dissenting:
I can not concur with the majority of the court in the views, entertained by them in regard to the Voluntary Assignment act, as embodied in this opinion and in several other opinions of a similar character. The constitution of this State (art. 6, sec. 12) provides, that “the circuit courts shall have original jurisdiction of all cases in law and equity.” The legislature can not deprive them of such original jurisdiction by any act that it may pass. Section 18 of article.6 of the constitution, after specifying certain matters, in which county courts shall have original jurisdiction, provides that they shall have “such other jurisdiction as may be provided for by general law. ”
Under section 18, the legislature might, by a general law, confer upon county courts jurisdiction in all cases in law and equity. But even if this be admitted, the legislature could only confer upon county courts a jurisdiction in such cases, which should be concurrent with that of the circuit courts. It could not give them exclusive jurisdiction in law and equity cases. Any act, that should attempt to do so, would violate section 12 of article 6, as above quoted.
This point was expressly decided by this court in Myers v. The People, 67 Ill. 503, where it is said: “The last clause of section 18 of article 6, above quoted, is broad enough to warrant the legislature in conferring upon the county courts of the State concurrent jurisdiction with the circuit courts; but that clause must be construed in connection with other provisions of the same instrument. * * * The legislature, therefore, has no power to abridge the original jurisdiction of the circuit court. This it has attempted to do * * * by providing that county courts shall have exclusive jurisdiction in all criminal cases etc.”
The léth section of the “Act concerning voluntary assignments” etc. provides, that “full authority and jurisdiction is hereby conferred upon county courts, and the judges thereof, to execute and carry out the provisions of this act, ” etc. By the decisions here dissented from, the language of this 14th section is, in effect, construed to mean, that whatever powers of a court of chancery or of a court of common law are necessary to be exercised in executing and carrying out the Voluntary Assignment act, shall be exclusively vested in county courts. If the act in question involves and necessitates any such construction as this, it is unconstitutional.
The legislature has never passed any general law, conferring upon county courts even concurrent jurisdiction with circuit courts in all common law and equity matters pertaining to voluntary assignments and the property conveyed by them, unless the act in question is such general law. If the act confers any such jurisdiction, it is only by implication, If the legislature intended, by the passage of the act, to proceed under the last clause of section 18 of article 6 of the constitution and to confer upon county courts any such concurrent jurisdiction, as is there contemplated, it is natural to suppose, that they would have conferred it in express terms and not by such general language, as is used in section 14, above quoted.
Jurisdiction is exclusive as well when it is limited to a particular class of subjects, or a particular kind of property, as when it is limited to a particular amount. If the legislature should pass an act, giving to county courts exclusive jurisdiction in all law and equity cases, where the amount involved does not exceed $1000, it would be conceded at once, that such act was unconstitutional, as depriving circuit courts of a part of the jurisdiction, conferred upon them by the organic law. What difference is there between such an act, and an act, which is construed to mean, that circuit courts shall have no jurisdiction whatever in any case at law or in equity, which has reference to a voluntary assignment, or, in any way, concerns any property, either real or personal, embraced in a voluntary assignment?
Under the construction, given to this act, the county courts are clothed with greater chancery powers than are ever exercised by any ordinary court of equity. In order to get an injunction against a man, it has generally been considered necessary to file a bill and make him a party. An injunction is usually issued only against one, who is a party to a pending proceeding. But, in Hanchett v. Waterbury, where a creditor placed a replevin writ, issued by the circuit court, in the hands of the sheriff, for the purpose of replevying his own property, that happened to get into the hands of- an assignee under a voluntary assignment, the county court is permitted, upon the application of the assignee, to make an order enjoining the sheriff from levying the writ, although the sheriff was not a party to any proceeding pending before the county court.
In this case, the county court makes a. decree, enjoining certain creditors, who are outside parties and not before it as parties to any proceeding, from prosecuting a garnishee proceeding in the Superior Court of Cook county.
Fraud is a ground of equitable jurisdiction and circuit courts have equity jurisdiction; yet, under this decision, a circuit court can not entertain a bill to set aside an assignment for fraud; its jurisdiction upon that subject is taken away and vested exclusively in the county court, although even under the Assignment act, the county court has to do only with assignments “for the benefit of creditors, ” and a fraudulent assignment is not for the benefit of creditors.
The enforcement of trusts is a ground of equitable jurisdiction, such as circuit courts are accustomed to exercise; yet, under the construction given to this act, if the assignor, holding the naked legal title to a piece of land, of which a third person is the equitable owner, deeds it to his assignee in a voluntary assignment, such third person can not file a bill in the circuit court to enforce the trust and get the legal title back into himself, but he must go into the county court.
In case an assignor, having any sort of title to a piece of real estate, should include it in his deed of assignment, a third person, claiming the better legal title, could not, under the construction thus'claimed, commence an action of ejectment in the circuit court, but must begin it in the county court.
In my opinion, the legislature never intended to vest the county courts of this State with any such vast and extended jurisdiction, exclusive in its character, as is here indicated.
It is said, that the construction of the act, adopted by the majority of the court, is justified by the rule, that, in cases of concurrent jurisdiction, the court, which first obtains jurisdiction, will have precedence.
If the county court can be said to obtain jurisdiction first in the instances above recited, it is so obtained, when the inventory and valuation, specified in the third section of the act, are filed. The object of the assignment is to distribute the assignor’s assets pro rata among his creditors. A court can not have jurisdiction over a question, until the question arises. The filing of an inventory and valuation of assets with a view to their future distribution can not give jurisdiction in advance to the county court over questions of title and ownership, which have not yet arisen.
“Concurrent jurisdiction is that which is possessed over the same parties or subject matter at the same time by two or more separate tribunals.” Suppose that a man’s personal property, which happens to be in the possession of an assignor, is turned over by fraud or mistake to the assignee named in the assignment, and he commences a replevin suit in the circuit court to recover it from the assignee. The question involved is the ownership of the property. That question first arises, so far as the courts are concerned, when the replevin suit is begun. The circuit court gets jurisdiction over that question, which is the subject matter of the suit, before the county court gets any jurisdiction over it. The county court has no jurisdiction over the plaintiff in the suit, nor over the sheriff, holding the writ. It is a matter for the circuit court to decide..
It may be said, however, that the circuit court does not get jurisdiction of the subject matter by reason of the fact that the replevin suit or other proceeding to test the ownership of the property is brought in that court. On the contrary, it may be claimed that the county court obtains jurisdiction first because it has possession of the property under and by" virtue of the assignment. If this claim is correct, then the circuit and county courts can not be said to have concurrent jurisdiction, unless it is possible for the circuit court also to get possession of the property under and by virtue of the assignment. But the Assignment act confers no power whatever upon the circuit court to take any action in matters of voluntary assignments; that court has no control over the property assigned, and nothing to do with administering or distributing the assigned effects. Indeed, the ground upon which the majority base their construction of the act is, that it confers exclusive jurisdiction upon the county court. It can not be correct to say that the jurisdiction is both" exclusive and concurrent.
I think the proper views of this Assignment act are expressed on pages 220 and 221 of the 115th volume of" the Illinois Reports, in the abstract of points made by counsel for appellant in the case of Hanchett v. Waterbury, and which precede the opinion in that case.
Mr. Justice Sheldon, also dissenting..