Kepley v. People

13 N.E. 512, 123 Ill. 367, 1888 Ill. LEXIS 1025

• Court: Illinois Supreme Court
• Decided: January 20, 1888
• Status: Published

Opinion

Mr. Justice Magruder

delivered the opinion of the Court;

This was a proceeding by scire facias for the purpose of obtaining judgment against Joseph N. Drewry, Henry B. Kepley, Sylvester F. Gilmore and David L. Drewry upon a recognizance entered into by them and forfeited, Joseph N. Drewry being the principal and the others sureties for the appearance of Joseph N. Drewry in the circuit court of Effingham county to answer to an indictment for perjury returned against him by the grand jury of that county. Judgment was rendered against all the defendants. Kepley and Gilmore bring the case up.

At the October term, A. D. 1884, of the circuit court of Effingham county Joseph N. Drewry was indicted for perjury, and the indictment was, at that term, duly returned by the grand jury in open court. At the same term Drewry was held to bail to answer the indictment, and he and his sureties, on October 25, 1884, entered into a recognizance in open court for the appearance of Drewry before said court at the next term beginning on April 27,1885. Drury failed to appear at the April term, 1885; the recognizance was declared forfeited and a scire facias was ordered to issue and did issue on July 29, 1885, commanding Mm and Ms sureties to appear at the next term of the court, beginning on the third Monday of October, 1885. The three sureties were served, but the writ was returned “not found” as to Joseph N. Drewry.

On October 25,1885, Kepley and Gilmore appeared and filed a plea of nul tiel record, to which the People replied. At the October term, 1885, judgment by default was entered against all the defendants, but was set aside on October 26, 1885, on motion of the State’s attorney.

At the next term of the court beginning on the 'third Monday of March, 1886, leave was given to file an amended plea. On March 23, 1886, such amended plea was filed by Kepley and Gilmore. It was a plea to the jurisdiction of the court, setting up that there was no March term of the circuit court of Effingham county provided by law, and that no special term had been called to be held in March, 1886, and that the March term then attempted to be held was not authorized by law and the court had no authority to try and determme the cause. To this plea the People filed a demurrer. The court below sustained the demurrer, which ruling was excepted to. Jury was waived; the cause was submitted to the court for trial; evidence was heard; judgment was rendered against the defendants for the amount of the recognizance and the costs, and adjudging the order of forfeiture theretofore entered to be made absolute. Kepley and Gilmore excepted to the judgment and ruling of the circuit court, and bring the case before us by writ of error to that court.

The main question presented by the record is this: was the term of court held by the circuit court of Effingham county beginning on the third Monday of March, 1886, at which the judgment in tMs case was rendered, a legal term and such as was provided for and authorized by law ?

The legislature of this State passed “An act concerning circuit courts, and to fix the time for holding the same, in the several counties in the judicial circuits in the State of Illinois, exclusive of the county of Cook,” which was approved May 24, 1879, and in force July 1, 1879. The third section of this act fixed the times for holding the circuit courts in the several counties composing the second judicial circuit of the State, among which was Effingham county. By that section the circuit court of Effingham county was given two terms in each year, beginning respectively “on the fourth Monday of April and third Monday of October.” Bradwell’s Laws of Illinois of 1879, p. 83.

Two years later the legislature passed “An act to amend section three (3) of an act entitled ‘An act concerning circuit courts, and to fix the time for holding the same in the several counties in the judicial circuits in the State of Illinois, exclusive of the county of Cook,’ approved May 24,1879. Approved and in force April 19,1881.” (Bradwell’s Laws of 1881, p. 66.) This amendatory act of 1881 did not change the times of holding court in any of the counties, composing the second judicial circuit, but left the terms as they had been fixed by the act of 1879. Under the act of 1881, as under that of 1879, the terms of the circuit court of Effingham county began on the fourth Monday of April and the third Monday of October. The only respect, in which the act of 1881 amended the act of 1879, was in a matter relating to White county alone and will be mentioned hereafter.

At its session in 1885, the legislature passed three acts upon this subject. The first was approved May 29, 1885. It is entitled “An act to amend sections two (2), three (3) and ten (10) of an act entitled, etc., approved May 24, 1879, as amended by act approved and in force April 19, 1881.” This act of May 29, 1885, left the terms of the circuit court of Effingham county, as they had been in the acts of 1879 and 1881, to-wit: the fourth Monday of April and the third Monday of October. It will be noted that the act of May 29,1885, amends the amendatory act of 1881, or, in other words, it amends the act of May 24, 1879, as amended by act approved and in force April 19, 1881. Bradwell’s Laws of 1885, p. 60.

The second act passed in 1885 was approved June 26,1885. It is entitled “An act to amend sections 3, 5, 8, 11 and 14 of an act entitled, etc., approved May 24, 1879.” This act of June 26, 1885, fixes the terms of the circuit court in Effing-ham county as beginning “on the third Monday of Mcvrch and the third Monday of October.” It is to be noticed, that the-act of June 26, 1885, amends the act of 1879 and not the act. of 1881, or, in other words, it purports to amend the original act of May 24, 1879, and not the act of May 24, 1879, as amended by act approved and in force April 19, 1881. Brad-well’s Laws of 1885, p. 61.

The third act passed in 1885 was approved June 30, 1885. It is entitled “An act to amend section three (3) of an act entitled, etc., approved May 24, 1879; in force July 1, 1879.”' The act of June 30, 1885, like that of June 26, 1885, names-the third Monday of March and the third Monday of October, as the terms of the Effingham county circuit court, and it purports to amend section 3 of the original act of 1879, and not section 3 of the act of 1879 as amended in 1881. Bradwell’s Laws of 188""5, p. 62.

Defendant in error claims, that the act of June 30,1885, is-a valid enactment, and that, after its passage, the third Monday of March was the legal beginning of the spring term of the circuit court of Effingham county, while the plaintiffs in error contend, that the only valid enactment upon this subject passed by the legislature in 1885 was the act of May 29, 1885, and. that the fourth Monday of April was the legal day for the opening of the spring term of that court.

There is a clear repugnance between the act of May 29, 1885, and the act of June 30, 1885, so far as relates to the time of holding the spring term of the circuit court in Effing-ham county. If, therefore, the objection hereafter discussed is not well founded, the act of June 30, 1885, must be taken to be the law, as being the last expression of the legislative will. “If two inconsistent acts be passed at different times, the last is to be obeyed, and if obedience can not be observed without derogating from the first, it is the first which must give way.” Devine v. Commissioners of Cook County, 84 Ill. 590.

Hence it remains to be considered whether the objection urged by plaintiffs in error against the act of June 30, 1885, is a valid one. That objection is, that, on June 30,1885, the act of May 24, 1879, had been repealed or merged in the amendatory act of 1881, and that the act of June 30, 1885, was void as being an attempt to amend a law which, at the time of the attempted amendment, had no existence. Section 1 of the act of 1881 is as follows: “That section 3 of an act entitled, etc., approved May 24, 1879, and in force July 1, 1879, be amended to read as followsetc. In The People v. Young, 38 Ill. 490, it was held, that, when an amendatory act declares that a certain section of the amended act “shall be so amended that it shall read as followsand then proceeds to make a distinct provision on the subject, that will operate to repeal the section of the amended act named, substituting therefor the amendatory section. Upon the authority of this case, it is urged, that section 3 of the act of 1879 as amended by the act of 1881 became substituted for the original section 3 in the act of 1879; that after April 19, 1881, such original section 3 was no longer in force; that the act of June 30, 1885, could not, therefore, have the effect of amending a section that did not exist. It will be observed, that the objection applies as well to the act of June 26, 1885, as to that of June 30, 1885. These acts both indicate a legislative intent to make the term begin on the third Monday of March.

As a further step in the argument, it is claimed, that the act of May 29, 1885, fixing the term on the fourth Monday of April, was valid because it amended the act of 1879 as amended by the act of 1881; that on May 29, 1885, section 8 as amended in 1881 was in force, and hence the act of May 29, 1885, which amended it, amended an existing law.

There is much force in the position taken hy plaintiffs in error. The doctrine in The People v. Young, supra, is sustained by respectable authorities, and, among them, by the following cases: Blakemore v. Dolan, 50 Ind. 194; State v. Ingersoll, 17 Wis. 631; Goodno v. City of Oshkosh, 31 id. 127; The People v. Supervisors, 67 N. Y. 109. The principle announced in these cases is undoubtedly a sound and correct one. It has no application however, to the case now under consideration.

Section 14 of article 6 of the- constitution of 1870 is as follows: “The General Assembly shall provide for the times of holding court in each county, which shall not be changed, except by the General Assembly next preceding the general election for judges of said courts; but additional terms may be provided for in any county. The election of judges of the circuit courts shall be held on the first Monday in June, in the year of our Lord 1873, and every six years thereafter.”

Judges of the circuit court were elected on the first Monday of June, 1879. The legislature next preceding the general election of June, 1879, passed an act, approved, as above stated, on May 24,1879, which provided for the times of holding the circuit courts in the different counties, and fixed the' fourth Monday in April and the third Monday in October as such times in Effingham county.

The next general election for judges of the circuit court was on the first Monday in June, 1885. Under the constitution the only legislature, which had the power to change the terms of the courts, as fixed in 1879, was the legislature next preceding the election of 1885, that is to say, the General Assembly, which was in session in 1885 and passed the foregoing act of June 30, 1885. Manifestly no legislature, which sat in 1881, had any power to change the terms as fixed in 1879.

If the amendatory act of 1881 had attempted to make any such changes, it would have been void. But it did not attempt to do so. The only change it made in the original section 3 of the act of 1879 was to provide an additional term for White county and to designate the character of business to be done at certain terms in White county. The constitution expressly permits any session of the General Assembly to provide for additional terms in any county.

It may be said, that the act of 1881 re-enacted section 3 of the act of 1879, so far as the times of holding the courts were concerned. But we think, that the constitutional prohibition against changing the times fixed by the act of 1879 included and involved a prohibition against repealing and then immediately re-enacting so much of that act as fixed the terms. If the legislature of 1881 could not change the times of holding court as designated in section 3, it could not repeal the section 3 itself, which so designated those times, either expressly or by implication, nor could it merge that section into a new and amended one.

The evident intention of the constitution was to prevent legislative action upon this subject exceptúa! the sessions next preceding the general elections. It was the design of that instrument that the laws fixing or changing the times of holding the courts should be passed at the particular sessions named and should bear date as of those sessions. If the legislature of 1885 thought best to change the times of holding the courts, it was to look for the terms of court to be changed to a law passed at the session next preceding the last general election for judges, and not to a law passed in some intermediate year.

We are, therefore, of the opinion, that, for the reasons here indicated, the amendatory act of 1881 did not have the effect of repealing or merging or re-enacting section 3 of the act of 1879, but that said section 3 was in force when the acts of June, 1885, were enacted, and that the act of June 30, 1885, is a valid law.

It follows, that the demurrer to the plea was properly sustained, and that judgment was properly entered at the term beginning on the third Monday of March, 1886.

Plaintiffs in error claim that the evidence fails to show that an indictment was returned in open court by the grand jury. The scire facias alleges that. the indictment was returned by the grand jury in open court. The original indictment was introduced in evidence by the State, and the file mark recites that it was filed in open court on October 24, 1884. Its introduction was not objected to. It is now objected, that the only legal evidence of the return of an indictment in open court is the record of the court showing such return, and that no such record was introduced in this case. Under the condition of the recognizance and under the law as settled by this court, it is unnecessary to aver or prove that an indictment was ever found to render the recognizors liable on a default by the principal. Mooney v. The People, 81 Ill. 134, and cases there cited.

It is also insisted that no record was shown of an order for recognizance. It was held in Chumasero v. The People, 18 Ill. 405, that there need be no order of court requiring or directing the party to enter into a recognizance; that the recognizance itself is evidence that the party was required to enter into it and did so. The recognizance states it was for the appearance of the principal to answer an indictment then pending against him for perjury. This implies that the requisite preliminaries with reference to the indictment were had. (Shattuck v. The People, 4 Scam. 477.) The parties to the recognizance are estopped by its recitals from raising any question as' to the validity of the indictment.

■ The recognizance of record and judgment of forfeiture are competent and sufficient evidence, under appropriate averments in the scire facias, to authorize judgment of execution according to the form, force and effect of the recognizance, and in an action of debt to authorize judgment for the amount of the recognizance. The People v. Witt, 19 Ill. 169.

The judgment of the circuit court is affirmed.

Judgment affirmed.