APPEAL from the Circuit Court of Jackson County; the Hon.
ALBERT W. McCALLISTER, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 20, 1981.
The plaintiffs brought this suit in the Circuit Court of Jackson County seeking to maintain a class action for a declaration that a rule of the First Judicial Circuit was invalid in requiring payment of jury fees in civil actions other than small claims. The plaintiffs also sought an injunction against assessment of the fees and the return of fees already collected. Plaintiffs appeal from the judgment of the court, Judge Albert W. McCallister of the Second Judicial Circuit sitting by designation, that the class action could not be maintained and dismissing all defendants. The defendants were Robert Chase, chief judge of the first circuit, and the circuit clerks of the nine counties within the circuit.
In their complaint, the named plaintiffs alleged that they and members of the class sought to be certified had been required to pay jury fees pursuant to the circuit rule. They alleged that the rule had not been approved by the Administrative Office of the Illinois Courts> as required by section 27.1(v) of "An Act to revise the law in relation to clerks of courts>" (Ill. Rev. Stat. 1979, ch. 25, par. 27.1(v)). The complaint contained conclusory allegations of the four prerequisites for maintenance of a class action, as provided in section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.2). The single count of the complaint also contained the allegation that "* * * said jury fee has a chilling effect on the parties' right of demand a [sic] trial by jury, especially in those matters of a quasi-criminal nature."
Administrative Rule 1.7(f) of the First Judicial Circuit, which became effective May 1, 1978, provided as follows:
"Jury Fees. The Clerks of the Circuit Court in all counties of the First Judicial Circuit of Illinois shall be paid the sum of $50.00 for a jury of twelve and $25.00 for a jury of six as a fee for the services of a jury in every civil action, except in small claims, in every equitable action wherein the right of trial by jury is or may be given by law, and in every action brought to enforce violations of ordinances enacted by a unit of local government.
A party demanding a jury of twelve after another has paid the applicable fee for a jury of six shall pay the remaining one-half of the fee applicable to a jury of twelve. The jury fee shall be paid by the party demanding a jury at the time of filing the jury demand. If such fee is not paid by either party, no jury shall be called in the action, suit or proceedings, and the same shall be tried by the Court without a jury. No fee provided for herein shall be charged to any unit of State or local government or school district, unless the Court orders another party to pay such fee on its behalf."
The fees to be collected by circuit clerks in counties with a population of a million or less are provided for in section 27.1 of "An Act to revise the law in relation to clerks of courts>" (Ill. Rev. Stat. 1979, ch. 25, par. 27.1). Section 27.1(v) provided that "[a]ny fees not covered by this Section shall be set by rule or administrative order of the Circuit Court, with the approval of the Administrative Office of the Illinois Courts>." The section made no provision for a fee for demanding a jury trial.
Effective January 1, 1980, section 27.1 was amended to add subsection (d)(5), as follows:
"The Clerk of the Circuit Court shall be entitled to receive, in addition to other fees allowed by law, the sum of $50, as a fee for the services of a jury in every civil action not quasi-criminal in its nature and not a proceeding for the exercise of the right of eminent domain, and in every equitable action wherein the right of trial by jury is or may be given by law. The jury fee shall be paid by the party demanding a jury at the time of filing his jury demand. If such a fee is not paid by either party, no jury shall be called in the action, suit or proceeding, and the same shall be tried by the court without a jury." Ill. Rev. Stat., 1979 Supp., ch. 25, par. 27.1.
Judge Chase filed a special appearance objecting to jurisdiction over his person under section 20 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 20). The court found that it did not have jurisdiction over the person of Judge Chase and dismissed him as a defendant.
Subsequently, upon the motion to certify the plaintiffs as class representatives and motions to dismiss filed by the circuit clerks, the court found that the class action was not appropriate and dismissed the circuit clerks upon findings that they were acting in a ministerial capacity when collecting the fees and that the complaint failed to state a cause of action.
Initially, we hold that the plaintiff's request for a declaratory judgment that the circuit rule is invalid and for an injunction against assessment of jury fees under the rule has been rendered moot by the enactment of the statutory provision for jury fees effective January 1, 1980 (Ill. Rev. Stat., 1979 Supp., ch. 25, par. 27.1(d)(5)). A question is moot where it presents no actual controversy or where the issue has ceased to exist. In re Estate of Lawson (1976), 41 Ill. App.3d 37, 353 N.E.2d 345.
• 1 It is undisputed that the setting of circuit court fees is essentially a legislative function. (See Ill. Const. 1970, art. 7, § 9(a).) Although not presented here, a question may exist as to the validity of the apparent delegation to circuit courts> of fee setting power by means of section 27.1(v), even where the approval of the courts>' administrative office is obtained. In any event, section 27.1(v) provides that a circuit court may set only "* * * fees not covered by this Section * * *." The enactment of the statutory jury fee provision in section 27.1(d)(5) rendered completely ineffective the circuit rule ...