agreed on for the stock not then to be transferred, it was mutually agreed that the plaintiffs should continue in their old official positions for five years, with an increase of salary."

In this case the appellant, according to the averments of the bill, induced the appellees to invest their money in the shares of stock of the said corporation on the ground that he controlled the subscriptions to all its shares of stock and would release the right to have the same issued to himself, and that the same might be issued in blocks of 10 shares to the appellees, and such other persons as might become stockholders, and at such prices as the board of directors might determine. It appears the business of the corporation has been successful. Seven hundred and eighty shares of stock have been issued and $88,500 paid therefor into the treasury of the corporation. Three years after the reorganization, and when the remaining 720 shares are of the value of $144,000 cash, the appellant seeks to repudiate the agreement he made with appellees and require said unissued shares to be issued to him at one-half their value. The position of the appellant is inequitable, and we are of the opinion the Appellate Court properly held he was not entitled to have said 720 shares of stock issued to him.

The judgment of the Appellate Court will be, affirmed.

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 CONSTRUCTIONLEGISLATIVE AND ADMINISTRATIVE CONSTRUCTION-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

a particular construction continued for a term of years and acquiesced in by the public at large, is entitled to great weight.

[Ed. Note. For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 14, 15.] 4. SAME.

Const. art. 6, § 25, provides that the judges of the superior and circuit courts and state's attorney of Cook county shall receive the salaries payable out of the state treasury as may be paid to the circuit judges and state's attorneys of the state and such other compensation to be paid by the county of Cook as may be provided by law. Act July 1, 1872 (Acts 1871-72, p. 420), enacted after the adoption of the Constitution, allows to the state's attorney an annual salary to be paid by the state, and fees, and commissions. The act was amended in 1883 by allowing fees in other cases, etc. The school law passed by the first Legislature after the adoption of the Constitution required. the state's attorney to collect fees, etc., retaining therefrom fees allowed by law. Held, that in view of the legislative construction the Constitution must be construed so as not to deprive the state's attorney of the right to fees notwithstanding the Constitution shows that fees shall be paid into the public treasury, especially manifested in article 5 relating to state officers, and article 10 relating to county officers.

Appeal from Circuit Court, Cook County; Thos. G. Windes, Judge.

Action by the county of Cook against John J. Healy. From a judgment for defendant, plaintiff appeals. Affirmed.

Harry A. Lewis, William F. Struckmann, and Frank L. Shepard, for appellant. Charles H. Hamill and Worth E. Cayler, for appellee.

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 al

lowing the defendant to retain fees earned and collected as his personal perquisites remained in force. The act as approved by the Governor is as follows: "Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: That 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, be and the same is hereby amended to read as follows: That the judges of the circuit and superior courts of Cook county hereafter to be elected shall each be paid by the said county, in addition to the salaries which may be paid to them from the state treasury, such further compensation as will make their respective salaries amount to the sum of $10,000 per year. Sec. 2. That the state's attorney of Cook county hereafter to be elected shall be paid by said county, in addition to the salary which may be paid to him from the state treasury, such further compensation as will make his salary amount to the sum of $10,000 per year, and shall be in full for all services of the state's attorney of Cook county, and all fees as provided by statute and earned by the state's attorney of Cook county shall be paid into the county treasury of Cook county. 3. That the said compensation shall be paid in equal quarterly installments; and it shall be the duty of the county clerk of said county, at the end of each and every quarter of the year, to draw an order or warrant therefor in favor of each of said judges and state's attorney, respectively, on the county treasurer of said county, whose duty it shall be to pay the same on presentation properly indorsed."

At the trial the plaintiff submitted a proposition of law that all fees or allowances received by the state's attorney of Cook county in excess of his compensation, with the necessary clerk hire, stationery, fuel, and other expenses, must be paid into the county treasury of said county. The court refused to hold the proposition and found the issues for the defendant, and rendered judgment accordingly. The validity of the statute being in question, an appeal was prosecuted to this court. It was admitted that the defendant had collected and retained the fees sued for, and on his part it was proved that the sum of money named in section 2 of the act as his salary was $12,000 when the act was passed by the Legislature, but that said sum had been altered to $10,000 when the act was signed and approved by Governor Yates. A material provision of that section had been altered, and the Legislature and Governor did not concur in the same provision as to the amount of compensation to be paid to the state's at torney. Section 2 was therefore void, and niust be treated as a nullity. The previous

act provided that the judges of the circuit and superior courts and the state's attorney of Cook county should each be paid, in addition to the salaries paid to them from the state treasury, such further compensation

would make their respective salaries amount to the sum of $7,000. The act of 1901 is an amendatory act, and purports to amend the previous act "to read as follows," etc. Where there is an attempted repeal of an act by a statute which is void, the previous act remains in force; but if this amendatory act is valid in any of its provisions it cannot be said that some particular provision of the act of 1871 is still in force. The provisions for the salaries of the judges and state's attorney were contained in a single section of the act of 1871, and if this amendatory act is valid with the exception of section 2, there is no act in force under which the state's attorney is entitled to any salary whatever from the county of Cook. Whether the other portions of this act are void is to be determined upon consideration of the relation of section 2 to the other sections and the manner and extent to which that section affects the remainder. The other sections are not in any manner connected with section 2 in meaning, subject-matter, or execution, and we see no reason for saying that the Legislature would not have passed the act relating to the salaries of the judges without including section 2 as to the state's attorney. Striking out section 2, the other sections can be executed as effectually as if it should be retained. The different sections not being connected in substance, the invalidity of section 2 does not affect the remainder of the act. Knox County v. Davis, 63 Ill. 405; Noel v. People, 187 Ill. 587, 58 N. E. 616, 52 L. R. A. 287, 79 Am. St. Rep. 238. There is therefore no statute providing for the payment of salary by the county of Cook to the state's attorney.

It is contended that the court erred in refusing to hold the proposition of law submitted, and in the finding and judgment, because of the provision of section 25 of article 6 of the Constitution, which is as follows: "The judges of the superior and circuit courts, and the state's attorney, in said [Cook] county, shall receive the same salaries, payable out of the state treasury, as is or may be paid from said treasury to the circuit judges and state's attorneys of the state, and such further compensation, to be paid by the county of Cook, as is or may be provided by law; such compensation shall not be changed during their continuance in office." That section specifically provides that the state's attorney of Cook county shall receive as his compensation, which shall not be changed during his continuance in office, a salary, part of which is to be paid out of the state treasury, and a further amount to be provided by law and paid by the county of Cook. Counsel for appellee make much

of some supposed distinction between the words "salary" and "compensation." as used in that section, but we see no difference in meaning between the two, and are unable to understand what the distinction amounts to as applied to this case, if there is any. The words are used interchangeably, and the section provides that the state's attorney is to receive for the performance of his duties, money to be paid by the state and the county of Cook. It is beyond question that neither the salary to be paid by the state nor the compensation to be paid by the county of Cook has any reference whatever to fees collected from individuals or retained as commissions for the performance of official duties. The only open question is whether the amounts paid by the state and by the county were intended to be the full compensation of the state's attorney for the performance of the duties of his office, or whether it was intended that he should have such amounts and any further compensation which the Legislature might choose to 'provide. Under ordinary rules of construction it would seem that the compensation was intended to be limited to the two sources named, and that view is strengthened by the general intent manifested in the Constitution to provide for paying public officers fixed salaries, and that all fees, perquisites and emoluments of offices should be paid into the public treasury. That intent pervades the whole Constitution, and is clearly manifested in the provisions of article 5, relating to state officers, and of article 10, relating to the compensation of county officers. The state's attorney is a county officer, and his status, as such, is fixed by the Constitution, which creates his office. He is elected for and within a county to perform his duties therein, and is not distinguished in any manner from the clerks of the courts, the sheriff, coroner and other officers connected with the administration of justice within the county. The Constitution provides for paying a salary for the performance of his official duties, and there is great force in the argument that the salary, when fixed, was intended to be his only compensation, and that there was no intention to perpetuate, as to him, the system previously in vogue of allowing public officials to appropriate whatever fees they could earn and collect. the determination of the question here involved were not influenced by other considerations than the language of the Constitution, we should have but little hesitation in finding that the provision of section 25 for compensation was intended to be exclusive. cannot be said, however, that the intent as to state's attorneys was expressed in the same clear and unambiguous form that it was with respect to other officers, and in view of the long continued practical construction given to the Constitution by the Legislature and the administrative officers of the state,

78 N.E.-40

If

and the injustice that would follow from a different construction at this time, we are led to sustain the judgment of the circuit court.

If it could be said that the language of the Constitution was clear and free from any doubt, a contrary legislative and administrative construction would have no weight. Jarrot v. Jarrot, 2 Gilman. 1. But where the words of a constitutional provision admit of doubt, the court may and ought to consider a contemporaneous and practical construction given by the Legislature and those concerned in the administration of the law, and also any injurious consequences which would follow a different construction. Where a particular construction has been given to a provision and it has been continued for a long term of years and acquiesced in by the public at large, such construction is entitled to great weight and may be equal in force to a judicial construction. Bruce v. Schuyler, 4 Gilman, 221, 46 Am. Dec. 447; Bunn v. People, 45 Ill. 397; Nye v. Foreman, 215 Ill. 285, 74 N. E. 140; 8 Cyc. 736; Cooley's Const. Lim. 67; 26 Am. & Eng. Ency. of Law (20 Ed.) 633. The first Legislature after the adoption of the Constitution passed an act in force July 1, 1872, allowing to the several state's attorneys in the state for services to be rendered by them, an annual salary of $100 to be paid by the state and also certain fees and commissions. That act was amended in 1883 by allowing fees in other cases and increasing the amount of the fees. The school law passed by the first Legislature required the state's attorney to collect fines, forfeitures and penalties and pay them over to the county superintendent of schools, retaining therefrom the fees and commissions allowed them by law. The Legislature have continuously since the adoption of the Constitution passed acts which clearly give the construction contended for by defendant, and the acts have received the approval of the executive department, and have been acted upon without objection. It is matter of common knowledge that the state's attorneys throughout the state have collected and retained the fees allowed them by the statutes, and their reports showing the same have been made and approved. The salaries fixed under section 25 of article 6 of the Constitution were established in view of the allowance and retention of the fees, and it is manifest that great injustice would result from now giving to the Constitution a different construction. Under such circumstances the long continued legislative and administrative construction given to the Constitution must prevail, and it must be held that the court did not err in refusing the proposition of law that the fees collected by defendant should have been paid into the county treasury. The defendant is allowed a salary of $400 by the state and the fees earned and collected for services performed

county.

The judgment is affirmed.

Judgment affirmed.

(222 III. 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, §§ 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, § 232.]

3. TRIAL-INSTRUCTIONS-EXCLUSION OF EVI

DENCE.

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.

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.

modifying a judgment for plaintiff against defendant Alexander Bauer, he appeals. Affirmed.

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 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

joint liability, and after it was dismissed it was a new cause of action as to Bauer. The motion to file this plea was denied. A verdict was returned for $1,909.39, and judgment rendered accordingly. An appeal was prosecuted to the Appellate Court, where it was ordered that plaintiffs remit the sum of $500 within 10 days or the judgment would be reversed. This amount was remitted, and the judgment affirmed. A further appeal has been prosecuted to this court.

Alden, Latham & Young, for appellant. Sullivan & Jarrett (Denis E. Sullivan, of counsel), for appellees.

WILKIN, J. (after stating the facts). It is urged as error that the verdict and judgment are contrary to the preponderance of the evidence; that plaintiffs failed to show substantial compliance with the terms of the contract; that plaintiffs cannot recover under the common counts. As should be well understood, we have nothing to do with the weight or preponderance of the evidence. That is a question conclusively settled by the judgment of the Appellate Court.

The contract in question was entered into by means of two written letters or propositions made by plaintiffs below to defendants; the terms of which were subsequently accepted. They therefore constituted a written contract between the parties, and we have held that where there is a written contract between the parties there may be a recovery under the common counts, provided the agreement has been wholly executed, and nothing remains to be done but to pay the amount thereunder. Union Elevated Railroad Co. v. Nixon, 199 Ill. 235, 65 N. E. 314, and cases cited. In order to entitle the plaintiffs in this case to recover under the common counts it was necessary for them to bring themselves within this rule; in other words, to prove that the contract had been substantially performed, with nothing remaining to be done but the payment of the money. The question as to the substantial compliance with the contract was one of fact for the jury, and it found in favor of plaintiffs, as did also the circuit court upon overruling a motion for a new trial and entering judgment upon the verdict. The Appellate Court has affirmed that judgment, which is a finding of every material fact in favor of plaintiffs. One of these material facts was whether the floor and sidewalk mentioned in the contract, laid by plaintiffs, had been accepted by the defendants and were in use by them when the suit was commenced. the light of the facts so found by the trial and Appellate Courts it cannot be successfully contended that the plaintiffs below had not the right to recover under the common counts. Complaint is next made of the instructions of the court. Five were given on behalf of plaintiffs and 14 offered on behalf of defendant, Bauer; three of which

I

were given after being modified and the others refused. The contention of appellant is that error was committed in the giving and refusing of each of these instructions. We cannot consider each of them separately, but will notice only those which are most important.

The first instruction given on behalf of plaintiffs was to the effect that the jury should disregard all testimony which had been introduced either for or against A. Bauer & Co. At the close of plaintiffs' evidence that suit was dismissed as to A. Bauer & Co. The instruction was the result of such dismissal. It is insisted by appellant that the giving of the instruction was equivalent to directing the jury to disregard all proof in reference to appellant's damages. We do not think so. If the instruction was followed it could have had no effect whatever on appellant's rights. Evidence which concerned his damages under the instruction was not to be disregarded by the jury, but only such evidence as related to A. Bauer & Co.

The second instruction given on behalf of the plaintiffs related to the proper method of determining the preponderance of the evidence; and the third to the credibility of witnesses, both of which were in substantial conformity with the decisions of this court.

The fourth instruction told the jury that if the plaintiffs had performed the work described in the contract in substantially the manner as therein provided they had a right to recover. Throughout his instructions it seems to have been the contention of appellant that a substantial compliance was not sufficient, but that the work should be done exactly as specified in the contract. Such is not the rule, and the fourth instruction requiring a substantial compliance was not erroneous. Shepard v. Mills, 173 Ill. 223, 50 N. E. 709.

The fifth instruction told the jury that if they found for the plaintiffs, in addition to the amount due they should find interest at the rate of 5 per cent. from the date it became due. It is insisted that the plaintiffs were not entitled to interest at all. As before said, the evidence shows the contract was in writing, and the finding is that it had been substantially performed and accepted by the appellant. The account was due and unpaid, and therefore, under the express provisions of the statute, the appellant was liable for interest.

Of the instructions asked by the appellant and refused, it is enough to say that several of them were drawn upon the theory that it was incumbent upon plaintiffs to prove an exact compliance with the terms of the contract, and that a substantial compliance was not sufficient, and for that reason, as we have said, they were erroneous. Another told the jury tha if they found the floor in question to be loose, soft, and disintegrated, plaintiffs could not recover. It ignored en