« ForrigeFortsett »
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 naust 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.” rolled 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
The nineteenth section of the en
resentatives and received the approval of the Governor, provided that the courts for the County of Barnwell should be held at BarnWell; 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 all legal System if deprived of it”—and the part of the statute under consideration which had not been passed in conformity with the Constitution was held illegal and Void, but the remainder Valid. To the Same effect will be found Abernathy v. State, 78 Ala. 411; Stow v. Common Council, 79 Mich. 595, 44 N. W. 1047; State of Nebraska v. WanDuyn, 24 Neb. 586, 39 N. W. 612; In re Groff, 21 Neb. 647, 33 N. W. 426, 59 Am. Rep. 859. Our COnclusion is that the mere fact that section 2 of the act in question was not passed by the Legislature in the constitutional mode cannot have the effect of destroying the validity of the remaining sections. The Second point urged on behalf of respondents has in part been already disposed of; that is, that the sections as they appear in the Statute are SO interWOWen With Or related to each other that one cannot be held in Valid and the OtherS Sustained. But COunsel insist that the proceedings in the House of Representatives, as shown by the answer, clearly indicate that it would not have passed sections 1 and 3 without section 2; their contention being that the amendment of that section, by adding 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,” indicated the purpose that the increased compensation Should be paid out of the funds arising from that source. However plausible the argument may appear on first impression, We do not think it can be maintained. The object in passing section 1 was manifestly to provide what the Legislature considered a fair and reasonable salary for the services of the judges of the circuit and superior courts and for the state's attorney, and there is nothing whatever in the language of the statute to indicate an intention to limit the payment of such salaries to any particular fund belonging to the county. If the intention had been to limit the payment of the same to the fees turned in by the state's attorney, it would have been easy to have so provided. We may speculate as to the motive of the General Assembly in that regard, but, in the absence of anything appearing in the act itself to justify the conclusion, we are not at liberty to say the first section would not have been passed without the second, including the provision for turning over the fees of a state’s attorney’s Office. In the language of the rule laid down by Judge Cooley, supra, the fact that one part of a statute is unconstitutional “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 With
out the other.” In other words, under such circumstances the presumption is that the legal parts would have been enacted. It Seems clear to us that the fact that the increased compensation of the judges was placed in a separate and distinct section from that which purported to increase the Compensation of the state's attorney sufficiently indicates that the Legislature would have passed the one without the other. Certainly we are not justifiable, upon the facts appearing in this record, in presuming it would not.
Our conclusion is that sections 1 and 3 of the act of May 10, 1901, in force July 1, 1901, are valid enactments, and the respondent Peter B. Olsen, as county clerk of Cook county, should have drawn his warrant on the treasurer of Cook county according to the demand of the relator, as stated in his petition. A peremptory writ of mandamus will accordingly be awarded against him, as prayed.
(222 Ill. 67)
CHICAGO & S. TRACTION CO. v. FLAHERTY et al. (Supreme Court of Illinois. June 14, 1906.) 1. EMINENT DOMAIN – CONDEMNATION PROCEEDINGS–ATTORNEY'S FEES-AMOUNT. Under Laws 1897, p. 218, providing that in the exercise of the right of eminent domain, the court shall upon application of defendants make such order for the payment by the petitioner of all costs, expenses, and reasonable attorney's fees of the defendant as shall be just, the court can allow only the fees for which defendant is liable, and hence is restricted to the fee provided by the contract between defendant and his attorney, or, in case there is no express agreement, the reasonable value of the attorney's services. 2. SAME—VALUE OF SERVICES. In a condemnation proceeding, an allowance of $800 for defendants attorney’s fees held against the weight of the evidence. 3. ATTORNEY AND CLIENT – AUTHORITY TO EMPLOY ASSISTANT COUNSEL. Unless a client authorizes his attorney to employ assistant counsel, he is not liable for the fees of such assistant counsel. [Ed. Note.—For cases in point, see vol. 5, Cent. Dig. Attorney and Client, $326.]
Appeal from Superior Court, Cook County; AXel ChytrauS, Judge.
Petition by the Chicago & Southern Traction Company against Martin Flaherty and others for the condemnation of land. The petition Was dismissed, and defendant Flaherty filed a petition for an allowance of attorney's fees. From a judgment granting such allowance, the traction company appeals. Reversed and remanded.
F. M. Lowes and T. Marshall, for appel
lant. Thomas W. Prindeville and Joseph H. Fitch, for appellees.
CARTWRIGHT, J. Appellant filed its petition in the superior court of Cook county 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 de
fendants 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 reasonable. In this case Flaherty had paid nothing, and whether there was any contract as to 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
| OutSide Of this State.
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 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 Seen1 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 employed 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 upon him. Price V. Hay, 132 Ill. 543, 24 N. E. 620; Evans v. Mohr, 153 Ill. 561, 39 N. E. 1083; 4 Cyc. 950; 3 Am. & Eng. Ency. of Law (2d Ed.) 352. The duty assigned to an attorney is a personal duty and trust Which cannot be delegated to or performed by another, and in this case Flaherty had not paid any fees to Fitch or incurred any liability to pay him.
The judgment is reversed and the cause remanded.
I'eversed and remanded.
(222 Ill. 71) BADENOCH V. CITY OF CHICAGO et al. (Supreme Court of Illinois. June 14, 1906.)
1. CONSTITUTIONAL LAW – DUE PROCESS OF OF LAW-GARNISHMENT—STATUTES—VALIDITY. Laws 1905, p. 285, subjecting the salary of officers of counties, cities, etc., to garnishment, if construed as authorizing the rendition of a judgment against an officer of a city in favor of a person to whom he is not personally indebted, for the use of another, in a garnishment proceeding, or to require the city treasurer to deposit in court the amount found due the officer as wages by a contempt proceeding against the officer refusing to make a deposit, is invalid as depriving the city treasurer of his property without due process of law. 2. STATUTES—AMENDMENTS—VALIDITY. Laws 1905, p. 285, entitled “An Act to subject the salary and wages of officers and employés of counties, cities, * * to garnishment and attachment,” is, when considered alone, incomplete, in that its provisions cannot be made effective, except by ingrafting the act on the garnishment act in force at the time of its adoption, and amounts to nothing more than an attempt to change the existing statutes on the subject of garnishment so as to make them broad enough to include within their terms the garnishment of the salaries of the officers of the municipal corporations named in the act, and is in conflict with Const. art. 4, § 13, providing that no law shall be amended by reference to its title only, but the section amended shall be inserted at length in the new act. 3. CONSTITUTIONAL LAW - CLASS LEGISLATION. The act is invalid as class legislation, because it places certain burdens on the municipal corporations named in the title from which other municipal corporations in the same class are exempted, and discriminates against the officers of the municipalities named, by making the salaries and wages of such officers liable to attachment or garnishment, while the officers of other municipal corporations of the same class are not liable to attachment and garnishment proceedings.
Appeal from Circuit Court, Cook County; R. S. Tuthill, Judge.
Garnishment proceedings by Stephen D. May against the city of Chicago, and Frederick W. Blocki, city treasurer, to recover a judgment against Joseph Badenoch, an officer of the city. From a judgment in fovor of the garnishees, Badenoch appeals. Affirmed.
William B. Moak, for appellant. Edward T. Wade (James Hamilton Lewis, Corp. Counsel, of counsel), for appellee City of Chicago. John C. Richberg (Richberg &
Richberg, of counsel), for appellee F. W. Blocki.
HAND, J. This is an appeal from a judgment of the circuit court of Cook County quashing the writ and dismissing the Suit in a garnishment proceeding commenced in said court by Stephen D. May against the city of Chicago and Frederick W. Blocki, the treasurer of said city, to recover from said garnishees, under the provisions of an act entitled “An act to subject the Salary and wages of officers and employees of counties, cities, Villages, school districts and departments of either thereof to garnishment and attachment,” approved May 11, 1905, and in force July 1, 1905 (Laws 1905, p. 285), the amount of a certain judgment theretofore recovered by said Stephen D. May in said circuit Court against Joseph Badenoch, an officer or employé of said city. An affidavit in the form usually filed under the provisions of the general garnishment act, averring, among other things, the recovery of Said judgment, the issue and return of an execution nulla bona, and that the city of Chicago and Frederick W. Blocki, its treasurer, were indebted to said Badenoch, was filed, whereupon a garnishee summons was issued and served upon the city and its treasurer. The contention of the city of Chicago and Frederick W. Blocki in the court below was, and that court held, said act was in contravention of the Constitution of this state and Void. Hence the appeal is prosecuted direct to this court.
The act of May 11 consists of eight sections. Section 1 provides that the salary or wages of any officer or person employed by any county, city, town, Village, school district, or any department of either thereof, shall be liable to process of garnishment or attachment in the following manner and extent, and with the same effect that the salary or wages of any other person is or are now or may hereafter become, under any provisions of any law of this State, liable to such process; section 2, that, when the salary or wages of any officer of such political subdivision or department thereof is sought to be attached or reached by process of garnishment, the garnishee summons or Writ of attachment shall be served upon the treasurer or clerk of such political subdivision or department thereof, and in all other cases such process shall be served upon the Officer or head of department, or the presiding officer of the body in which office or department or by which body the person whose salary or wages is sought to be attached or garnished is employed, and the answer shall be made by the Officer or person upon Whom such service is made or by Some Other officer or person having knowledge of the facts; section 3, that the officer upon whom such garnishee Summons is served shall, within 10 days from the date of service of summons, file, or cause to be filed, with the justice Or the clerk of the court Where such proceeding is pending, an answer under oath, Stating the amount due the person whose salary or Wages has been attached or garnished, the amount of offset, if any, the Corporation has against said Wages or Salary at the time of the service of summons, and whether the officer or employé is the head of a family, and shall deposit With the justice or the clerk of the court the amount So ShoWn to be due and unpaid, taking a receipt therefor, and that thereupon the municipal corporation shall be relieved from any further connection with the suit, and that the receipt so taken for such deposit shall become a voucher for the amount so paid, the Same as though taken from said officer or employé; section 4, that upon the filing of an answer and the making of such deposit the justice or the court Where the proceeding is pending shall proceed to try the rights of the parties to such deposit, aS near aS may be in the Same manner aS Other CaseS Of garnishment; Section 5, that When Such officer shall be summoned to answer in any place other than where he resides, where his office is located, or where his duties are usually performed, the plaintiff shall file With the affidavit in attachment Or in garnishment, and before the issu
ing of Summons, interrogatories in Writing
to be answered by said officer, which shall be served upon him at the time the summons is served, which interrogatories shall be answered under oath by the officer served, and filed with the justice, or in the court from which summons issued, within 10 days from the time specified in the garnishee Summons; section 6, that the filing of such answer and the making of said deposit Shall release the corporation from further action on the part of the justice or the court in which the proceeding is pending, but, if the Officer shall fail to file an answer and make Such deposit Within 10 days after the service of Summons, the justice or the court may subpoena said officer to appear and may compel Such Officer to file an anSwer, and if it shall appear that any money is due the officer or employé the court may Order the same deposited within a specified time, and if Such Officer Shall Still refuse to deposit the same the court may proceed against the officer served as in cases for contempt; section 7, that before the officer shall be required to answer he shall be paid the usual fees required by law to be paid in Such cases, and in case the Officer is without the jurisdiction of the court his deposition may be taken, but such deposition shall not Operate as an anSWer; and Section 8, that in Case any Officer of the corporation named in section 2 of the act to be served With SummonS Shall be the officer or employé whose salary or wages are attached or garnished, then the Summons shall be served upon some other officer of the corporation.
It is contended on behalf of the city treasurer that the relation of debtor and creditor does not exist between the city treasurer and the officers and employés of the city, and that, at most, the city treasurer is but the custodian of the funds of the city, and that the Legislature is powerless to authorize a judgment to be rendered against a city treasurer for the amount due a city officer or employé as salary or wages, for the benefit of the creditor of Such Officer or employé, in an attachment or garnishment proceeding. In Triebel V. Colburn, 64 Ill. 376, it was sought to garnish the salary of a policeman in the hands of the city treasurer of the city of Peoria. It appeared the policeman's account had been audited, that the treasurer had money in his hands which he might rightfully apply to the payment of Said Salary, and that there remained nothing for the city treasurer to do but to pay to the policeman the money due him. It Was, however, held the fund could not be reached by garnishee process, as the city treasurer was not indebted to the policeman. The court, on page 378, said: “The city treasurer in this case had no money of the judgment debtor the (policeman) in his hands. The money due to the latter for his salary did not become his money until paid over to him. The city treasurer was not indebted to him. He could not have maintained an action against the treasurer, * * * but would have been compelled to sue the city, which alone was his debtor. The supposed ground of personal liability failing, the treasurer of this municipal corporation must be held as not liable to this garnishee process.”
The statute in question is so inartificially drawn that it is difficult to determine from its provisions whether it was the intention of the framers of said act that a personal judgment should be rendered against the city treasurer or not, if, on a hearing, it should be determined that the city was indebted to an officer or employé whose salary or Wages was sought to be attached or garnished. By the terms of the act, if the city treasurer files an answer and admits the city is indebted to the officer or employé whose salary or wages is sought to be garnished, and deposits the money admitted to be due such officer or employé as salary or wages with the justice or in court, then the city is to be released in the proceeding from all further action on the part of the justice or the court. If, however, the city treasurer declines to answer and to admit there is money due the officer or employé whose salary or wages is sought to be garnished, and refuses to make a deposit of funds With the justice or in court, it would seem to be the legislative intent that there should be a hearing of some kind before the justice Or in court to determine the question Whether there is anything due as Wages or Salary from the officer or employé whose salary or