Lead Opinion
delivered the opinion of the court:
Appellee, Graham P. Hunt, as receiver of Roberts & Hаll, a brokerage firm of Cincinnati, Ohio, recovered a judgment in the superior court of Cook county against the Rosenbaum Grain Corporation, appellant, for $12,798.36. The action was based on the receipt and alleged conversion by appellant of the proceeds of certain dividend checks and stock dividends claimed by appellee. From that judgment appellant has prosecuted an appeal to this court. One of the issues involved is the constitutionality of the stаtute regulating jury trials.
Roberts & Hall was a co-partnership engaged in the brokerage business for many years. During its business career it held memberships in the New York Stock Exchange and other like organizations. The brokerage firm of Dean, Onativia & Co. acted as its New York correspondent until April 6, 1925. On that date Roberts & Hall terminated its business relations with Dean, Onativia & Co. With the exception of a few minor items, which were later adjusted, all the securities held by the correspondent were either sold or delivered under instructions from Roberts & Hall and all money owing to the сorrespondent was paid, balancing both the securities and money accounts. The securities account included shares of stock in eight corporations, on which the dividends in controversy were later paid to appellant. On the orders of Roberts & Hall those stocks were delivered by the correspondent to various banks as collateral on loans to Roberts & Hall. The certificates were in the firm name of the correspondent and endorsed by it in blank.
Appellee was appointed receiver for Roberts & Hall in December, 1929. He fоund one of the stock certificates in the firm’s safety deposit box. Certificates representing the remainder of the stock were returned to him by the banks which held them as collateral. It is stipulated that all of said stocks had been purchased by Roberts & Hall solely as broker for its customers and not as principal. In December, 1927, involuntary bankruptcy proceedings were instituted against Dean, Onativia & Co., resulting during the same month in a composition with its creditors. In connection with the composition aрpellant acquired all the assets of the firm. The shares of stock in the eight corporations on which the dividends in controversy were paid to appellant were not a part of the assets of Dean, Onativia & Co. and were not in any way involved in the bankruptcy proceeding or the composition with creditors. Consequently appellant acquired no title thereto.
E. E. Rosenbaum was president and E. S. Rosenbaum vice-president of the appellant corporation. The firm of Deаn, Onativia & Co. consisted of ten partners. Among them were E. F. Rosenbaum, E. S. Rosenbaum and Joseph Rosenbaum, the latter’s son. Joseph Rosenbaum was the liquidator of the partnership. After the composition he received during the years 1928 and 1929 the dividend checks and stock dividends in controversy. They were issued to Dean, Onativia & Co. They were endorsed by Joseph Rosenbaum and then delivered to appellant. The checks contain no memorandum to show the numbers of the stock certificates upon which the cash dividends were paid. The aggregate amount of the checks was $10,209.15. The stock dividend certificates were for twenty shares of the Owens Bottle Company issued January 1, 1928, and five shares of the same company issued January 2, 1929. After the composition in bankruptcy, Joseph Rosenbaum, as such liquidating partner, filed with the corporations which had issued the original stock certificates, affidavits that they had been lost, stolen or destroyed, and new certificates in the name of the original holder were issued and delivered to him. The certificates were subsequently disposed of by appellant. Testimony was introduced showing the market value of these shares on January 1, 1928, and January 2, 1929, respectively.
Appellant contends that the trial court erred in refusing its application for a jury trial. Section 33 of the Fees and Salaries act (Cahill’s Stat. 1931, par. 47,) provides that in counties of the third class (in certain actions) a jury fee .of eight dollars shall be paid by the plaintiff at the time of commencing suit, and if not paid by the plaintiff it shall be paid by the defendant at the time of entering his appearance. If such fee be not paid by either party no jury shall be called in the action and the same shall be tried by the court without a jury. It is said that provision contravenes section 22 of article 4 and section 29 of article 6 of the constitution of this State and is void. Section 22 of article 4 provides: “The General Assembly shall not pass local or special laws * * * regulating the practice in courts of justiсe.” Section 29 of article 6 provides: “All laws relating to courts shall be general, and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts, of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform.”
The constitution is not to be regarded as a grant of power to the legislative department but as a limitation upon its рowers. The General Assembly may legislate upon any subject not withdrawn from its authority by the constitution. (Taylorville Sanitary District v. Winslow,
It has been held that a statutory provision requiring a demand for a jury trial and the advancing of the jury fee is not an unconstitutional restriction of the right of trial by jury. (Williams v. Gottschalk,
The objection urged against the provision of section 33 of the Fees and Salaries act is, that it applies only to Cook county and discriminates against the inhabitants of that county by requiring a demand for a jury and a deposit of the jury fee when they are not required of the inhabitants of any other part of the State. The population of Cook county is approximately four million. The volume of business in its circuit and superior courts is so large that it requires thе services of forty-eight judges elected from that county and the assistance of numerous outside judges. It has long been the practice in Cook county to classify causes for trial and place them either on the jury calendar or on the non-jury list. This is not only a matter of convenience for the courts but is a necessity, in order that business may be dispatched with a degree of promptness and orderly system. The situation demonstrates the propriety of providing a method by which the courts of that county may be advised in advance of the trial whether or not the cause is to be heard by a jury. Section 33 makes that provision. It is general in its terms and in its operation upon all persons in this State in like situation. It is limited in its application to counties of the third class. The validity of the classification of counties according to population is admitted. The classification thus created has a reasonable relation to the purposes and objects of the legislation and is based upon a rаtional difference of situations and conditions found in counties of 500,000 or more inhabitants. What was said in People v. City of Chicago, supra, concerning traffic and transportation questions is applicable here. We must recognize that court conditions in very populous counties require special consideration and treatment. The act before us is none the less general merely because at present it is applicable only to the conditions now existing in one county. Martens v. Brady,
There is another reason why the statute does not violate said provisions of the constitution. In prescribing limitations relative to courts the framers of the constitution made no mentioffiof juries. Neither article 4 nor article 6 makes the jury a part of any court created or authorized by the constitution. A court is fully organized and competent for the transaction of business without the presence of a jury. (People v. Fisher,
The words “all laws relating to courts shall be general and of uniform operation,” as employed in section 29 of article 6, are limited by the words which follow, requiring that “the organization, jurisdiction, powers, proceedings and practice * * * and the forcе and effect of the process, judgments and decrees * * * shall be uniform.” Obviously, the question here does not relate to the organization, jurisdiction or powers of the court nor to process, judgments or decrees. It relates to the constitutional provision relating to “proceedings and practice” of the court. The word “procedure” includes in its meaning whatever is embraced by the three technical terms — pleading, evidence and practice. Practice, in this sense, meаns those legal rules which direct the course of proceedings to bring parties into court and the course of the court after they are brought in. (People v. Clark,
The appearance of appellant filed March 7, 1932, made a demand for a jury trial but the fee was not paid. The clerk, following the statute, placed the cause on the non-jury calendar. On February 23, 1933, almost a year after the date of the appearance, appellant filed a motion for an order directing the clerk to accept a jury fee of eight dollars and tendered it in open court. No reasonable excuse is shown for the failure to pay the jury fee at the time the statute provides. The court properly denied the motion.
We will now consider the case on the merits. The amended declaration avers that the stock and dividends in controversy belonged to Roberts & Hall and to appellee as receiver. It is appellee’s position that the stock was purchased by Roberts & Hall on margin for its customers and the relation between them was that of pledgor and pledgee. Appellant insists there is no testimony to show whether the original stock was purchased for cash or on margin. It was issued in the name of the New York correspondent and was afterward pledged to banks on loans of Roberts & Hall. It was carried in this manner for years and was in that сondition when the receiver was appointed. No delivery was made to a customer until he paid for the stock. The whole course of the transactions shows plainly that the deals of Roberts & Hall with its customers were margin transactions. The law is that the relation between a customer purchasing stock on margin and the broker is that of pledgor and pledgee. (Markham v. Jaudon,
It is insisted by appellant that the dividend checks and the certificates for stock dividends were negotiable instruments received by it as a holder in due course without notice of any adverse claim. Appellant’s president and vice-president were partners in the Dean, Onativia & Co. firm. They acted in behalf of both the corporation and the co-partnership. Knowledge of what the assets of the co-partnership consisted is imputed to them. Whatever notice they had was notice to the corporation. (Simmons v. Roseland Security Vault Co.
The testimony shows that appellant appropriated the proceeds of the checks and disposed of the stock certificates without right or authority. This amounts to a wrongful conversion, and a demand and refusal were unnecessary before bringing suit. Mead v. Thompson,
The only objection interposed to the testimony relative to the market value of the stock was that no demand was made on the dates mentioned. The proof was sufficient to show the market value on the dates the stock was issued, and appellant could show subsequent depreciation, if any, as a matter of defense. It made no effort to do so.
We see no reason for disturbing the judgment, and it is affirmed.
, Judgment affirmed.
Dissenting Opinion
dissenting:
I cannot аgree with that part of the decision in this case which holds constitutional the act requiring the payment of jur)r fees in advance in Cook county. I agree with the result on the merits of the case, but a different conclusion as to the constitutional question would have made a decision on the merits unnecessary. In my opinion the section of the statute which requires the payment of a fee of any amount before either party is entitled to a jury trial is unconstitutional. First, there is- no reasonable basis for placing the county of Cook in a separate and distinct class with reference to the demand for a jury fee and payment thereof; and second, this provision violates section 29 of article 6 of the constitution, which requires uniformity as to laws regulating the practice and procedure in courts of record throughout this State. (Phillips v. Quick,
In Pitkin County v. First Nat. Bank,
In Silberman v. Hay,
The question of lack of uniformity was not raised in the cases of Williams v. Gottschalk,
Section 22 of article 4 appears in the constitution as a general limitation of the power of the legislature to pass local or special laws. In addition, section 29 of article 6 of our constitution deals with the powers of the courts, and can be said to show an intention to make certain that the legislature shall not regulate the practice and procedure in the courts of this State with any other but general laws. This precludes the idea that the legislature can classify the counties and make different rules of procedure for each class. The courts of Colorado and Ohio have reached a sound conclusion. The Colorado court discussed a provision similar to section 29 of article 6, and said that a requirement that jury fees must be advanced in three out of four classes of counties was unconstitutional as a special law regulating rules of practicе. The Ohio court discussed an analogous situation and found that there was no reasonable basis for classification, and for that reason the statute contravened the general uniformity clause of the Ohio constitution.
When the municipal court of Chicago was created, the necessities which the case presented were met by a constitutional amendment. I am therefore of the opinion that the conclusion is inescapable that the section requiring payment of jury fees in advance in order to obtain a jury trial is unconstitutional.
Mr. Justice Herrick concurs in this dissent.