8, where the petition alleged that petitioner's for a writ of mandamus in the circuit court certificate had been renewed from time to time, of Cook county in the name of the people and showed that he had a certificate the previ- against the state board of pharmacy, in ous year, it was not necessary to further aver that he had not retired from practice for five years, etc. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 297; Dec. Dig. 154(2).] 4. DRUGGISTS 3- LICENSE - CERTIFICATE OF RENEWAL GROUNDS FOR REFUSAL STATUTE. which petition, as finally amended, he charged that, at and prior to the 1st day of January, 1916, he was, pursuant to law in such case made and provided, duly examined and registered as a registered pharmacist by the proper licensing board of the state of Under Pharmacy Act, § 8, the state board Illinois, and that from time to time he conof pharmacy had the right to refuse a register- tinued to and renewed his license conformed druggist a certificate of renewal of license' only for: (1) Failure to pay the required fee; ably to the statute in such case made and (2) his having been proven to be so addicted to provided. The petition then sets out section the excessive use of stimulants or narcotics as 8 of the Pharmacy Act, and avers that on to render him unsafe to handle or sell drugs, or about January 1, 1916, relator, being demedicines, and poisons; (3) his having been proven not to be of good moral character; and (4) his not being engaged in the active practice of pharmacy-and a petition for renewal certificate, negativing existence of such disqualifications, was sufficient. [Ed. Note.-For other cases, Cent. Dig. §§ 2, 3; Dec. Dig. 5. MANDAMUS SUMPTION. see Druggists, 168(2) - PLEADING PRE In mandamus proceedings against the state board of pharmacy to compel it to issue a renewal certificate to a registered pharmacist, where the petition showed by positive averments that the board refused to grant the renewal on the ground that the pharmacist's certificate was found in the possession of another party, the presumption is that the board regarded the pharmacist as otherwise entitled to a renewal. [Ed. Note. For other cases, see Mandamus, Cent. Dig. § 372; Dec. Dig. 168(2).] 6. DRUGGISTS 3 FAILURE TO EXHIBIT CERTIFICATE EFFECT. sirous of renewing his registration in conformity to the provisions of said section, mailed to F. C. Dodds, secretary of the state board of pharmacy, a postal money order for the sum of $1.50, with a request that he be furnished with a renewal of his certificate, but that said Dodds, acting for and on behalf of the state board of pharmacy, sent him the following letter in reply: "I have your letter of January 8, inclosing postal order for $1.50 for the renewal of your certificate for 1916, which I am returning herewith. I cannot accept this remittance. Your 1915 certificate was suspended by order of the board, and I was directed to not renew it for the current year." The petition further avers that he is now engaged as a registered pharmacist in a drug store in the city of Chicago; that because of the fact that he is not provided with Where a registered pharmacist knowingly the renewal certificate, he is unable to disfails to exhibit his certificate as required by play the same in the drug store with which Pharmacy Act, $ 8, he can only be required he is connected, and that because of such to forfeit the statutory penalty, and not his right to continue as a pharmacist, when he again places his certificate on exhibition. [Ed. Note. For other cases, see Druggists, Cent. Dig. §§ 2, 3; Dec. Dig. 3.] 7. MANDAMUS 154(2)-PLEADING. failure he is subject to punishment under the Pharmacy Act; that he has not been proven to be so addicted to the excessive use of stimulants or other narcotics as to render him unsafe to handle or sell drugs, medicines, In mandamus proceedings by a registered and poisons, and that he has not been proven pharmacist to compel the state board of pharmacy to issue him a renewal certificate, under not to be of good moral character; that he Pharmacy Act, § 8, petitioner was not required employed Nicholas J. Pritzker as his attorLo allege that he was of good moral character ney to obtain such renewal certificate, and and not addicted to the excessive use of stimulants and narcotics, as on his previous examination by the board it must have found in his favor on such proposition; the presumption continuing until the contrary is shown. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 297; Dec. Dig. 154(2).] Appeal from Circuit Court, Cook County; Charles M. Walker, Judge. Petition for writ of mandamus by Samuel Sucherman against the State Board of Pharmacy. From judgment overruling general demurrer to the petition, and ordering that the writ issue, the Board appeals. Judgment affirmed. P. J. Lucey, Atty. Gen. (Thomas J. O'Hare, of Chicago, of counsel), for appellant. Nicholas Pritzker, of Chicago, for appellee. DUNCAN, J. The relator, Samuel Sucherman, on February 15, 1916, filed his petition that his attorney again tendered the state board of pharmacy the sum of $1.50, with a request for a renewal of said certificate; and that his said attorney received in reply to said remittance, from F. C. Dodds, secretary of appellant, a letter dated January 22, 1916, containing the following: "I have your letter of January 15, with the inclosed check for $1.50 for the renewal of the registered pharmacist certificate of Samuel Sucherman. The certificate of Dr. Samuel Sucherman was suspended because it was found in possession of another party who was repream instructed by the board of pharmacy not to senting himself as a registered pharmacist. I renew the certificate and am therefore returning your check." The court overruled a general demurrer to the petition, and ordered the writ issued. The appellant, the state board of pharmacy, elected to stand by its demurrer, and has prosecuted this appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [1] Section 8 of the Pharmacy Act, so far certificate that he is of good moral characas here material, provides as follows: ter and of temperate habits and qualified to hold such certificate until the contrary is made to appear against him. This is apparent from the provision of the act that every registered pharmacist engaged in the active practice of his profession shall be entitled to a renewal of his certificate by paying a fee of not to exceed $1.50 if paid between the 1st day of January and the 1st day of March of each year, and the further provision that the state board of pharmacy may refuse such renewal certificate, or may suspend it, if the holder thereof be so addicted to the excessive use of stimulants, etc., or if he is "All certificates issued by the state board of pharmacy shall expire on the thirty-first day of December following the date of the issuance of same. Every registered pharmacist engaged in the active practice of his profession shall annually, during the time he continues in such active practice, pay to the state board of pharmacy a renewal fee, to be fixed by said board, but which shall in no case exceed $1.50 if paid between the first day of January and the first day of March of each year. The payment of such renewal fee shall entitle him to a renewal of his certificate. * *If the renewal fee for any certificate the holder of which is actively engaged in the practice of his profession be not paid by the first day of May of each year, such certificate is hereby declared null and void and the holder thereof may be reinstated proven not to be of good moral character. as a registered pharmacist * only by The relator complied with all the provisions passing a successful examination before the of the statute necessary to entitle him to a state board of pharmacy. * * * The board of pharmacy may refuse registration, or renewal renewal certificate when he tendered his fee of certificates to, or may suspend the certificates as averred in his petition. The board could of registered pharmacists, * who are not, under the statute, legally deny him a renewal certificate without positive proof showing that he was a man of such habits or character as the statute deemed unworthy of such certificate, or that by reason of some fraud on his part the board was induced to find him to be competent in the first instance when, in fact, he was not competent. * * proven to be so addicted to the excessive use of stimulants or narcotics as to render them unsafe to handle or sell drugs, medicines and poisons, or who are proven not to be of good moral character." The said section also provides a penalty of not less than $20 nor more than $50 upon every holder of a certificate of pharmacy who shall refuse or neglect to conspicuously display the same in the drug store, pharmacy, or department to which it applies. [2] Appellant insists that there is no averment in the petition that the relator was engaged in the active practice of his profes sion at the time of filing his petition. The petition positively avers, as above quoted, "that he is now engaged as a registered pharmacist in a drug store in the city of Chicago." We can imagine no plainer language to express the fact that he was engaged in the active practice of his profession, and appellant must have overlooked that allegation. Appellant contends that, even though every averment in the petition be true, still appellee might not be entitled to registration, and therefore was not entitled to the writ. The reasons assigned for such position appertain to original examinations and registrations and not to applications for renewals of certificates of registration. The allegations in the petition clearly set forth that the re[3] It is also argued by appellant that there lator was, pursuant to said act, prior to Jan- is no allegation in the petition that the reuary, 1916, duly examined and registered lator had not retired from such active prac as a registered pharmacist by the proper tice for a period of more than 5 years. In licensing board of this state, and that from view of the allegations in the petition that time to time he renewed his license conform- his certificate had been renewed from time ably to the statute in such case made and to time, and the further showing that he had provided; i. e., that his license as a register- a certificate in the year 1915, it was not ed pharmacist had been renewed from time necessary to add to those allegations the furto time. The first letter to the relator by ther averment that he had not retired from the secretary of the board, which is set forth practice for 5 years, etc. in the petition, states that the relator's cer[4] The appellant had the right to refuse tificate of 1915 was suspended by order of relator's certificate of renewal only on these the board. It clearly appears, then, that he grounds: (1) Failure to pay the required fee; had a certificate as a registered pharmacist (2) that he had been proven to be so addicted for the year 1915, which under the act ex- to the excessive use of stimulants or narcotics pired December 31st of that year. The state as to render him unsafe to handle or sell board of pharmacy, therefore, under this drugs, medicines, and poisons; (3) that he statute, is presumed to have previously ex- had been proven not to be of good moral amined the relator under section 4 of the character; and (4) that he was not engaged Pharmacy Act, and to have found by that in the active practice of pharmacy. The petiexamination that he was not less than 21 tion negatived the existence of any and all years of age, of good moral character and of such grounds of disqualification, and showtemperate habits, and possessed all the other ed, in addition thereto, that the relator had requirements, under that statute, to entitle been granted other renewals by the board, him to such certificate. It is clearly the and had had a renewal certificate for the intention of that act that the presumption previous year, 1915. The petition was therecontinues in favor of the holder of such a fore sufficient, in law, to entitle the relator to the writ, and the court properly over-13. CONSTITUTIONAL LAW 50 — SEPARATION ruled the demurrer. OF POWERS. ments of government stand upon an equal footUnder the Constitution the three departing, and neither may exercise any power of or control over another except as expressly permitted by the Constitution. al Law, Cent. Dig. §§ 48, 49; Dec. Dig. 50.1 [Ed. Note.-For other cases, see Constitution 4. OFFICERS 2-POWER OF LEGISLATURE. The creation of officers, the delegation and regulation of their powers and duties, and the prescribing of the manner of their appointment or election are functions of the Legislature, which are restrained only by the Constitution. [Ed. Note.-For other cases, see Officers, Cent. Dig. § 2; Dec. Dig. 2.] [5, 6] As the petition showed, by positive averment, that appellant refused to grant the renewal on the ground that the certificate of relator was found in the possession of another party, the presumption would be that appellant regarded relator as otherwise entitled to a renewal. State Dental Examiners ▼. People, 123 Ill. 227, 13 N. E. 201. The statute does not authorize appellant to refuse to renew a certificate merely because the same was found in the possession of some other person. Appellant did not, by its letter or otherwise, undertake to show that the same was in possession of another person through any misconduct of the relator. Even if relator had knowingly failed to pub-exercise of its judicial powers, that the inde licly exhibit his certificate, as required by the statute, he would only be required to forfeit the statutory penalty, and not his right to continue as a pharmacist, when he again [Ed. Note.-For other cases, see Constitutionplaced his certificate on exhibition as re-al Law, Cent. Dig. §§ 62-65; Dec. Dig. 56.] quired by law. [7] The relator was not required to allege in his petition, as insisted by appellant, that he was of good moral character, and that he was not addicted to the excessive use of stimulants or narcotics, as by the previous examination by appellant it must have found in his favor on those propositions, and the presumption will continue until the contrary is shown. His allegation in that particular, as above recited, was therefore sufficient. The judgment is affirmed. Judgment affirmed. (275 111. 261) PEOPLE ex rel. VANDERBURG v. BRADY, (Supreme Court of Illinois. Oct. 24, 1916.) 5. CONSTITUTIONAL LAW 56-SEPARATION OF POWERS-"CLERK Of Court." The clerk of the Supreme Court is not such an assistant, essential to the court and to the pendent exercise of judicial power and the separation of the judicial department from the other departments of the government require his appointment by the court. 6. OFFICERS 11 CONSTITUTIONAL REQUIREMENT OF ELECTION APPOINTMENT OF DEPUTY BY CIVIL SERVICE RULES. The constitutional provision for election of the clerk of the Supreme Court is not violated by application of the Civil Service Act to the position of one of his deputies, such as a docket clerk and bookkeeper in his office; the Legislature having always exercised the right to regulate the forms of procedure and practice of the courts and in many ways controlled the form, manner, and time in which courts shall exercise judicial authority. [Ed. Note. For other cases, see Officers, Cent. Dig. § 13; Dec. Dig. 11.] 7. CONSTITUTIONAL LAW 58 OFFICERS CONTROL BY LEGISLATURE. The Legislature, although it may not deprive a state officer of the powers conferred upon him by the Constitution, has power to make reasonable regulations in regard to the means by which and the time, place, and manner in which his duties as such constitutional officer shall be performed. [Ed. Note.-For other cases, see ConstitutionThe position of docket clerk and bookkeeper al Law, Cent. Dig. §§ 86-88; Dec. Dig. 58.] in the office of the clerk of the Supreme Court 8. CLERKS OF COURTS 6-DEPUTIES-CON is within the classified service of the state and TROL BY LEGISLATURE. subject to the provisions of the Civil Service Act The duties of the clerk of a court may be (Hurd's Rev. St. 1915-1916, c. 24a), notwith-performed by a deputy, and it is not an unreastanding Const. art. 3, providing for separation of powers, and although the civil service commission, by the making of the list of persons eligible to appointments and its certification to the appointing officer, names the person appointed to such position. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 144; Dec. Dig. 80(2).] 2. CLERKS OF COURTS 1-NATURE OF OFFICE. A "clerk of court" is an officer of the court who has charge of the clerical part of its business and keeps its records and seal, issues process, enters judgments and orders, makes certified copies from the record, etc., and such officer belongs to the judicial department of the state. [Ed. Note.-For other cases, see Clerks of Courts, Cent. Dig. § 1; Dec. Dig. 1. For other definitions, see Words and Phrases, First and Second Series, Clerk of Court.] sonable regulation for the Legislature to prescribe reasonable qualifications for persons who may be employed as deputies and removal from office for lack of efficiency in the performance of its duties. [Ed. Note.-For other cases, see Clerks of Courts, Cent. Dig. §§ 12-20; Dec. Dig. 6.] Farmer and Cooke, JJ., dissenting. Mandamus by the People, on the relation of Henry R. Vanderburg, against James J. Brady, Auditor, and others. Respondents demur to the petition. Writ denied. George B. Gillespie, of Springfield (Gillespie & Fitzgerald, of Springfield, of counsel), for relator. P. J. Lucey, Atty. Gen., and George P. Ramsey, of Springfield, for respondents. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes expressly permitted by the Constitution. To the judiciary are committed the power and duty of interpreting the laws and the Constitution. The creation of officers, the delegation and regulation of their powers and duties, and the prescribing of the manner of their appointment or election are functions of the Legislature, which are restrained only by the constitution. People v. McCullough, 254 Ill. 9, 98 N. E. 156. The Constitution does not specifically confer the power to appoint officers on any department, and does not pro DUNN, J. Upon leave granted at the June term, 1916, Henry R. Vanderburg filed a petition for a writ of mandamus against the auditor of public accounts and the state treasurer, commanding the auditor to draw and the treasurer to pay warrants at the rate of $125 per month from December 1, 1915, to June 1, 1916, for the salary of the petitioner as docket clerk and bookkeeper in the office of the clerk of the Supreme Court during that time. The cause has been submitted upon a demurrer to the petition, and the question to be determined is wheth-vide that the officers or employés of any deer the position held by the petitioner is one within the classified service of the state and subject to the provisions of the Civil Service Act. partment of the government can only be appointed by that department. The Legislature has frequently conferred on the courts the power of making appointments of officers not belonging to the judicial department, as in People v. Morgan, 90 Ill. 558, where a [1, 2] On behalf of the petitioner it is contended that the Civil Service Act cannot constitutionally apply to officers in the judicial | judge of the circuit court of Cook county was department of the state government. cle 3 of the Constitution provides: Arti "The powers of the government of this state are divided into three distinct departments-the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted." authorized to appoint the South Park commissioners, with power to assess, levy, and collect taxes, which are certainly not judicial powers, and People v. Hoffman, 116 Ill. 587, 5 N. E. 596, 8 Ñ. E. 788, 56 Am. Rep. 793, where it was held that the power to appoint election commissioners, who are not judicial officers, under the City Election Law, might The Civil Service Act provides for the be constitutionally vested in the county classification of all the offices and places of courts. In many cases the power of the employment in the state service, with cer- county courts to appoint drainage commistain specific exceptions, which do not include sioners has been sustained. Moore v. People the position of the petitioner. It provides for 106 Ill. 376; Blake v. People, 109 Ill. 504; the examination of applicants for the offices Huston v. Clark, 112 Ill. 344. In Witter v. or places so classified, and for the making of Cook County Com'rs, 256 Ill. 616, 100 N. E. a register by the civil service commission 148, it was held that the appointment and of persons eligible to appointment to the removal of a probation officer of the juvenile various positions in the classified service in court of Cook county were the exercise of juthe order of their relative excellence as de- dicial power, on the ground that the judicial termined by the examination. Whenever a power includes the authority to select perposition in the classified service is to be filled, sons whose services may be required as asthe act requires the appointment of the per- sistants to the judge in the performance of son standing highest on this register, except judicial duties and the exercise of judicial in the case of laborers. The civil service power. Such officers were likened to atcommission, by the making of the list and its torneys, masters in chancery, receivers, refcertification to the appointing officer, thus erees, and to similar officers, as merely asnames the person appointed to each place in sistants of the courts in the performance of the classified service of the state. The Con- judicial functions, but it was not held that stitution provides for the election of a clerk the power extended to all officers and emof the Supreme Court. A clerk of a court ployés engaged in the service of the judicial is an officer of the court who has charge of department. It was said that a sheriff and a the clerical part of its business and keeps clerk are essential to a court and to the exits records and seal, issues process, enters ercise of judicial power; but the one perjudgments and orders, makes certified copies forms executive and the other clerical duties from the record, etc. Such an officer mani- merely. The judicial power is exercised by festly belongs to the judicial department of the judge, with such assistants as he may the state. He has no duties in connection lawfully have to aid him in adjudicating upwith the legislative or executive department. on and protecting the rights and interests of It is therefore insisted that to make the ap- individuals. The clerk is not such an assistpointment or removal of the deputy of such ant, and therefore not one whom the indean officer dependent on the action of an pendent exercise of judicial power and the officer in the executive department is an en-separation of the judicial department from croachment upon the power properly belonging to the judicial department. [3-5] The three departments of our government, under the Constitution, stand upon an equal footing. Neither may exercise any the other departments of the government require to be appointed by the court. The question of the power of the Legislature to impose upon the judiciary the duty of making appointments to offices not of a the courts of last resort of several states, | the appointment shall be made, does not, by and the conclusions reached have not been doing so, interfere with the clerk in the perharmonious. In Iowa, Maryland, Minnesota, formance of his constitutional duty. The Nebraska, and Massachusetts it has been Legislature has always exercised the right held that the power of appointing such offi- to regulate the forms of procedure and the cers cannot be conferred on the judiciary, practice of the courts, and this right has because such appointment does not require been recognized by the judiciary. The Legthe exercise of judicial functions. Beasley islature fixes the terms of court, the time v. Ridout, 94 Md. 641, 52 Atl. 61; White v. for the return of process, the manner of Barker, 116 Iowa, 96, 89 N. W. 204, 57 L. service, the order of trial, provides for the R. A. 244, 93 Am. St. Rep. 222; Young v. making of separate dockets, the preparation Brill, 100 Minn. 499, 111 N. W. 294, 639, 10 of a short-cause calendar, the time of filing Ann. Cas. 425; State v. Neble, 82 Neb. 267, declarations, the amendment of pleadings, 117 N. W. 723, 19 L. R. A. (N. S.) 578; In continuances because of counsel being a re Election Supervisors, 114 Mass. 247, 19 member of the General Assembly, requires Am. Rep. 341. In the latter case it was written instructions to juries, provides for held that an act directing the justices of the method of preserving objections taken the Supreme Court to appoint supervisors of to decisions of the court during the trial, elections was unconstitutional, and in State and in many other ways has controlled the v. Washburn, 167 Mo. 680, 67 S. W. 592, 90 form, manner, and time in which the courts Am. St. Rep. 430, it was held that an act shall exercise their judicial authority. Its providing for the appointment of election authority is not less in the case of the clerk commissioners by an agency other than the than in the case of the court or the judges. executive power violated the constitutional The mention of an officer in the Constitudivision of powers by depriving the execu- tion does not place him above the law and tive department of a part of its constitu- give him the same control of his office as of tional powers. These decisions are contrary his private business. He is a public officer to the view which has been uniformly taken and the business of his office must be conby this court. On the other hand, the Su- ducted according to law. The Legislature preme Courts of Alabama, California, Geor- may not deprive him of the powers confergia, and New Jersey have held, in accord-red upon him by the Constitution, but it has ance with our decisions, that the power of power to make reasonable regulations in reappointment to office is not inherently an executive function, and where the Legislature is authorized, as it is by section 10 of our Constitution, to provide for the appointment of all officers whose appointment is not otherwise provided for, the power of appointment may be conferred on the judiciary. Fox v. McDonald, 101 Ala. 51, 13 South. 416, 21 L. R. A. 529, 46 Am. St. Rep. 98; Staude v. Election Com'rs, 61 Cal. 313; Russell v. Cooley, 69 Ga. 215; Ross v. Chosen Freeholders, 69 N. J. Law, 291, 55 Atl. 310. If it is not essential to the separation of the powers of government that the judicial department should not make appointments in the executive department, then it is not essential to such separation that the executive department should not make appointments in the judicial department if authorized to do so by the Legislature. Article 3 of the Constitution includes in its prohibition each of the three departments of the government, and its interpretation as to one department applies with equal force to each of the others. People v. Dunne, 258 Ill. 441, 101 N. E. 560, 45 L. R. A. (N. S.) 500. [6-8] It is next argued that the Civil Service Act cannot constitutionally apply to deputies performing the constitutional duties of their principals. If article 3 of the Constitution is not violated by the appointment, it is not apparent what provision is violated. The Legislature, having the constitutional power of prescribing the manner in which gard to the means by which, and the time, place, and manner in which, the duties of such constitutional officer shall be performed. The duties of the clerk may be performed by a deputy, and it is not an unreasonable regulation to prescribe reasonable qualifications for persons who may be employed as deputies and removal from office for a lack of efficiency in the performance of its duties. The purpose of a competitive examination is a legitimate one to secure competent service. It cannot be reasonably said that the clerk is deprived of any of the authority of his office because the work done under his direction is performed through an agency selected by some other authority. The Civil Service Law is not subject to the constitutional objections made against it, and the writ of mandamus must therefore be denied. Writ denied. FARMER and COOKE, JJ., dissenting. 1 (275 III. 228) PEOPLE ex rel. DORRIS, County Collector, In a drainage case, under the Farm Drainage Act (Hurd's Rev. St. 1915-16, c. 42), an objection to an erroneous description in the commissioners' report must be by appeal to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |