I cannot agree with that part of the decision in this case which holds constitutional the act requiring the payment of jury fees in advance in Cook county. I agree with the result on the merits of the case, but a different conclusion as to the constitutional question would have made a decision on the merits unnecessary. In my opinion the section of the statute which requires the payment of a fee of any amount before either party is entitled to a jury trial is unconstitutional. First, there is no reasonable basis for placing the county of Cook in a separate and distinct class with reference to the demand for a jury fee and payment thereof; and second, this provision violates section 29 of article 6 of the constitution, which requires uniformity as to laws regulating the practice and procedure in courts of record throughout this State. (Phillips v. Quick, 63 Ill. 445; Taylor v. Smith, 64 id. 445.) The section referred to provides: "All laws relating to courts shall be general, and of uniform operation; and the organization, jurisdiction, powers, proceedings and practice of all courts, of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform." Among other things, *Page 515 section 22 of article 4 of the constitution provides: "The General Assembly shall not pass local or special laws in any of the following enumerated cases, * * * regulating the practice in courts of justice." "Practice," as defined inFleischman v. Walker, 91 Ill. 318, and Therens v. Therens, 267 id. 592, in my opinion would include the section of the statute which requires payment of jury fees in advance to obtain a jury trial. Section 12 of article 10 of the constitution only authorizes the General Assembly to create three classes of counties, according to their population, for the purpose of regulating the fees according to the class. No specific authority is given to the General Assembly to require payment of fees to an officer in advance in one class of counties and at a different time to the same officer in other counties. I do not believe that such power can be implied. The right to classify counties by population, furthermore, would not remove the objection that courts of similar or equal jurisdiction are established in all the counties and they must have uniform practice. If the practice is to be uniform the laws affecting it must be uniform and must not be local. This point has not been decided in our State, but the courts of Ohio and Colorado have passed upon the question under similar provisions of their constitutions.
In Pitkin County v. First Nat. Bank, 24 Colo. 124, the Colorado Supreme Court adopted the opinion of the court of appeals and held unconstitutional the section of a Colorado statute requiring jury fees to be advanced in the second, third and fourth-class counties but not in counties of the first class. The Colorado constitution provided: "All laws relating to courts shall be general and of uniform operation throughout the State; and the organization, jurisdiction, powers, proceedings and practice of all the courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments, and decrees of such courts severally, shall be uniform." *Page 516 The court said: "The meaning of this constitutional provision is apparent upon its face. Every law affecting the manner in which justice shall be administered in courts of a given class must apply equally to all of such courts and their power shall be the same. All county courts in the State belong to the same class. By the terms of section 9 conditions are imposed in some of these courts upon the right of a litigant to have his cause tried by a jury which are not imposed in others. In counties of the first class the court is given the power to order a jury in a civil action without the advancement of their fees; in all other counties such power is withheld. The language of the constitution upon the subject is unequivocal and mandatory, and section 9 is in direct conflict with its provisions." But it is here contended that in the case of the Illinois statute there is a reasonable basis for the classification, and that therefore the law is general and not local or special.
In Silberman v. Hay, 53 N.E. 258, the Supreme Court of Ohio said: "We entertain no doubt of the invalidity of this law. It is true that there is an attempt to give it the character of a general one by making it applicable to all counties which now contain or which may contain a city of the second grade of the first class, but if its subject matter is not a proper subject of local legislation this attempt to give the form of a general law can be of no avail. It is manifestly a local law, intended to apply to Cuyahoga county, and can apply to no other. The constitution (art. 2, sec. 26,) requires that all laws of a general nature shall be uniform in their operation throughout the State, and it is well settled that the general nature of a law must be determined by its subject matter. If this be general the law must be general, but if the subject matter be of a local nature a local law applicable to the subject matter may be enacted. But as to the nature of the subject matter the legislature is not the exclusive judge. If it were otherwise, *Page 517 then this important provision of the constitution would be little more than directory instead of mandatory, as it undoubtedly is. * * * No answer suggests itself to this question that would not also permit of a difference in the law of procedure, or of a variety of many other subjects of legislation that have heretofore been universally regarded as of a general nature. Undoubtedly there is more litigation in a large county like Cuyahoga than in some other, but this difference can be, and has been, provided for by increasing the judicial force of the subdivision in which the county is situated." The statute under consideration by the Supreme Court of Ohio provided that in counties containing a city of the second grade of the first class, a litigant, in order to obtain a jury trial, must file a demand therefor at least five days before the first day of the term of court and at the same time deposit with the clerk a jury fee of five dollars. Cuyahoga county, containing the city of Cleveland, was the only such county in the State.
The question of lack of uniformity was not raised in the cases of Williams v. Gottschalk, 231 Ill. 175, Simon v. Reilly, 321 id. 431, Morrison Hotel Co. v. Kirsner, 245 id. 431,Morton v. Pusey, 237 id. 26, or Lassers v. North-German LloydSteamship Co. 244 id. 570. These cases are not in point. They deal with questions arising out of special statutory regulations of procedure authorized for the municipal court of Chicago. That court, and the special rules and statutes governing its practice and procedure, were authorized by the amendment to the constitution passed in 1904. (Const. art. 4, sec. 34.) Hiram T. Gilbert, in his work entitled, "The Municipal Court of Chicago," says that because of the uniformity provisions of the constitution of Illinois it was necessary to obtain the adoption of the 1904 amendment to the constitution in order to institute special, as distinguished from uniform, practice in the municipal court of Chicago; that by section *Page 518 22 of article 4 the General Assembly was prohibited from passing local or special laws regulating the practice of courts of justice, regulating the jurisdiction and duties of justices of the peace, police magistrates and constables, and providing for changes of venue in civil and criminal cases or summoning and impaneling grand or petit jurors. By section 29 of article 6 it was provided that all laws relating to courts should be general and of uniform operation, and that the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts severally, should be uniform. No law, therefore, affecting the jurisdiction or practice of the courts of Cook county or of the justices of the peace of the city of Chicago could be adopted unless its provisions were applicable to the courts of record and justices of the peace throughout the State.
Section 22 of article 4 appears in the constitution as a general limitation of the power of the legislature to pass local or special laws. In addition, section 29 of article 6 of our constitution deals with the powers of the courts, and can be said to show an intention to make certain that the legislature shall not regulate the practice and procedure in the courts of this State with any other but general laws. This precludes the idea that the legislature can classify the counties and make different rules of procedure for each class. The courts of Colorado and Ohio have reached a sound conclusion. The Colorado court discussed a provision similar to section 29 of article 6, and said that a requirement that jury fees must be advanced in three out of four classes of counties was unconstitutional as a special law regulating rules of practice. The Ohio court discussed an analogous situation and found that there was no reasonable basis for classification, and for that reason the statute contravened the general uniformity clause of the Ohio constitution. *Page 519
When the municipal court of Chicago was created, the necessities which the case presented were met by a constitutional amendment. I am therefore of the opinion that the conclusion is inescapable that the section requiring payment of jury fees in advance in order to obtain a jury trial is unconstitutional.
Mr. JUSTICE HERRICK concurs in this dissent.