Meister v. Carbaugh

• Decision Date: 07 February 1924
• Docket Number: No. 15724.,15724.
• Citation: 142 N.E. 189,310 Ill. 486
• Parties: MEISTER v. CARBAUGH et al.
• Court: Illinois Supreme Court

310 Ill. 486

142 N.E. 189

MEISTER

v.CARBAUGH et al.

No. 15724.

Supreme Court of Illinois.

Dec. 19, 1923.

Petition for Rehearing Stricken Feb. 7, 1924.

Bill by Frank Meister against H. C. Carbaugh and others. From a decree dismissing the bill plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Cook County; Hugo M. Friend, judge.

Elmer J. Schnackenberg, of Chicago, for appellant.

Freeman, Mason & Igoe, of Chicago, for appellees.

Jay Clifford McCally and George A. Curran, both of Chicago (Werner W. Schroeder, of Chicago, of counsel), amici curiae.

CARTER, J.

This is a bill in equity praying that ‘An act relating to civil service in part systems' (Smith-Hurd Rev. St. 1923, c. 24 1/2 §§ 78-113) be declared unconstitutional and void, and that the civil service board of the South Park Commissioners be restrained by injunction from proceeding thereunder. Appellees fined a general demurrer, which the lower court sustained, dismissing the bill for want of equity. From this decree the case has been brought to this court by appeal.

The validity of the act is contested on the ground that in its passage there was a violation of section 13 of article 4 of the Constitution requiring that ‘the bill and all amendments thereto shall be printed before the vote is taken on its final passage.’

It is charged by the bill and admitted by demurrer that the conference committee report recommending that the senate recede from its amendment to the extent that the three words, ‘chief of police,’ be stricken out of section 11 of the bill was not printed in either house before the vote on the final passage of the bill. It is an established rule that the constitutionality of an act cannot be determined upon the admissions or stipulations of the parties to a suit. Nakwosas v. Western Paper Stock Co., 260 Ill. 172, 102 N. E. 1041, Ann. Cas. 1914D, 467. We shall, however, assume the facts to be as alleged by appellant and as conceded by appellees in this case.

It is contended by appellant that the issues raised here have already been fully decided by the cases of Neiberger v. McCullough, 253 Ill. 312, 97 N. E. 660, and McAuliffe v. O'Connell, 258 Ill. 186, 101 N. E. 419. In those cases we took the view that the constitutional provision here involved contained no ambiguity, and that the disregard of this provision would render an act invalid. Appellees seek to distinguish those cases by asserting that all of the bill had been here printed before final passage and that the amendment merely omitted three words therefrom. We cannot construe the constitutional requirement in such a manner as to except from its applicationan amendment to a bill which consists of an omission from the bill itself.

It is also urged that the omission of the words ‘chief of police’ does not invalidate the entire section or entire act. The act here involved is a park civil service act. Section 11 is a section containing exemptions. Before the report of the conference committee the exemptions as altered by senate amendment read as follows:

‘All elective officers, the general superintendent, the attorneys, the chief of police and one confidential clerk or secretary.’

After the action by the two houses on the unprinted report of the conference committee the words ‘chief of police’ were omitted. Section 11 of this act cannot be held invalid and the remainder of the act sustained. The omission of these words as the result of the conference committee action appears to have been a material consideration of the two houses in the enactment of the law. The issue here presented is not like that in People v. Brady, 262 Ill. 578, 105 N. E. 1. Nor, if the constitutional objections are here properly taken, is it possible for us to hold section 11 constitutional.

But another issue presents itself in this case. The act here involved was passed by the General Assembly in 1911. It has been acted upon since that time, has been amended by the General Assembly at a succeeding session, and has for a number of years constituted a part of the state's legislative policy. The constitutional provision here involved was adopted for the purpose of preventing surprise in the enactment of legislation. We have often said that--

‘Where a statute has long been treated as constitutional and important rights have become established thereunder, the courts may thereafter refuse to consider its constitutionality.’ Gregory Printing Co. v. De Voney, 257 Ill. 399, 100 N. E. 1066;Richter v. Burdock, 257 Ill. 410, 100 N. E. 1063;Gifford v. Culver, 261 Ill. 530, 104 N. E. 147.

The authorities just cited dealt with an act long in force and acted upon, where issues of constitutionality with respect to such act had been passed...