which, in part, reads as follows:
“The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: for * * * creating, increasing or decreasing fees, percentages or allowances of public officers, during the term for which said officers are elected or appointed. * *
The compensation to which Healy was, by law, of right entitled during his term of office was, therefore, $400 per year, to be paid from the state treasury, the specified fees for convictions procured by him and ten per centum upon certain collections. Furthermore, until his “fees and earnings” were fully paid him he had a lien upon all judgments procured by him for fines, penalties and forfeitures. His lien attached Immediately upon the rendition of each particular judgment. By the passage of the Municipal Court act in 1905 and of the amendatory act in 1907 the legislature could not lawfully deprive Healy of this lien nor could it thereby change his compensation during his term. We cannot impute to the legislature any intent to do so. Both section 57 of the Municipal Court act and said sections 7 and 8 of the Fees and Salaries act are in the nature of charges or liens upon the fund involved. The earlier act gives the right of priority of payment. Moreover, by the two quoted constitutional provisions Healy’s lien and compensation are protected from any action by the legislature which would be a change in his compensation during his term of office. The above quoted part of section 22 of article IV of the constitution prohibited the legislature from passing any local law increasing or decreasing his fees, percentages or allowances during his term. If the hereinbefore quoted portion of section 57 were to be so construed as to operate to change the fees, percentages or allowances of the state’s attorney in Cook county, while it does not change the law anywhere else in the state except within that portion of Cook county wherein the Municipal Court has jurisdiction, this quoted portion would clearly be a local, and also a special enactment. It admits of very serious doubt whether this subject as to the state’s attorney’s fees, is one in respect of which section 34 of article IV of the constitution authorized or contemplated the withdrawal of the constitutional provisions requiring legislative enactments to be general in their operation throughout the state.
We fail to perceive any ground, by reason of the passage of the Municipal Court act and the use of the language contained in section 57 aforesaid, for imputing to the legislature an intent to disturb or subordinate the lien of the state’s attorney of Cook county for his fees and earnings, upon judgments procured by him, to the rights claimed by the city in the proceeds of such judgments when collected. It is idle to assert, as do counsel, that his lien is not affected if it be removed from the first proceeds collected upon such judgments and postponed until the city has been paid out of such proceeds some amount to which it may be entitled under section 57» aforesaid. So to remove and postpone the lien would be to divert to other purposes particular proceeds previously devoted to the satisfaction of the lien. If the lien of the state’s attorney of Cook county in the judgments procured by him were so subordinated, an anomalous condition in the law of Illinois would arise, for in no other county in the state is the state’s attorney’s lien subordinated to some other claim or right. Our conclusion is that the chancellor erred in decreeing that out of the proceeds realized from the collection of judgments procured by the state’s attorney, for fines, penalties and forfeitures, the defendant Healy should not be paid first before any of such proceeds were paid to the city.
As between Healy and claimants, other than the city, to portions of the fund involved, the situation is somewhat different. However, there being a sufficient amount in the fund, above the amount required to pay Healy’s claim, to satisfy these other claimants, it is unnecessary for us to determine whether money, collected upon judgments rendered in prosecutions under the several statutes for special purposes, can be taken to pay Healy’s fees for convictions in cases not prosecuted under these statutes for special purposes. The questions arising in this respect between the city and claimants, other than Healy, of interests in the fund are disposed of in the appeal by the Pharmacy Board.
It is to be observed that, in so far as section 57 appropriates to the city, for uncollected costs, the fines, penalties and forfeitures, imposed for violations of state laws, previously devoted to the common school fund, that section repeals section one of the School Law within that portion of Cook county wherein the Municipal Court has jurisdiction. Whether the constitutional amendment, contained in section 34 of article IV, withdraws the restriction against local and special laws so far as to permit such operation of section 57, we think a serious question, which, however, is not ours to determine.
For the errors indicated, the decree, so far as it concerns Healy, is reversed and the cause remanded for proceedings in accordance with the views herein expressed.
jReversed and remanded.
Note: Since the above opinion was written the opinion in People v. Cosmopolitan Ins. Co., 246 Ill. 442, has been published. Therein the Supreme Court confirms the views expressed herein as to the source of authority for the establishment of the Municipal Court.
