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agreed on for the stock not then to be trans- a particular construction continued for a term ferred, it was mutually agreed that the plain- of years and acquiesced in by the public at tiffs should continue in their old official posi

large, is entitled to great weight.

[Ed. Note. For cases in point, see vol. 10, tions for five years, with an increase of

Cent. Dig. Constitutional Law, $8 14, 15.] salary.”

4. SAME. In this case the appellant, according to Const. art. 6, § 25, provides that the the averments of the bill, induced the appel- judges of the superior and circuit courts and lees to invest their money in the shares of

state's attorney of Cook county shall receive stock of the said corporation on the ground

the salaries payable out of the state treasury

as may be paid to the circuit judges and state's that he controlled the subscriptions to all attorneys of the state and such other compenits shares of stock and would release the sation to be paid by the county of Cook as may right to have the same issued to himself, and

be provided by law. Act July 1, 1872 (Acts

1871-72, p. 420), enacted after the adoption of that the same might be issued in blocks of

the Constitution, allows to the state's attorney 10 shares to the appellees, and such other an annual salary to be paid by the state, and persons as might become stockholders, and

fees, and commissions. The act was amended at such prices as the board of directors might

in 1883 by allowing fees in other cases, etc.

The school law passed by the first Legislature determine. It appears the business of the after the adoption of the Constitution required corporation has been successful. Seven hun- the state's attorney to collect fees, etc., retaindred and eighty shares of stock have been

ing therefrom fees allowed by law. Held, that

in view of the legislative construction the issued and $88,500 paid therefor into the

Constitution must be construed so as not to treasury of the corporation. Three years aft- deprive the state's attorney of the right to er the reorganization, and when the remain- fees notwithstanding the Constitution shows ing 720 shares are of the value of $144,000

that fees shall be paid into the public treasury,

especially manifested in article 5 relating to cash, the appellant seeks to repudiate the state officers, and article 10 relating to county agreement he made with appellees and re- officers. quire said unissued shares to be issued to

Appeal from Circuit Court, Cook County ; him at one-half their value. The position of

Thos. G. Windes, Judge. the appellant is inequitable, and we are of

Action by the county of Cook against John the opinion the Appellate Court properly

J. Healy. From a judgment for defendant, held he was not entitled to have said 720

plaintiff appeals. Affirmed. shares of stock issued to him. The judgment of the Appellate Court will

Harry A. Lewis, William F. Struckmann, be, affirmed.

and Frank L. Shepard, for appellant. Judgment affirmed.

Charles H. Hamill and Worth E. Cayler, for appellee.

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(222 III. 310)

COOK COUNTY V. HEALY. (Supreme Court of Illinois. June 14, 1906.) 1. STATUTES — REPEAL INVALIDITY OF REPEALING ACT-EFFECT.

Where there is an attempted repeal of an act by a statute which is void, the previous act remains in force.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Statutes, $ 244.] 2. DISTRICT AND PROSECUTING ATTORNEYS COMPENSATION-STATUTES.

Act April 13, 1871 (Acts 1871-72, p. 454), fixes, in one section, the salaries of the judges of the circuit and superior courts and the state's attorney of Cook county, and provides that, in addition to the salaries which may be paid from the state treasury, further compensation shall be paid by the county. Laws 1901, p. 207, amends the act and section 1 provides for the salary of the judges of the county. Section 2, which attempts to fix the salary of the state's attorney is void because the Legislature and Governor did not concur in the same provision as to the amount of compensation. Held, that as section 1 is valid, notwithstanding the invalidity of section 2, the Act of 1871 is not in force, and there is no provision providing for the payment of salary by the county of Cook to the state's attorney. 3. CONSTITUTIONAL LAW CONSTRUCTION-

LEGISLATIVE AND ADMINISTRATIVE CON-
STRUCTION-EFFECT.

Where the words of a constitutional provision admit of doubt, the court ought to consider a contemporaneous and practical construction given by the Legislature and those concerned in the administration of the law and

CARTWRIGHT, J. 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 act provided that the judges of the circuit and collected as his personal perquisites re- and superior courts and the state's attorney mained in force. The act as approved by of Cook county should each be paid, in adthe Governor is as follows: “Section 1. Be dition to the salaries paid to them from the it enacted by the people of the state of state treasury, such further compensation Illinois, represented in the General Assem- as would make their respective salaries bly: That an act entitled, 'An act providing amount to the sum of $7,000. The act of for the payment by the county of Cook of 1901 is an amendatory act, and purports to further compensation to the judges of the amend the previous act “to read as follows," circuit and superior courts and state's at- etc. Where there is an attempted repeal of torney of said county, respectively,' approved an act by a statute which is void, the preApril 13, 1871, in force July 1, 1871, be and vious act remains in force; but if this the same is hereby amended to read as fol- amendatory act is valid in any of its prolows: That the judges of the circuit and visions it cannot be said that some particusuperior courts of Cook county hereafter lar provision of the act of 1871 is still in to be elected shall each be paid by the said force. The provisions for the salaries of county, in addition to the salaries which the judges and state's attorney were conmay be paid to them from the state treasury, tained in a single section of the act of 1871, such further compensation as will make and if this amendatory act is valid with the their respective salaries amount to the sum exception of section 2, there is no act in of $10,000 per year. Sec. 2. That the state's force under which the state's attorney is attorney of Cook county hereafter to be entitled to any salary whatever from the elected shall be paid by said county, in ad- county of Cook. Whether the other portions dition to the salary which may be paid to of this act are void is to be determined uphim from the state treasury, such further on consideration of the relation of section compensation as will make

make his salary 2 to the other sections and the manner and amount to the sum of $10,000 per year, and extent to which that section affects the reshall be in full for all services of the state's mainder. The other sections are not in any attorney of Cook county, and all fees as pro- manner connected with section 2 in meaning, vided by statute and earned by the state's subject-matter, or execution, and we see no attorney of Cook county shall be paid into reason for saying that the Legislature would the county treasury of Cook county. Sec. not have passed the act relating to the 3. That the said compensation shall be paid salaries of the judges without including secin equal quarterly installments; and it shall tion 2 as to the state's attorney. Striking be the duty of the county clerk of said coun- out section 2, the other sections can be exty, at the end of each and every quarter ecuted as effectually as if it should be reof the year, to draw an order or warrant tained. The different sections not being contherefor in favor of each of said judges and nected in substance, the invalidity of section state's attorney, respectively, on the county 2 does not affect the remainder of the act. treasurer of said county, whose duty it Knox County v. Davis, 63 Ill. 405; Noel v. shall be to pay the same on presentation People, 187 Ill. 587, 58 N. E. 616, 52 L. R. A. properly indorsed."

287, 79 Am. St. Rep. 238. There is thereAt the trial the plaintiff submitted a prop- fore no statute providing for the payment of osition of law that all fees or allowances salary by the county of Cook to the state's received by the state's attorney of Cook attorney. county in excess of his compensation, with It is contended that the court erred in rethe necessary clerk hire, stationery, fuel, fusing to hold the proposition of law suband other expenses, must be paid into the mitted, and in the finding and judgment, county treasury of said county. The court because of the provision of section 25 of arrefused to hold the proposition and found ticle 6 of the Constitution, which is as folthe issues for the defendant, and rendered lows: "The judges of the superior and cirjudgment accordingly. The validity of the cuit courts, and the state's attorney, in said statute being in question, an appeal was [Cook] county, shall receive the same salarprosecuted to this court. It was admitted ies, payable out of the state treasury, as is that the defendant had collected and re- or may be paid from said treasury to the cirtained the fees sued for, and on his part it cuit judges and state's attorneys of the was proved that the sum of money named state, and such further compensation, to be in section 2 of the act as his salary was $12,- paid by the county of Cook, as is or may be 000 when the act was passed by the Legis- provided by law; such compensation shall lature, but that said sum had been altered not be changed during their continuance in to $10,000 when the act was signed and ap- office.” That section specifically provides proved by Governor Yates. A material pro- that the state's attorney of Cook county shall vision of that section had been altered, and receive as his compensation, which shall the Legislature and Governor did not con- not be changed during his continuance in cur in the same provision as to the amount office, a salary, part of which is to be paid out of compensation to be paid to the state's at- of the state treasury, and a further amount torney. Section 2 was therefore void, and to be provided by law and paid by the county niust be treated as a nullity. The previous of Cook, Counsel for appellee make much of some supposed distinction between the and the injustice that would follow from a words "salary” and “compensation," as used different construction at this time, we are in that section, but we see no difference in led to sustain the judgment of the circuit meaning between the two, and are unable court. to understand what the distinction amounts If it could be said that the language of to as applied to this case, if there is any. the Constitution was clear and free from any The words are used interchangeably, and doubt, a contrary legislative and administrathe section provides that the state's attor- tive construction would have no weight. Jarney is to receive for the performance of rot v. Jarrot, 2 Gilman, 1. But where the his duties, money to be paid by the state and words of a constitutional provision admit of the county of Cook. It is beyond question doubt, the court may and ought to consider that neither the salary to be paid by the a contemporaneous and practical construcstate nor the compensation to be paid by tion given by the Legislature and those conthe county of Cook has any reference what- cerned in the administration of the law, and ever to fees collected from individuals or also any injurious consequences which would retained as commissions for the performance follow a different construction. Where a of official duties. The only open question is particular construction has been given to a whether the amounts paid by the state and provision and it has been continued for a by the county were intended to be the full long term of years and acquiesced in by the compensation of the state's attorney for the public at large, such construction is entitled performance of the duties of his office, or to great weight and may be equal in force whether it was intended that he should have to a judicial construction. Bruce v. Schuysuch amounts and any further compensa- ler, 4 Gilman, 221, 46 Am. Dec. 447; Bunn tion which the Legislature might choose to v. People, 45 Ill. 397; Nye v. Foreman, 215 Ill. provide. Under ordinary rules of construc- 285, 74 N. E. 140; 8 Cyc. 736; Cooley's Const. tion it would seem that the compensation Lim. 67; 26 Am. & Eng. Ency. of Law (201 was intended to be limited to the two sources Ed.) 633. The first Legislature after the named, and that view is strengthened by adoption of the Constitution passed an act the general intent manifested in the Con- in force July 1, 1872, allowing to the several stitution to provide for paying public officers state's attorneys in the state for services to fixed salaries, and that all fees, perquisites be rendered by them, an annual salary of and emoluments of offices should be paid $100 to be paid by the state and also certain into the public treasury. That intent per

.

fees and commissions. That act was amendvades the whole Constitution, and is clear- ed in 1883 by allowing fees in other cases ly manifested in the provisions of article 5, and increasing the amount of the fees. The relating to state officers, and of article 10, school law passed by the first Legislature relating to the compensation of county of- required the state's attorney to collect fines, ficers. The state's attorney is a county of- forfeitures and penalties and pay them over ficer, and his status, as such, is fixed by the to the county superintendent of schools, reConstitution, which creates his office. He is taining therefrom the fees and commissions elected for and within a county to perform allowed them by law. The Legislature have his duties therein, and is not distinguished continuously since the adoption of the Conin any manner from the clerks of the courts, stitution passed acts which clearly give the the sheriff, coroner and other officers connect- construction contended for by defendant, and ed with the administration of justice within the acts have received the approval of the the county. The Constitution provides for executive department, and have been acted paying a salary for the performance of his upon without objection. It is matter of comofficial duties, and there is great force in the mon knowledge that the state's attorneys argument that the salary, when fixed, was throughout the state have collected and reintended to be his only compensation, and tained the fees allowed them by the statthat there was no intention to perpetuate, as utes, and their reports showing the same to him, the system previously in vogue of have been made and approved. The salaries allowing public officials to appropriate what- fixed under section 25 of article 6 of the Conever fees they could earn and collect. If stitution were established in view of the the determination of the question here involv- allowance and retention of the fees, and it ed were not influenced by other considera- is manifest that great injustice would retions than the language of the Constitution, sult from now giving to the Constitution a we should have but little hesitation in find- different construction. Under such circuming that the provision of section 25 for com- stances the long continued legislative and pensation was intended to be exclusive. It administrative construction given to the Concannot be said, however, that the intent as stitution must prevail, and it must be held to state's attorneys was expressed in the that the court did not err in refusing the same clear and unambiguous form that it was proposition of law that the fees collected by with respect to other officers, and in view defendant should have been paid into the of the long continued practical construction county treasury. The defendant is allowed given to the Constitution by the Legislature a salary of $100 by the state and the fees and the administrative officers of the state, earned and collected for services performed

78 N.E.40

by him, but there is no law in force which allows to him any salary to be paid by Cook county.

The judgment is affirmed.
Judgment affirmed.

From a judgment of the Appellate Court modifying a judgment for plaintiff against defendant Alexander Bauer, he appeals. Affirmed.

(222 Ill. 319)

BAUER V. HINDLEY et al. (Supreme Court of Illinois. June 14, 1906.

Rehearing Denied October 11, 1906.) 1. APPEAL-CONCLUSIVENESS OF JUDGMENT OF APPELLATE COURT.

The question of the weight or preponderance of the evidence is conclusively settled by the judgment of the Appellate Court.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, ss 4322-4352.] 2. WORK AND LABOR-RECOVERY UNDER COMMON COUNTS—WHEN PERMITTED.

A contract for work entered into by means of letters containing propositions made by one party to the other party, and an acceptance of the propositions by the latter, is a written contract, and a recovery may be had thereon, under the common counts, provided it has been substantially performed with nothing remaining to be done, but the payment of the money for the work.

[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Work and Labor, § 231/2.] 3. TRIAL-INSTRUCTIONS-EXCLUSION OF EviDENCE.

Where an action for work performed and materials furnished under a contract was dismissed as to a defendant at the close of plaintiffs' evidence, an instruction directing the jury to disregard the testimony introduced for or against the defendant was not erroneous, as directing the jury to disregard all proof in reference to the codefendant's damages. 4. WORK AND LABOR-RECOVERY-ALLOWANCE OF INTEREST.

Where, in assumpsit for work and materials furnished under a written contract, it was found that the contract had been substantially performed by plaintiff and the work and materials accepted by defendant, interest was properly allowed from the date the contract price became due. 5. TRIAL - INSTRUCTIONS IGNORING EviDENCE.

Where, in assumpsit for work done under a written contract, there was evidence that the condition of a floor built by plaintiff under the contract was due to its having been used by defendant before it became hard, an instruction that if the floor was disintegrated, plaintiff could not recover, was erroneous because ignoring the cause producing the condition complained of. 6. LIMITATION OF ACTIONS — WRITTEN CONTRACTS.

A right to recover on a contract consisting of written propositions made by one party which were accepted by the other party, being a contract in writing, is not barred by the five-year statute of limitations.

[Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, $$ 112, 113.]

Appeal from Appellate Court, First District.

Action by H. F. Jeroloman and others, copartners, doing business as the Granitoid Construction Company, against Alexander Bauer and another, in which John Hindley, as receiver of the copartnership, was attempted to be substituted as a party plaintiff.

On September 21, 1896, H. F. Jeroloman, C. J. Corse, Charles Ratzel, and C. S. Wheeler, copartners, doing business as the Granitoid Construction Company, began an action of assumpsit in the circuit court of Cook county against A. Bauer & Co., a corporation, and Alexander Bauer, the appellant here, to recover for materials furnished and labor performed in the construction of cement work at the building of defendants at the southeast corner of Franklin and Huron streets, in the city of Chicago, as provided in a contract alleged to have been entered into between the parties.

The declaration consisted of the common counts only, with a bill of particulars attached, in which it was stated that there was $2,197 balance due plaintiffs. A plea of the general issue was filed, together with a plea denying joint liability, and another of recoupment and set-off for special damages. A special replication to the second plea alleged that after the work was completed, and prior to the commencement of the suit, defendants accepted the work and that an account was stated between the parties. Five days after the commencement of the suit, upon the application of Charles Ratzel, John Hindley was appointed receiver for the copartnership, and

and on December 14, 1903, this fact was suggested to the court and an attempt was made to substitute him as a party plaintiff. After this attempted substitution defendants filed a plea of the statute of limitations, on the ground that the cause of action had accrued to Hindley, as receiver, at the time of his appointment, which was more than five years prior to his attempted substitution. A general demurrer was overruled to this plea. On February 16, 1904, the day before the case was called for trial, defendants asked leave to file an additional plea, to the effect that after the making of the contract, and before the work was done, plaintiffs employed E. A. Schreiber to do the iron work, and the amount of his bill was to be deducted by defendants from the amount due plaintiffs, and as this agreement had been carried out the defendant Bauer was entitled to a recoupment against plaintiffs. Leave to file this plea was refused upon the ground that it was not presented in proper time. At the close of plaintiffs' evidence a motion was made by defendants to direct a verdict in their favor. The court held that if the suit was not dismissed as to A. Bauer & Co., a corporation, the motion would be sustained, and thereupon the suit was thus dismissed. Defendant Bauer then asked leave to file a plea of the statute of limitations, on the ground that the suit, prior to the dismissal as to A. Bauer & Co., was on the ground of

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joint liability, and after it was dismissed it were given after being modified and the othwas a new cause of action as to Bauer. The ers refused. The contention of appellant is motion to file this plea was denied. A ver- that error was committed in the giving and dict was returned for $1,909.39, and judg- refusing of each of these instructions. We ment rendered accordingly. An appeal was cannot consider each of them separately, but prosecuted to the Appellate Court, where will notice only those which are most imit was ordered that plaintiffs remit the sum portant. of $500 within 10 days or the judgment would The first instruction given on behalf of be reversed. This amount was remitted, and plaintiffs was to the effect that the jury the judgment affirmed. A further appeal should disregard all testimony which had has been prosecuted to this court.

been introduced either for or against A. Alden, Latham & Young, for appellant.

Bauer & Co. At the close of plaintiffs' eviSullivan & Jarrett (Denis E. Sullivan, of

dence that suit was dismissed as to A. Bauer counsel), for appellees.

& Co. The instruction was the result of such

dismissal. It is insisted by appellant that WILKIN, J. (after stating the facts). the giving of the instruction was equivalent It is urged as error that the verdict and judg- to directing the jury to disregard all proof in ment are contrary to the preponderance of reference to appellant's damages. We do not the evidence; that plaintiffs failed to show think so. If the instruction was followed it substantial compliance with the terms of the could have had no effect whatever on appelcontract; that plaintiffs cannot recover un

lant's rights. Evidence which concerned his der the common counts. As should be well damages under the instruction was not to be understood, we have nothing to do with the disregarded by the jury, but only such eviweight or preponderance of the evidence. dence as related to A. Bauer & Co. That is a question conclusively settled by The second instruction given on behalf of the judgment of the Appellate Court.

the plaintiffs related to the proper method The contract in question was entered into of determining the preponderance of the eviby means of two written letters or proposi- | dence; and the third to the credibility of tions made by plaintiffs below to defendants; witnesses, both of which were in substantial the terms of which were subsequently ac- conformity with the decisions of this court. cepted. They therefore constituted a written The fourth instruction told the jury that if contract between the parties, and we have the plaintiffs had performed the work de. held that where there is a written contract

scribed in the contract in substantially the between the parties there may be a recovery

manner as therein provided they had a right under the common counts, provided the agree- to recover. Throughout his instructions it ment has been wholly executed, and nothing seems to have been the contention of appellant remains to be done but to pay the amount that a substantial compliance was not suffithereunder. Union Elevated Railroad Co. v. cient, but that the work should be done exactNixon, 199 Ill. 235, 65 N. E. 314, and cases ly as specified in the contract. Such is not cited. In order to entitle the plaintiffs in the rule, and the fourth instruction requirthis case to recover under the common counts ing a substantial compliance was not erronit was necessary for them to bring them- eous. Shepard v. Mills, 173 Ill. 223, 50 N. selves within this rule; in other words, to E. 709. prove that the contract had been substanti- The fifth instruction told the jury that if ally performed, with nothing remaining to they found for the plaintiffs, in addition to the be done but the payment of the money. The amount due they should find interest at the question as to the substantial compliance rate of 5 per cent. from the date it became with the contract was one of fact for the due. It is insisted that the plaintiffs were jury, and it found in favor of plaintiffs, as not entitled to interest at all. As before said, did also the circuit court upon overruling a the evidence shows the contract was in motion for a new trial and entering judg- writing, and the finding is that it had been ment upon the verdict. The Appellate Court substantially performed and accepted by the has affirmed that judgment, which is a find- appellant. The account was due and unpaid, ing of every material fact in favor of plain- and therefore, under the express provisions tifls. One of these material facts was wheth- of the statute, the appellant was liable for er the floor and sidewalk mentioned in the interest. contract, laid by plaintiffs, had been ac- Of the instructions asked by the appellant cepted by the defendants and were in use and refused, it is enough to say that several by them when the suit was commenced. In of them were drawn upon the theory that the light of the facts so found by the trial it was incumbent upon plaintiffs to prove an and Appellate Courts it cannot be success- exact compliance with the terms of the confully contended that the plaintiffs below tract, and that a substantial compliance was had not the right to recover under the com- not sufficient, and for that reason, as we mon counts. Complaint is next made of the have said, they were erroneous. Another instructions of the court. Five were given told the jury tha if they found the floor in on behalf of plaintiffs and 14 offered on be- question to be loose, soft, and disintegrated, half of defendant, Bauer; three of which plaintiffs could not recover. It ignored en

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