although other portions are condemned as unconstitutional and void, applies only to acts of the Legislature which have been passed as a whole in strict conformity with the methods prescribed by the Constitution. While the distinction can be readily seen, it is not easy to find a satisfactory reason upon which to base it. A section of a statute which is void because of its being in conflict with some limitation of the Constitution is an absolute nullity and must be treated in the construction of the statute as though it had never been passed or approved by the Governor. If the question were wholly one of first impression, we should feel compelled to hold that the distinction insisted upon should not be maintained. Turning to the decisions of other courts, we find that the question has been fully considered and passed upon to that effect. In the case of Berry v. B. & D. P. Ry. Co., 41 Md. 446, 20 Am. Rep. 69, the Supreme Court of Maryland, after holding that the court may go behind the printed statutes to the journals of the respective houses of the General Assembly to ascertain whether the law has been constitutionally passed or not, and after holding that the third section of the act as it was sealed and approved by the Governor was materially different from the same section as it passed the House, and therefore null and void, entered upon the further question as to how the invalidity of that section operated upon the remainder of the act, and said: “Upon examination it is found that the third section is entirely separate and disconnected from the other sections of the act, and that the operation and effect of those sections in no manner depend upon the coexistence of the third section. As applicable to such case, Judge Cooley, in his work on Constitutional Limitations (page 177), says: 'So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished 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 in what manner and to what extent the unconstitutional portion affects the remainder.'” And the court proceeded to hold the remainder of the statute valid.

In State ex rel. v. Platt, 2 S. C. 150, 16 Am. Rep. 647, the case is sufficiently stated in the syllabus, as follows: "On March 1, 1870, the General Assembly of the state passed 'An act to revise, simplify and abridge the rules of practice, pleadings and forms of courts in this state.' The nineteenth section of the enrolled act, to which the great seal of the state was affixed, and which was signed in the Senate chamber by the President of the Senate and Speaker of the House of Rep

resentatives and received the approval of the Governor, provided that the courts for the county of Barnwell should be held at Barn-' well; but it appeared by the journals of the two houses of the General Assembly that the same section of the bill as it finally passed both houses provided that the courts for that county should be held at Blackville. By the law as it stood at the passage of the act the place last named was the county seat of Barnwell county: Held, that the nineteenth section of the act was void, and consequently that Blackville remained the county seat of Barnwell county." The Supreme Court of South Carolina, in its opinion, dealing with the question here involved, says: “In a technical sense the term 'bill’ is applicable properly to the enactment as a whole. Although the technical sense of words should prevail where not inconsistent with the clear intent of the instrument, yet, when such intent requires that words should be used in a larger sense, it is competent so to regard them. If we should hold that the Constitution regards the enactment as wholly in an exclusive sense, we would be led to the inevitable conclusion that to become a law all the substantial parts of the measure must have together passed through all the requisite stages. The consequence of this would be that alteration in a substantial part during such progress would be. fatal to the whole. By a substantial part is meant any section, clause, or word that conveys distinct expression of the legislative will which cannot be supplied by construction from the other parts of the act, leaving out of view that part in which the defect lies. Whether it is to be regarded as substantial does not depend upon its importance or unimportance to the rest of the act, but upon its being, in itself, an expression of the legislative will, capable of being the subject of the separate act. It would lead us to the conclusion, in the present case, that if the law in question, although, in substance, a code of legal procedure, differed, as it passed the House, from the enrolled act in respect of any matter, though a mere word that covered a distinct expression of the legislative will not capable of being made out by construction applied to the rest of the act, the whole must be regarded as unconstitutional. That the Constitution intended no such absurdity is manifest. When a deed or contract cannot be carried into full execution by reason of error, the law invariably eliminates the error either by construction or reformation, when that can be done without the substantial destruction of that in which it inheres. This principle is constantly applied to statutes where some independent matter, capable of severance from the body of the statute, is inoperative under the Constitution. The rules of construction are based, in part, upon this principle so vital to them that they would not only lose their scientific character, but fail

to express that common sense fundamental to out the other.” In other words, under such all legal system if deprived of it”-and the circumstances the presumption is that the part of the statute under consideration which legal parts would have been enacted. It had not been passed in conformity with the seems clear to us that the fact that the inConstitution was held illegal and void, but creased compensation of the judges was the remainder valid. To the same effect placed in a separate and distinct section from will be found Abernathy V. State, 78 Ala. that which purported to increase the com411; 'Stow v. Common Council, 79 Mich. 595, pensation of the state's attorney sufficiently 44 N. W. 1047; State of Nebraska v. Van indicates that the Legislature would have Duyn, 24 Neb. 586, 39 N. W. 612; In re Groff, passed the one without the other. Certainly 21 Neb. 647, 33 N. W. 426, 59 Am. Rep. 859. we are not justifiable, upon the facts appear

Our conclusion is that the mere fact that ing in this record, in presuming it would not. section 2 of the act in question was not pass

Our conclusion is that sections 1 and 3 of ed by the Legislature in the constitutional the act of May 10, 1901, in force July 1, 1901, mode cannot have the effect of destroying the are valid enactments, and the respondent validity of the remaining sections.

Peter B. Olsen, as county clerk of Cook The second point urged on behalf of re

county, should have drawn his warrant on spondents has in part been already disposed

the treasurer of Cook county according to the of; that is, that the sections as they appear

demand of the relator, as stated in his petiin the statute are so interwoven with or re tion. A peremptory writ of mandamus will lated to each other that one cannot be held accordingly be awarded against him, as invalid and the others sustained. But coun prayed. sel insist that the proceedings in the House

Writ awarded. of Representatives, as shown by the answer, clearly indicate that it would not have passed sections 1 and 3 without section 2; their con

(222 Ill. 67) tention being that the amendment of that CHICAGO & S. TRACTION Co. v. FLAsection, by adding the words "and shall be in

HERTY et al. full for all services of the state's attorney of (Supreme Court of Illinois. June 14, 1906.) Cook county, and all fees as provided by 1. EMINENT DOMAIN CONDEMNATION PROstatute and earned by the state's attorney of

CEEDINGS-ATTORNEY'S FEES—AMOUNT. Cook county shall be paid into the county

Under Laws 1897, p. 218, providing that

in the exercise of the right of eminent domain, treasury of Cook county," indicated the pur

the court shall upon application of defendants pose that the increased compensation should make such order for the payment by the pebe paid out of the funds arising from that titioner of all costs, expenses, and reasonable

attorney's fees of the defendant as shall be source. However plausible the argument

just, the court can allow only the fees for may appear on first impression, we do not which defendant is liable, and hence is rethink it can be maintained. The object in

stricted to the fee provided by the contract passing section 1 was manifestly to provide

between defendant and his attorney, or, in case

there is no express agreement, the reasonable what the Legislature considered a fair and

value of the attorney's services. reasonable salary for the services of the 2. SAME-VALUE OF SERVICES. judges of the circuit and superior courts and In a condemnation proceeding, an allowfor the state's attorney, and there is nothing

ance of $800 for defendants attorney's fees held

against the weight of the evidence. whatever in the language of the statute to in

3. ATTORNEY AND CLIENT — AUTHORITY TO dicate an intention to limit the payment of EMPLOY ASSISTANT COUNSEL. such salaries to any particular fund belong Unless a client authorizes his attorney to ing to the county. If the intention had been

employ assistant counsel, he is not liable for

the fees of such assistant counsel. to limit the payment of the same to the fees

[Ed. Note.For cases in point, see vol. 5, turned in by the state's attorney, it would

Cent. Dig. Attorney and Client, $ 326.] have been easy to have so provided. We may speculate as to the motive of the General

Appeal from Superior Court, Cook County; Assembly in that regard, but, in the absence

Axel Chytraus, Judge. of anything appearing in the act itself to

Petition by the Chicago & Southern Tracjustify the conclusion, we are not at liberty

tion Company against Martin Flaherty and to say the first section would not have been

others for the condemnation of land. The passed without the second, including the pro- petition was dismissed, and defendant Flahervision for turning over the fees of a state's

ty filed a petition for an allowance of attorattorney's office. In the language of the rule

ney's fees. From a judgment granting such

allowance, the traction company laid down by Judge Cooley, supra, the fact


Reversed and remanded. that one part of a statute is unconstitutional "does not authorize the courts to declare the F. M. Lowes and T. Marshall, for appelremainder void also, unless all the provisions lant. Thomas W. Prindeville and Joseph H. are connected in subject-matter, depending on Fitch, for appellees. each other, operating together for the same purpose, or otherwise so connected together CARTWRIGHT, J. Appellant filed its in meaning that it cannot be presumed the petition in the superior court of Cook counLegislature would have passed the one with-ty to ascertain the compensation to be paid

for a right of way 50 feet wide for its railroad across 10 acres of land owned by appellee Martin Flaherty, who took the summons to Thomas W. Prindeville, an attorney, and employed him to look into the matter and make defense. The attorney made a motion to dismiss the petition on the ground that the petitioner was only authorized to construct a street railroad, and did not have the powers of a corporation organized for general railroad purposes to condemn lands of individuals outside of streets or highways. The motion was argued by the attorneys for the respective parties, and the court announced orally that he would sustain it. The petitioner afterward dismissed the petition, and Flaherty then filed his petition praying the court to make an allowance to him for reasonable attorney's fees paid and incurred by him in his defense. The court heard evidence, and allowed $800, for which judgment was entered. From that judgment this appeal was taken.

Section 10 of the act to provide for the exercise of eminent domain, as amended in 1897, provides that in such a case as this the court or judge shall, "upon application of the defendants to said petition, or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs." Laws 1897, p. 218. The object of the statute is to reimburse a defendant for attorney's fees which he has paid, or to indemnify him for such fees for which he has become liable, provided the fees so paid or incurred are reason

. In

whether the petitioner was a street railroad corporation, or a commercial railroad corporation, or both. If it was a street railroad corporation it could only go outside of the streets or highways to avoid some obstruction, and as there was nothing of that kind alleged, it could only claim the right to take the land of Flaherty on the ground that it was a composite or hybrid corporation. The proceeding was purely statutory, and the rights of the parties were governed by the statutes of this state. The evidence for Flaherty was that Mr. Prindeville spent 15 days in looking up the law in this state and attending in court, and arguing the motion, and that he employed Joseph H. Fitch as assistant counsel, who spent 8 days in looking up decisions outside of this state. They found two or three cases in this state bearing on the question and two outside of the state. Professional witnesses testified that the usual and customary fee would be from $50 to $100 per day for the time so spent by each of the attorneys; and one witness said that the services were worth from $800 to $1,200, according to the amount involved and the ability of the client to pay. On the part of the petitioner there was evidence that the question was not of a nature to require an expenditure of so much time; that a competent lawyer could examine the question and find all the law on the subject in half a day; that the time expended in a general search for decisions was unnecessary, and that $100 would cover all the services. The question involved arose out of the peculiar wording of the articles of incorporation, and its solution depended entirely upon our own statutes. It was not a difficult question and scarcely doubtful. It does not seem to us that in such a case an extended search of eight days for decisions outside of this state, and 15 days, including the time taken in attending the motion, for a search of our own decisions, was necessary, and we think that the finding and judgment was against the weight of the evidence. If services to that extent were not reasonably necessary, Flaherty had not become liable to pay for them.

But, aside from that question, there is an error which necessitates the reversal of the judgment. The court, over the objection of the petitioner, admitted evidence that Mr. Prindeville, the attorney enıployed to make the defense, employed Mr. Fitch as an assistant, and also evidence of the extent of Mr. Fitch's labors and the value of the same. The employment of an attorney is a matter of personal selection, and an attorney employed by a party to a suit has no implied authority to employ an assistant attorney at the expense of his client. The liability of a party to pay for legal services stands upon precisely the same footing as other contracts, and a client is not bound to pay for the services of an assistant not employed by him unless he has authorized the employment or assented to it in some way which will be bind.

ing, and whether there was any contract as to do

the amount to be paid does not appear. If there was any agreement as to the amount of compensation, he could not recover beyond that sum, although the attorney's services might be worth much more. So far as appears, the agreement on the part of Flaherty to pay for the services was an implied one, and he would be liable for the reasonable value of the services, taking into consideration the nature of the controversy, the skill and labor required, the responsibility imposed, the standing and ability of the attorney, and the results.

The articles of incorporation of petitioner declared the purpose of the corporation to be to acquire, purchase, construct, maintain and operate a street railroad. The route of the proposed street railroad was stated, followed by a statement that it was the purpose of the corporation to acquire, purchase, construct, own, maintain, and operate an interurban railway, by electricity or other power, between the same points and through the same cities and villages. The question raised by the motion to dismiss seems to have been

ing upon him. Price v. Hay, 132 Ill. 543, 24 Richberg, of counsel), for appellee F. W. N. E. 620; Evans v. Mohr, 153 Ill. 561, 39 Blocki. N. E. 1083; 4 Cyc. 950; 3 Am. & Eng. Ency. of Law (2d Ed.) 352. The duty assigned to

HAND, J. This is an appeal from a judgan attorney is a personal duty and trust

ment of the circuit court of Cook county which cannot be delegated to or performed

quashing the writ and dismissing the suit by another, and in this case Flaherty had

in a garnishment proceeding commenced in not paid any fees to Fitch or incurred any

said court by Stephen D. May against the liability to pay him.

city of Chicago and Frederick W. Blocki, The judgment is reversed and the cause

the treasurer of said city, to recover from remanded.

said garnishees, under the provisions of an Reversed and remanded.

act entitled "An act to subject the salary and wages of officers and employees of counties,

cities, villages, school districts and depart(222 III. 71)

ments of either thereof to garnishment and BADENOCH V. CITY OF CHICAGO et al.

attachment," approved May 11, 1905, and in

force July 1, 1905 (Laws 1905, p. 285), the (Supreme Court of Illinois. June 14, 1906.)


recovered by said Stephen D. May in said ITY.

circuit court against Joseph Badenoch, an Laws 1905, p. 285, subjecting the salary officer or employé of said city. An affidavit of officers of counties, cities, etc., to garnish

in the form usually filed under the provisions ment, if construed as authorizing the rendition of a judgment against an officer of a city in

of the general garnishment act, averring, favor of a person to whom he is not personally among other things, the recovery of said indebted, for the use of another, in a garnish judgment, the issue and return of an execument proceeding, or to require the city treasurer to deposit in court the amount found due the

tion nulla bona, and that the city of Chicago officer as wages by: a contempt proceeding

and Frederick W. Blocki, its treasurer, were against the officer refusing to make a deposit, indebted to said Badenoch, was filed, whereis invalid as depriving the city treasurer of

upon a garnishee summons was issued and his property without due process of law. 2. STATUTES-AMENDMENTS-VALIDITY.

served upon the city and its treasurer. The Laws 1905, p. 285, entitled "An Act to

contention of the city of Chicago and Fredsubject the salary and wages of officers and em erick W. Blocki in the court below was, and ployés of counties, cities,*

to garnish that court held, said act was in contravenment and attachment,'' is, when considered

tion of the Constitution of this state and alone, incomplete, in that its provisions cannot be made effective, except by ingrafting the act void. Hence the appeal is prosecuted direct on the garnishment act in force at the time of to this court. its adoption, and amounts to nothing more than

The act of May 11 consists of eight secan attempt to change the existing statutes on the subject of garnishment so as to make them

tions. Section 1 provides that the salary or broad enough to include within their terms the wages of any officer or person employed by garnishment of the salaries of the officers of

any county, city, town, village, school disthe municipal corporations named in the act, and is in conflict with Const. art. 4, § 13, pro

trict, or any department of either thereof, viding that no law shall be amended by ref shall be liable to process of garnishment or erence to its title only, but the section amended attachment in the following manner and shall be inserted at length in the new act.

extent, and with the same effect that the 3. CONSTITUTIONAL LAW – CLASS LEGISLA

salary or wages of any other person is or TION. The act is invalid as class legislation, be

are now or may hereafter become, under any cause it places certain burdens on the munic provisions of any law of this state, liable ipal corporations named in the title from

to such process; section 2, that, when the which other municipal corporations in the same class are exempted, and discriminates against

salary or wages of any officer of such politithe officers of the municipalities named, by

cal subdivision or department thereof is making the salaries and wages of such officers sought to be attached or reached by process liable to attachment or garnishment, while the

of garnishment, the garnishee summons or officers of other municipal corporations of the same class are not liable to attachment and

writ of attachment shall be served upon the garnishment proceedings.

treasurer or clerk of such political subdivi

sion or department thereof, and in all other Appeal from Circuit Court, Cook County;

cases such process shall be served upon the R. S. Tuthill, Judge.

officer or head of department, or the preGarnishment proceedings by Stephen D.

siding officer of the body in which office or May against the city of Chicago, and Freder

department or by which body the person ick W. Blocki, city treasurer, to recover a

whose salary or wages is sought to be attachjudgment against Joseph Badenoch, an

ed or garnished is employed, and the answer officer of the city. From a judgment in

shall be made by the officer or person upon fovor of the garnishees, Badenoch appeals.

whom such service is made or by some other Affirmed.

officer or person having knowledge of the William B. Moak, for appellant. Edward facts; section 3, that the officer upon whom T. Wade (James Hamilton Lewis, Corp. such garnishee summons is served shall, Counsel, of counsel), for appellee City of within 10 days from the date of service of Chicago. John C. Richberg (Richberg & summons, file, or cause to be filed, with the


justice or the clerk of the court where such It is contended on behalf of the city treasproceeding is pending, an answer under oath, urer that the relation of debtor and creditor stating the amount due the person whose does not exist between the city treasurer salary or wages has been attached or gar and the officers and employés of the city, nished, the amount of offset, if any, the and that, at most, the city treasurer is but corporation has against said wages or salary the custodian of the funds of the city, and at the time of the service of summons, and that the Legislature is powerless to authorwhether the officer or employé is the head ize a judgment to be rendered against a of a family, and shall deposit with the city treasurer for the amount due a city justice or the clerk of the court the amount officer or employé as salary or wages, for 80 shown to be due and unpaid, taking a the benefit of the creditor of such officer or receipt therefor, and that thereupon the mu employé, in an attachment or garnishment nicipal corporation shall be relieved from proceeding. In Triebel v. Colburn, 64 Ill. any further connection with the suit, and 376, it was sought to garnish the salary of a that the receipt so taken for such deposit policeman in the hands of the city treasurer shall become a voucher for the amount so of the city of Peoria. It appeared the paid, the same as though taken from said policeman's account had been audited, that officer or employé; section 4, that upon the the treasurer had money in his hands which filing of an answer and the making of such he might rightfully apply to the payment deposit the justice or the court where the of said salary, and that there remained proceeding is pending shall proceed to try nothing for the city treasurer to do but to the rights of the parties to such deposit, pay to the policeman the money due him. as near as may be in the same manner as It was, however, held the fund could not be other cases of garnishment; section 5, that reached by garnishee process, as the city when such officer shall be summoned to treasurer was not indebted to the policeanswer in any place other than where he man. The court, on page 378, said: “The resides, where his office is located, or where city treasurer in this case had no money of his duties 'are usually performed, the plain

the judgment debtor the (policeman) in his tiff shall file with the affidavit in attach hands. The money due to the latter for his ment or in garnishment, and before the issu salary did not become his money until paid ing of summons, interrogatories in writing over to him. The city treasurer was not to be answered by said officer, which shall

indebted to him. He could not have mainbe served upon him at the time the sum

tained action against the treasurer, mons is served, which interrogatories shall

but would have been compelled to be answered under oath by the officer

sue the city, which alone was his debtor. served, and filed with the justice, or in the

The supposed ground of personal liability court from which summons issued, within

failing, the treasurer of this municipal cor10 days from the time specified in the gar

poration must be held as not liable to this nishee summons; section 6, that the filing garnishee process.” of such answer and the making of said

The statute in question is so inartificially deposit shall release the corporation from

drawn that it is difficult to determine from further action on the part of the justice or

its provisions whether it was the intention the court in which the proceeding is pending,

of the framers of said act that a personal but, if the officer shall fail to file an answer judgment should be rendered against the and make such deposit within 10 days after

city treasurer or not, if, on a hearing, it the service of summons, the justice or

should be determined that the city was inthe court may subpoena said officer to appear

debted to an officer or employé whose salary and may compel such officer to file an an or wages was sought to be attached or garswer, and if it shall appear that any money

nished. By the terms of the act, if the is due the officer or employé the court may

city treasurer files an answer and admits order the same deposited within a specified the city is indebted to the officer or employé time, and if such officer shall still refuse to whose salary or wages is sought to be gardeposit the same the court may proceed nished, and deposits the money admitted to against the officer served as in cases for be due such officer or employé as salary or contempt; section 7, that before the officer wages with the justice or in court, then the shall be required to answer he shall be paid | city is to be released in the proceeding from the usual fees required by law to be paid

all further action on the part of the justice in such cases, and in case the officer is or the court. If, however, the city treaswithout the jurisdiction of the court his urer declines to answer and to admit there deposition may be taken, but such deposi is money due the officer or employé whose tion shall not operate as an answer; and salary or wages is sought to be garnished, section 8, that in case any officer of the and refuses to make a deposit of funds with corporation named in section 2 of the act the justice or in court, it would seem to be to be served with summons shall be the the legislative intent that there should be officer or employé whose salary or wages a hearing of some kind before the justice are attached or garnished, then the summons or in court to determine the question whethshall be served upon some other officer of the er there is anything due as wages or salary corporation.

from the officer or employé whose salary or

« ForrigeFortsett »