Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of McLean County,
the Hon. Wayne C. Townley, Jr., Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Jack M. Drury and Raymond Brezinski, filed suit against the defendant, McLean County, seeking reimbursement of fine money and costs they paid to the clerk of the circuit court of that county after plaintiffs had been convicted under a statute later held unconstitutional. The circuit court denied class certification pursuant to our decision in McCabe v. Burgess (1979), 75 Ill.2d 457, and granted summary judgment in favor of the named plaintiffs as to the amount of court costs paid to the county. The court denied summary judgment in favor of plaintiffs for reimbursement of fine money, ruling that the clerk was not a county official and that, therefore, payment to the clerk could not be payment to the county. The appellate court reversed, with one justice dissenting. (92 Ill. App.3d 83.) We granted leave to appeal. We now reverse the appellate court.
Plaintiffs were convicted, and each paid a fine and court costs under the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22-1 et seq.). That act, as it related to marijuana, was declared unconstitutional in People v. McCabe (1971), 49 Ill.2d 338. Subsequently, this court held that all those convicted under the Act had a right to the expungement of their convictions and the return of any fine money and court costs attributable to those convictions. (People v. Meyerowitz (1975), 61 Ill.2d 200.) Plaintiffs now seek to be reimbursed the fine money from the defendant County of McLean. The fine money was paid by the plaintiffs to the clerk of the circuit court, and that clerk distributed the money, one-half each to the town of Normal and the State of Illinois, apparently pursuant to the Drug Abuse Control Act (Ill. Rev. Stat. 1969, ch. 111 1/2, par. 810), rather than under the appropriate statute (Ill. Rev. Stat. 1969, ch. 53, par. 18a). The County of McLean never received any of the fine money paid by the plaintiffs but did receive the costs which they paid.
Plaintiffs argue that the clerk of the circuit court is a county official and that, therefore, money received by the clerk as a county official is also received by the county. The primary issue then is whether the clerk of the circuit court of McLean County is a county official. We hold that under our constitution of 1970 the clerks of the circuit courts> in this State are not county officials, but are non-judicial members of the judicial branch of State government. This being so, the circuit clerk is not an agent of the county, and the county is not liable for fine money paid to the circuit clerk but never received in its treasury.
Historically, the circuit court clerks were elected county officials. (Ill. Const. 1870, art. X, sec. 8.) The office was specially mentioned in article X, section 8, which provided for the election of county officers. However, the new judicial article of the 1870 Constitution adopted in 1962, which was effective January 1, 1964, provided that the General Assembly "shall provide by law for the selection by the judges or election, terms of office, removal for cause and salaries of clerks and other non-judicial officers of the various courts>; * * *." (Emphasis added.) (Ill. Const. 1870, art. VI (1964), sec. 20.) Confusion was created as to the status of clerks of the circuit courts> following the 1962 amendment to article VI of our constitution. The amendment, in the language quoted above, refers to clerks as non-judicial officers of the court, and does not distinguish between clerks of the circuit courts> and clerks of the appellate and supreme courts>. However, article X, section 8, of the 1870 Constitution was not specifically repealed or amended in 1962, and clerks of the circuit court were still referred to in the 1870 Constitution as county officers. By virtue of section 8 of article X, circuit clerks were not only county officers, but also were required to be elected, and their terms of office were fixed at four years. Under the 1962 amendment to article VI, the General Assembly had the authority to determine whether the clerks of the circuit court should be elected or appointed by the judges and to provide for the term of office. Also, under the amendment, as noted above, circuit court clerks became non-judicial officers of the court.
In Johnson v. State Electoral Board (1972), 53 Ill.2d 256, this court, applying general principles of statutory construction, held that the more recent provisions of the 1962 amendment to article VI abrogated the provisions of section 8, article X, which were inconsistent with the amendment. The court held that, because of such inconsistencies, section 8, of article X, governing the election of circuit court clerks, had been impliedly repealed by the amendment.
Applying the same reasoning, the provisions of article X, section 8, designating circuit court clerks as county officers were likewise impliedly repealed by the inconsistent provisions of section 20 of article VI of the 1962 amendment, which classifies all clerks as non-judicial officers of the court. The fact that the 1962 amendment authorized the General Assembly to provide for the appointment instead of the election of clerks as required by section 8 of article X, to provide for the term of office instead of the term of four years, as set out in section 8 of article X, and designated clerks as non-judicial officers of the court instead of county officers as in section 8 of article X, impliedly repealed section 8 of article X of the 1870 Constitution as it applied to clerks of the circuit court.
Under our present constitution, article VI, section 18(b), is substantially the same as article VI, section 20, of the 1870 Constitution, as amended. Section 18(b) of the judicial article of the 1970 Constitution provides:
"(b) The General Assembly shall provide by law for the election, or for the appointment by Circuit Judges, of clerks and other non-judicial officers of the Circuit Courts> and for their terms of office and removal for cause." (Ill. Const. 1970, art. VI, sec. 18(b).)
The Committee on Judiciary, in its comments, said that "[i]t [the proposal] would leave untouched the existing provisions which give the legislature the option of providing for the appointment by the judges, or the election, of clerks and other non-judicial officers of the circuit courts>." (Emphasis added.) 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1057-58 (hereinafter cited as Proceedings.)
The debates of the Sixth Illinois Constitutional Convention reflect the understanding of the delegates that the judicial article of 1962 changed the status of the circuit court clerk from county officer to a non-judicial officer of the judicial branch of State government and that the convention desired to continue this change. (4 Proceedings 2630-40.) In discussing a proposal by Delegate Dunn that the circuit court clerk be made to turn over fees to the county treasurer, Delegate Parkhurst stated:
"Now, the trouble is that the circuit clerk by definition is no longer a county official. He is now, by the mandate of the judicial article, as indeed it has been since 1962, he is now an official of the court system. He is not a county officer. * * *" (4 Proceedings 2633.)
This understanding was reflected throughout the debates during the discussion of various proposed amendments both to the judicial article (article VI) and the local government article (article VII). See 4 Proceedings 2631, 2632, 2638, 2639, 3412.
We have previously acknowledged that in construing the Constitution the true inquiry concerns the understanding of the meaning of its provisions by the voters who adopted it. However, the practice of consulting the debates of the members of the convention which framed the constitution has long been indulged in by courts> in determining the meaning of provisions which are thought to be doubtful. (People ex rel. Keenan v. McGuane (1958), 13 ...