« ForrigeFortsett »
lace, 198 Ill. 422, 64 N. E. 1005); second, the contract and additions or deductions from statute in force on April 22, 1903, when the the contract price. The rights of the parties contract was made, governs as to the right and the amount to be paid were definitely fixto a lien and the limitation of time for bring-ed by the contract as of the date of its compleing the suit (Weber v. Bushnell, 171 Ill. 587, tion, and, if the architect had fraudulently re49 N. E. 728); third, under that statute it fused a certificate of the amount so due, an acwas essential that, within four months from tion could have been maintained without it, the date upon which the final payment be and the limitation would have run from the came due and payable according to the terms completion of the contract. But, unless that of the original contract, a suit should be was so, appellees could not have maintained brought to enforce the lien, or a claim for the an action without the certificate.The archilien should be filed with the clerk of the tect was not authorized by the contract to decircuit court. Laws 1895, p. 225. It is lay the giving of the certificate indefinitely becontended that, applying these rules, the yond the period of time fixed by the statute original bill was not filed within the time for the creation of a lien, and the contract fixed by the statute, and therefore the court was sufficient to sustain the action. erred in overruling the demurrer.
It is next argued that, if the original bill The contract was dated April 22, 1903, and was filed in time, the amended bill set forth provided that the work should be completed a new cause of action on November 10, 1904, by July 1, 1903, and payments should be and the statute of limitations had then run. made upon written certificates of the archi
The tect named in the contract to the effect that
property, the building, the work done, the such payments had become due, the final pay price, the architect, the parties, and the date ment to be made within 30 days after the and amount of the architect's certificate contract was fulfilled. The final certificate were the same. If relief had been granted of the architect, showing additions, deduc under the original bill, it would have been a tions, and former payments, and the balance bar to the cause of action for the same work for which a lien was claimed, was given on the same property stated in the amended October 5, 1903, and the original bill was bill. The amended bill did not state a new filed December 16, 1903. The argument is cause of action. that, allowing 30 days from July 1, 1903, The decree contained a sufficient recital of when the work was to be finished, the last facts, under the rules of law as we have payment became due July 31, 1903, more stated them, to authorize the relief granted. than four months before the bill was filed; The judgment of the Appellate Court is that the statute fixes the limitation from the
affirmed. time the last payment became due accord
Judgment affirmed. ing to the contract, and not according to the decision of the architect; that no certificate was needed to sustain a lien if a demand had
(222 Ill. 117) been made for one and the architect had PEOPLE ex rel. HONORE V. OLSEN, Counwrongfully refused it; and that the provi
ty Clerk, et al. sion of the contract, that all payments PEOPLE ex rel. BRENTANO V. SAME. should be made upon the written certificate
(Supreme Court of Illinois. June 14, 1906.) of the architect that they had become due, does not fix the time when the money was
1. STATUTES-EFFECT OF PARTIAL INVALIDITY.
The rule permitting a portion of a statute due and payable. By the contract the archi
to be upheld, though other portions are uncontect was authorized to make additions or de stitutional, applies not only to acts which have ductions from the contract price on account been passed as a whole in conformity with the
methods prescribed by the Constitution, but of alterations in the work and to make de
also to a portion of a statute not passed in the ductions for damage to appellant or appel
constitutional mode, while another portion was lees, and to find the balance due and give his so passed. certificate therefor. The final payment ac [Ed. Note.-For cases in point, see vol. 44, cording to the terms of the original contract
Cent. Dig. Statutes, 88 58-66.]
2. SAME. did not become due and payable until the
The fact that section 2 of Laws 1901, p. certificate was given, which was less tban
207; entitled, “An act to amend an act entitled, 40 days before the filing of the bill. Weber
'An act providing for the payment by the county v. Bushnell, supra. But counsel say that ac of Cook of further compensation to the judges cording to that rule the contract was not
of the circuit and superior courts and state's
attorney of said county, respectively,' approved sufficient to create a lien, because the time
April 13, 1871,” which fixes the salary of the of final payment as not fixed by the contract,
state's attorney of the county, is void because but depended upon the whim or caprice of not legally adopted, does not affect the validity
of sections 1 and 3 of the act, providing for the the architect. It is true that the right to a
salary of the superior and circuit court judges lien depends upon the terms of the contract,
of the county, though the act of 1871 fixes the and this contract specified a definite time for salary of both the judges and the state's atthe completion of the work and a definite torney at the same amount in the same section,
and though they are mentioned together in time when the final payment should be made,
Const. art. 6, § 25; the salary of the judges and but there was to be a settlement and decision the salary of the state's attorney being distinct by the architect as to the performance of the subjects of legislation.
judges is entitled to receive from the county A bill fixing the salaries of the circuit and of Cook the sum of $6,500 per year, payable superior court judges and the state's attorney of Cook County at $12,000 per year payable
at the end of each quarter; that said judges quarterly, was adopted by the Senate. The have received such further compensation at House amended the bill by providing that the said rate up to the 1st day of January, 1906, salary of the state's attorney should be in
and on March 1st of that year there was full for all services, and that all fees earned by him should be paid into the county treasury.
due and unpaid to the relator for the balThe amendment was not legally enacted. Held, ance of said compensation the
sum of that the fact that the House attempted to $541.66, but the respondent Olsen, in violaamend the bill did not indicate a purpose that
tion of the law and the relator's rights, rethe increased compensacion fixed for the judges should be paid out of funds arising from the
fused to issue such order or warrant for fees paid into the county treasury by the state's said sum; that on April 2, 1906, relator attorney, and the court could not hold that the made a demand on him for said order, invalidity of the section relating to the salary
which he refused to execute and deliver, of the state's attorney affected the section providing for the salary of the judges.
wherefore relator prays for a writ of man
damus, etc. Consolidated petitions for mandamus by
The respondent Olsen answered the petithe people, on the relation of Lockwood
tion, alleging that the only law in force Honore, against Peter B. Olsen, county
fixing the salary of the judges of the circuit clerk, and others, and on the relation of
court of Cook county is an act of the GenTheodore Brentano against the same res
eral Assembly in force July 1, 1871 (Laws pondents. Writ awarded.
1871, 72, p. 451), fixing the limit of compenThe relator filed his petition in this court sation at $7,000 per year, and that for the at the last term for a writ of mandamus
quarter ending March 31, 1906, the relator against Peter B. Olsen, county clerk of Cook was paid by the county of Cook, on warcounty, to which the board of county com rants drawn on its county treasury, the missioners was made a party defendant on sum of $1,083.32 for salary as judge of the the motion of said Olsen, commanding said circuit court, which was paid on separate Olsen, as county clerk, to draw an order on warrants of $541.66 at the close of January the county treasury of Cook county in favor and February, respectively. It is then alof relator for the sum of $541.66, alleged to leged that the act in force July 1, 1901, upon be a balance due him for salary as one of the which relator relies, was never passed by judges of the circuit court of said county the Legislature in conformity with the refor the quarter ending March 31, 1906. The quirements of the Constitution, and is therepetition alleged that on the 1st day of June, fore null and void. It sets up that the bill 1903, the relator was duly elected a judge was first introduced in the Senate and there of the circuit court of Cook county, took passed under the title of "An act providing the oath of office as required by law, was for the payment by the county of Cook of duly commissioned on June 18, 1903, and further compensation to the judges of the entered upon the duties of his office, which circuit and superior courts and state's athe has continued to perform from that time torney of said county, respectively," etc. to the present; that the respondent Peter Laws 1901, p. 207. Section 1 provided for
the and is now, the duly elected, qualified, and the circuit and superior courts of a sum, in acting county clerk of said county; that on addition to the salaries which may be paid March 31, 1906, it was, and now is, the law them from the state treasury, sufficient to of the state of Illinois that the judges of make their respective salaries amount to the circuit and superior courts of Cook the sum of $12,000 per year. The second county elected after the 1st day of July, section provided for the payment of the 1901, should be paid by the county of Cook, same sum, $12,000 per year, to the state's in addition to the salary paid them from attorney of Cook county. The third section the state treasury, such further compensa provided that the salaries so provided for tion as will make their respective salaries should be paid in quarterly installments, amount to the sum of $10,000 per year, to and that it should be the duty of the county be paid in equal quarterly installments; clerk of said 'county, at the end of each that since the 1st day of July, 1901, it has quarter, to draw an order or warrant therebeen, and now is, the duty of the county for in favor of each of said judges and the clerk of said county, at the end of each state's attorney, on the county treasurer of quarter, to draw an order or warrant upon said county, whose duty it should be to pay the county treasury of said county in favor the same on presentation and proper inof said judges so elected, for the compensa dorsement. The bill so passed by the tion to be paid by the county to them; that, Senate went to the House for its concursince the date above specified, each of the rence, and there the title of the bill was judges of the circuit and superior courts elect first stricken out, but later that action was ed after said date have been paid from the rescinded, and several amendments were state treasury a salary of $3,500 per year, made to the bill as it came from the Senate. and no more, and therefore, in pursuance to Of these, amendment No. 2 amended section the law of the state of Illinois, each of said 1, line 9, after the word "of," by adding the
words "twelve thousand dollars ($12,000).” Amendment No. 4 amended section 2, line 3, after the word "of," by adding the words “twelve thousand dollars (12,000)." Amend. ment No. 5, after the word “year,” in line 4 of section 2, inserted the words: "and shall be in full for all services of the state's attorney of Cook county, and all fees as provided by statute and earned by the state's attorney of Cook county shall be paid into the county treasury of Cook county." Afterwards, in the House, the question being on the adoption of the amendments, on motion the following amendment to No. 2 was adopted: “Amend committee amendment No. 2 by striking out the words and figures 'twelve thousand dollars ($12,000),' and insert in lieu thereof the words and figures ten thousand dollars ($10,000).'” The other amendments were adopted, including No. 5, and the bill as thus amended went to a third reading and was passed. The answer further alleges that by some means the figures $12,000 in the second section of the act were changed to $10,000 before it was signed by the Speaker of the House and President of the Senate and before it was acted upon and approved by the Governor. While there are no available means of ascertaining just when or by whom the change was made, attributing to all parties having to do with the bill honesty of purpose, it probably resulted from the amendment, in the House, of section 1, changing the figures $12,000 to $10,000; the person making the change carelessly assuming that the amendment applied to both sections. However that may be, it does appear from the answer that the bill, as it was signed by the presiding officers of the respective houses and approved by the Governor, never, in fact,
never, in fact, passed either branch of the Legislature. The answer is demurred to, and taking it as true it necessarily results that section 2 must be held illegal and void.
sisted on behalf of the relator that, notwithstanding the invalidity of that section, the act is valid and complete as to the salaries of the judges of the superior and circuit courts, under the well-recognized rule of construction that, where the several provisions of an act are separate and distinct from each other, one may be declared unconstitutional and void and the others sustained, whereas it is earnestly contended by counsel for respondent that section 2 being void the whole act must fall.
Judge Cooley, in his work on Constitutional Li Limitations (7th Ed., p. 246), treating of this subject, says: “It will sometimes be found that an act of the Legislature is opposed in scme of its provisions to the Constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional because it is not within the scope of the legislative authority. It may either propose to accomplish something prohibited by the Constitution, or to accomplish some lawful, and even laudable, object, by means repugnant to the Constitution of the United States or of the state. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the Legislature and being in the form of law, may contain other useful and salutary provisions not obnoxious to any just constitutional exception. It would be
Å similar petition was filed on behalf of inconsistent with all just principles of con
Theodore Brentano, of the superior court, against the respondents, which involves the same questions presented by this case. That petition has been consolidated with this, and will be considered on the same brief and argument. C. H. Poppenhusen, J.
J. L. McNabb, Michael Gesas, and Waterman, Thurman & Ross (S. S. Gregory and A. N. Waterman, of counsel), for relators. Harry A. Lewis, William F. Struckmann, and Frank L. Shepard, for respondents.
stitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent upon others which
unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other, The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial,
WILKIN, J. (after stating the facts). The second section of the act in question (Laws 1901, p. 207), not having been passed by either branch of the Legislature or signed by the Speaker of the House and President of the Senate and approved by the Governor, is consequently null and void. But it is in
but whether they are essentially and separ tion as to the irregularity of the passage of ably connected in substance. If, when the the law. urconstitutional portion is stricken out, that Both the title and body of the act expressed which remains is complete in itself and the legislative intent to increase the compencapable of being executed in accordance sation of two classes of officers—the circuit with the apparent legislative intent, wholly and superior judges and the state's attorney independent of that which was rejected, it of Cook county. These officers bear no such must be sustained. The difficulty is in de legal relation to each other as to justify the termining whether the good and bad parts inference that the salary of one would not of the statute are capable of being separated have been increased without the other. The within the meaning of this rule. If a statute Legislature might with perfect consistency attempts to accomplish two or more objects have increased one and left the other unand is void as to one, it may still be in every changed, or increased one and decreased the respect complete and valid as to the other. other. It is wholly immaterial that they are But if its purpose is to accomplish a single mentioned together in section 25 of article 6 object only, and some of its provisions are of the Constitution of 1870. That section void, the whole must fail unless sufficient does not in any way affect the power of the remains to effect the object without the aid county commissioners to fix the compensation of the invalid portion. And if they are so to be paid out of the county treasury at differmutually connected with and dependent on ent sums for the judges and the state's ateach other, as conditions, considerations, or torney. Nor is it at all important, in the decompensations for each other, as to war termination of this question, that the act of ront the belief that the Legislature intended 1871 fixes the salaries of both at the same them as a whole, and if all could not be amount in the same section. If the present carried into effect the Legislature would not act had simply increased the compensation of pass the residue independently, then, if some both by a single section, as did the former parts are unconstitutional, all the provisions one, there would be no ground for controversy which are thus dependent, conditional, or here. But the statute of 1901 attempted to connected must fall with them.”
provide for the salaries of the judges by one The rule of construction here announced, section, and of the state's attorney by another as far as we have been able to ascertain, and distinct section, which fact, if it indicates has been universally adopted by the courts anything, shows that the Legislature, in passboth of this country and Great Britain. In ing the last act, regarded the salaries of the fact, we do not understand counsel for the two classes of officers as distinct subjects of respondents to question it, but their conten- legislation. But, however that may be, certaintion is that the statute in question does not fall ly no argument is needed to show that the within the rule for two reasons: First, failing compensation to be paid a judge furnishes no to meet the constitutional requirements in its criterion whatever for fixing that of a proseenactment, it never became a law, but is an cuting or state's attorney. The duties of the absolute nullity, and therefore no part of it can two officers are entirely distinct and separate be held valid; second, the provisions of the -as much so as those of a judge and clerk, statute, taken together, are so mutually con sheriff, or other ministerial officer of the nected and dependent on each other as to court. warrant the belief that the Legislature and But it is earnestly insisted, by counsel on the Governor intended them as a whole, and behalf of the respondents, that the requireit cannot be presumed that the Legislature ments of the Constitution as to the passage of would have enacted, or the Governor ap statutes not having been followed, and that proved, the provision designed to increase fact appearing from the answer, the entire the judges' salaries without increasing the law is unconstitutional and void, and they state's attorney's salary, and providing for insist that the foregoing rule, under which turning into the county treasury additional one provision of a statute may be held conrevenues. In the consideration of these prop trary to the constitutional limitation and othositions it will be necessary to first deter er parts sustained, has no application to such mine whether, on the face of the statute, the a law, and cite several decisions of this court several sections are so dependent upon each which they understand to sustain their posiother and intended to operate together for tion. It is undoubtedly true that the lanthe same object, or are otherwise so connect guage used in Prescott v. Trustees of Illinois ed in meaning that they must stand or fall & Michigan Canal, 19 Ill. 324, sustains the together, or whether they are so blended contention, as do, perhaps, expressions used with each other that it cannot be presumed in other cases; but, when the questions which the Legislature would have passed the first were before the court for decision in those and third sections, and the Governor ap cases are carefully considered, it will be proved them, without the second. If it found that they are not at all in point. In shall be found that they are so dependent the Prescott Case the question was as to the upon each other or commingled together, validity of a section of the statute, the facts then the unconstitutional section falling being that that section never passed the will carry with it all other provisions of the Senate, and it was, of course, held that it act, and this without reference to the ques was invalid. The question here raised—that
is, whether one section being void the whole statute must fall-was not in the case, and therefore the statement in the opinion that the whole act must fall was strictly obiter dictum, and cannot be said to be an authority on the question now before us. People v. Starne, 35 Ill. 121, 85 Am. Dec. 348, simply holds that the irregularity—that is, that the act then before the court had never been put upon its passage in the House of Representatives, either as a whole or in part-rendered the act void in toto. And the same is true of the act under consideration in Ryan v. Lynch, 68 Ill. 160. This act was shown not to have been read in the Senate on three different days, nor passed by a vote of the yeas and nays, and the irregularity, of course, affected the whole statute, and not a particular part of it. In Burritt v. Commissioners of State Contracts, 120 Ill. 322, 11 N. E. 180, the question was whether a joint resolution of the House and Senate authorizing the purchase of books, having no title or enacting clause and not being signed by the speaker of the House, was a valid enactment, and it was held that it was not. Nor does People v. Knopf, 198 Ill. 340, 64 N. E. 842, 1127, sustain the contention of counsel. There it was simply held that certain portions of the act were unconstitutional and void, and that they were so connected with and related to the other portions that none could stand. It is true, we there cited the Prescott Case and other cases referred to by counsel, but only as authority that the court would look behind a printed statute to the journals of the Legislature in passing upon the constitutionality of a law, and the language quoted from the Prescott Case, as to the effect of a void section on the whole law, was not for the purpose of indicating our approval of the obiter dictum in that opinion.
The question in this form has never been presented for our decision, but the principle was involved and passed upon in Binz v. Weber, 81 Ill. 288. There the title of an act authorizing the issue of town bonds, when it passed the Senate, included the names of the city of Belleville and the towns of Mascoutah and Nashville, but in the House the town of Nashville was dropped out of the title. The validity of a tax levied to pay interest on bonds issued by the town of Mascoutah under the provisions of that law was involved, and it was urged against the tax that, because the law has a title more restrictive than had the bill when it passed the Senate, and because this more restrictive title does not appear to have been adopted by the ayes and noes and by a majority of the menbers of each house, the law was not constitutionally adopted. Referring to the constitutional provision as to the title of acts and the manner in which they shall be voted upon, it was said (page 290): "Under this constitutional requirement, then, we must look to the title of this bill as it passed each house, and not to
the title of the act after its adoption, to learn what portion of its provisions are constitutional. By thus applying these provisions to the passage of laws, we have no doubt we shall effectuate the intention of the framers of that instrument. * * * Tested, then, by these requirements, was this a constitutional law? This law undoubtedly does authorize the city of Belleville and town of Mascoutah to issue bonds, and that purpose was clearly expressed in the title as it passed both houses. It is true, the journals may showand it is stipulated they do—that the title, when the bill passed the Senate, was more comprehensive, and embraced the town of Nashville, in Washington county; but in the House the name of the latter town was omitted. But we fail to see how that could affect the law so far as it related to the city of Belleville and town of Mascoutah. They were both embraced in the body of the bill and in the title as it passed both houses, and that answers the constitutional requirements, and we must hold that both of these places may legally act under the law, whether or not Nashville can.
The doctrine is well established that, although some provisions of an act are repugnant to the Constitution, the others are valid if they are capable of being carried into operation; and there can be no doubt that all relating to Nashville may be stricken out, and still enough remain to permit Belleville and Mascoutah to issue and deliver valid and binding bonds."
The case of Stein v. Leeper, 78 Ala. 517, involved questions similar to those decided in Binz v. Weber, supra, and in the opinion of the Supreme Court of Alabama the latter case is cited with approval, and the court concludes its opinion as follows: "The enacting part of the act in question was approved by the Governor literally as passed by the General Assembly. The omission of the localities occurred in the title as enrolled. There was then a concurrence as to the body of the enactment and also as to the localities remaining in the enrolled title. Such omission does not vary the substance and legal effect in respect to the remaining localities, and the legal identity of the bill is maintained though within a restricted title. Our conclusion is that the statute, so far as it relates to the locality in controversy, is valid and operative. To hold otherwise would be to enforce the mandatory requirements of the Constitution so exactingly as to operate disastrously to legislation in many instances and cloud with uncertainty the validity of legislative enactments.” Very many forcible illustrations of the truth of this last sentence are shown in the brief and argument of counsel for petitioner, in which the strict enforcement of the constitutional requirements as to the passage of statutes would result most disastrously to the public.
The position of counsel is that the rulo permitting a portion of a statute to be upheld,