Cook Cnty. v. Healy
| Decision Date | 14 June 1906 |
| Citation | 78 N.E. 623,222 Ill. 310 |
| Parties | COOK COUNTY v. HEALY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; Thos. G. Windes, Judge.
Action by the county of Cook against John J. Healy. From a judgment for defendant, plaintiff appeals. Affirmed.
Harry A. Lewis, William F. Struckmann, and Frank L. Shepard, for appellant.
Charles H. Hamill and Worth E. Cayler, for appellee.
The county of Cook, appellant, brought this suit in assumpsit in the circuit court of Cook county against John J. Healy, state's attorney of said county, appellee, to recover $7,151 fees collected by appellee from December 5, 1905, to February 28, 1906, inclusive. The declaration consisted of the common counts for money had and received for the use of the plaintiff, and the plea was the general issue.
It appears that during the period in which the fees were collected the defendant was paid from the state and county treasuries his salary in full at the rate of $10,000 per annum, under the provisions of an act 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, in force July 1, 1871' (Laws 1901, p. 207), and for the purposes of this suit plaintiff conceded that defendant was entitled to such salary, but contended that the fees earned and collected by him should be paid into the county treasury. The defense made was that section 2 of said act was altered in a material respect after it was passed by the Legislature and before it was signed and approved by the Governor, and therefore did not become a law, and that the previous law allowing the defendant to retain fees earned and collected as his personal perquisites remained in force. The act as approved by the Governor is as follows:
At the trial the plaintiff submitted a proposition of law that all fees or allowances received by the state's attorney of Cook county in excess of his compensation, with the necessary clerk hire, stationery, fuel, and other expenses, must be paid into the county treasury of said county. The court refused to hold the proposition and found the issues for the defendant, and rendered judgment accordingly. The validity of the statute being in question, an appeal was prosecuted to this court. It was admitted that the defendant had collected and retained the fees sued for, and on his part it was proved that the sum of money named in section 2 of the act as his salary was $12,000 when the act was passed by the Legislature, but that said sum had been altered to $10,000 when the act was signed and approved by Governor Yates. A material provision of that section had been altered, and the Legislature and Governor did not concur in the same provision as to the amount of compensation to be paid to the state's attorney. Section 2 was therefore void, and must be treated as a nullity. The previous act provided that the judges of the circuit and superior courts and the state's attorney of Cook county should each be paid, in addition to the salaries paid to them from the state treasury, such further compensation as would make their respective salaries amount to the sum of $7,000. The act of 1901 is an amendatory act, and purports to amend the previous act ‘to read as follows,’ etc. Where there is an attempted repeal of an act by a statute which is void, the previous act remains in force; but if this amendatory act is valid in any of its provisions it cannot be said that some particular provision of the act of 1871 is still in force. The provisions for the salaries of the judges and state's attorney were contained in a single section of the act of 1871, and if this amendatory act is valid with the exception of section 2, there is no act in force under which the state's attorney is entitled to any salary whatever from the county of Cook. Whether the other portions of this act are void is to be determined upon consideration of the relation of section 2 to the other sections and the manner and extent to which that section affects the remainder. The other sections are not in any manner connected with section 2 in meaning, subject-matter, or execution, and we see no reason for saying that the Legislature would not have passed the act relating to the salaries of the judges without including section 2 as to the state's attorney. Striking out section 2, the other sections can be executed as effectually as if it should be retained. The different sections not being connected in substance, the invalidity of section 2 does not affect the remainder of the act. Knox County v. Davis, 63 Ill. 405;Noel v. People, 187 Ill. 587, 58 N. E. 616,52 L. R. A. 287, 79 Am. St. Rep. 238. There is therefore no statute providing for the payment of salary by the county of Cook to the state's attorney.
It is contended that the court erred in refusing to hold the proposition of law...
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