People ex rel. City of Chicago v. Schreiber (322 Ill. App. 452, 1944)

Mr. Justice Sullivan

delivered the opinion of the court.

This a mandamus proceeding instituted on relation of the City of Chicago (hereinafter referred to as plaintiff) to compel Ludwig D. Schreiber, city clerk of Chicago (hereinafter referred to as defendant) to turn over to the city treasury all the compensation he has received and will receive for issuing fishing- and hunting licenses. Plaintiff’s motion to strike certain portions of defendant’s answer as amended was sustained and defendant elected to abide by his answer. On June 27, 1941 judgment was entered by the trial court which directed defendant to pay $38,363.90 forthwith to the city treasurer of the City of Chicago, which amount he retained as compensation for issuing fishing- and hunting licenses during 1939 and 1940, to pay forthwith to said city treasurer “all fees collected by said City Clerk under the Fish and Game Codes of Illinois since January 1, 1941,” to also pay to the city treasurer all fees thereafter collected by him under said codes and that a writ of mandamus issue commanding defendant to comply with the foregoing directions. Defendant’s appeal was originally perfected to the Supreme Court, which ordered it transferred to this court.

The matters alleged in plaintiff’s complaint are substantially as follows: Ludwig D. Schreiber is the city clerk of the City of Chicago. He was elected to said office on April 4, 1939 and assumed the duties thereof on April 12, 1939. His term of office “runs until April 5, 1943 and until his successor is elected and qualified.”

Section 3 of part two of Article XII of the Cities and Villages Act (par. 172, ch. 24, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 21.261]), which'section is part of a special act relating solely to the City of Chicago and covers the matter of the compensation of city officers, provides in part as follows:

“The compensation of all officers shall be by salary, as' fixed in the annual appropriation bill, by the City Council, and the compensation of no officer shall be altered during the same fiscal year. No officer shall be allowed any fees, perquisites or emoluments or any reward or compensation aside from his salary, but all fees and earnings of his office or department shall be paid by him into the city treasury.”

The Municipal Code of Chicago has fixed the annual salary of the city clerk at $8,000. - Defendant received said salary for the years 1939 and 1940 and the same salary was appropriated for said1 office for the year 1941.

Section 1 of an act entitled “An Act in relation to funds or monies received by public officers or agents of public or municipal bodies, by virtue of their offices or positions” (par. 20, ch. 102, Ill. Rev, Stat. 1939 [Jones Ill. Stats. Ann. 92.18]) provides in part as follows:

“It is hereby made the duty of all officers or agents of public or municipal bodies of this state, who receive any funds, monies, or other things of value, by virtue of their offices or positions, except treasurers, to keep an account of all such receipts, by entries on written or. printed forms, to be provided for the purpose by the public bodies or municipalities by the authority of which their offices or positions are held, . . .

“Bach month’s receipts shall be separately paid over or delivered to the treasurer not later than the middle of the next succeeding month.”

Section 11 of Article III of the Fish, Code of Illinois (par. 66, ch. 56, Ill. Rev. Stat. 1939) provides that it shall only be lawful to take fish protected by said act after first having obtained a license so to. do. Said section also provides for the making of applications for licenses and fixes the amounts of the fees for such licenses. Section 15 (par. 70) of the Fish Code provides in part as follows:

“Any county, city, village, township or incorporated town clerk issuing licenses provided for in this Act may deduct the following as his or her fee for so doing: . . .” (Then follow the respective amounts of the deductions authorized to be made by said clerks.)

Section 13 of the Game Code of Illinois (par. 79, ch. 61, Ill. Rev. Stat. 1939),' which makes it unlawful to take game protected by the act without first having procured hunting licenses, provides for the making of applications -for such licenses and fixes the amount of fees therefor. The fourth paragraph of section 23 (par. 89) of the Game Code provides in part as follows:

“Any county, city, village, township or incorporated town clerk, issuing hunting licenses, or licenses to take fur-bearing animals, provided in this Act, may deduct the following as his or her fees for such licenses:

“Twenty-five cents (25^) in the case of resident hunting licenses and resident licenses to take fur-bearing animals, and fifty cents (50^) in the case of non-resident hunting licenses and non-resident licenses to take fur-bearing animals.”

Immediately upon taking office defendant Sehreiber undertook the issuance of licenses under the Fish Code of Illinois and the Game Code of Illinois and he issued 72,991 fishing licenses in 1939 and 79,705 in 1940 and 44,539 hunting licenses in 1939 and 47,779 in 1940. The total number of fishing* and hunting licenses issued by him in 1939 and 1940 was 245,014. In accordance with the provisions of the Fish and Game Codes defendant made the following deductions from the moneys collected by him for the aforesaid 245,014 licenses: $7,300 for fishing licenses in 1939, $7,970.65 for fishing licenses in 1940, $11,142 for hunting licenses in 1939 and $11,951.25 for hunting* licenses in 1940. These amounts, aggregating $38,363.90, were retained by defendant. The city made a written demand on him to turn said' $38,363.90 over to the city treasurer and the defendant refused to comply with such demand.

Plaintiff’s complaint concluded with the prayer that a writ of mandamus issue to compel defendant to pay to the city treasurer “said sum of $38,363.90, together with any and all sums of money deducted and received or which may hereafter be deducted and received by him as city clerk for the issuance of fishing and hunting licenses pursuant to the provisions of the Fish Code of Illinois and the Game Code of Illinois.”

Defendant’s answer as amended alleged substantially that he was authorized1 under the provisions of the Fish and Game Codes of Illinois to retain as his own personal compensation the $38,363.90 deducted by him from the fees which he collected for issuing the 245,014 fishing and hunting licenses referred to in the complaint.

The answer further alleged that city clerks of the City of Chicago under the present Fish and Game Codes and their antecedent enactments have always retained as their own the fees set forth in such codes and enactments as their compensation for issuing fishing* and hunting licenses thereunder and that they never turned them over to the city treasurer; that no demand has ever been made upon any clerk of the City of Chicago to turn over such fees to the city treasurer prior to the demand made on defendant immediately preceding the bringing of this suit; that neither the city council of the City of Chicago nor the fiscal representatives of the city have ever made provision for receiving nor have they ever anticipated receiving the compensation retained by the city clerk and his predecessors in office under the Fish and Game Codes of Illinois; and that county, city, village, township and incorporated town clerks throughout the State of Illinois, both under the present Fish and Game Codes and their antecedent enactments, have retained as their own the fees set forth in those codes as compensation for issuing fishing and hunting licenses pursuant to the provisions thereof.

The answer then alleged that there has obtained a long standing administrative interpretation, joined in by the City of Chicago, its city council and its officials, that “the fees set forth in the Fish and Game Codes of Illinois (and their antecedent enactments) as the compensation of the City Clerk for the issuance of fishing and hunting licenses constitute the personal and1 absolute property of such City Clerk.”

It was also alleged in defendant’s answer that the City of Chicago never made any provision for the payment of the expenses which are necessarily incurred and involved in the issuance of fishing and hunting licenses; that defendant personally incurred and paid expenses in the sum of $13,931.12 in connection with the issuance of 117,530 fishing and hunting licenses in 1939 and 127,484 fishing and hunting licenses in 1940; that after paying such expenses, the actual net compensation received by him was $24,432.78; and that after deducting the compensation allowed him, he paid the balance of the fishing and hunting license fees collected by him to the Department of Conservation of the State of Illinois as required by the Fish and Game ‘Codes.

It was further alleged that the City of Chicago was made a defendant in an action brought by a taxpayer in the circuit court of Cook county for an accounting by Ludwig D. Sehreiber, the city clerk, as to the identical fees involved herein and that the answer of the city filed therein averred inter alia that “there is a serious legal question presented whether the money belongs to the City Clerk or to the City of Chicago; that a reading of the Fish and Game Codes, on their face, shows that the City Clerk shall deduct as his fees a portion of the license fe