APPEAL from the Circuit Court of Champaign County; the Hon.
FREDERICK S. GREEN, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
The county of Champaign appeals from a judgment order declaring that a municipality is entitled to receive the fines and forfeitures collected for violations of State traffic laws committed within its boundaries where the State's Attorney conducts the prosecution if the municipality has not obtained the State's Attorney's permission to prosecute such violations.
On April 1, 1974, the State's Attorney of Champaign County directed the circuit clerk, Betty Mallow, to pay all fines and forfeitures in city traffic cases to the county treasurer, since no municipal attorney had requested permission to prosecute State violations. Thereafter the municipalities of Urbana, Champaign and Rantoul joined in bringing this declaratory judgment action to determine whether an amendment to section 16-102 of the Motor Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 16-102), effective January 1, 1974, also was intended to change section 16-105 of the Code which provided for fines and forfeitures to be paid to the municipality in State traffic offenses occurring within a city where court proceedings are conducted by the State's Attorney. The circuit clerk interpleaded and paid the disputed funds into the court. The county of Champaign was allowed to intervene with a counterclaim asserting the county's right to the disputed fines.
The trial court held that the amendment to section 16-102 was not intended to change the disposition of fines and penalties under section 16-105, but was enacted to give municipalities an opportunity to proceed with prosecution when in their opinion that was necessary for more effective law enforcement. This appeal followed.
Section 16-105 of the Motor Vehicle Code (Ill. Rev. Stat. 1975, ch. 95 1/2, par 16-105) provides:
"(a) Fines and penalties recovered under the provisions of Chapters 11 through 16 inclusive of this Act shall be paid and used as follows:
1. For offenses committed upon a highway within the limits of a city, * * * to the treasurer of the particular city, * * * if the violator was arrested by the authorities of the city, * * * provided the police officers and officials of cities, * * * shall seasonably prosecute for all fines and penalties under this Act. If the violation is prosecuted by the authorities of the county, any fines or penalties recovered shall be paid to the county treasurer."
Before 1974, section 16-102 of the Code (Ill. Rev. Stat. 1973, ch. 95 1/2, par. 16-102) provided in part:
"The State's Attorney of the county in which the violation occurs shall prosecute all violations * * *."
In 1961 a dispute arose as to who "prosecuted" a traffic case, within the meaning of section 16-105, where a city police officer made the arrest, signed the complaint, and appeared as a witness in a trial conducted by the State's Attorney. The court held that the word "prosecute" in section 16-105 did not mean the formal conduct of court proceedings but instead meant pursuing the offender as far as legally possible. Since section 16-102 did not permit a municipal attorney to engage in court proceedings, the municipality was entitled to the fine in cases where the city police officer made the arrest, signed the charge, and appeared as a witness against the violator. City of Champaign v. Hill (3d Dist. 1961), 29 Ill. App.2d 429, 173 N.E.2d 839; see also City of Rockford v. Watson (2d Dist. 1969), 108 Ill. App.2d 146, 246 N.E.2d 458.
Section 16-102, as amended (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 16-102), now provides:
"The State's Attorney of the county in which the violation occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State's Attorney." (Emphasis added.)
Two recent decisions have construed this amendment to section 16-102. In City of Decatur v. Curry (4th Dist. 1976), 39 Ill. App.3d 799, 350 N.E.2d 816, the State's Attorney sent an unsolicited letter to the Decatur city attorney granting permission to prosecute State traffic offenses occurring within the city. Thereafter, the State's Attorney continued to appear in all such traffic cases requiring an appearance, and all fines collected in such cases were paid to the county, even though city police officers made the arrests and appeared in court. The city brought suit requesting, inter alia, payment of more than $50,000 in fines collected by the county.
After noting that the city had not revoked or refused the grant of permission to conduct court ...