Italia America Shipping Corp. v. Nelson

• Decision Date: 14 December 1926
• Docket Number: No. 17595.,17595.
• Citation: Italia America Shipping Corp. v. Nelson, 323 Ill. 427, 154 N.E. 198 (Ill. 1926)
• Parties: ITALIA AMERICA SHIPPING CORPORATION et al. v. NELSON, Auditor of Public Accounts, et al.
• Court: Illinois Supreme Court

323 Ill. 427

154 N.E. 198

ITALIA AMERICA SHIPPING CORPORATION et al.

v.NELSON, Auditor of Public Accounts, et al.

No. 17595.

Supreme Court of Illinois.

Oct. 28, 1926.

Rehearing Denied, with Modification, Dec. 14, 1926.

Suit by the Italia America Shipping Corporation and others against Oscar Nelson. Auditor of Public Accounts, and others. From a decree for plaintiffs, defendants appeal.

Reversed and remanded, with directions.Appeal from Circuit Court, Cook County; Francis S. Wilson, judge.

Oscar E. Carlstrom, Atty. Gen., William C. Clausen and George E. Dierssen, both of Chicago, and Montgomery S. Winning, of Springfield, for appellants.

Deneen, Healy & Lee, of Chicago, for appellees.

HEARD, J.

The appellees, being firms, corporations, individuals, and partnerships engaged in the business of buying and selling foreign exchange and the transmission or transfer of moneys to foreign countries, filed their amended bill of complaint in the circuit court of Cook county praying the court to declare unconstitutional and void an act entitled, ‘An act in relation to the buying and selling of foreign exchange and the transmission or transfer of money to foreign countries,’ approved June 28, 1923 (Laws of 1923, p. 277), and that appellants, who are officers of the state of Illinois, be enjoined from enforcing the provisions thereof. Appellants filed a general demurrer to the amended bill of complaint, and, the demurrer being overruled, they elected to stand by the demurrer, and the court entered a decree finding the act unconstitutional and void, and ordered that a writ of injunction issue against appellants restraining and enjoining them from enforcing the provisions of the act against appellees. From this decree an appeal has been perfected to this court.

Appellees' first contention is that the act is an amendment to the act relating to banks and banking, which act is entitled, ‘An act to revise the law with relation to banks and banking,’ approved June 23, 1919 (Laws 1919, p. 224), and ratified by vote of the people on November 2, 1920, and that being such amendment and not having been submitted to a vote of the people, as required by section 5 of article 11 of the Constitution of the state of Illinois, it is therefore unconstitutional and void. The basis for this contention seems to be that the powers of banking corporations are increased or enlarged by reason of their exception from the provisions of the act. While the passage of this act may have a tendency to increase the amount of business done by banking corporations by reason of its restrictions upon other corporations, the act does not increase or enlarge the powers of banking corporations, for the reason that prior to the passage of the act it was within the scope of the ordinary functions of a bank to deal in foreign exchange and money. Wedesweiler v. Brundage, 297 Ill. 228, 130 N. E. 520.

[2] It is contended by appellees that the act embraces more than one subject although the title contains but one subject, and that the body of the act contains provisions not covered by or expressed in the title, and that for these reasons it is void as violating section 13 of article 4 of the Constitution, which provides that no act ‘shall embrace more than one subject, and that shall be expressed in the title.’ The specific objection is, that while the title gives no hint that penalties are included, section 7 of the act creates a new crime by providing that:

‘Whoever violates any provision of this act, upon conviction thereof shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or be imprisoned in the penitentiary for not less than one year nor more than ten years, or both such fine and imprisonment, and in addition thereto, his license shall be revoked by the auditor of public accounts.’

[4] The constitutional provision in question has been uniformly construed liberally in favor of the validity of enactments. To render a provision in the body of an act void as not embraced in the title, such provision must be incongruous with the title or must have no proper connection with or relation to the title. People v. McBride, 234 Ill. 146, 84 N. E. 865,123 Am. St. Rep. 82,14 Ann. Cas. 994. If all the provisions of an act relate to one subject indicated in the title and are parts of it or incident to it or reasonably connected with it or in some reasonable sense auxiliary to the object in view, then the provision of the Constitution is obeyed. The word ‘subject’ as used in the Constitution, signifies the basis or principal object of the act. It may contain many objects growing out of and germane to it.

Any matter or thing which may reasonably be said to be subservient to the general subject or purpose will be germane and properly included in the law, and the law will not, by reason of such inclusion, be rendered unconstitutionalas embracing more than one subject. People v. Newcom, 318 Ill. 188, 149 N. E. 269. While the word ‘regulate’ is not found in the act, a perusal of the act shows that the purpose of the act is to regulate the business of buying and selling foreign exchange and the transmission or transfer of money to foreign countries, and that as such regulatory measure it could not be made effective without the imposition of a penalty for a failure to comply with its provisions.

The purpose of the constitutional provision that no act shall embrace more than one subject is to prevent the joining in one act of incongruous and unrelated matters. An act may contain any number of provisions which tend to further its purpose. The penalties imposed by this act are directly related to carrying it into effect, and the act is not rendered unconstitutional as embracing more than one subject by reason thereof. Where the title of an act is so limited or is of such a character as to give no hint that it is regulatory or so as to reasonably lead to an inquiry into the body of the bill, those portions of the act which provide a penalty will be held to be obnoxious to this provision of the Constitution and void (People v. Clark, 301 Ill. 428, 134 N. E. 95); but when the title of an act is general and is of such a nature that the natural inference is that the act is regulatory and that penalties are a proper incident to its enforcement, the constitutional limitation is not violated. The natural inference which any person reading this title would draw therefrom would be that the act will in some way be regulatory, with penalties incidental thereto.

[8] Section 4 of the Act provides:

‘The auditor of public accounts may upon his own motion, and shall upon the verified complaint in writing of any person, investigate the actions of any licensee hereunder, and the entire expense of such an investigation shall be borne by the licensee.’

It is contended by appellees that this provision is a violation of section 2 of article 2 of the state Constitution and section 1 of Amendment 14 of the United States Constitution, in deprivingappellees of their property without due process of law and in taking the same for private or public use without compensation. While the business of dealing in foreign exchange is quasi public in character, and, like banking, insurance, and other business of like nature, is a legitimate subject for proper governmental inspection, the expense of which should rightfully be borne by the proprietor of the business, this is not a provision for such governmental inspection. Under it a licensee, no matter how honest in the conduct of the business or how careful in guarding against infractions of the law, could be compelled to pay large sums for the investigation of groundless or malicious complaints. While the business is impressed with a public interest, its property cannot be applied to the use of another or the public without violation of the constitutional inhibition. When this provision is stricken out the portion of the act which remains in complete in itself and capable of being exercuted wholly independently of that which is rejected, and the invalidity of this provision does not, therefore, render the entire act invalid, as there is no presumption that the General Assembly would not have enacted the remainder of the statute without this provision. Weksler v. Collins, 317 Ill. 132, 147 N. E. 797.

It is contended by appellees that the act in unconstitutional in that it attempts to confer judicial powers upon the auditor of public accounts. Under the act the auditor may revoke or suspend a license for conviction of a felony, for obtaining or attempting to obtain a license by fraudulent misrepresentations, for fraud or dishonesty in any transaction relating to such business, for failure to keep authentic records of business transactions, as required, for failure to issue a proper receipt for all money accepted for exchange or transmission, or for failure to transmit money within the time required. By article 3 of the Constitution of the state it is provided that the powers of the government of the state be divided into three distinct departments-the legislative, executive, and judicial-and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others, except as therein expressly directed or permitted. The legislative department determines what the laws shall be; the judicial department construes and applies the law; the executive department executes or administers it. Legislative power is the power to enact laws or declare what the laws shall be; judicial power is the power which adjudicates upon the rights of cititzens and to that end construes and applies the law.

[14] The Legislature cannot deal with the details of every particular case, and the manner of executing a law must necessarily be left to the reasonable discretion of administrative officers, and the exercise of that discretion does not constitute the exercise of judicial...