explaining that the judicial power cannot be exercised when “there is nothing pending before the court to be decided”
How later courts described this case
- explaining that the judicial power cannot be exercised when “there is nothing pending before the court to be decided”
- statute that imposed mandatory waiting period before divorce action could be filed held to obstruct litigants’ constitutional right of access to the courts without delay
- “The jurisdiction of such courts to hear and determine divorce matters is conferred only by statute.”
Written by the judges who cited it.
The opinion
Mr. Chief Justice Schaefer, specially concurring:
I agree with the judgment of the court in so far as it is based upon the non-judicial character of the function to be performed by the judge at the conference contemplated by the statute. But I do not agree that the generalized-exhortation of section 19 of article II of the constitution that “Every person ought to * * * obtain * * * right and justice * * * without delay” invalidates the statute before us. Requirements not unlike those here involved are familiar. For example, leave of court has been a prerequisite 'to the filing of a complaint in quo warranto for many years; (Ill. Rev. Stat. 1953, chap. 112, par. 10) leave of court is required to file a suit in equity to restrain the disbursement of public funds by State officers; (Ill. Rev. Stat. 1953, chap. 102, par. 14) original mandamus proceedings in this court are required by Rule 46 to be instituted by a motion for leave to file a petition for a writ of mandamus. (Ill. Rev. Stat. 1953, chap, no, par. 259.46.) So far as I am aware these have not been thought to violate the' admonition of section 19 of article II. To the extent that that section of the constitution may be thought to have a bearing upon the validity of legislation, it adds so little to the due process clause that I would measure its breach, as it seems to me this court did in Clarke v. Storchak, 384 Ill. 564 , by an appraisal of the reasonableness of the particular delay involved in terms of the objective which the legislature sought to accomplish. And so measured, I would conclude that the objection based upon section 19 of article II is not well taken.