« ForrigeFortsett »
lace, 198 Ill. 422, 64 N. E. 1005); second, the statute in force on April 22, 1903, when the contract was made, governs as to the right to a lien and the limitation of time for bringing the suit (Weber v. Bushnell, 171 Ill. 587, 49 N. E. 728); third, under that statute it was essential that, Within four months from the date upon which the final payment became due and payable according to the terms of the original contract, a suit should be brought to enforce the lien, or a claim for the lien Should be filed With the clerk Of the circuit court. Laws 1895, p. 225. It is contended that, applying these rules, the original bill was not filed within the time fixed by the statute, and therefore the court erred in Overruling the demurrer. The contract was dated April 22, 1903, and provided that the work should be completed by July 1, 1903, and payments should be made upon written certificates of the architect named in the contract to the effect that such payments had become due, the final payment to be made within 30 days after the Contract Was fulfilled. The final Certificate of the architect, showing additions, deductions, and former payments, and the balance for which a lien was claimed, was given October 5, 1903, and the original bill was filed December 16, 1903. The argument is that, allowing 30 days from July 1, 1903, when the work was to be finished, the last payment became due July 31, 1903, more than four months before the bill was filed; that the statute fixes the limitation from the time the last payment became due according 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 been made for one and the architect had wrongfully refused it; and that the provision of the contract, that all payments should be made upon the written certificate of the architect that they had become due, does not fix the time When the money WaS due and payable. By the contract the architect was authorized to make additions or deductions from the contract price on account of alterations in the work and to make deductions for damage to appellant or appellees, and to find the balance due and give his certificate therefor. The final payment according to the terms of the original contract did not become due and payable until the certificate was given, Which WaS less than 40 days before the filing of the bill. Weber v. Bushnell, supra. But counsel say that according to that rule the contract was not sufficient to create a lien, because the time of final payment as not fixed by the contract, but depended upon the whim or caprice of the architect. It is true that the right to a lien depends upon the terms of the contract, and this contract specified a definite time for the completion of the work and a definite time when the final payment should be made, but there was to be a settlement and decision by the architect as to the performance of the
Contract and additions Or deductions from the contract price. The rights of the parties and the amount to be paid were definitely fixed by the contract as of the date of its completion, and, if the architect had fraudulently refused a certificate of the amount SO due, an action could have been maintained Without it, and the limitation Would have run from the completion of the contract. But, unless that was so, appellees could not have maintained an action without the certificate. The architect was not authorized by the contract to delay the giving of the certificate indefinitely beyond the period of time fixed by the statute for the creation of a lien, and the contract Was Sufficient to Sustain the action.
It is next argued that, if the Original bill was filed in time, the amended bill set forth a new cause of action on November 10, 1904, and the Statute Of limitationS had then Tun. The cause of action was the same. The property, the building, the work done, the price, the architect, the parties, and the date and amount of the architect’s certificate Were the same. If relief had been granted under the original bill, it would have been a bar to the cause of action for the Same WOrk on the same property stated in the amended bill. The amended bill did not State a new cause of action.
The decree contained a sufficient recital of facts, under the rules of law as we have Stated them, to authorize the relief granted. The judgment of the Appellate Court is affirmed.
(222 Ill. 117)
PEOPLE ex rel. HONORE v. OLSEN, County Clerk, et al.
PEOPLE ex rel. BRENTANO W. SAME. June 14, 1906.)
1. STATUTES—EFFECT OF PARTIAL INVALIDITY.
The rule permitting a portion of a statute to be upheld, though other portions are unconstitutional, applies not only to acts which have been passed as a whole in conformity with the methods prescribed by the Constitution, but also to a portion of a statute not passed in the constitutional mode, while another portion was so passed.
[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 58–66.]
The fact that section 2 of Laws 1901, n. 207, entitled, “An act to amend an act entitled, ‘An act providing for the payment by the county of Cook of further compensation to the judges of the circuit and superior courts and state's attorney, of said county, respectively, approved April 13, 1871,” which fixes the salary of the state's attorney of the county, is void because not legally adopted, does not affect the validity of sections 1 and 3 of the act, providing for the salary of the superior and circuit court judges of the county, though the act of 1871 fixes the salary of both the judges and the state's attorney at the same amount in the same section, and though they are mentioned together in Const., art. 6, § 25; the salary of the judges and the salary of the state's attorney being distinct subjects of legislation.
(Supreme Court of Illinois.
3. SAME. A bill fixing the salaries of the circuit and superior court judges and the state's attorney of Cook County at $12,000 per year payable Guarterly, was adopted by the Senate. The House amended the bill by providing that the salary of the state's attorney should be in full for all services, and that all fees earned by him should be paid into the county treasury. The amendment was not legally enacted. Held, that the fact that the House attempted to amend the bill did not indicate a purpose that the increased compensation fixed for the judges should be paid out of funds arising from the fees paid into the county treasury by the state's attorney, and the court could not hold that the invalidity of the section relating to the salary of the state's attorney affected the section providing for the salary of the judges.
Consolidated petitions for mandamus by the people, on the relation of Lockwood Honore, against Peter B. Olsen, county clerk, and others, and on the relation of Theodore Brentano against the same respondents. Writ awarded.
The relator filed his petition in this court at the last term for a Writ Of mandamus against Peter B. Olsen, county clerk of Cook county, to Which the board of county commissioners was made a party defendant on the motion of said Olsen, commanding said Olsen, as county clerk, to draw an Order on the county treasury of Cook county in favor of relator for the sum of $541.66, alleged to be a balance due him for salary as one of the judges of the circuit court of said county for the quarter ending March 31, 1906. The petition alleged that on the 1st day of June, 1903, the relator was duly elected a judge of the circuit court of Cook county, took the oath of office as required by law, Was duly commissioned on June 18, 1903, and entered upon the duties of his office, which he has continued to perform from that time to the present; that the respondent Peter B. Olsen for two years last past has been,
and is now, the duly elected, qualified, and
acting county clerk of said county; that on March 31, 1906, it was, and now is, the law of the state of Illinois that the judges of the circuit and Superior courts of Cook county elected after the 1st day of July, 1901, should be paid by the county of Cook, in addition to the salary paid them from the state treasury, such further compensation as will make their respective salaries amount to the sum of $10,000 per year, to be paid in equal quarterly installments; that since the 1st day of July, 1901, it has been, and now is, the duty of the county clerk of said county, at the end of each quarter, to draw an order or warrant upon the county treasury of said county in favor of said judges so elected, for the compensation to be paid by the county to them; that, since the date above specified, each of the judges of the circuit and superior courts elected after said date have been paid from the state treasury a salary of $3,500 per year, and no more, and therefore, in pursuance to the law of the state of Illinois, each of said
judges is entitled to receive from the county of Cook the sum of $6,500 per year, payable at the end of each quarter; that said judges have received such further compensation at said rate up to the 1st day of January, 1906, and on March 1st of that year there was due and unpaid to the relator for the balance of Said compensation the sum of $541.66, but the respondent Olsen, in violation of the law and the relator's rights, refused to issue such order or Warrant for Said Sum; that on April 2, 1906, relator made a demand on him for said order, which he refused to execute and deliver, wherefore relator prays for a writ of mandamus, etc. The respondent Olsen answered the petition, alleging that the only law in force fixing the salary of the judges of the circuit court of Cook county is an act of the General Assembly in force July 1, 1871 (Laws 1871, 72, p. 454), fixing the limit of compenSation at $7,000 per year, and that for the quarter ending March 31, 1906, the relator Was paid by the county of Cook, on Warrants drawn on its county treasury, the Sum of $1,083.32 for salary as judge of the circuit court, which was paid on separate warrants of $541.66 at the close of January and February, respectively. It is then alleged that the act in force July 1, 1901, upon which relator relies, was never passed by the Legislature in conformity with the requirements of the Constitution, and is therefore null and void. It sets up that the bill Was first introduced in the Senate and there passed under the title of “An act providing for the payment by the county of Cook of further compensation to the judges of the circuit and Superior courts and state's attorney of said county, respectively,” etc. Laws 1901, p. 207. Section 1 provided for the payment by the county to the judges of the circuit and superior courts of a sum, in addition to the salaries which may be paid them from the State treasury, sufficient to make their respective salaries amount to the sum of $12,000 per year. The second Section provided for the payment of the same sum, $12,000 per year, to the state's attorney of Cook county. The third section provided that the salaries so provided for Should be paid in quarterly installments, and that it should be the duty of the county clerk of Said county, at the end of each quarter, to draw an order or warrant therefor in favor of each of said judges and the state's attorney, on the county treasurer of said county, whose duty it should be to pay the same on presentation and proper indorsement. The bill so passed by the Senate Went to the House for its concurrence, and there the title of the bill Was first stricken out, but later that action was rescinded, and several amendments were made to the bill as it came from the Senate. Of these, amendment No. 2 amended section 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).” Amendment 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, 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.
A similar petition was filed on behalf of 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. 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.
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
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 Limitations (7th Ed., p. 246), treating of this subject, says: “It will sometimes be found that an act of the Legislature is opposed in some of its provisións 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 inconsistent with all just principles of conStitutional law to adjudge these enactments Void because they are associated in the same act, but not connected with or dependent upon others which are 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, but whether they are essentially and separably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself and capable of being executed in accordance With the apparent legislative intent, Wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated within the meaning of this rule. If a statute attempts to accomplish two or more objects and is Void as to One, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a Single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object Without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature intended them as a whole, and if all could not be carried into effect the Legislature would not pass the residue independently, then, if Some parts are unconstitutional, all the provisions which are thus dependent, conditional, or Connected must fall With them.” The rule of construction here announced, as far as we have been able to ascertain, has been universally adopted by the courts both of this country and Great Britain. In fact, we do not understand counsel for the respondents to question it, but their contention is that the statute in question does not fall within the rule for two reasons: First, failing to meet the constitutional requirements in its enactment, it never became a law, but is an absolute nullity, and therefore no part of it can be held valid; second, the provisions of the statute, taken together, are so mutually connected and dependent On each other as to warrant the belief that the Legislature and the Governor intended them as a Whole, and it cannot be presumed that the Legislature would have enacted, or the Governor approved, the provision designed to increase the judges’ salaries without increasing the state's attorney’s Salary, and providing for turning into the county treasury additional revenues. In the consideration of these propositions it will be necessary to first determine whether, on the face of the statute, the several sections are so dependent upon each other and intended to operate together for the Same Object, Or are Other Wise SO connected in meaning that they must stand or fall together, or whether they are so blended With each other that it cannot be presumed the Legislature would have passed the first and third Sections, and the Governor approved them, without the second. If it shall be found that they are so dependent upon each other or commingled together, then the unconstitutional section falling will carry with it all other provisions of the act, and this without reference to the ques
tion as to the irregularity of the passage of the la V. Both the title and body of the act expressed the legislative intent to increase the compenSation Of tWO classes of Officers—the circuit and Superior judges and the State's attorney of Cook county. These Officers bear no such legal relation to each other as to justify the inference that the salary of one would not have been increased Without the Other. The Legislature might with perfect consistency have increased one and left the other unchanged, or increased one and decreased the Other. It is Wholly immaterial that they are mentioned together in Section 25 of article 6 Of the Constitution of 1870. That Section does not in any Way affect the power of the County Commissioners to fix the compensation to be paid out of the county treasury at different Sums for the judges and the State's attorney. Nor is it at all important, in the determination of this question, that the act of 1871 fixes the Salaries of both at the same amount in the Same Section. If the present act had simply increased the compensation of both by a single Section, as did the former one, there would be no ground for controversy here. But the statute of 1901 attempted to provide for the salaries of the judges by one section, and of the state's attorney by another and distinct section, which fact, if it indicates anything, shows that the Legislature, in passing the last act, regarded the Salaries of the two classes of Officers as distinct subjects of legislation. But, however that may be, certainly no argument is needed to ShoW that the compensation to be paid a judge furnishes no criterion whatever for fixing that of a prosecuting or state's attorney. The duties of the two officers are entirely distinct and separate —as much so as those of a judge and clerk, Sheriff, or other ministerial officer of the COurt. But it is earnestly insisted, by counsel on behalf of the respondents, that the requirements of the Constitution as to the passage of statutes not having been followed, and that fact appearing from the answer, the entire law is unconstitutional and Void, and they insist that the foregoing rule, under which one provision of a statute may be held contrary to the constitutional limitation and other parts sustained, has no application to Such a law, and cite Several decisions of this court which they understand to sustain their position. It is undoubtedly true that the language used in Prescott v. Trustees of Illinois & Michigan Canal, 19 Ill. 324, sustains the contention, as do, perhaps, expressions used in other cases; but, when the questions which were before the court for decision in those Cases are carefully considered, it will be found that they are not at all in point. In the Prescott Case the question was as to the Validity of a Section Of the Statute, the facts being that that Section never passed the Senate, and it Was, Of course, held that it 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 in Volved, 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 show— and 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 rule
permitting a portion of a statute to be upheld,