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Ali v. Danaher

OPINION FILED DECEMBER 4, 1970.

KAREN ALI, APPELLANT,

v.

MATTHEW J. DANAHER, CLERK OF THE CIRCUIT COURT, ET AL., APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

The plaintiff, Karen Ali, individually and as a representative of a class of persons, filed suit in the circuit court of Cook County, challenging the validity of the County Law Library Act which requires the collection of a one dollar fee for the benefit of the local county law library from a plaintiff, of which class of persons she was a member, in all civil cases. (Ill. Rev. Stat. 1969, ch. 81, par. 81.) She also requested a temporary injunction to enjoin the collection of any such fees and the disbursement of monies on hand or subsequently collected under the Act. The motion of the defendants, who are the clerk of the circuit court and the treasurer of Cook County, for judgment on the pleadings and dismissal of the suit was allowed. Claiming that a constitutional question is involved, the plaintiff has presented her appeal to this court.

On September 16, 1969, the plaintiff presented a complaint for divorce to the clerk of the circuit court of Cook County. She tendered the proper filing fee but declined to pay the one dollar ($1.00) library fee. A deputy clerk insisted on the payment of the library fee before he would file the law suit. After unsuccessfully objecting to the payment of the library fee, she did pay it under protest. She then filed the suit challenging the statute.

The statute the plaintiff attacks provides:

"The county board of any county may establish and maintain a county law library, to be located in any county building at the county seat of government. * * *

"The facilities of such library shall be freely available to all licensed Illinois attorneys, judges, magistrates and other public officers of such county, and to all members of the public, whenever the court house is open.

"The expense of establishing and maintaining such library shall be borne by the county. To defray such expense, in any county having so established such a county law library, the clerks of all trial courts located at the county seat of government shall charge and collect a county law library fee of $1, such fee to be paid at the time of filing the first pleading, paper or other appearance filed by each party in all civil cases, but no additional fee shall be required if more than one party is represented in a single pleading, paper or other appearance.

"Each such clerk shall commence such charges and collections upon receipt of written notice from the chairman of such county board that the board has acted under the provisions of this Act to establish and maintain such a law library.

"Such fees shall be in addition to all other fees and charges of such clerks, and assessable as costs, and shall be remitted by such clerks monthly to the county treasurer, and retained by him in a special fund designated as the County Law Library Fund. Disbursements from such fund shall be by the county treasurer, on order of a majority of the judges of the circuit court of such county, except that in any county having a population of more than 500,000 inhabitants, the county board shall order disbursements from such fund and such county board may appoint a library committee of not less than 9 members, who, by majority vote, may recommend to such county board as to disbursements of such fund and the operation of such library. Such orders shall be pre-audited and such funds shall be audited by the county auditor, and report thereof rendered to the county board and to the judges.

"Such fees shall not be charged in any criminal or quasi-criminal case, in any matter coming to any such clerk on change of venue, nor in any proceeding to review the decision of any administrative officer, agency or body." Ill. Rev. Stat. 1969, ch. 81, par. 81.

There is some discursiveness in the plaintiff's claims of constitutional violation but the contentions appear basically to be: the library fee is really a tax and is unconstitutional, as the legislature's using the courts to raise revenue is violative of the separation of powers described in article III of the constitution of Illinois; this tax on litigation results in the purchase of justice which violates section 19 of article II of the Illinois constitution which assures every person the right to obtain justice, by law, freely and without being obliged to purchase it; as a tax, the fee requirement also violates section I of article IX, of the Illinois constitution because it is not equally or uniformly imposed on the class, i.e., litigants, upon which it operates.

The appellees appear to acknowledge that the library fee is in reality a tax. They say, however, that it represents a common means used throughout the United States to finance county law libraries, 34 States having similar county law library legislation. In the absence of some explicit constitutional restriction, they contend the legislature may impose a tax upon the filing of suits or judicial proceedings or upon the process issued by the courts of the State. The appellees also argue that the requirement of uniformity of taxation is satisfied because each party to a law suit is obliged to pay his fair share of the anticipated use of the law library.

Considering the first two of the plaintiff's contentions in combination we would observe that the Appellate Court for the First District in Moseid v. McDonough, 103 Ill. App.2d 23, considered a predecessor statute which authorized the collection of a fee for a county law library. It appears that a constitutional charge was made in that case, too, that the payment of the library fee required the litigant to "purchase justice" in violation of section 19 of article II of the Illinois constitution. It was unnecessary for the appellate court to consider the question but it did observe: "In view of our conclusion as to point (4) below, we need not resolve this argument. We state in passing, nevertheless, that we believe the position to be untenable in the light of Morrison Hotel & Restaurant Co. v. Kirsner, 245 Ill. 431, 92 N.E. 285. Cf. Williams v. Gottschalk, 231 Ill. 175, 83 N.E. 141. In our opinion, Wilson v. McKenna, 52 Ill. 43 is distinguishable." (103 Ill. App.2d 23, 31, 32.) Morrison and Williams were decisions which upheld the constitutionality of the imposition of jury fees. We consider them pertinent here. They illustrate that a provision for fees relating to litigation is not offensive per se to separation of powers or to the prohibition against requiring the "purchase of justice."

In Morrison this court declared: "The constitution secures to the citizen the right of trial by jury, and unless he waives that right it is his privilege to have controverted questions of fact decided by a jury and not by a judge sitting as a court. It is not a right to command the services of a jury without cost but is of the same nature as the right to have official services performed by public officers, and a requirement for the payment of a reasonable amount for jury fees, such as will necessarily be required in every jury trial, is not a denial or encroachment upon the right. Accordingly we have held that provisions of the Municipal Court act requiring a party to a suit of this class, at the time of entering his ...


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