Elliott v. Univ. of Illinois

• Decision Date: 18 February 1937
• Docket Number: No. 23680.,23680.
• Citation: Elliott v. Univ. of Illinois, 365 Ill. 338, 6 N.E.2d 647 (Ill. 1937)
• Parties: ELLIOTT et al. v. UNIVERSITY OF ILLINOIS et al.
• Court: Illinois Supreme Court

365 Ill. 338

6 N.E.2d 647

ELLIOTT et al.

v.UNIVERSITY OF ILLINOIS et al.

No. 23680.

Supreme Court of Illinois.

Dec. 16, 1936.

Rehearing Denied Feb. 18, 1937.

Suit for injunction by Fred Elliott and others against the University of Illinois and others.From a judgment sustaining a motion to strike plaintiff's complaint and for judgment, the plaintiffs appeal.

Affirmed.

JONES and FARTHING, JJ., and HERRICK, C. J., dissenting.Appeal from Circuit Court, Cook County; John Prystalski, judge.

James H. Christensen, of Chicago, for appellants.

Otto Kerner, Atty. Gen., and Defrees, Buckingham, Jones & Hoffman, of Chicago (William C. Clausen and Don Kenneth Jones, both of Chicago, of counsel), for appellees.

PER CURIAM.

This is an appeal from a judgment of the circuit court of Cook county sustaining a motion made by the appellees to strike the amended complaint of appellants and for judgment.

Appellants sought to enjoin the University of Illinois, a corporation, the members of its board of examiners for certified public accountants, and the members of its committee on accountancy, from administering and enforcing ‘An Act to regulate the profession of public accountants,’ approved May 15, 1903(Laws of 1903, p. 281), as amended.Laws of 1907, p. 472.(Smith-Hurd Ill.Stats. c. 110 1/2, § 1 et seq.)The complaint alleged that the act is unconstitutional for various reasons, which we will set out and discuss later.

The act provides, in substance, section 1, that any 21 year old citizen of the United States, or person who has declared his intention to become such citizen, residing in or having a place for the regular transaction of business as a professional accountant in this State, who is of good moral character, a graduate of a four-year high school or who has an equivalent education, and who has received from the University of Illinois a certificate of his qualifications to practice as a public expert accountant as later provided in the act, shall be known as a certified public accountant.All other persons are forbidden to use that title, or the abbreviation ‘C. P. A.’The 1907amendment to this section(Smith-Hurd Ill.Stats. c. 110 1/2, § 1) provided that the annual examinations to be held in May, 1908, and 1909, should be open to all applicants without regard to preliminary educational requirements.By section 2(Smith-Hurd Ill.Stats. c. 110 1/2, § 2) the University of Illinois is authorized to determine the qualifications of applicants for certificates under the act and to make rules for their examination.It shall appoint three examiners, two of whom shall be skilled accountants in active practive and the third either such an accountant or an attorney skilled in the practice of commercial law.Thirty days' notice of these examinations by advertising three successive days in a newspaper at the place of holding the examinations is required.The examinations shall be in ‘Theory of Accounts,’‘Practical Accounting,’‘Auditing,’ and ‘Commercial Law’ as affecting accountancy, and are required to be held at least once a year and as much oftener as the University deems necessary.Section 3(Smith-Hurd Ill.Stats. c. 110 1/2, § 3) permits the University to exempt from examination applicants who possessed the qualifications listed in section 1, provided such applicants had had five successive years' previous experience as public accountants before making application, and had been practicing as public accountants in Illinois on their own account not less than one year prior to the passage of the act.The University is also authorized to exempt from examination applicants who had practiced accountancy outside this State for not less than five years next prior to the passage of the act and who had passed an examination equivalent, in the opinion of the University, to the examination to be held by it.Section 4(Smith-Hurd Ill.Stats. c. 110 1/2, § 4) requires each applicant to pay $25 to the University when he files his application, and authorized the University to pay not more than $10 per day for the services of the examiners, together with their necessary traveling expenses.All expenses are payable out of these fees, and no expense incurred is to be a charge against the funds of the University.By section 5(Smith-Hurd Ill.Stats. c. 110 1/2, § 5) the University may revoke any certificate issued by it ‘for unprofessional conduct or other sufficient cause, provided that written notice shall have been previously mailed to the holder of such certificate twenty days before any hearing thereon, stating the cause for such contemplated action, and appointing a date for a full hearing thereof by the university; and, provided further, That no certificate shall be revoked until a hearing shall have been had.’By section 6(Smith-Hurd Ill.Stats. c. 110 1/2, § 6) impersonation of a certified public accountant is made a misdemeanor, but it is provided that nothing in the act shall make it unlawful for one who is a certified public accountant under the laws of another State to represent that he is, and to practice as, a certified public accountant in this State.

Appellants contend that the Accountancy Act of 1903 was repealed by the passage of the act of 1927, entitled ‘An Act to afford protection to the public by prescribing and regulating the practice of public accounting,’ approved July 7, 1927.Laws of 1927, p. 689 (Smith-Hurd Ill.Stats. c. 110 1/2, § 7 et seq.).The two acts deal with different subject matter and are not in conflict.The 1927 act prohibits the practice of accounting without compliance with its terms, while the 1903 act only prohibits the practice of accounting under the title or designation of certified public accountant without compliance with its terms.Moreover, the 1927 act provides in section 18(Smith-Hurd Ill.Stats. c. 110 1/2, § 24) that it shall not be construed or taken as repealing, or in any way affecting, the act of 1903.The question of whether a statute has been repealed by implication is entirely a matter of legislative intent, Continental Ins. Co. v. Simpson (C.C.A.)8 F.(2d) 439, and so appellants' contention fails where, as here, the clear intention is that both acts shall be in force.

Appellants contend that the title of the 1903 act, ‘An Act to regulate the profession of public accountants,’ and the body of the act, are not germane, as required by section 13 of article 4 of the Illinois Constitution.They say that the title purports to regulate public accountants only, while the body of the act deals only with the issuance and use of the title ‘C. P. A.’ by certified public accountants.The fact that the title is more comprehensive than the act itself does not bring the act within the above constitutional restriction.People v. Roth, 249 Ill. 532, 94 N.E. 953, Ann.Cas.1912A, 100;People v. Sayer, 246 Ill. 382, 92 N.E. 900.Restricting the use of the title ‘Certified Public Accountant’ is a regulation of the accounting profession and the title is not misleading.

Appellants contend that the act appropriates money out of the State treasury, in violation of section 16 of article 4 of the State Constitution, and that it also authorizes the University, without warrants being issued by the State Auditor, to pay the expenses of administering the act, contrary to section 17 of article 4.Neither of these contentions is well taken, because by the terms of the act no money is paid into the State treasury and none drawn therefrom.

Appellants further claim that the effect of the act is to make the State liable for debts created by the University in administering the act, in violation of section 20 of article 4 of the Illinois Constitution.This argument is based on the assumption that the fees collected from applicants are to be paid into the State treasury, but, as we have said, nothing in the act requires the fees to be so paid.The act provides that all expenses of holding the examination and issuing certificates shall be paid out of the fees paid by applicants.There is plainly no intention to make the State liable for the debts of the University of Illinois in violation of the Constitution.

Much time is devoted in the argument to the contention that the powers conferred on the University in holding examinations and granting certificates are ultra vires.The University is not a private corporation but is an agency of the State.It was founded by an act of the Legislature approved February 28, 1867(Smith-HurdIll.Stats. c. 144, § 22 et seq. and notes), as the ‘Illinois Industrial University.’In 1885(Smith-HurdIll.Stats. c. 144, § 48) its name was changed to ‘University of Illinois.’It is maintained by interest from its permanent endowment fund arising from grants of land from the United States and by appropriations from the General Assembly.It is governed by a board of trustees elected by the people.It is managed by a corporation created by the State, but the State retains the power of selecting trustees, and may through other agents than the trustees sell and dispose of its property or change its charter as the Legislature may direct.People v. University of Illinois, 328 Ill. 377, 382,157 N.E. 811.The Legislature had full power to direct the University, as the state's agent, to perform the duties enjoined upon it by the act of 1903.What we have said on this point also disposes of the contention that the act is void because it gives the exclusive privilege or franchise to issue ‘C. P. A.’ certificates to the University in contravention of section 22 of article 4 of the Illinois Constitution.

Appellants next contend that the act is void because it delegates legislative and judicial powers to the University, in violation of article 3 and section 1 of article 4 of the State Constitution.What we said in People v. Apfelbaum, 251 Ill. 18, 23, 24, 95 N.E. 995, 997, of a similar provision in the Medical Practice Act of 1899, disposes of this contention.The language referred to was: ...