Nelson v. Hoffman

• Decision Date: 16 December 1924
• Docket Number: No. 16155.,16155.
• Citation: 145 N.E. 688,314 Ill. 616
• Parties: NELSON et al. v. HOFFMAN, Sheriff.
• Court: Illinois Supreme Court

314 Ill. 616

145 N.E. 688

NELSON et al.

v.HOFFMAN, Sheriff.

No. 16155.

Supreme Court of Illinois.

Dec. 16, 1924.

Action by Alvin E. Nelson and others against Peter M. Hoffman, Sheriff. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.Appeal from Superior Court, Cook County; Marcus Kavanaugh, judge.

A. J. Deutschman, of Chicago, for appellants.

George F. Barrett and Winston, Strawn & Shaw, all of Chicago (Charles J. McFadden, James H. Cartwright, and Paul H. Moore, all of Chicago, of counsel), for appellee.

DUNN, J.

This is an appeal by the plaintiffs from a judgment of the superior court of Cook county and is brought here because a constitutional question is involved.

Alvin E. Nelson and Earle S. Nelson, doing business as Nelson Bros., replevied from the sheriff of Cook county a certain Paige automobile which he had taken on execution against James F. McCullom. To the declaration the defendant filed pleas justifying under the execution, and the plaintiffs replied that McCullom being indebted to the plaintiffs in the sum of $607.50, mortgaged the automobile, of which he was the owner, to them for a valuable consideration on May 25, 1923; that the mortgage was acknowledged June 2 and recorded June 5, 1923. The defendant rejoined that the mortgage was fraudulent and void as to creditors for the reason that it was not recorded within ten days of its execution, in accordance with an act of the Legislature approved June 27, 1921, entitled ‘An act to amend an act entitled, ‘An act to revise the law in relation to mortgages of real estate and personal property,’ approved March 26, 1874, in force July 1, 1874, as subsequently amended by adding thereto a section to be known as ‘section 4a.” Laws of 1921, p. 570. The plaintiffs demurred to the rejoinder. Their demurrer was overruled. They elected to stand by it and judgment was rendered against them, to reverse which they have appealed to this court, claiming that the act of 1921 violates section 13 of article 4 of the Constitution of 1870, which provides that--

‘No law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act.’

[1] The act amended by the act of 1921 here in question constituted chapter 95 of the Revised Statutes of 1874. Section 1 provided that no chattel mortgage should be valid as against third persons unless possession of the mortgaged property should be delivered to and remain with the grantee, or the instrument provided that possession of the property remain with the grantor and be acknowledged and recorded as in the act provided. Sections 2 and 3 provided for the acknowledgment of such instrument, and section 4 provided that such instrument, duly acknowledged, shall be admitted to record by the recorder of the proper county, and ‘shall thereupon, if bona fide, be good and valid from the time it is filed for record,’ etc. Section 4a, which it was the purpose of the amendment of 1921 to add to the act, is as follows:

‘No mortgage, trust deed or conveyance of personal property shall be valid as against the creditors of the mortgagor, even though admitted to record, as provided in section 4 of this act, unless it shall be filed for record in the office of the recorder of deeds of the proper county within ten days of its execution, and any such mortgage, trust deed or conveyance of personal property not filed for record within ten days of the execution thereof shall be fraudulent and void as to creditors.’

Under the original act, section 4 declared every chattel mortgage acknowledged and recorded in accordance with the act, if bona fide, good and valid against everybody from the time of filing for record, without regard to the date of filing. The sole purpose of section 4a was to amend section 4 so that mortgages acknowledged and recorded should be good and valid from the time of filing for record against everybody except creditors of the mortgagor, but not good and valid against such creditors unless filed for record within ten days of their execution. This amendatory act is exactly the kind of legislation against which section 13 of article 4 of the Constitution is aimed. It amends section 4 by reference, only. The subject with which both sections deal is the filing for record of chattel mortgages. No one can tell what is required in that regard except by reading together the two sections, whose intermingled provisions declare the law. The whole subject was covered by section 4, and the only purpose of section 4a was to add to section 4 the requirement that such mortgage should not be valid as against creditors of the mortgagor unless filed for record within ten days of its execution. The constitutional provision in question provides that such amendment shall not be made by reference to the title, only, but the section amended shall be inserted at length in the new act.

[2] The addition of a section or sections to a statute is recognized as a proper methodof amendment of the statute and not subject to the constitutional objection which is made here. People v. Edmands, 252 Ill. 108, 96 N. E. 914;People v. Exton, 298 Ill. 119, 131 N. E. 275. In the amended acts in those cases, and in other cases in which the propriety of adding sections to a statute by way of amendment has been recognized, no change was made except by the addition of a section or sections, which did not affect the other provisions of the acts but supplied a deficiency in their terms or provided for a condition not covered by the acts. In the first case cited the amendatory act added to the Cities and Villages Act (Smith-Hurd Rev. St. 1923, c. 24) an article which provided for the commission form of government in cities and made no change in the act except by adding the article. The act involved in the other case purported to be an act to amend the School Law (Smith-Hurd Rev St. 1923, c. 122) by adding to it seven new sections, which provided for the formation of community consolidated school districts. It is said in the opinion that while it is called an act to amend the general School Law, it does not change, reform, revise correct, or modify any provision of the general School Law or purport by its language to do so. It merely authorized the organization under certain specified conditions, of districts, to which were given the powers and duties of other school districts under the School Law and some added powers.

[3][4] A subsequent act may by implication and incidentally have the effect of amending a prior act without violating the Constitution, and it has frequently been held that an independent act complete in itself as to the subject with which it deals in not within the mischief intended to be remedied by section 13 of article 4 of the Constitution. People v. Wright, 70 Ill. 388;Timm v. Harrison, 109 Ill. 593;School Directors v. School Directors, 135 Ill. 464, 28 N. E. 49;People v. Knopf, 183 Ill. 410, 56 N. E. 155;Erford v. City of Peoria, 229 Ill. 546, 82 N. E. 374;People v. Jones, 242 Ill. 138, 89 N. E. 711;People v. Van Bever, 248 Ill. 136, 93 N. E. 725;People v. City of Chicago, 310 Ill. 534, 142 N. E. 161. It is only where the law professes to be amendatory or is amendatory in its nature that the constitutional provision applies. This act, however, does not purport to be an independent act, but does purport to be amendatory, and while the amendment takes the form of a separate section it is only amendatory of section 4, and is in direct violation of the constitutional provision. The character of an act, whether amendatory or complete in itself, is to be determined, not by its title alone, nor by the question whether it professes to be an amendment of existing laws, but by comparison of its provisions with prior laws left in force, and if it is complete on the subject with which it deals it will not be subject to the constitutional objection, but if it attempts to amend the old law by intermingling new and different provisions with the old ones or by adding new provisions, the law on that subject must be regarded as amendatory of the old law and the law amended must be inserted at length in the new act. People v. Knopf, supra.

In People v. Election Com'rs, 221 Ill. 9, 77 N. E. 321,5 Ann. Cas. 562, the Primary Election Law of 1905 (Laws 1905, p. 211) was held unconstitutional for various reasons. Among other things, section 2 was held to be an unconstitutional attempt to amend sections 4, 5, and 6 of the Australian Ballot Law (Smith-Hurd Rev. St. 1923, c. 46, § 288 et seq.) by changing the time within which petitions for nomination were authorized to be filed and confining the right to certain political parties. The act was an independent piece of legislation but was not complete in itself, and section 2 attempted to amend the previous law by intermingling new and different provisions with the old.

In Lyons v. Police Pension Board, 255 Ill. 139, 99 N. E. 337, an act was passed by the Legislature which purported to amend the Police Pension Fund Act (Smith-Hurd Rev. St. 1923, c. 24, § 880 et seq.). The nature of the amendment was the addition of a new section, to be known as section 3a, extending the benefit of the act to police matrons in the police department upon the terms specified in such additional section. The amendatory act was held to be, in fact, an amendment of section 3 of the original act, which was the only section dealing with the question of eligibility to pensions. The amendatory act added to the persons who might receive pensions police matrons, and as section 3 as amended was not inserted at length in the new act it was held that the amendatory act was a violation of section 13 of article 4 of the Constitution.

In Galpin v. City of Chicago, 269 Ill. 27, 109 N. E. 713, L. R. A. 1917B, 176, an act was passed to amend the Fees and Salaries Act by adding an additional section requiring the state's attorney in counties of the third...