*1 statute, how, wording us to understand from the plain “erected or constructed the Allis-Chalmers tractor was * * * erection, repairing, for the use any person * * * alteration, structure.” removal of any or painting would within Even if hold that the tractor qualify we would Act, contrivances” within the term “other mechanical tractor, that the of this particular we cannot say lurching or whether a attached to or not whether it had side hoist it, cause of hooked on behind was the proximate trailer was injury. plaintiff’s court have di- the trial should It is our judgment defendants, since verdict favor of rected the a mat- Act the Structural Work does apply facts ter of law. reversed. Judgment
(No. 42845. P. al., Kuebel, et vs. Appellants, Vincent Schilb John Clerk, al., et Circuit Appellees. denied Dec. Rehearing Opinion Oct. 1970. filed 1970. *2 Kluczynski Schaefer, JJ., dissenting.. Sam Pessin, Belleville, S. O’Toole, (John Cor- J.
nelius F. Dore, Castanes, C. for counsel,) John appellants.
Robert H. Belleville, Rice, State’s Attorney, of (Eugene Widman, H. counsel,) appellees.
Edward V. Hanrahan, State’s Attorney, Chicago, (Daniel P. Coman and Theodore A. Assistant Shapero, State’s Attorneys, for amicus counsel,) curiae.
Mr. Burt delivered the opinion the court: Justice circuit of the court from an order
Plaintiffs appeal defend- their against dismissing complaint Clair County St. county ants, of St. Clair County, the circuit court clerk of Clair, in a St. county treasurer of Clair County St. retention cost that the wherein alleged class action plaintiffs of Criminal of the Code of section no— 38, par. Procedure of Rev. Stat. (111. on behalf unconstitutional, recovery are and sought 7(f)) and had been with paid of all those who had charged the circuit court under the statute question bond costs effective date and after the of St. Clair from County constitutional questions, act. The case involves substantial on direct this court jurisdiction appeal. giving in the court on stipula- cause was submitted trial neces- here to the extent facts we summarize tion of which was act in of this decision. The question sary purposes P. time on Since that Vincent August adopted 1963. Kuebel, County, clerk of the circuit court of St. Clair *3 and their treasurer of said county, prede- Maurice Joseph, J. office, have in statutory the provisions, cessors acting Schilb, de- and other many from plaintiff, collected John trial actions, by in criminal who were acquitted fendants courts of their sum charges, equal respective 10% collections their of bail These security. respective deposits in accordance in faith these officials by were made good and under their oaths of office as understood them by with account of all of of the act. The exact authority color of in of said offices and said collections are the records present should be the parties subsequent pur- agreed upon in the event court shall award sought poses relief plaintiffs. 16,
On arrested and charged Schilb was January accident, with the scene of an on which he leaving posted cash bail on which and traffic security obstructing $25 $50 cash of one bail was He was found charge posted. guilty in and not He and charged other. was guilty paid, as fine, a total of addition to or any $2.50, $5 $7.50 cost A of other defend- for such bail. number charges large statute ants have paid charge required by or on or after found trial being guilty (whether by plea) trial or dismissal.) found not upon (either being guilty fact, It was as concerns the essential agreed questions issue, are similar to all all criminal as defendants act, court, cases in said circuit since date of the the effective are who cash bail of law posted security, questions issues, similar in all such also as to the par- cases they pertain the claim of bail of unconstitutional collection ticularly bond which is costs common to the interest of such defend- ants in criminal cases in said court. further was a bona dis- that there parties agreed fide collusion; them between without that it im-
pute brought if class practical all members of the impossible join to which would action plaintiff belonged parties; avoid undue and unnecessary actions and that multiplicity Schilb, the action in a ca- plaintiff, brings representative for and on behalf each member of the whose pacity class interests are similar would who in the share proportionately expenses litigation. addition their entire including stipulation of section refer to
provisions section parties no — Rev. (Ill. Stat. state par. 8) cash, that it essence for or provides stocks depositing full bonds of bail in real pledging interests estate double the amount of bail fixed without fee and that actual costs of administering of sections are the same substantially but that there be a may probably higher cost attend slightly ant no — 8. administering *4 the that
Finally, parties agreed the amount of each bail in case is not fixed the or particular clerk treasurer but by a whose discretion is not statute, judge rule of guided standard; court fixed that various fix judges 542 various
amount of bail for same of offenses at types amounts, or innocence without to guilt divers as relationship of the and without relationship of the defendant particular offense and the bail fixed. particular retention Plaintiffs contend cost provision that Procedure is section of the Code Criminal unconstitutional because it violates the equal-protection fourteenth amendment to clauses of the due-process II of the con- Federal and section 2 article constitution it the cost stitution of that urged Illinois. Specifically with- retention creates a disparity provision discriminatory class; an in a that it to create uncon- homogeneous operates stitutional the affluent and nonaffluent between disparity among that it is unconstitutional as a disparity creating of the amount those release obtaining it claimed that the il- bail. Additionally provision II void as in of article violation legal the Illinois constitution because amounts requiring assessment of Defend- costs defendant. against discharged that are with- ants these claims of unconstitutionality argue for no basis out merit. also there is They suggest of a under the facts here involved. class action bringing Code Assembly General enacted Criminal Procedure Rev. Stat. ch. 38, pars. (Ill. —1 are et its those seq.) Among comprehensive provisions (Ill. of article 10 relative to bail criminal cases. Rev. no —1 to inclusive.) Stat. ch. Sec 38, pars, no —5 on tion no —2 for the release of an accused his provides from all own where the circumstances the recognizance as re court is accused will opinion appear either or after The statute im before conviction. quired criminal sanctions for failure to as poses required appear forfeiture Rev. (Ill. well as and collection. Section represents Stat. par. no — of bail a new with departure dealing problems bail has been It whom set provides person State. *5 the shall the clerk of execute a bail bond and with deposit the court a sum of the bail of money equal 10% to the condi which he shall be released deposit subject full tions the bond which forfeiture of the involve amount for as the well nonappearance imposition criminal Section for a return penalty. 7(f) provides no — of the bail when the conditions of the bond deposit 90% have been has been accused performed discharged from all clerk shall with obligations stipulation retain as bail bond costs of the amount (Ill. deposited. 10% Rev. The Stat. ch. 1963, 38, 7(a), (f).) pars, (b), no — amount retained one of the amount of represents percent bail set Section originally court. 110—8 by provides a different in bail from type procedure pre posting in scribed section It that “in lieu” of the provides no — 7. for in deposit provided any person whom bail has been set may execute the bail bond with or sureties, without which bond secured may by with bail, cash, the clerk of an amount to the or equal bonds, stocks and or real estate in situated this State with unencumbered not owned equity exempt, accused sureties worth double in bail set the bond. (Ill. Rev. Stat. ch. 38, par. With the excep no — tion of certain in changes involved directly questions in this presented appeal foregoing statutory provisions remain substantially same at this time and the three alternative means or methods in article no specified consti tute the only ways which release on bail can be had this State. See: Ill. Rev. Stat. 1969, 38, pars, ch. no — 7, no —8.
The above enactments legislative substantial represent reforms in bail in this State and came practices about only after extensive studies of certain evils inherent in our former and a system with in the comparison Fed- practices eral courts and in other jurisdictions. (See Committee Com- ments, S.H.A., no —1 et et seq. § From seq.)
this rather extensive and discussion revealing appears the central sections purpose legislature enacting was to activities of restrict the severely bail bondsmen collected professional who customarily of the amount of a bond as a retained whether fee which was or not the conditions of the bond were met the accused. prevalence was noted in our practice opinion People ex rel. Gendron v. Ill.2d 623, Ingram, 34 which this court *6 sustained the constitutionality amendment to section of the Code of Criminal no —15 Procedure sections exclusive making no — 8 means bonds in criminal in this cases State. posting short, show, as the Committee Comments of the object statutes was to reduce the cost of to arrested liberty persons of the awaiting trial. One matters noted connection with the former was that the loss to practice deterrent pecuniary bail which was its central idea was jumping simply in a where of a working system bond was premium At required regard without to of conditions. performance the same time certain that, in studies showed of collect- spite fee, actual ing on forfeitures judgment paid pro- 10% fessional bondsmen amounted to one of the only cent per reasoned, bonds written. therefore, It was those who studied the that a much fairer problem system would result it a such as plan by section were evolved provided 110—7 accused, with an who has the condi- faithfully performed bond, tions of his substantially the amount form- retaining erly pocketed bondsman while professional allowing to the courts a reasonable fee as bond costs for handling bail bonds and amount of offsetting monetary loss from the occasional resulting where the jumper pro- fessional bondsman under the former have system might forfeited stated, the amount of bail. Otherwise the ultimate objective this reform was to from regain professional bondsmen the control of bail releases and restore such con- trol to the courts Bowman, where rightfully belongs. (See Provision, Ten Illinois Per Cent Bail Deposit out, L. Forum Ill. As the author 35, 36-37.) points in bills scheme devised this State been has since copied introduced in As finally other States and Congress. the bill eliminated the adopted passed by Congress retention of the cash But U.S.C. deposit. (18 3146(a) (3).) New cash, York’s stocks applicable legislation provides that and bonds be in lieu of bail and that a fee of may deposited two cent per out receiving, keeping paying same may charged. See: Code of Criminal Pro N.Y. cedure, vol. sec. 586.
Plaintiffs’ first is that section point Code Criminal Procedure is unconstitutional because it those requires release under seeking of sec- tion costs, bond whereas pay those who use either section no — 2 or section (recognizance) (deposit of full amount in cash or securities or of real estate pledge in double the are not amount) required costs pay any whatever. In this connection that all accused plaintiffs argue are sui generis, release, each seeks pretrial of costs as a require payment condition of pretrial freedom in the one case and not in the others constitutes an uncon- stitutional discrimination among the members of a ho- *7 class. mogenous
With to on respect plaintiffs’ position unconstitutional classification it will be observed that it rests entirely upon assumption there is no basic or reasonable differ- ence those between release under obtaining sections no — and no —8. It is said that all are accused of crime and seek from release pretrial custody and that the differ- ence in their treatment relative to cost is a violation of fundamental concepts equal protection due process. words, In other the argument is that because the result of release is in each case is sought there but one class of per- sons However, who must be treated alike. the end though cases, result be release in all may whatever course be may followed, means believe, it must that the be we apparent, in of the which release is different each entirely sought factually sections of the statute in This is not only question. so but to the historically legislative approach problems sections of the statute was to the different presented design to meet Committee Com- (See specific separate problems. ments, S.H.A., et Thus no — 1 et p. seq. seq.) § for release on accused’s own providing was to meet a condition revealed by recognizance designed factual studies that the which proved great majority bail released on bail have no intention of persons violating further a will for The studies developed trial. appear a second that to the extent loss is premise, pecuniary deterrent, such financial should be minimized in the loss Section case of the who trial. person appears for bail a re- the amount fixed with (deposit 10% turn of on of conditions) performance fulfill the needs was to shown designed specifically curtail activities of second the professional premise section, de- This its wording, obviously bondsman. bail. as the method be used giving signed principal which be used Section no — 8 for method may provides for in section “lieu of the bail deposit provided no — 7” comment, and, to the according designed primarily small relatively the need of a method posting meet It cases and the like. is stated amounts of cash bail traffic “It should always in the above reference at kept p. 324: mind, however, for one type that section provides 110—7 bail, section no — 8 another.” procedure posting consider itself as It did legislature appears with a single problem i.e., provision pro- dealing — Instead it re- cedures those entitled to bail generally. needs and situations rise separate garded possibly giving As to section to accommodate those sought requirements. related, to reduce sought cost already incidence of “bail gouging” by high providing *8 have of crime a method citizen accused whereby might any the a minimum of cost. On his trial with liberty pending hand, other it the was careful to recognize protect rights of their own those could and should be released upon who within limits of discretion without the recognizance judicial bond cost whatever. none of the any ques- provisions tion bail costs is release conditioned of payment nor ulti- can of one fee advance percent deducted under be considered mately 7(f) section no — condition to the selection section as the precedent 110—7 method of release. The condition only precedent acquiring to release is the provisions pay- no —7 court, ment the amount of bail fixed as disclaim the con- plaintiffs any thought questioning of that stitutionality that the sole they say requirement, before court question subpara- constitutionality Further, of section “The graph they (f) say: plain- no —7. tiffs wish herein to make it clear that do not they eminently manner fault the Illi- of Article no principles Code, however, nois do they take to the cost exception pro- vision of Section which is unconstitu- patently is, tional.” The ultimate on this of the case question portion therefore, whether the of subsection of sec- (f) tion are fatal otherwise valid admittedly legis- lative classification as three sections provided ques- tion and that of section particularly no — 7.
This court has that the held test whether a legislative act affords all equal protection affected persons “whether enactment legislative same means requires the to be methods alike employed persons composing the class affected so that the law on all uniformly operates persons Barrett, situated.” similarly v. Ill. (Reif all Where law affects 121.) members the same class alike it is not objectionable class constituting legislation. Hill, 12 Ill.2d (Smith v. Under article 10 Code of Criminal Procedure as enacted en- those presently *9 to be used methods bail have a choice of three
titled to release, is entirely voluntary and the choice securing release by elect to secure Those who without compulsion. of bail under pro of the amount deposit 10% a class visions of section constitute separate They as indicated. already plan purpose legislative or in this class category by are automatically placed of their own volition. the exercise join law. They only by will be that amount know Presumably deposited they constitu we know of no law or subject to deduction and their tional would being required which preclude provision extended to for the a reasonable amount privilege pay to come into this class. The requirement those who elect administrative services a fee to the cost of defray help basic recognized courts is a traditional and concept Mc See: ex rel. v. People Flanagan valid this court. Ill.2d 178, 180-181. Donough, 24 cost retention Plaintiffs also contend that the provision creates an unconstitutional of section disparity a the affluent and is said for sup- between nonaffluent. It “A” himself of that accused availing posed example cost, the full amount of bond and no pays no — 8 deposits “B”, sufficient obtains whereas accused lacking property, release of the full of bond his amount by depositing 10% a It under section assessed cost. is argued “B” assessed a cost that accused is thus because his merely him unable to his release bv lack of affluence makes obtain the full amount under the of section depositing source, factual stating any plaintiffs no —8. Without individuals, “a considerable percentage further state that ‘B’ choice but to seek release on their have no like accused under Section no —2 pro- own recognizance because have neither cash they vision of Section no —7” full amount to nor real estate sufficient post are said men” who-should bail. These “poor of their their lack of due to wealth. not be discriminated against
549 if for bail is Plaintiffs the size of a say different factor which rendered this group distinguishing bail, there is from those the full amount who deposit unconstitutional differentiation which not cognizable law creates based on wealth. disparity support their such as cite number of cases position plaintiffs Grif Illinois, L. S. v. Ed. Ct. U.S. fin the individual can establishing general proposition not be to lack of justice his due penalized quest wealth. Defendants but concede the validity principle it is deny under the facts here. applicable presented The difficulty with is that it based position plaintiffs’ on the primarily that a or at least “a assumption majority *10 of large percentage” those bail to seeking would prefer elect to under section but financial proceed lack the means to sodo and are therefore forced their wills against to ask for bail under section by posting deposit. findWe no support any assumption facts. As we stipulated view the it situation is as reason- just able to assume that of most those would elect to eligible perfect under section of because the con- venience it affords and small cost of very one only per- cent actually involved. Proceedings section no — 8 necessarily involve for an tying up money property indefinite period. the case of a bond the amount large would pledged be in and the eco- proportion consequent nomic loss through of deprivation to invest opportunity these funds could be It is reasonable to considerable. suppose, therefore, that even the affluent relatively would prefer to make bail under section In any event we do not no —7. it can believe be said reasonably that choice between means to be used is dictated necessarily by wealth or lack of wealth of the accused.
Where of classification questions are involved the rea- sons justifying the classification need not on the face appear of the statute and the classification bewill if upheld to it. of conceived sustain reasonably state facts can statute who assails the burden therefore rests one upon Mahin, such the existence of facts. negate (Thorpe v. Petroleum Revenue v. Warren 36, 45; Department Ill.2d indicated, be As we already 2 Ill.2d Corp., 483, 489-490.) that sustain the lieve can be conceived to facts reasonably that here involved as legislation against plaintiffs’ argument there is on We a discrimination based wealth. necessarily which tends argument find nothing reasonably plaintiffs’ there is existence those facts negate certainly of concrete evidence which does so. nothing way the cost pro- As to retention plaintiffs’ argument those vision of a creates disparity among no- — release the amount obtaining deposit at bail, said that “A” whose accused bond set $10,000 $1,000 must and that fulfillment conditions he receives a refund of with the result $900 hand, has “B” whose he a cost of on the other paid $100. a $1,000, bond is and receives fixed at only $100 deposits refund of It is claimed cost of resulting only $10. $90 that there is rational no basis for this difference. While different, has dollar amount in the cases is each supposed his there- an amount bail and paid one equal percent fore there same proportionate case. which sustains authority each Plaintiffs no present the same enacting charge proportion proposition we in such cases unconstitutional discrimination and involves *11 no His- know of which this claim. authority would support fees and for the of court services torically many charges in- in to officers have been fixed the proportion of As far as we know has been no volved. there suggestion action in as all unconstitutional such cases as long persons situated are similarly the same charged proportion the same at Flat rates found of rate. are also in the field taxes, taxation, as defendants income including suggest, taxes, taxes, taxes, retailers’ real-estate use occupation
551 constitutionality The inheritance and transfer taxes. the courts. been sustained these enactments has repeatedly the cost there is contention that Finally, provision to it amounts section because and void illegal an defend assessment of costs against discharged court 606, McCullock, ant. Plaintiffs cite Wells v. Ill. L. 2d Ed. Giaccio v. U.S. 399, Pennsylvania, an to 86 S. Ct. involves on this Wells point. attempt on an costs he has made defendant court impose acquitted court, in his defense. The largely relying pro visions of the statute relative to of the question disposition cases, of costs such held that was not liable the defendant for their of a validity Giaccio the payment. Pennsylvania statute costs of criminal jury authorizing impose on an in a defendant misdemeanor prosecution acquitted case was in The court statute unconstitu held the question. tional on ground vagueness and absence of any standards sufficient enable a defendant to him protect self against arbitrary costs discriminatory imposition aby But jury. it did not of such say imposition costs However, would be unconstitutional event. whatever the rule be as to the of court might imposition costs on an defendant, acquitted has no discharged application here. costs prosecution is governed by entirely different statute from that dealing with costs for the administration charged bonds. The latter, statute observed, concerning already of the Code of Criminal Procedure. Costs of prose 110—7 cution criminal cases are provided for section 180—3 Code of Criminal Procedure as follows: “When any of an person statute, convicted offense under any or at law, common the court shall that the give judgment offender the costs of the pay Rev. prosecution.” (Ill. Stat. par. This statute obviously refers only 180— court costs no and has reference to bond costs which are chargeable what regardless occurs in subsequently *12 552 in- or of the case and guilt
prosecution regardless court costs nocence of the accused. be conceded It may be assessed sustained his defense not may properly his or against accused who has won discharge acquittal but the re- that has no whatever on bond costs and bearing tention of a of such costs is not tantamount percentage the assessment of court costs defend- discharged against ant. conclusion we find the classifications provided
for in the statutes here involved bear a reasonable relation to the to be and are uniform objects sought accomplished as to all members aof class to be affected. particular sought No unconstitutional discrimination is involved and the enactments are in violation of fundamental legislative of due or of the law. Since concepts process equal protection the conclusion we reached favors have constitutionality raised, becomes to discuss the other unnecessary question i.e., the of a class action. propriety
The of the circuit of St. Clair judgment Count) court , . is affirme d Judgment affirmed. Mr. Justice Kluczynski, dissenting: I cannot with the conclusions of the agree majority opinion. Illinois, v. U.S. 100 L. Ed.
Through Griffin S.Ct. and its it has become well estab- progeny, clauses of lished due-process equal-protection that a defendant not be the fourteenth amendment require in a criminal due to a lack of wealth. proceeding penalized treatment of I believe that this exists type penalty under and no — 8 various defendants sections no — 7 A treatment Procedure. the Code of Criminal disparity the clerk retains results because under 2, no bail cost whereas in that some defend- costs are involved. It is discriminatory choose under which provision ants cannot voluntarily who, of lack of will released. defendant because they wealth, cannot meet the who requirements cannot for release is forced seek qualify under no — *13 relief a under cost. 7, section which involves only 110— The would have us believe that are no non- majority there affluent defendants or that if the choice defend- given most ants would choose section for economic reasons. This court must take notice the fact that judicial many defendants cannot afford to the full amount of bail. pay Plaintiff has cited many Reform Act of (Bail authorities Record, 18U.S.C. 1966, 112 3141-3152; vol. Congressional Con. Rec. Second Session Congress, pp. 12488-12504; 89th no, Comments, S.H.A. ch. art. Committee 38, At- p. 298; General’s Committee torney on and the Adminis- Poverty Procedure, tration of Criminal Cong, U.S.C. Judicial Admin. News 1966; National Conference on Bail and Crim- inal May Justice, 27, 1964) that as the proposition increases, amount bail of defendants who percentage can the full addition, pay decreases. In no, the Committee Comments (S.H.A. art. at 38, state that section p. 300) is an alternative to no — 7 for "those who have means.” Once it is established that certain defendants not are able under financially to proceed 8, no or all longer significant most no — defendants would elect to under section proceed no — 7. The consideration is not what section would important they elect, but rather whether defendant has a every choice of sections. two that certain Realizing defendants have no a choice but cost under to while other pay 7, financially 110— able can defendants elect to I pay nothing must find that the sections in question deny equal protection and due process.
Further, in Giaccio v. Pennsylvania, U.S. 399, 382 15 L. Ed. 2d S.Ct. 86 the United States Supreme Court considered the whether a defendant question may after not him punished finding guilty. concurring “* * * found: the Due Process Clause opinion specifically a to Amendment does not State the Fourteenth permit whom jury a or costs a defendant impose penalty he has offense with which has been found guilty same at This has been charged.” (382 U.S. concept constitution, law, and in our Illinois case recognized legis- article II of the Illinois lative enactment. Section obtain, to that every person “ought constitution provides law, and without justice freely, being obliged right **it, defendant who is forced Any through *.” purchase under section proceed economic circumstances for his constitutional to pretrial costs right “obliged” pay in violation of provision. liberty McCullock, court, in v. Ill. held This Wells Code, is indicted under the Criminal who party is true that is not liable costs. While it acquitted, effect, of a statute then case involved interpretation *14 Rev. Stat. (Ill. similar it is presently statute effect. “An found that The court Wells 53, par. 32.) the defendant other absolves discharge, legal acquittal, Ill. all added.) (13 costs.” (Emphasis from the cost, or ad it be termed court cost at whether Any cost, defense, in a criminal expense ministrative cost, in my such imposing if the defendant is acquitted, clause and section the due-process violates opinion, constitution. II Illinois article in this dissent. joins Mr. Justice Schaefer (Nos. 41083 cons. People vs. Appellee, Illinois, the State John Davis, Appellant.
Opinion November filed 1970.