I. SUMMARY. This bulletin presents a detailed survey of the organization and operation of the present judicial system of Illinois, together with a brief review of proposals of change. The judicial power to declare laws unconstitutional has been much discussed, and a separate chapter has been devoted to this subject. The jury and grand jury constitute an integral part of the judicial system and are therefore treated in this bulletin, rather than in the bulletin on the bill of rights. The constitution expressly provides that the state shall never be made defendant in any court of law or equity, but the subject of claims against the state bears a close relation to judicial functions and has therefore been discussed in this bulletin. In Bulletin No. 4 on State and Local Finance will be found comments upon private claims in connection with the appropriation policy of the state. Bulletin No. 14 on Economic and Industrial problems contains a discussion of injunctions in labor cases. This subject, while one with respect to the exercise of a judicial function, did not seem to bear a close relationship to the other problems discussed in this bulletin. Judicial appointments and the removal of judicial officers are dealt with briefly in this bulletin. The subject of removals through legislative action is discussed in Bulletin No. 8 on the legislative department; and a review of the appointing and removing power will be found in Bulletin No. 9, on the executive department. In Bulletin No. 9 will also be found a brief discussion of the pardoning power. In a review of the judicial organization of this state, the things which stand out most clearly are (1) the lack of unity in the organization and (2) the overlapping of jurisdiction of the several trial courts. The lack of unity in the judicial system makes it difficult to obtain information about all parts of the judicial organization, and in this study it has been necessary to investigate in detail the working of the courts in typical counties and circuits. The shortness of time rendered it impossible to investigate all counties and all circuits. The lack of unity and overlapping of jurisdiction are really but two aspects of the same problem, for under a unified judicial system there would almost necessarily be less duplication of court machinery. The lack of unity and the overlapping of jurisdictions appear more clearly in Cook County than in other counties of the state, because of the larger amount of judicial business in that county. The Municipal Court of Chicago, whose creation was made possible by the constitutional amendment of 1904, is the one example in the state of a large court with a unified organization, but the unity in this case is one merely within that court itself, and there is no unity of judicial organization among the several courts exercising jurisdiction within Cook County. If steps are taken toward a more unified court organization, it will hardly be the function of the constitutional convention to embody all the details of such an organization in the constitution itself. The judicial organization prescribed by the constitution of 1848 was probably a satisfactory one in the year when it was adopted, but that system was not capable of statutory expansion, and soon became highly unsatisfactory, for the constitution was substantially impossible to change and the state was rapidly increasing in population. To some extent the same statement may be made regarding the judicial organization in the constitution of 1870. This bulletin seeks to review two types of proposals for constitutional change: (1) Proposals which contemplate a substantially complete reorganization of the judicial system, such as those for a unified court system, with but one series of trial courts. (2) Those which assume that the system will remain substantially as at present, but contemplate changes to meet specific defects now thought to exist in the system. Proposals of this character relate to such matters. as the constitution of the appellate courts, and to jurisdiction in testamentary trusts. Acknowledgment is made to the Supreme Court for its courtesy in preparing the tables which appear on Appendix No. 3 and permitting their use in this bulletin. II. DEVELOPMENT OF THE JUDICIAL ORGANIZATION OF ILLINOIS. Since the adoption of the first constitution in 1818 there have been many changes in the judicial organization in the state of Illinois. As the population has increased new courts have been established, and the jurisdiction of existing courts has been increased or diminished. Changes have been made in the manner of selecting judges and clerks and in their tenure of office. Each new constitution has retained much of the former judicial article, merely changing the parts that had proved objectionable and adding matter to meet conditions not covered by the former constitution. In some instances statutory provisions that have proved successful have been incorporated in the new constitution, and usually the existing courts have been retained. This method of changing the judicial article has caused each constitution to contain more detail than the preceding one. The constitution of 1818. Article IV of the constitution of 1818 provided for the establishment of the courts. The judicial power was vested "in one supreme court, and such inferior courts as the general assembly shall from time to time ordain and establish." 1 The Supreme Court was to consist of a chief justice and three associate justices, with power given to the general assembly to increase the number of justices after the year 1824. The supreme court was to sit only at the seat of government, but each justice was also required to sit as a circuit court judge until 1824, but not thereafter unless required by law. The supreme court was given appellate jurisdiction only, except in cases relating to the revenue, in cases of mandamus and such cases of impeachment as might be tried before it. All judges were to be appointed by joint ballot of both branches of the general assembly and were to hold their offices during good behavior. Judges could be removed for any reasonable cause not sufficient for impeachment on address of two-thirds of each branch of the general assembly. After 1824 the general assembly was authorized to fix the salaries of judges, but such salaries could not be diminished during their continuance in office. All clerks were appointed by the judges. The first session of the general assembly convened at Kaskaskia October 5, 1818. At the second session which convened in January, 1 Constitution of 1818, Article IV, Sec. 1. 1819, the general assembly, acting under the power conferred by the constitution to create inferior courts, established the county commissioners' court. This court was composed of three county commissioners. The powers conferred upon it were chiefly ministerial. The act creating the court of county commissioners gave it jurisdiction throughout the county "in all matters and things concerning the county revenue, and regulating and imposing the county tax; power to grant licenses for ferries and taverns; and all other licenses and things that may bring in a county revenue; jurisdiction in all cases of public roads, canals, turnpike roads and toll bridges, where the law does not prohibit the said jurisdiction of said courts; and. . power and jurisdiction to issue all kinds of writs, warrants, process and proceedings, by the clerk throughout the state, to the necessary execution of the power and jurisdiction with which this court is or may be vested by law." It was also provided that the act should not be construed to give the court jurisdiction in any civil or criminal suit other than cases where the matter or thing brought before the court related to the public concerns of the county generally. It was given charge of all county business and was also given authority to take proofs of wills, grant letters testamentary and of administration, to sell real estate to pay debts of intestates, to appoint guardians for minors, and to transact generally the work of a probate court." When the probate courts were established in 1821 the county commissioners' court was deprived of all probate jurisdiction. 3 The circuit courts were also established at the second session of the general assembly in 1819. As the constitution provided that until 1824 each justice of the supreme court in addition to his duties in the supreme court should also sit as circuit judge, no judges were appointed for this court. The act creating circuit courts required that they should be held at least twice a year in each county, and provided that they should have jurisdiction "in all causes, matters and things at common law and in chancery arising in each of the counties in their respective circuits where the debt or demand exceeds the sum of twenty dollars.' The general assembly that established the circuit court and the county commissioners' court also carried out the mandate of the constitution to appoint justices of the peace. It provided that justices of the peace should be appointed by the general assembly, and that they should have jurisdiction of debts and demands that did not exceed one hundred dollars. Appeals could be taken from the justices of the peace to the circuit court where the judgment exceeded the sum of four dollars. In 1826 the general assembly provided that justices of the peace should be elected by the voters every four years.8 In 1821 the general assembly established courts of probate in each county. One probate judge in each county was appointed by the 2 Laws of 1819, pages 175-176. 3 Laws of 1819, page 176. Laws of 1819, page 176. 5 Laws of 1819, pages 223-233. Laws of 1827, page 255. general assembly. These judges were to hold office during good behavior. Probate courts were given exclusive jurisdiction in matters relating to proofs of last wills and testaments, the granting of letters testamentary, the settlement of all estates of deceased persons and the appointment of guardians for minors. They were also given power to hear and determine applications for discharge from imprisonment for debt. Appeals were taken to the circuit court." In 1837 the probate court act was amended to provide that in August, 1837, and in August, 1839, and every fourth year thereafter, an additional justice of the peace should be elected in each county to be styled the probate justice of the peace. These probate justices were given in addition to the jurisdiction conferred upon justices of the peace, the jurisdiction that had been conferred upon probate judges. They were to hold the probate court.10 The office of probate judge was abolished. This act not only placed the election of the judge of a court of record in the hands of the people, but also provided a term of four years. Before this time all judicial officers, except justices of the peace, had been appointed by the general assembly, during good behavior. In 1845 the term of probate justices was reduced to two years.1 11 In 1824 the general assembly acting upon the power conferred by the constitution provided that thereafter judges of the supreme court should not hold circuit court. It divided the state into five circuits and provided for the appointment of five circuit judges. This change did not meet with popular approval. It was criticised as unwarrantable extravagance.12 The general assembly of 1826-27 repealed the act of 1824, turned the newly appointed circuit court judges, out of office, and required that each judge of the supreme court should sit as a circuit judge. This act divided the state into four circuits. The number of judges of the supreme court was not increased until 1841. In that year the general assembly, actuated by political motives, passed a bill increasing the number of judges of the supreme court to nine. The bill was vetoed by the council of revision, which consisted of the governor and supreme court judges, but was passed over the veto.1 13 In 1829 the general assembly passed an act creating a fifth circuit, which act provided for the election of one circuit judge by the the general assembly.14 As a result of this act there were five circuits, four of them presided over by supreme court judges and one by a specially elected circuit judge. In 1835 a sixth circuit was added,15 in 1837 a seventh16 and in 1839 an eighth and ninth." Circuit judges were elected for each additional circuit created. In 1840 there were, therefore, nine circuits, presided over by four supreme court judges and five circuit judges. Laws of 1820-21, page 119ff. 10 Laws of 1836-37, pages 176-177. 11 Laws, 1844-45, page 28. 12 F. B. Crossley, Courts and Lawyers of Illinois, Vol. 1, page 167. 13 Laws, 1840-41, p. 173. 14 Revised Laws, 1833, p. 147. 15 Laws, 1834-35, p. 153. 16 Laws, 1836-37, p. 113. 17 Laws, 1838-39, p. 155. |