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Department of Mental Health v. Salmar

APRIL 24, 1967.

THE DEPARTMENT OF MENTAL HEALTH OF THE STATE OF ILLINOIS, FOR AND IN BEHALF OF THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FRED SALMAR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, County Division; the Hon. ROBERT J. DEMPSEY, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. This is a statutory proceeding under the Mental Health Code of 1951, against Fred Salmar, defendant, for the maintenance of Anna Salmar, defendant's wife, as a patient in the Manteno State Hospital from January 1, 1952, to October 31, 1963. (Ill Rev Stats 1963, c 91 1/2, § 9-19.) Judgment for $9,538.50 and costs was entered against defendant, and he appeals.

Defendant contends (1) that the Attorney General was not the proper legal officer to institute the present action; (2) that the patients who were inmates prior to January 1, 1952, the effective date of the Mental Health Act of 1951, were exempt from liability for maintenance because at that time section 9-1 of the Mental Health Act (Ill Rev Stats, c 91 1/2) provided in part that the expense of maintenance and treatment of an inmate in a state hospital shall be borne by the State; that Anna Salmar was a patient since February 20, 1950, and defendant was denied "due process" when held liable for the instant charges, because of immunity from such charges under the "Saving Clause" of the Mental Health Code (§ 16-1); and (3) that the magistrate who entered the instant judgment was not a judge and was without jurisdiction to entertain a suit for statutory debt.

Defendant's initial contention that the Attorney General of the State of Illinois is not the proper legal officer to institute the present action in debt is predicated upon section 12-25 of the Mental Health Act, which provides in part:

"Upon request of the Department, the State's Attorney of the county in which a responsible relative or a patient who is liable under this Act for payment of sums representing treatment charges resides shall institute appropriate legal action against any such responsible relative, or the patient, or within the time provided by law shall file a claim against the estate of such patient who fails or refuses to pay the same."

From the above, defendant argues that the legislature placed the sole right to litigate these matters within the office of the State's Attorney, and that such provisions are strictly construed.

We believe section 12-25 of the Mental Health Act was intended to permit the State's Attorney to act when requested by the Department, and it was not intended to abrogate any of the powers and duties of the Attorney General. In Fergus v. Russel, 270 Ill. 304, 110 N.E. 130 (1915), it is said (p 339):

"The Attorney General is vested with many powers and duties, and these appertain to his office under the constitution. He cannot be deprived of these common law functions by the legislature, but new duties may be imposed."

In People ex rel. Barrett v. Finnegan, 378 Ill. 387, 38 N.E.2d 715 (1941), it is said (p 393):

"As chief law officer of the State he may exercise all such power and authority as public interest may from time to time require."

The duties of the Attorney General are set forth in chapter 14, section 4 (Ill Rev Stats 1965) and include:

"Second — To institute and prosecute all actions and proceedings in favor of or for the use of the state, which may be necessary in the execution of the duties of any state officer."

We conclude from the foregoing that the Attorney General of the State of Illinois, as chief law officer of the state, possessed both the common-law power and the statutory authority to act on behalf of the Department of Mental Health in the instant proceeding. Furthermore, we fail to find that defendant's rights in this proceeding could be affected in any manner, whether the Department was represented by either the Attorney General or the State's Attorney.

Defendant's contention of non-liability is grounded on the "Saving Clause" of the Mental Health Act of 1951, § 16-1, which provided:

"The provisions for repeal contained in this Act shall not in any way affect an offense committed, an act done, a penalty, punishment, or forfeiture incurred, or a claim, right, power or remedy accrued under any ...


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