¶1also dissenting:
¶2I join in the dissent of the Chief Justice and in addition question the authority of this court in this proceeding to order or to direct the circuit court upon remand to order the counties involved to refund the fines which have been paid.
¶3The opinion glosses over the fact that the counties are not parties to these proceedings by stating that the counties received the fine money as an incident to the conviction without being joined as parties to the criminal proceedings and that they can be ordered to pay attorney fees for the representation of indigent defendants without being made parties to the proceedings for that purpose. These results of course are provided for by statute. There is no statute which supports the order in this case.
¶4The fines that were collected were paid to the county treasurer pursuant to statute. (Ill. Rev. Stat. 1973, ch. 53, par. 18(a).) The county treasurer in turn must hold these fines in a separate fund which is used to pay the salaries of the State’s Attorney and his assistants and other expenses. On July 1 of each year the county treasurer must transfer the balance remaining in this fund to the general corporate fund of the county. (Ill. Rev. Stat. 1973, ch. 53, par 19.) Thus, the fines that were paid have now become á part of the general corporate fund of the counties involved.
¶5Money is paid from the general corporate fund as provided by law • or on order of the county board. The purposes for which the general fund may be expended and the amount that may be expended for these purposes are limited by the provisions of the annual budget and appropriations ordinance. (111. Rev. Stat. 1973, ch. 34, pars. .2102-2104.) The procedures to be followed by the county board in ordering payments from the general corporate fund are provided by statute. Section 34 of the Counties Act (111. Rev. Stat. 1973, ch. 34, par. 604) provides the manner in which judgments against the county are paid and directs that the orders for payment of judgments be paid as other county debts. This section further authorizes the county board to levy taxes for the payment of outstanding judgments against the county. However, payment of the order that the fines in this case be refunded cannot be made under the authority of this section because such an order does not constitute a judgment against the county.
¶6In the absence of a judgment, one who has a claim against a county must file a verified claim with the county board which may be allowed or disallowed by that body. If the claim is disallowed, then the claimant may appeal from that decision to the circuit court. (111. Rev. Stat. 1973, ch. 34, par. 605.) The claimant is then in a position to secure a judgment against the county which may be collected as other judgments under the provisions of section 34 (par. 604) and for the payment of which the county may levy taxes.
¶7■ The order to refund the fines which the majority opinion proposes is not binding on the county and cannot be enforced. The supreme court of this State should not enter an order or direct that an order of judgment be entered which there is no means to enforce. Even with the order or judgment for refund of the fines the claimant will still be required to proceed under section 35 (par. 605) by filing the claim with the county board and, if it is denied, proceeding to judgment. Only then will there be a valid and enforceable judgment against the county.
¶8The majority rationalizes that since the State’s Attorney represents the People in this case, and by statute must also represent the county, somehow that makes an order entered in this proceeding binding on the county. I think that it may be possible to make the county a party to these proceedings or to institute a separate action against the county but until the county becomes a party to the proceeding for a refund no binding judgment or enforceable order can be entered against it. The State’s Attorney also may prosecute violations of the Illinois Vehicle Code. (111. Rev. Stat. 1973, ch. 95%, par. 16 — 102.) In certain situations the fines are paid to cities, villages, park districts, the road and bridge funds of townships or road districts and to certain other funds. (111. Rev. Stat. 1973, ch. 95%, par. 16 — 105.)' If a particular section of the Vehicle Code were to be held invalid, I do not see how a court could enter a valid and enforceable judgment for the return of the fines against a city, village, township, or road district unless that entity is a party to the proceedings. See 23 111. L. & Pr. Judgments sec. 13 (1956).
¶9The Federal cases cited in the majority opinion in support of the position that a refund order may be entered in this proceeding to avoid multiplicity of suits and piecemeal litigation are inapposite. In the cases cited the United States was a party to the proceedings and was ordered to refund the fines. The question was not whether the proper party was before the court but whether the proceedings for refund of the fines could be brought in the pending proceeding or in another action.