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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 previous year, it was not necessary to further aver against the state board of pharmacy, in that he had not retired from practice for five which petition, as finally amended, he chargyears, etc.

ed that, at and prior to the 1st day of [Ed. Note.-For other cases, see Mandamus, January, 1916, he was, pursuant to law in Cent. Dig. & 297; Dec. Dig. Om 154(2).]

such case made and provided, duly examined 4. DRUGGISTS Om3 – LICENSE – CERTIFICATE and registered as a registered pharmacist by OF RENEWAL GROUNDS FOR REFUSAL STATUTE.

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 ably to the statute in such case made and only for: (1) Failure to pay the required fee ; (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 sirous of renewing his registration in con(4) his not being engaged in the active practice formity to the provisions of said section, of pharmacy-and a petition for renewal certi- mailed to F. C. Dodds, secretary of the state ficate, negativing existence of such disqualifica- board of pharmacy, a postal money order for tions, was sufficient. [Ed. Note.-For other cases, see Druggists,

the sum of $1.50, with a request that he Cent. Dig. $$ 2, 3; Dec. Dig. Om3.]

be furnished with a renewal of his certificate, 5. MANDAMUS Ow168(2) — PLEADING — PRE

but that said Dodds, acting for and on behalf SUMPTION.

of the state board of pharmacy, sent him the In mandamus proceedings against the state following letter in reply: board of pharmacy to compel it to issue a re

“I have your letter of January 8, inclosing newal certificate to a registered pharmacist, where the petition showed by positive, aver-certificate for 1916, which I am returning here

postal order for $1.50 for the renewal of your ments that the board refused to grant the renewal on the ground that the pharmacist's cer- 1915 certificate was suspended by order of the

with. I cannot accept this remittance. Your tificate was found in the possession of another board, and I was directed to not renew it for party, the presumption is that the board re- the current year." garded the pharmacist as otherwise entitled to a renewal.

The petition further avers that he is now [Ed. Note-For other cases, see Mandamus,

engaged as a registered pharmacist in a Cent. Dig. 8 372; Dec. Dig. Om 168(2).]

drug store in the city of Chicago; that be6. DRUGGISTS 3 FAILURE TO EXHIBIT

cause of the fact that he is not provided with CERTIFICATE-EFFECT.

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 right to continue as a pharmacist, when he failure he is subject to punishment under again places his certificate on exhibition. the Pharmacy Act; that he has not been

[Ed. Note.-For other cases, see Druggists, proven to be so addicted to the excessive use Cent, Dig. SS 2, 3; Dec. Dig. Om3.]

of stimulants or other narcotics as to render 7. MANDAMUS 154(2)—PLEADING.

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 macy 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 stimu- that his attorney again tendered the state lants and narcotics, as on his previous examination by the board it must have found in his board of pharmacy the sum of $1.50, with a favor on such proposition; the presumption request for a renewal of said certificate; and continuing until the contrary is shown.

that his said attorney received in reply to [Ed. Note:-For other cases, see Mandamus, said remittance, from F. C. Dodds, secretary Cent. Dig. § 297; Dec. Dig. 154(2).]

of appellant, a letter dated January 22, 1916, Appeal from Circuit Court, Cook County; containing the following: Charles M. Walker, Judge.

"I have your letter of January 15, with the Petition for writ of mandamus by Samuel inclosed check for $1.50 for the renewal of the

registered pharmacist certificate of Samuel Sucherman against the State Board of Phar

Sucherman. The certificate of Dr. Samuel macy. From judgment overruling general Sucherman was suspended because it was found demurrer to the petition, and ordering that in possession of another party who was repre

1 the writ issue, the Board appeals. Judgment senting himself as a registered pharmacist.

am instructed by the board of pharmacy not to affirmed,

renew the certificate and am therefore returning P. J. Lucey, Atty. Gen. (Thomas J. O'Hare,

your check." of Chicago, of counsel), for appellant. Nich The court overruled a general demurrer olas Pritzker, of Chicago, for appellee. to the petition, and ordered the writ issued.

The appellant, the state board of pharmacy, DUNCAN, J. The relator, Samuel Sucher-elected to stand by its demurrer, and has man, on February 15, 1916, filed his petition, prosecuted this appeal.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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[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

“All certificates issued by the state board of hold such certificate until the contrary is
pharmacy shall expire on the thirty-first day of made to appear against him. This is appar-
December following the date of the issuance of ent from the provision of the act that every
same. Every registered pharmacist engaged
in the active practice of his profession shal an- registered pharmacist engaged in the active
nually, during the time he continues in such ac- practice of his profession shall be entitled to
tive practice, pay to the state board of pharma-
cy, a renewal fee, to be fixed by said board, but a renewal of his certificate by paying fee
which shall in no case exceed $1.50 if paid be- of not to exceed $1.50 if paid between the 1st
tween the first day of January and the first day day of January and the 1st day of March of
of March of each year.

The payment each year, and the further provision that the
of such renewal fee shall entitle him to a renewal
of his certificate. * If the renewal fee state board of pharmacy may refuse such
for any certificate the holder of which is active- renewal certificate, or may suspend it, if
ly engaged in the practice of his profession be the holder thereof be so addicted to the ex-
not paid by the first day of May of each year, cessive use of stimulants, etc., or if he is
such® certificate is hereby declared null and
void and the holder thereof may be reinstated proven not to be of good moral character.

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 proven to be so addicted to the excessive use of stimulants or narcotics as to render them un-renewal certificate without positive proof safe to handle or sell drugs, medicines and poi- showing that he was a man of such habits sons, or who are proven not to be of good moral or character as the statute deemed unworthy character."

of such certificate, or that by reason of some The said section also provides a penalty fraud on his part the board was induced to of not less than $20 nor more than $50 upon find him to be competent in the first inevery holder of a certificate of pharmacy who stance when, in fact, he was not competent. shall refuse or neglect to conspicuously dis

[2] Appellant insists that there is no averplay the same in the drug store, pharmacy, or ment in the petition that the relator was department to which it applies.

engaged in the active practice of his profes. Appellant contends that, even though every sion at the time of filing his petition. The averment in the petition be true, still ap- petition positively avers, as above quoted, pellee might not be entitled to registration, that he is now engaged as a registered pharand therefore was not entitled to the writ. The macist in a drug store in the city of Chicago.” reasons assigned for such position appertain We can imagine no plainer language to exto original examinations and registrations and press the fact that he was engaged in the not to applications for renewals of certifi- active practice of his profession, and appelcates of registration. The allegations in lant must have overlooked that allegation. 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 pracas 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; 1. 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 theretu, 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 renewal certificate for the intention of that act that the presumption previous year, 1915. The petition was there

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to the writ, and the court properly over-13. CONSTITUTIONAL LAW 50 - SEPARATION ruled the demurrer.

OF POWERS.

Under the Constitution the three depart[5,6] As the petition showed, by positive

ments of government stand upon an equal footaverment, that appellant refused to grant the ing, and neither may exercise any power of or renewal on the ground that the certificate of control over another except as expressly permitrelator was found in the possession of an

ted by the Constitution. other party, the presumption would be that al Law, Cent Dig. 88 48, 49 ; 'Dec. Dig. w 50.]

[Ed. Note.-For other cases, see Constitutionappellant regarded relator as otherwise entitled to a renewal. State Dental Examiners

4. OFFICERS m 2-POWER OF LEGISLATUBE.

The creation of officers, the delegation and v. People, 123 Ill. 227, 13 N. E. 201. The regulation of their powers and duties, and the statute does not authorize appellant to refuse prescribing of the manner of their appointment to renew a certificate merely because the or election are functions of the Legislature,

which are restrained only by the Constitution. same was found in the possession of some

(Ed. Note.-For other cases, see Officers, Cent. other person.

Appellant did not, by its Dig. & 2; Dec. Dig. 2.) letter or otherwise, undertake to show that

5. CONSTITUTIONAL LAW 56 SEPARATION the same was in possession of another per OF POWERS—"CLERK OF COURT.” son through any misconduct of the relator. The clerk of the Supreme Court is not such Even if relator had knowingly failed to pub- an assistant, essential to the court and to the

exercise of its judicial powers, that the inde. licly exhibit bis certificate, as required by the pendent exercise of judicial power and the sepastatute, he would only be required to for- ration of the judicial department from the other feit the statutory penalty, and not his right departments of the government require his apto continue as a pharmacist, when he again pointment by the court

.

[Ed. Note.- For other cases, see Constitutionplaced his certificate on exhibition as real Law, Cent. Dig. $8 62–65; Dec. Dig. Few 56.] quired by law.

6. OFFICERS 11 CONSTITUTIONAL RE[7] The relator was not required to allege

QUIREMENT OF ELECTION - APPOINTMENT OF in his petition, as insisted by appellant, that DEPUTY BY CIVIL SERVICE RULES. he was of good moral character, and that he The constitutional provision for election of was not addicted to the excessive use of | by application of the Civil Service Act to the

the clerk of the Supreme Court is not violated stimulants or narcotics, as by the previous position of one of his deputies, such as a docket examination by appellant it must have found clerk and bookkeeper in his office; the Legislu

ture having always exercised the right to reguin his favor on those propositions, and the late the forms of procedure and practice of the presumption will continue until the contrary courts and in many ways controlled the form, is shown. His allegation in that particular, manner, and time in which courts shall exercise as above recited, was therefore sufficient.

judicial authority. The judgment is affirmed.

[Ed. Note.-For other cases, see Officers,

Cent. Dig. $ 13; Dec. Dig. ww11.) Judgment affirmed.

7. CONSTITUTIONAL LAW Om58 OFFICERS (275 Ill. 261)

CONTROL BY LEGISLATURE. PEOPLE ex rel. VANDERBURG v. BRADY, a state officer of the powers conferred upon him

The Legislature, although it may not deprive Auditor, et al. (No. 10884.)

by the Constitution, has power to make reason

able regulations in regard to the means by which (Supreme Court of Illinois. Oct. 24, 1916.) and the time, place, and manner in which his 1. CONSTITUTIONAL LAW 80(2) SEPARA

duties as such constitutional officer shall be TION OF POWERS APPLICATION OF CIVIL

performed. SERVICE ACT TO JUDICIAL DEPARTMENT.

(Ed. Note.-For other cases, see ConstitutionThe position of docket clerk and bookkeeper al Law, Cent. Dig. 88 86-88; Dec. Dig. Om58.] in the office of the clerk of the Supreme Court 8. CLERKS OF COURTS 6-DEPUTIES-CONis witbin 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 sonable regulation for the Legislature to preof powers, and although the civil

service commis- scribe reasonable qualifications for persons who sion, by the making of the list of persons eligible may be employed as deputies and removal from to appointments and its certification to the ap- office for lack of efficiency in the performance of pointing officer, names the person appointed to its duties. such position.

(Ed. Note.-For other cases, see Clerks of (Ed. Note.-For other cases, see Constitution. Courts, Cent. Dig. 88 12–20; Dec. Dig. 6.] al Law, Cent. Dig. § 144; Dec. Dig. En 80(2).]

Farmer and Cooke, JJ., dissenting. 2. CLERKS OF COUBTS 1-NATURE OF OFFICE.

Mandamus by the People, on the relation A "clerk of court” is an officer of the court of Henry R. Vanderburg, against James J. who has charge of the clerical part of its business and keeps its records and seal, issues pro- Brady, Auditor, and others. Respondents cess, enters judgments and orders, makes certi- demur to the petition. Writ denied. fied copies from the record, etc., and such officer belongs to the judicial department of the state.

George B. Gillespie, of Springfield (Gilles[Ed. Note.-For other cases, see Clerks of pie & Fitzgerald, of Springfield, of counsel), Courts, Cent. Dig. § 1; Dec. Dig. ml.

for relator. P. J. Lucey, Atty. Gen., and For other definitions, see Words and Phrases, George P. Ramsey, of Springfield, for reFirst and Second Series, Clerk of Court.) spondents.

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DUNN, J. Upon leave granted at the June , expressly permitted by the Constitution. To term, 1916, Henry R. Vanderburg filed a pe- the judiciary are committed the power and tition for a writ of mandamus against the duty of interpreting the laws and the Conauditor of public accounts and the state stitution. The creation of officers, the deletreasurer, commanding the auditor to draw gation and regulation of their powers and and the treasurer to pay warrants at the duties, and the prescribing of the manner of rate of $125 per month from December 1, their appointment or election are functions 1915, to June 1, 1916, for the salary of the of the Legislature, which are restrained only petitioner as docket clerk and bookkeeper by the constitution. People v. McCullough, in the office of the clerk of the Supreme 254 Ill. 9, 98 N. E. 156. The Constitution does Court during that time. The cause has been not specifically confer the power to appoint submitted upon a demurrer to the petition, officers on any department, and does not proand the question to be determined is wheth- vide that the officers or employés of any deer the position held by the petitioner is one partment of the government can only be apwithin the classified service of the state pointed by that department. The Legislaand subject to the provisions of the Civil ture has frequently conferred on the courts Service Act.

the power of making appointments of officers [1, 2] On behalf of the petitioner it is con- not belonging to the judicial department, as tended that the Civil Service Act cannot con- in People v. Morgan, 90 Ill. 558, where a stitutionally apply to officers in the judicial judge of the circuit court of Cook county was department of the state government Arti- authorized to appoint the South Park comcle 3 of the Constitution provides:

missioners, with power to assess, levy, and “The powers of the government of this state collect taxes, which are certainly not judicial are divided into three distinct departments—the powers, and People v. Hoffman, 116 Ill. 587, legislative, executive and judicial; and no per- 5 N. E. 596, 8 N. E. 788, 56 Am. Rep. 793, son, or collection of persons, being one of these departments, shall exercise any power properly where it was held that the power to appoint belonging to either of the others, except as here- election commissioners, who are not judicial inafter expressly directed or permitted.”

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 oflicer 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 belong the other departments of the government reing to the judicial department.

quire to be appointed by the court. [3-5] The three departments of our govern The question of the power of the Legislament, under the Constitution, stand upon anture to impose upon the judiciary the duty equal footing. Neither may exercise any 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 Leg. the 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 gard to the means by which, and the time, executive function, and where the Legisla- place, and manner in which, the duties of ture is authorized, as it is by section 10 of such constitutional officer shall be perour Constitution, to provide for the appoint- formed. The duties of the clerk may be ment of all officers whose appointment is not performed by a deputy, and it is not an unotherwise provided for, the power of ap- reasonable regulation to prescribe reasonpointment may be conferred on the judi- able qualifications for persons who may be ciary. Fox v. McDonald, 101 Ala, 51, 13 employed as deputies and removal from ofSouth. 416, 21 L. R. A. 529, 46 Am. St. Rep. tice for a lack of efficiency in the perform98; Staude v. Election Com’rs, 61 Cal. 313; ance of its duties. The purpose of a comRussell v. Cooley, 69 Ga. 215; Ross v. Chosen petitive examination is a legitiniate one to Freeholders, 69 N. J. Law, 291, 55 Atl. 310. secure competent service. It cannot be rea

If it is not essential to the separation of sonably said that the clerk is deprived of the powers of government that the judicial any of the authority of his office because the department should not make appointments work done under his direction is performed in the executive department, then it is not through an agency selected by some other essential to such separation that the executive authority. department should not make appointments in

The Civil Service Law is not subject to the judicial department if authorized to do the constitutional objections made against it, so by the Legislature. Article 3 of the Con- and the writ of mandamus must therefore stitution includes in its prohibition each of be denied. the three departments of the government,

Writ denied, and its interpretation as to one department applies with equal force to each of the oth

FARMER and COOKE, JJ., dissenting. ers. People v. Dunne, 258 Ill. 441, 101 N. E. 560, 45 L. R. A. (N. S.) 500.

(275 Ill. 228) (6-8] It is next argued that the Civil Serv- PEOPLE ex rel. DORRIS, County Collector, ice Act cannot constitutionally apply to dep

V. GARNER et al. (No. 10470.) uties performing the constitutional duties of (Supreme Court of Illinois. Oct. 24, 1916.) their principals. If article 3 of the Consti- 1. DRAINS Om 89—PROCEEDINGS FOR ESTABtution is not violated by the appointment, it

LISHMENT-DESCRIPTION OF LAND. is not apparent what provision is violated.

In a drainage case, under the Farm Drain

age Act (Hurd's Rev. St. 1915–16, c. 42), an The Legislature, having the constitutional objection to an erroneous description in the compower of prescribing the manner in which I missioners' report must be by appeal to the

Come For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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