City of Urbana v. Mallow , 43 Ill. App. 3d 475 ( 1976 )

Mr. JUSTICE STENGEL

delivered the opinion of the court:

The county of Champaign appeals from a judgment order declaring that a municipality is entitled to receive the fines and forfeitures collected for violations of State traffic laws committed within its boundaries where the States Attorney conducts the prosecution if the municipality has not obtained the State’s Attorney’s permission to prosecute such violations.

On April 1, 1974, the State’s Attorney of Champaign County directed the circuit clerk, Betty Mallow, to pay all fines and forfeitures in city traffic cases to the county treasurer, since no municipal attorney had requested permission to prosecute State violations. Thereafter the municipalities of Urbana, Champaign and Rantoul joined in bringing this declaratory judgment action to determine whether an amendment to section 16 — 102 of the Motor Vehicle Code (Ill. Rev. Stat. 1975, ch. 95*2, par. 16 — 102), effective January 1, 1974, also was intended to change section 16 — 105 of the Code which provided for fines and forfeitures to be paid to the municipality in State traffic offenses occurring within a city where court proceedings are conducted by the State’s Attorney. The circuit clerk interpleaded and paid the disputed funds into the court. The county of Champaign was allowed to intervene with a counterclaim asserting the county’s right to the disputed fines.

The trial court held that the amendment to section 16 — 102 was not intended to change the disposition of fines and penalties under section 16 — 105, but was enacted to give municipalities an opportunity to proceed with prosecution when in their opinion that was necessary for more effective law enforcement. This appeal followed.

Section 16 — 105 of the Motor Vehicle Code (Ill. Rev. Stat. 1975, ch. 95*2, par 16 — 105) provides:

“(a) Fines and penalties recovered under the provisions of Chapters 11 through 16 inclusive of this Act shall be paid and used as follows:

1. For offenses committed upon a highway within the limits of a city, ° ° ° to the treasurer of the particular city, 4 4 " if the violator was arrested by the authorities of the city, * * * provided the police officers and officials of cities, # ” shall seasonably prosecute for all fines and penalties under this Act. If the violation is prosecuted by the authorities of the county, any fines or penalties recovered shall be paid to the county treasurer.”

Before 1974, section 16 — 102 of the Code (Ill. Rev. Stat. 1973, ch. 95/2, par. 16 — 102) provided in part:

“The State’s Attorney of the county in which the violation occurs shall prosecute all violations ” ”

In 1961 a dispute arose as to who “prosecuted” a traffic case, within the meaning of section 16 — 105, where a city police officer made the arrest, signed the complaint, and appeared as a witness in a trial conducted by the State’s Attorney. The court held that the word “prosecute” in section 16 — 105 did not mean the formal conduct of court proceedings but instead meant pursuing the offender as far as legally possible. Since section 16 — 102 did not permit a municipal attorney to engage in court proceedings, the municipality was entitled to the fine in cases where the city police officer made the arrest, signed the charge, and appeared as a witness against the violator. City of Champaign v. Hill (3d Dist. 1961), 29 Ill. App. 2d 429, 173 N.E.2d 839; see also City of Rockford v. Watson (2d Dist. 1969), 108 Ill. App. 2d 146, 246 N.E.2d 458.

Section 16 — 102, as amended (Ill. Rev. Stat. 1975, ch. 95*2, par. 16 — 102), now provides:

“The State’s Attorney of the county in which the violation occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State’s Attorney.” (Emphasis added.)

Two recent decisions have construed this amendment to section 16— 102. In City of Decatur v. Curry (4th Dist. 1976), 39 Ill. App. 3d 799, 350 N.E.2d 816, the State’s Attorney sent an unsolicited letter to the Decatur city attorney granting permission to prosecute State traffic offenses occurring within the city. Thereafter, the State’s Attorney continued to appear in all such traffic cases requiring an appearance, and all fines collected in such cases were paid to the county, even though city police officers made the arrests and appeared in court. The city brought suit requesting, inter alia, payment of more than *50,000 in fines collected by the county.

After noting that the city had not revoked or refused the grant of permission to conduct court proceedings, the court stated:

“We hold that when the State’s attorney of a county has tendered or granted to a municipality within the county and of the type listed in Section 16 — 105 permission for its attorney to prosecute offenses listed in that section, and the State’s attorney is required, because of the failure of that municipal attorney to do so, to appear and prosecute such an offense in either the circuit or appellate court, any fines or penalties recovered in that case, which would otherwise be paid to the municipality shall be paid to the county. In all other cases, fines and penalties shall be distributed as heretofore.” (Emphasis added.) 39 Ill. App. 3d 799, 804, 350 N.E.2d 816, 820.

Shortly after the Decatur decision, another dispute involving the municipalities of Urbana, Champaign and Rantoul was resolved in City of Urbana v. Burgess (4th Dist. 1976), 40 Ill. App. 3d 244, 351 N.E.2d 607. In Urbana, the State’s Attorney had unilaterally granted permission to the municipalities to prosecute traffic violations, but the municipalities had expressly refused to accept such responsibility. The court held that section 16 — 102, as amended, does not permit unilateral delegation or prosecutorial responsibility from the State’s Attorney to municipal officials. Thus when a municipality neither requests nor accepts a grant of authority to prosecute court proceedings in traffic cases, it remains the statutory duty of the State’s Attorney to appear in such cases.

The case before us was commenced before State’s Attorney Burgess authorized the municipal attorneys of Urbana, Champaign, and Rantoul to prosecute traffic cases. Therefore the dispute here is limited to the disposition of fines and penalties received before the State’s Attorney’s letter of permission to the municipalities which resulted in the Urbana litigation.

It is of course impossible to know with certainty what the legislature intended when it amended section 16 — 102. Although City of Decatur v. Curry held that the disposition of fees and fines has been changed if a municipality receives permission to prosecute State traffic offenders but the city attorney fails to appear, we believe there are also good reasons for concluding that no change was intended, as the trial judge did here. According to either view, the result in this case would be the same since, at the time this suit was commenced, prosecution of State traffic cases in Champaign County was continuing on the same basis as before the section 16 — 102 amendment.

Under section 16 — 105, as interpreted by City of Champaign v. Hill (3d Dist. 1961), 29 Ill. App. 2d 429, 173 N.E.2d 839, the municipalities are entitled to the fines and penalties here in dispute, and judgment of the trial court is affirmed. Nothing contained in either the Decatur or the Urbana decision would compel a different result.

The municipalities also contend that the amendment to section 16 — 102 violates the constitutional provision for the election of State’s Attorneys (Ill. Const. 1970, art. 6, §19), by creating a quasi State’s Attorney who is not elected. This interesting argument was not presented or considered in the trial court and may not be raised for the first time on appeal. (Department of Public Works v. Schon (1969), 42 Ill. 2d 537, 250 N.E.2d 135; Benson v. Isaacs (1961), 22 Ill. 2d 606, 610, 177 N.E.2d 209.) Hence, the constitutional issue is not properly before us.

Accordingly, we affirm the judgment of the Circuit Court of Champaign County.

Affirmed.

ALLOY, P. J., concurs.