Drury v. County of McLean , 92 Ill. App. 3d 83 ( 1980 )

Mr. JUSTICE GREEN

delivered the opinion of the court:

On June 20,1975, plaintiffs, Jack M. Drury and Raymond Brezinski, filed suit in the circuit court of McLean County against defendant, McLean County, seeking reimbursement for fines and costs they paid to the clerk of the circuit court of that county after plaintiffs had been convicted in that court under provisions of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 40) later held to be unconstitutional in People v. McCabe (1971), 49 Ill. 2d 338, 275 N.E.2d 407. After various pleadings had been filed, both sides had presented motions for summary judgment. On May 27, 1980, the court entered summary judgments for each plaintiff in the sum of $15. They appeal.

Affidavits and undisputed provisions of pleadings on file showed that of the fine and costs money received by the clerk of the circuit court from plaintiffs, $10 from each had been remitted to the county treasurer and $5 from each had been remitted to the county’s state’s attorney. These sums represented payment of court costs. Fine money in the sums of $500 from Drury and $185 from Brezinski had been disbursed to the State of Illinois and the City of Normal equally. None of the balance had gone into the county treasury. Plaintiffs maintain on appeal that the circuit court was a county officer and because that money had gone into the hands of that officer, the county was liable for reimbursement. The trial court concluded that under the Illinois Constitution of 1970, the clerk of the circuit court was not a county officer and that, therefore, the county was liable only for sums actually received by it, the $30.

Plaintiffs’ request for reimbursement was based upon the decision in People v. Meyerowitz (1975), 61 Ill. 2d 200, 335 N.E.2d 1. There various persons convicted under statutory provisions held unconstitutional in McCabe and still before their trial courts on probation had moved to have their convictions set aside and to be reimbursed for fine and cost money they had paid. The supreme court held that their convictions should be set aside and the respective counties involved ordered to make reimbursement for the fines and costs received even though the counties had not been joined in the action. The opinion indicated that all fines and costs involved had been paid into the various county treasuries. The supreme court described the probationers’ actions for reimbursement to “more nearly resemble the common law action for money had and received” than a tort action. 61 Ill. 2d 200, 212, 335 N.E.2d 1, 7.

Article II, section 8 of the Illinois Constitution of 1870 provided for the election every four years of certain county officers, including a clerk of the circuit court in each county. By virtue of the Judicial Amendment of 1962, article VI, section 20 of the Constitution of 1870, as amended, was added to provide that the legislature “shall provide by law for the selection by the judges or election, terms of office, removal for cause and salaries of clerks ” ° of the various courts.” The provision repealed the provision for the election of clerks of the circuit court as previously contained in article II, section 8. (Johnson v. State Electoral Board (1972), 53 Ill. 2d 256, 290 N.E.2d 886.) Article VII, section 4 of the Illinois Constitution of 1970, entitled “County Officers,” provides in subsection (c) for the election each four years of a sheriff, county clerk, and treasurer, and states that the county may also elect a coroner, recorder, assessor, auditor, and “such other officers as provided by law or by county ordinance.” The office of clerk of the circuit court is not mentioned in section 4 but is provided for in article VI, section 18, entitled “Clerks of Courts,” where it is stated in subsection (b) that the legislature shall provide “for the election, or for the appointment by Circuit Judges of clerks * * * of the Circuit Courts and for their terms of office and removal for cause.”

We do not agree that the foregoing constitutional changes substantially alter the nexus of the clerk of the circuit court to the county. Rather we deem them to have been enacted for the purpose of removing the constitutional mandate that the clerks be elected and to recognize that the clerks are also judicial officers. For over 100 years the constitutional provision for the office of state’s attorney has been in the portion of the constitution providing for the judiciary. (Ill. Const. 1870, art. VI, §22; art. VI (1964), §21; Ill. Const. 1970, art. VI, §19.) Nevertheless, the defendant here does not contend that the state’s attorney is not a county officer. County boards are still required by statute to provide for payment of the expenses of the office of the clerk of the circuit court (Ill. Rev. Stat. 1979, ch. 25, pars. 19, 20, 27) when requested by the clerk, to designate the depository for the clerk’s funds (Ill. Rev. Stat. 1979, ch. 25, par. 4.1) and, within statutory limits, to fix the salary of the clerk. Ill. Rev. Stat. 1979, ch. 25, par. 27.3.

Our determination that the circuit clerk’s relationship to the county continues does not solve all of the problems in the case.

Unlike in Meyerowitz, the record here indicates that the funds requested by plaintiffs here never reached the county treasury. In Peterson v. Smith (1918), 211 Ill. App. 431, an agent for a corporation received money which was to be turned over to the corporation in return for the issuance of stock. The appellate court concluded that the corporation could not be sued in assumpsit for money had and received even though the agent was required to turn the money over to the corporation because there was no evidence that the corporation ever received the funds. In City of Chicago v. Fidelity Savings Bank (1882), 11 Ill. App. 165, the bank brought suit to recover from the city for reimbursement for payments made to a city collector pursuant to an illegal assessment. The court held that for the bank to recover, it was required to prove that the collector had paid the funds into the city treasury. The collector was deemed to be a trustee of the funds rather than an agent of the city for collection. Similarly, in Houtz v. Board of Commissioners (1902), 11 Wyo. 152,70 P. 840, a county was held not to be responsible for fine money improperly received by a justice of the peace but not turned over to its treasurer.

However, the cited cases were decided over a half century ago. In Meyerowitz, the county was ordered to remit fine money although never made a party to the proceedings. A cited reason for the ruling was to prevent a multiplicity of litigation. Here, if the clerk were made a party and required to pay, the relationship between the clerk and the county remains such that if the clerk be required to pay, the responsibility for providing the money would ultimately fall upon the county. Thus, in a situation somewhat reverse of that in Meyerowitz, holding the county vicariously liable for money had and received by the clerk of the circuit court would be proper.

The instant case is also unlike Meyerowitz in that not only did the money in issue not reach the county treasury but it was disbursed by the clerk to other governmental units. However, the Meyerowitz court defined the cause of action to be similar to an action for money had and received which would be an action in indebitatus assumpsit. Such an action, “in an enlarged sense embraces all cases in which the plaintiff has equity and conscience on his side and the defendant is bound by ties of natural justice and equity to pay the money ” *.” (1 Am. Jur. 2d Actions §13 (1962).) “In general, *, the cases assume that money paid to a court officer under a mistake of law cannot be recovered from him if he has paid it out in the ordinary course of duty.” (66 Am. Jur. 2d Restitution and Implied Contracts §143 (1973).) However, here the money was not only received under a mistake of law but was also admittedly paid out not “in the ordinary course of duty” but under a mistake as to what that duty was. Under these circumstances equity requires restitution be allowed particularly where, as here, the county would be able to recoup the disbursements from the State and the City of Normal or at least make setoff on future payments due to those entities. See 66 Am. Jur. 2d Restitution and Implied Contracts §135 (1973).

We conclude that even under the unusual facts of this case, the reimbursement rights of plaintiffs enunciated in Meyerowitz were not defeated and that the County of McLean was responsible to make the reimbursement. We, therefore, reverse the portion of the summary judgment fixing damages and remand to the circuit court of McLean County with directions that the amounts of the judgments entered be increased to the sum of $515 as to plaintiff Drury and $200 as to plaintiff Brezinski to reflect the fines paid by them to the clerk.

Reversed and remanded.

CRAVEN, J., concurs.