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People Ex Rel. Bernat v. Bicek

OPINION FILED MARCH 22, 1950.

THE PEOPLE EX REL. MAX BERNAT, PETITIONER,

v.

FRANK H. BICEK, JUDGE, ET AL., RESPONDENTS.



ORIGINAL PETITION for mandamus.

PER CURIAM:

The People of the State on the relation of Max Bernat, a resident and taxpayer of the city of Chicago and the county of Cook, filed a petition for mandamus in this court, conformably to leave granted, against the Auditor of Public Accounts, the Secretary of State and the judges of the circuit and superior courts of Cook County to expunge from the public records a resolution adopted by the judges on September 19, 1949, creating a Divorce Division for the judicial circuit of Cook County and filed thereafter in the offices of the Auditor and the Secretary of State. The resolution, to the extent relevant, is as follows: "Be it resolved, the undersigned, being a majority of the Judges of the Circuit and Superior Courts of Cook County concurring therein, that there be and there is hereby established in the Judicial Circuit of Cook County a Divorce Division." Defendants answered the petition, their answer has been treated as a motion to strike, and, upon these pleadings, the cause is submitted.

By appropriate allegations, petitioner challenges the constitutional validity of Senate Bill No. 307 entitled, "An Act concerning the interest of the State in the domestic relations of the people, and to provide for the establishment of agencies and instrumentalities to aid the courts in the protection of that interest in actions for divorce, separate maintenance and annulment of marriage, and to make appropriations therefor," enacted June 30, 1949, approved July 25, 1949, and effective December 1, 1949. (Laws of 1949, p. 730; Ill. Rev. Stat. 1949, chap. 37, pars. 105.19-105.36.) A companion measure, Senate Bill No. 308, amends section 6 of "An Act to revise the law in relation to divorce," by incorporating Senate Bill No. 307 into the Divorce Act by reference. (Laws of 1949, p. 735; Ill. Rev. Stat. 1949, chap. 40, par. 7.) In like manner, Senate Bill No. 309, amends section 1 of "An Act in relation to married men and women," by incorporating Senate Bill No. 307 into and expressly making it a part of the statute. (Laws of 1949, p. 1028; Ill. Rev. Stat. 1949, chap. 68, par. 22.) The same allegations are made with respect to the two companion acts, Senate Bills Nos. 308 and 309, implementing Senate Bill No. 307. Their validity is dependent upon the constitutionality of Senate Bill No. 307, and further reference to Senate bills Nos. 308 and 309 is not required.

Section 1 of Senate Bill No. 307, hereafter referred to as the Domestic Relations Act, contains a statement of the purpose motivating its enactment to serve as a guide to its interpretation and application. The declaration of policy is identical with the declaration of policy contained in the unconstitutional Domestic Relations Act of 1947. (Hunt v. County of Cook, 398 Ill. 412.) The laudable objective of this act, as of its predecessor, is the correction, in part, of the social and economic evils attending the disrupting of basic family relationships by actions for divorce, separate maintenance and annulment of marriage. To accomplish this goal, the present statute, as did the act of 1947, provides for the creation of a Divorce Division with abundant authority to ascertain the possibility of effecting reconciliations, to make independent investigations regarding alimony, child custody and support, and to aid in the enforcement of orders for the payment of alimony and child support.

Section 2 provides for the creation, in each judicial circuit of the State, of a Divorce Division in aid of the powers, functions and duties of the judges of all courts in each circuit exercising jurisdiction in actions for divorce, separate maintenance and annulment of marriage. In any judicial circuit in which there exists a superior court, a Divorce Division, it is further provided, shall be created jointly in the circuit and superior courts. Section 2 declares: "The establishment of a Divorce Division in any such judicial circuit shall be effected by the adoption of a resolution, concurred in by all or a majority of the Circuit Court judges and Superior Court judges, as the case may require. Such resolution shall be attested by the Clerk of the Circuit Court in judicial circuits in which there are no Superior Courts, and by the respective clerks of the Circuit and Superior Courts. The original of such resolution and attestation shall be transmitted by the clerk or clerks of such courts to the Auditor of Public Accounts of the State of Illinois. Duplicate originals thereof shall be transmitted by such clerk or clerks to the Office of the Secretary of State for filing therein and upon such filing the Divorce Division shall be deemed created in such respective judicial circuits."

Section 3 provides for the appointment of masters in chancery by the circuit court of each judicial circuit in which a Divorce Division is created for the performance of the duties and functions of the Divorce Division, as authorized by section 1 of "An Act concerning masters in chancery." (Ill. Rev. Stat. 1949, chap. 90, par. 1.) Where a superior court exists, the number of masters in judicial circuits shall be four, two of whom shall be appointed by the circuit court and two by the superior court. Where no superior court exists, the circuit court of each judicial circuit shall appoint one master. Section 4 fixes salaries of the masters.

Section 7 provides that the judges of all courts in any judicial circuit exercising jurisdiction in actions for divorce, separate maintenance and annulment of marriage, are empowered to make and, from time to time, alter and amend rules, not inconsistent with the statute, as in their judgment may be necessary and proper for the purpose of fully effectuating the objects of the statute and for the governance of the Divorce Division. Such rules, section 7 also provides, upon adoption by all or a majority of such judges, shall be binding upon and govern all courts exercising such jurisdiction within the respective judicial circuits.

Section 9 provides that every complaint for divorce, separate maintenance and annulment of marriage filed after the effective date of the act, and every petition relative to custody of children, alimony, child support, attorney's fees, or for a rule to show cause for failure to comply with any order of a court in respect of such matters, relating to actions for divorce, separate maintenance or annulment of marriage filed either before or after the effective date, may be referred by the court to the Divorce Division for investigation, hearing and recommendation, under the general rules provided therefor or by such special order as the court may direct. Each master in the Divorce Division is authorized to cause to be investigated, and to hear and make recommendation to the court, any matter referred to it by such court under the statute.

Section 10 declares that, in any action or proceeding where the rights of minor children are involved, the court's files shall be impounded for a period of at least thirty days after the complaint is filed. Section II deals with the matter of notice to parties to appear before the Divorce Division where proper service has been had upon the parties to any action or proceeding involving minor children or alimony.

Section 12 provides that, in any hearing by the Divorce Division, the master shall ascertain the possibility of effecting a reconciliation of the parties, and, where deemed feasible, may invite the assistance of representatives of the religious denominations to which the parties belong. Section 13 grants authority to the master to verify the employment and earnings of the parties, take evidence regarding the financial and marital history of the parties and their condition in life and circumstances, and evidence regarding alimony, child custody and support and attorney's fees. This section also grants authority to cause an investigation to be made of all matters relating to the inquiry before the master and for reference of any such matter to an appropriate welfare agency for investigation and report.

Section 15 provides that, unless the court directs otherwise, the payment of alimony and child support shall be made to the Divorce Division for disbursement to the persons entitled thereto, and the court may by its rules make provision for the carrying out of its order regarding such payment. Section 16 provides that the court may require any person or agency to whom custody of a child or children has been awarded to submit reports to the Divorce Division concerning the welfare of the child or children, at such times and in such manner as the court directs.

The provisions of sections 9, 10, 11, 12, 13, 15 and 16, as well as the provisions of several other sections, are the same as those of the corresponding sections of the act of 1947.

By his petition for a writ of mandamus, the petitioner, Bernat, charges that the Domestic Relations Act violates numerous provisions of the Federal and State constitutions and, in particular, that sections 2, 4, 7, 10, 11, 12 and 15 contravene constitutional guaranties and inhibitions in the respects enumerated. Defendants interposed general and special demurrers to the petition, averring that the statute is valid and constitutional in all respects, and that the action of the judges of the circuit and superior courts of Cook County in adopting the resolution creating a Divorce Division for the judicial circuit of Cook County is valid and proper.

The Chicago Bar Association has been granted leave to intervene in support of the validity of the statute ...


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