Section 4 of the Lunacy Act (Ill. Rev. Stat. 1941, chap. 85, par. 4,) after providing for the issuance of a writ commanding the person who has custody of the person alleged to be insane to produce such person before the *Page 420 court, further provides that, "in no case shall such hearing take place until the person alleged to be insane shall have been notified as the court shall direct."
In Haines v. Cearlock, 184 Ill. 96, it was said: "The necessity of a notice to the party to be deprived of property or liberty in such a proceeding was declared in Eddy v. People, 15 Ill. 386. In that case, the court, speaking upon that subject, said: `If he be in fact a lunatic the notice would be undoubtedly useless; but that is the very question to be tried, and until a regular trial is had or inquest made the presumption is in favor of his sanity. The consequences resulting from the determination are of the most momentous character to the lunatic, both personally and pecuniarily, and so long as it is possible that a sane person might, upon an ex parte examination, be found to be insane, every principle of justice and right requires that he should have notice and be allowed to make manifest his sanity, and to refute or explain the evidence tending to prove the reverse. The idea is too monstrous to be tolerated for a moment, that the legislature ever intended to establish a rule by which secret proceedings might be instituted against any member of the community, by any party who might be interested, to shut him up in a madhouse, by which he might be divested of his property and his liberty without an opportunity of a struggle on his part. Should such a principle be sustained, the most sane man in the State is liable to be surprised at any moment by finding himself bereft of his property and on his way to a lunatic asylum. Such justice as this would be worthy of that dread tribunal the holy vehme, whose first notice to its victim was the execution of its sentence, but it cannot be tolerated where just and equal laws prevail and can be enforced. If the party be actually lunatic the notice can do no harm; but if he be sane it is of the most momentous importance to him, and, at any rate, it must be his legal right'." It should be noted that the statute, *Page 421 as it existed at the time the case of Eddy v. People, 15 Ill. 386, arose, contained no express provision for notice to the person alleged to be insane. (Rev. Stat. 1845, chap. 50, sec. 1.) In 1893 and prior to the decision in Haines v. Cearlock, 184 Ill. 96, the statute was amended so as to provide for such notice. This statute, as amended in 1893, is section 4 of the Lunacy Act, as it now exists.
With reference to the character of the notice to be given to the person alleged to be insane, it was further observed inHaines v. Cearlock, 184 Ill. 96: "Regarding notice, the statute provides that in no case shall a hearing take place until the person alleged to have been insane shall be notified as the courtshall direct. The character of notice is left to the sound discretion of the court * * *."
In Behrensmeyer v. Kreitz, 135 Ill. 591, this court also quoted with approval from Eddy v. People, 15 Ill. 386, as follows: "InEddy v. The People, 15 Ill. 386, and long prior to the adoption of any statute requiring notice to the supposed insane person in a proceeding de lunatico inquirendo, it was held by this court that reasonable notice to such person was necessary, and even in a case when the supposed insane person actually appeared by counsel and examined the witnesses. Section 2, chapter 86, of the Revised Statutes, provides that in a proceeding to ascertain whether a person be lunatic or distracted, `summons shall be issued and served upon the person for whom a conservator is sought to be appointed, in the same manner as summons is issued and served in cases in chancery.' Most important rights, both personal and pecuniary, of the person against whom such application is made, are involved in the investigation, and the word `shall,' in the statute, must be regarded as mandatory. In this case the record shows only nine days' service of summons before the date of hearing and judgment, and that the service was by reading. Under the statute, service was required to be made by delivering a copy of the summons, and at *Page 422 least ten days before the hearing. (Rev. Stat. chap. 22, sec. 11.) There was no waiver of irregularities by Weisenberger on account of his personal appearance in the proceeding, for an insane man is incompetent to waive any right, and the appellant here can not afford to admit that he was not insane. The finding and adjudication, and appointment of a conservator, were void for want of jurisdiction, and the court properly excluded them as evidence."
In Eddy v. People, 15 Ill. 386, it was shown that the person alleged to be insane actually had notice and appeared at the hearing by his counsel and participated in the examination of witnesses. It was argued that this was sufficient. In disposing of this contention the court said: "It is said in this case, that the supposed lunatic did have notice, and actually appeared by counsel and examined the witnesses, and that we should presume notice was given till the contrary is shown, upon the principle that we will presume that the court below proceeded regularly. If notice was given the record should show it affirmatively. How is it possible upon this writ of error for the plaintiff to show the negative and prove that he had no notice? This case must be tried by the record, and neither party can introduce other evidence to contradict, explain, or enlarge it. The record should have shown the notice. But this is not a case of first impression. The case of Chase v. Hathaway is analogous to this in every essential particular, and is precisely in point. The court there said, `there being no provision in the statute for notice to the party who is said to be incompetent, by reason of insanity, to manage his estate, it seems that the judge of the probate did not think such notice essential to his proceedings. But we are of opinion that, notwithstanding the silence of the statute, no decree of a probate court so materially affecting the rights of property and the person, can be valid unless the party to be affected has had an opportunity to be heard in his defense'." For the reason that the *Page 423 record did not show that notice was given, it was held the court below was without jurisdiction and its adjudication a nullity.
Section 4 of the Lunacy Act, as amended in 1893, does not provide the character of notice to be given to the person alleged to be insane. It provides, however, that such person shall be notified "as the court shall direct." Where the statute provides that the court shall fix the notice to be given, it is indispensable that an order be entered fixing such notice. A notice given without such previous order of the court, fixing the kind and character of the notice to be given is a nullity, and does not confer jurisdiction on the court.
In Reizer v. Mertz, 223 Ill. 555, the court construed an identical provision with reference to notice in the Administration Act. It was there said: "Section 112 of the Administration Act provides that the heirs of the decedent shall be notified of the intended final settlement before its approval, `in such maner as the court may direct,' — that is, the court may direct that the notice of final settlement be actual or constructive; and, regardless of what the law may be where the heirs have actual notice of the presentation of the final report of an administrator or executor and application for discharge, clearly, if the notice is constructive, the court must fix the character of notice to be given the heirs before the notice is given. Here it is apparent the court took no action with reference to the notice provided by the statute to be given the heirs before the notice of the intended final settlement and application for discharge of the executor was given. The notice relied upon was given in October and the report was not filed until November. The fixing by the court of the manner in which the notice of final settlement and application for discharge is to be given, where the notice is constructive, is jurisdictional, and no constructive notice can be given to a non-resident heir of final settlement and application *Page 424 for discharge which will be binding upon him, unless the court has fixed the manner of giving notice, by an order entered of record, prior to the time such notice is given."
Under the above authorities, if there is no order of the court directing the kind or character of the notice to be given, the court is wholly without jurisdiction to proceed with the hearing. As said in the case of Haines v. Cearlock, 184 Ill. 96, such notice is indispensable to the jurisdiction of the court to proceed with such hearing. The lack of such notice could not be waived, or the giving of such notice dispensed with by the personal appearance of Helen Calhoun Cash in the proceeding. She was incompetent to waive any right. Behrensmeyer v. Kreitz,135 Ill. 591.
There is contained in the record in this case a transcript of the proceedings in the county court. This transcript discloses that on May 19, 1938, a petition was filed alleging that Helen Calhoun Cash was insane or suffering under mental derangement and unsafe to be at large. This petition was signed by Veronica Kelley, an employee of Resthaven Sanitarium. It was sworn to before Minnie Goll, a notary public of Kane county, Illinois. She was also an employee of the sanitarium. No affidavit was filed showing that the physical or mental condition of Helen Calhoun Cash was such as to prevent her attendance in court, as provided in said section 4. On the contrary, there was endorsed on the back of the petition what purports to be an order of the county judge for the issuance of a writ of detention, directed to Libby Goll. Such writ was issued. It commanded Libby Goll to produce Helen Calhoun Cash before the court at the time fixed for the hearing. There is also endorsed on the back of the petition, over the signature of the county judge, what purports to be an order setting a hearing for May 23, 1938, at 10:00 o'clock A.M., at the Resthaven Sanitarium, and appointing two physicians as commissioners. Entirely *Page 425 separated and wholly disconnected from any other written or printed words either on the face or back of the petition, the words, "Give respondent at least 24 hours notice of hearing," appear. These words are not addressed to anyone, nor does it appear by whom they were endorsed on the petition. They do not purport to be over the signature or name of the county judge, or to be an order entered by him. They are wholly separated from the purported orders above referred to. The name or signature of the county judge does not appear in connection with these words. The statute directs that the notice shall be fixed by the "court," not by the "judge."
To whom the word "respondent," in the endorsement, refers, nowhere appears. There is no one connected with either the petition or the proceedings, except Libby Goll, who could be properly identified as "respondent." No one is named or referred to in the record as respondent. There is nothing in the record from which anyone could be identified as "respondent," except Libby Goll. The only writ ordered to issue was to be directed to her. She was the "respondent" to be named in the writ. Clearly the reference to twenty-four hours' notice is to Libby Goll, the respondent, named in the only writ ordered to issue. These words, even if they were contained in an order of the court properly entered, would be wholly insufficient as fixing the kind and character of the notice to be given to Helen Calhoun Cash, as required by section 4 of the Lunacy Act. They are not contained in what purports to be an order of the county court, or even an order or direction of the county judge. They do not purport to direct or even indicate by whom notice shall be given.
Even if this endorsement was made by the county judge, it fell far short of an order of the county court required by statute as to the character of notice to be given to the person alleged to be insane. Jurisdiction to enter orders required by statute is vested in the courts and not *Page 426 in the judges. (Department of Public Works v. Legg, 374 Ill. 306. ) The judge has no power to make orders unless such power is specially conferred upon him by statute. (Ling v. King Co.91 Ill. 571.) A judge can not act judicially as a court in the absence of special statutory authority. (Conkling v. Ridgely Co. 112 Ill. 36; Durham v. Brown, 24 Ill. 94.) It is well settled that judges can exercise no judicial functions except such as they are specifically authorized to do by statute. (Devine v.People, 100 Ill. 290.) The entry of an order as required by section 4 of the Lunacy Act, fixing the notice to be given to a person alleged to be insane, is an important judicial function, which can only be exercised by the court. The judge may order the issuance of a writ commanding the person having the custody of the person alleged to be insane to produce such person before the court for the hearing. Section 4 of the Lunacy Act expressly authorizes the judge to do this. But the statute specifically provides that notice to such person of the hearing shall be such "as the court shall direct." Clearly, the legislature used the word "court" in the last clause of section 4, advisedly and not as meaning the judge of the county court. By section 13 of the Lunacy Act (Ill. Rev. Stat. 1941, chap. 85, par. 13,) jurisdiction over insane persons, who are not charged with crime, is vested solely in the county courts.
The notice required by section 4 is in effect the process of the court. It must emanate from the court for the purpose of enabling the court to acquire jurisdiction of the person alleged to be insane. It is the same character of notice as that required by the former statute to be given to a minor in proceedings by his guardian to sell his real estate. Such notice constitutes the process of the court by which jurisdiction is acquired. (Nichols v. Mitchell, 70 Ill. 258.) When the statute requires a notice to be *Page 427 given of the pendency of proceedings in a court, the notice given must be authentic. It is an essential quality of such notice that it be given by competent authority, and this must appear from the notice itself. If it shows on its face that it is the act of one having no authority, it is ineffectual to give the court jurisdiction. (36 Am. Jur., p. 237, sec. 9.) Here the applicable statute requires notice to be given under the order and direction of the court. To be effective, it must be ordered by the court. It must emanate from the court. It must be issued under the authority of the court. It must be served by like authority. The only way a court can give authenticity to its notices and process, is by certification under the hand of the clerk and the seal of the court.
The notice relied upon in this case is as follows:
"To HELEN CALHOUN CASH
"You are hereby notified that on Monday, the 23rd day of May, A.D. 1938, at the Resthaven Sanitarium, Elgin, in the said County of Kane, at the hour of 2:00 o'clock in the after noon, or as soon thereafter as counsel may be heard, before the HONORABLE OLNEY C. ALLEN, County Judge, proceedings will be instituted and a hearing had to inquire into the question of your alleged insanity, when and where you may appear and defend if you see fit so to do.
CHARLES A. O'CONNOR, State's Attorney."
Endorsed on the back of this notice is a return showing that it was served on Helen Calhoun Cash on May 21, 1938. The return is signed, "Wm. T. Kruse, Constable."
The record does not disclose, and no claim is made, that any other notice was given to Helen Calhoun Cash. There was no order of the county court directing the character of notice to be given or the manner in which it should be given. It will also be noted that the order of the county judge endorsed on the back of the petition set the matter for hearing at the Resthaven Sanitarium for May 23, 1938, at the hour of 10:00 o'clock A.M. The *Page 428 notice signed by the State's Attorney and addressed to Helen Calhoun Cash recites that the hearing is to be held at 2:00o'clock P.M. on that day.
Obviously, the notice relied upon is nothing more than a letter written and signed by the State's Attorney. It does not purport to have been authorized or issued by the court. It did not emanate from the court. It is not signed by anyone authorized to act for the court or to issue notices or process of the court. It is, in no sense, official. So far as its authenticity is concerned, it might as well have been signed by any other county officer or individual, or by no one at all. It is not such a notice as the statute requires.
In the absence of a special order to the contrary, the clerk is the only person authorized by statute to issue notices ordered to issue by the court. Such notices, to be given authenticity, must be issued and tested by him, under the seal of the court. No one could seriously contend that the words found on the back of the petition, even if contained in an order properly entered by the court, would authorize the State's Attorney to issue such notice, or a constable to serve it. The signature of the State's Attorney gave it no authenticity. In the absence of a special order of the court directing a notice or process to be served by an individual, the sheriff is the only officer authorized by statute to make such service. (Ill. Rev. Stat. 1941, chap. 110, par. 130; Ill. Rev. Stat. 1941, chap. 125, par. 15.)
The only proof of service of the notice on Helen Calhoun Cash is the return of the constable endorsed thereon. A constable is not an officer of the county court. His service of process or notice issued by the county court is not in his official capacity as constable. As constable he has no authority to serve such process. He could only be authorized to make such service as an individual, upon special order of the court, authorizing him to do so, not *Page 429 as constable, but as an individual. The notice was not addressed to him — it was addressed to Helen Calhoun Cash. Officers are only authorized to make return of service of process where the statute authorizes them to make such service. (Vennum v. Vennum,56 Ill. 430; Ball v. Peck, 43 Ill. 482.) Where a court is exercising a special statutory jurisdiction, as in this case, jurisdiction is never presumed, and if it does not appear from the record, the judgment will be void. Fico v. Industrial Com.353 Ill. 74; Brown v. VanKeuren, 340 Ill. 118; Vyverberg v.Vyverberg, 310 Ill. 599; Spring Creek Drainage Dist. v. HighwayComrs. 238 Ill. 521.
Service of such notice as the county court shall direct is jurisdictional. Lawful evidence that such service has been made must be preserved in the record, otherwise the court is without jurisdiction. (Drainage Dist. v. Highway Comrs. 238 Ill. 521;Vyverberg v. Vyverberg, 310 Ill. 599; Fico v. Industrial Com.353 Ill. 74.) In this case the record fails to show that any lawful notice was ever issued or served on Helen Calhoun Cash, as required by statute. There is no sufficient proof of service of any notice. Jurisdiction in special statutory proceedings is never presumed. It must affirmatively appear from the record.(Ashlock v. Ashlock, 360 Ill. 115; Keal v. Rhydderck, 317 Ill. 231. ) Nothing will be presumed in favor of jurisdiction in the face of facts appearing in the record showing that it did not exist. (Sharp v. Sharp, 333 Ill. 267.) A recital of jurisdictional facts in the judgment is not sufficient where the lack of jurisdiction appears from the record. People ex rel.Vaughan v. Sargent, 252 Ill. 104.
Where the record itself shows the evidence upon which the court acted in finding that it had jurisdiction, no presumption of jurisdiction can be indulged, and where the record shows the evidence upon which the court acted is insufficient, the finding in favor of jurisdiction is not conclusive. The presumption of jurisdiction applies only *Page 430 when the record is silent upon the question. Sharp v. Sharp,333 Ill. 267; Osgood v. Blackmore, 59 Ill. 261; Clark v. Thompson,47 Ill. 25.
Originally, in England, the custody and control of lunatics was vested in the King, who had authority to initiate an inquest as to the sanity of the subject. Later, this authority was delegated to the Lord Chancellor as representative of the Crown. The Lord Chancellor, however, in exercising this authority, was not acting as Chancellor, but was exercising a very limited authority or jurisdiction conferred by special grant from the King. People v.Janssen, 263 Ill. App. 101.
The Courts of England never had jurisdiction over insane persons or their property. There was no proceeding known to the laws of England by which the courts could exercise such jurisdiction. In this country, the State, in its character asparens patriae, may lawfully exercise the same powers and control over the persons and property of lunatics and idiots that was exercised by the Crown of England through the Lord Chancellor.Dodge v. Cole, 97 Ill. 338.
That power in this State is exercised by the county courts by virtue of a special statutory jurisdiction conferred upon them. There was no proceeding known to the common law in England, in the courts, even comparable to the statutory powers conferred upon our county courts relative to the persons and property of those alleged to be insane. That a proceeding of this character in this State is a special statutory proceeding is clearly recognized and so treated in the following cases: People ex rel.Fullerton v. Gilbert, 115 Ill. 59; McCormick v. Blaine, 345 Ill. 461, and many other cases.
In the exercise of special powers conferred by statute, as distinguished from the exercise of jurisdiction according to the course of the common law, a court of general *Page 431 jurisdiction does not differ from a court of limited and special jurisdiction. In such proceedings, nothing will be presumed to be within the jurisdiction where the jurisdiction does not distinctly appear from the record. (Cobe v. Guyer, 237 Ill. 516;Watts v. Dull, 184 Ill. 86; Payson v. People ex rel. Parsons,175 Ill. 267; Chicago and Northwestern Railway Co. v. Galt, 133 Ill. 657; Munroe v. People, 102 Ill. 406.) In such cases, jurisdiction is never presumed, and if it does not appear, the judgment will be void. Whatever the rank of the court exercising a special statutory jurisdiction, it is governed by the same rules as courts of limited jurisdiction. Every fact necessary to put the court in motion and give jurisdiction must be in conformity with the statute granting the right. Brown v. Van Keuren, 340 Ill. 118.
As I view it, the record clearly shows that Helen Calhoun Cash was not "found" in Kane county, within the meaning of that term as used in the Lunacy Act. This court has said that a person is "found" in a county so that process can be served upon him, only when he has voluntarily gone into the county, or has been properly seized for a crime and taken into the county, in which case the law presumes he is voluntarily within the county.(Willard v. Zehr, 215 Ill. 148; McNab v. Bennett, 66 Ill. 157.) In my opinion, the evidence in this case is conclusive that Helen Calhoun Cash was taken into Kane county without her consent, forcibly and against her will, and there unlawfully detained for more than ten days prior to the time the inquest was held, and that she was not "found" within Kane county.
For the above reasons, I am unable to concur in the majority opinion. *Page 432