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People v. County of Jefferson

MARCH 11, 1969.

THE PEOPLE OF THE STATE OF ILLINOIS, ON THE RELATION OF WILMA HIGHSMITH, PLAINTIFF-APPELLANT,

v.

COUNTY OF JEFFERSON, LESLIE R. SHELDON, ET AL., DEFENDANTS-APPELLEES, AND SECURITY BANK AND TRUST COMPANY OF MT. VERNON, ILLINOIS, GARNISHEE DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jefferson County; the Hon. ALVIN LACEY WILLIAMS, Judge, presiding. Judgment reversed and cause remanded with directions.

GOLDENHERSH, P.J.

Plaintiff appeals from the judgment of the Circuit Court of Jefferson County dismissing her garnishment action directed against funds of the defendant, Jefferson County, on deposit with the Security Bank and Trust Company of Mt. Vernon, hereafter called Security.

The prior proceedings are reviewed in our opinion in People ex rel. Highsmith v. County of Jefferson, 87 Ill. App.2d 145, 230 N.E.2d 480. The Supreme Court denied leave to appeal, and upon remand the Circuit Court entered judgment ordering a writ of mandamus to issue. The pertinent part of the order reads:

"Wherefore, It Is Ordered that the defendants who are members of the County Board of Supervisors of the County of Jefferson, or their successors, and Leslie Elliott, as successor of Robert Ruddick, Treasurer of the County of Jefferson, shall comply with the Mandate of the Appellate Court and that said defendants shall order to be issued by the Treasurer of said County a draft or drafts to pay said judgment and costs, and that additional interest at 5% per annum be computed and added to such amounts as may be due until the entire amount due has been paid. Execution may issue."

Following service of the writ of mandamus, plaintiff obtained the issuance of a garnishment summons directed to Security, as garnishee. Security answered that it had in its possession funds in an amount in excess of plaintiff's demand, on deposit in a checking account in the name of Leslie C. Elliott, County Treasurer, "General Fund." Plaintiff thereupon moved for the entry of judgment against Security. The Circuit Court denied the motion on the ground "that the County is immune from having a judgment against it collected through garnishment procedure." Judgment was entered dismissing Security as garnishee and this appeal followed.

Security has made no appearance here, and in oral argument counsel for plaintiff stated, without contradiction, that it is holding funds sufficient to satisfy the judgment pending the decision of this appeal.

Plaintiff contends that insofar as chapter 34, section 604, Ill Rev Stats prohibits a levy on county funds, it is unconstitutional. The defendants argue that county funds are not subject to garnishment.

Section 604 of chapter 34 provides:

"Execution shall not, in any case, issue against the lands or other property of a county; but when judgment is rendered against a county, the county board shall direct an order to be drawn on the county treasurer for the amount of the judgment and costs, which orders shall be paid as other county debts."

Section 604A provides for the appropriation of funds to pay judgments, and section 604B authorizes the County board to provide for the payment of judgments in equal annual installments, not exceeding ten.

No appeal was taken from the judgment ordering the writ of mandamus to issue, and it cannot be ascertained from the record whether the defendants intended to comply with the writ, or if so, in what manner. On oral argument, counsel stated that it was the defendants' intent to pay the judgment in 10 annual installments, but upon inquiry by the court stated further that no provision was made therefor in the appropriation and levy adopted subsequent to the issuance of the writ.

[1-3] The Supreme Court has construed the word "shall" when used in a statute as meaning both "must" and "may" depending upon the legislative intent. Cooper v. Hinrichs, 10 Ill.2d 269, 140 N.E.2d 293.

The Supreme Court has stated the rules of statutory construction as follows:

"The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature in enacting the law." Electrical Contractors Association of City of ...


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