specially concurring:
The circuit court of Champaign County by its order in this declaratory judgment proceeding declared that it is the duty of the State’s Attorney of Champaign County to prosecute on behalf of the people those cases brought by police officers of the municipalities named as plaintiffs wherein a violation of the Illinois Vehicle Code is charged. This court by its judgment affirming that order necessarily holds the declaratory judgment was properly allowed, and that there was no material issue of fact, and, finally, that the judgment entered by the circuit court was correct. I agree with the judgment entered.
This concurring opinion is written to expressly state my understanding of the consequences of our opinion in this case and the opinion of this court in City of Decatur v. Curry, 39 Ill. App. 3d 799, 350 N.E.2d 816. Section 16 — 102 provides that municipal attorneys may prosecute traffic violations that occur within the corporate limits of the municipality if written permission to do so is obtained from the State’s Attorney. In this case, we hold that a State’s Attorney cannot divest himself of the statutory obligation to prosecute offenses by a unilateral delegation to municipal attorneys. The State’s Attorney can, however, authorize municipal attorneys to proceed. He would still retain the primary responsibility to prosecute.
Obviously, the real issue lurking in this case and expressly involved in Curry concerns the disposition of fines as well as primary responsibility for prosecution.
Prior to the statutory amendment now in question, the statute provided that the State’s Attorney had the sole prosecutorial jurisdiction (Ill. Rev. Stat. 1973, ch. 95½, par. 16 — 102). In the case of City of Champaign v. Hill, 29 Ill. App. 2d 429, 173 N.E.2d 839, this court, then the Third District, interpreted the word “prosecute” as then used in the statute with reference to the disposition of fines. In order to prevent the word “prosecute” as used in another section from being rendered meaningless, the court interpreted that section to authorize the payment of fines to a municipality if the municipal officials do all things necessary and within their legal power, such as make the arrest, sign informations, appear or produce witnesses — all things that they were then legally authorized to do to bring the violator to justice. The court construed the term “prosecute” as not requiring the formal conduct of court proceedings which municipal attorneys were not then legally authorized to conduct.
The effect of the decision in the Hill case was to make it possible to distribute the fines to the municipalities although they did not in fact “prosecute” the case. Under the rationale of the Hill case, and now under the decision of this court in Curry, and the instant case, we arrive at the point where the primary responsibility for prosecution still rests upon the State’s Attorney. The State’s Attorney can now, however, unilaterally authorize a municipal attorney to prosecute traffic cases. The municipal attorney does not have to, but being legally authorized to do so, his refusal to do so means the municipality is not entitled to the fine.