40 N.E.2d 505 | Ill. | 1942
The sole question which requires consideration on this appeal is whether the revenue is involved in the litigation *284 within the contemplation of section 75 of the Civil Practice act. (Ill. Rev. Stat. 1941, chap. 110, par. 199, p. 2429.) April 10, 1941, the People of the State, on the relation of the city of Chicago, filed in the superior court of Cook county a petition for a writ of mandamus directing the defendant, Ludwig D. Schreiber, city clerk of Chicago, to turn over to the city treasury all the compensation he has received and will receive for issuing fishing and hunting licenses. Defendant answered, the cause was submitted on the pleadings, and judgment rendered awarding the writ. Defendant prosecutes a direct appeal. Also involved is a separate appeal by Harry Wolfberg, a taxpayer of the city of Chicago, from an order of the superior court denying his petition for leave to intervene and from the final judgment order, insofar as it failed to require an accounting to be made by defendant.
Section 3 of part 2 of article 12 of the Cities and Villages act (Ill. Rev. Stat. 1941, chap. 24, par. 172) provides that the compensation of all officers of the city of Chicago shall be by salary, as fixed in the annual appropriation bill, by the city council, and that "No officer shall be allowed any fees, perquisites or emoluments or any reward or compensation aside from his salary, but all fees and earnings of his office or department shall be paid by him into the city treasury." The Municipal Code of Chicago has fixed the annual salary of the city clerk at $8000. Defendant has received this salary for the years 1939 and 1940, and it has been appropriated for the year 1941. Section 1 of "An act in relation to funds or monies received by public officers or agents of public or municipal bodies, by virtue of their offices or positions," (Ill. Rev. Stat. 1941, chap. 102, par. 20,) makes it the duty of all such officers, except treasurers, who receive any funds, money, or other things of value, by virtue of their offices or positions, to keep an account thereof and pay over and deliver the same to the treasurer. Defendant took office as city clerk April 12, 1939, and his term runs to April 5, 1943. Immediately *285 upon qualifying as city clerk he undertook the issuance of licenses under the Fish Code of Illinois (Ill. Rev. Stat. 1939, chap. 56, pars. 66 and 70) and, also, under the Game Code. (Ill. Rev. Stat. 1939, chap. 61, pars. 79 and 80.) Deductions are authorized by the city clerk issuing licenses under those codes as "his or her fee for so doing." (Ill. Rev. Stat. 1939, chap. 56, par. 70; Ill. Rev. Stat. 1937, chap. 61, par. 89.) It is admitted by defendant that he has in his hands $38,363.90, representing deductions from fees collected by him as city clerk during the years 1939 and 1940.
Defendant places reliance on People v. Holten,
The revenue not being involved, this court has no jurisdiction and the cause is transferred to the Appellate Court for the First District.
Cause transferred. *287