People v. Evans

93 N.E. 388, 247 Ill. 547

• Court: Illinois Supreme Court
• Decided: December 21, 1910
• Status: Published

Opinion

Mr. Justice Hand

delivered the opinion of the court:

It is contended that the Miners’ Examining Board statute is unconstitutional by reason of the fact that the county judges of the State cannot be constitutionally invested with the power to appoint the members of the miners’ examining boards provided for by that statute, it being the view of the plaintiff in efror that the members of said boards are State officers, and that a State officer can only be appointed by the Governor.' We cannot accede to the view of plaintiff in error. The members of such miners’ examining boards are appointed for and perform their duties in the counties wherein they are appointed and have no jurisdiction to act outside of the county in which they are appointed. In general it may be said that a State officer is one whose duties and powers are co-extensive with the State, while a county officer is one whose duties and powers are co-pxtensive with the county, (State v. Burnes, 38 Fla. 367,) and the fact that the official acts of an officer are so far exra-territorial that they are; binding throughout the State does not make the officer who performs such acts necessarily a State officer.

If, however, it were conceded that the members of the miners’ examining boards were State officers, still it would not certainly follow that the members of such boards must be appointed by the Governor. Section 10 of article 5 of the constitution, under which the Governor obtains his appointing powers, reads as follows: “The Governor shall 'nominate, and by and with the advice and consent of the senate, (a majority of all the senators selected concurring, by yeas and nays,) appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise provided for; and no such officer shall be appointed or elected by the General Assembly.” It was clearly the intention of the framers of this constitutional provision that the appointing power,- in cases of all offices established by the constitution or created by law, should be vested in the Governor, unless the appointment or election to such offices is otherwise provided for by the constitution or by statutory enactment. The language found in said section of the constitution, “and whose appointment or election is not otherwise provided for,” is plain and unambiguous; and clearly- indicates that if by the constitution an office is established and the method pointed out in the constitution for filling such office is otherwise than by appointment by the Governor, the portion of the section which provides that “the Governor shall nominate and by and with the advice and consent of the senate” shall appoint all officers, etc., would not apply as to such constitutional office; and if this be true, it is, we think, equally true that if an office be created by the legislature and a method otherwise than by nomination and appointment by the Governor to fill such an office is provided for by law, such law would not be subject to constitutional objection on the ground that the legislature had deprived the Governor of a part of his appointing power. 1

The question then arises, has the legislature the right to vest such appointing power in county judges, each judge making the appointment in the county wherein the board is to-be appointed? In People v. Hoffman, 116 Ill. 587, it was held that the legislature might properly invest the county courts of the State with the power to appoint election commissioners under the City Election law, and in People v. Board of Supervisors, 223 Ill. 187, that the legislature might properly invest county boards of the State with power to appoint election judges. If the power can be properly conferred upon the courts to appoint election commissioners and upon county boards to appoint judges of election, we can see no reason why the legislature may not confer the power upon the county judges of the State to appoint miners’ examining boards for their respective counties. The power of the legislature to authorize county and circuit courts, or the judges thereof, to appoint various kinds of officers not belonging to the judicial department of the government has been recognized in the following cases: People v. Morgan, 90 Ill. 558; People v. Loeffler, 175 id. 585; People v, Raymond, 186 id. 407; Sherman v. People, 210 id. 552; People v. Chetlain, 219 id. 248.

Our conclusion is that the statute in question is not unconstitutional for the reason that the county judges of the State cannot be invested with the power to appoint the miners’ examining boards.

It is next contended that the statute is unconstitutional by reason of the fact that it discriminates against such miners as were not actually employed in mining in this State on the date said statute became effective, and-discriminates in favor of such miners as were actually employed in mining in this State on the date said statute became effective. The statute provides that no person shall receive a certificate permitting him to work in a coal mine in this State unless he shall have had two years’ practical experience as a miner or with a miner, and provides that the examination required by the statute shall be taken by a miner unless the miner has been employed two years in practical mining and was actually employed in mining in this State at the time the statute went into effect. The question therefore is, has the legislature the right to exempt a miner from taking the examination who was actually employed in mining in this State on the date the statute became effective, as a prerequisite to issuing him a certificate, while if he were not so employed on the date the statute went into effect, to require him to take an examination ? In other words, could the legislature make an exception in favor of the miner who was actually employed in mining coal in this State on the day the statute went into effect without making the statute unconstitutional on the ground that it was discriminatory legislation ?

The legislature, in the exercise of the police power of the State, may undoubtedly prescribe regulations for securing the admission of qualified persons to all callings which demand special knowledge, experience and skill, and in no calling, is there more imperious demand for experience, knowledge and skill than there is in that of mining coal. The miner works beneath the surface of the earth by the aid of artificial light, and is surrounded, while at work, by many dangers, and unless great precaution is observed to protect him from the negligence of the mine operator and the unskillfulness of his fellow-miners, a disaster may take place in the mine and without a moment’s warning the mine be destroyed, together with all persons workipg therein; hence there has been placed upon the statute books of this State and of many other States, within a comparatively few years, legislation the object of which is to protect the miners from the negligent acts of the mine operator and mine owner, and obviously the object of the statute in question was to go a step further and protect the skilled workmen in coal mines, as far as possible, from the unskillfulness of unskilled labor in the mine. It is therefore clear this legislation was provided with a view to make safe, so far as possible, the mining óf coal, and concerns the preservation of the health and the lives of all that class of .men who are engaged in mining coal in this State, and the statute, according to the canons of constitutional construction, should be sustained unless it is clearly and palpably in violation of some provision of the constitution, State or national.

As we view the provision of the statute which exempts the miner from an examination if he was employed in mining in this State at the time the statute went into effect, as a pre-requisite to issuing him a certificate, it does not confer upon such miner any privilege," right or immunity and does not discriminate in his favor as against the miner who was not so employed at the time the statute became effective. The most that can be said is, that the statute leaves the miner who has had two years’ experience in mining coal and was employed in mining coal in this State at the time the statute went into effect,, in the precise situation that he was in before the statute was passed,—that is, it permits him to continue his employment upon his satisfying the miners’ examining board that he had been for two years engaged in mining coal and was engaged in mining coal in this State at the time "the statute went- into effect. Neither does it take from the miner who resides in this State or resides out of this State, and who has had two years’ experience in mining, any privilege, right or immunity, but leaves such miner where it found him when the statute was passed,— that .is, without employment in a coal mine,—and if he desires to again engage in mining, then the statute provides that he may do so by passing an examination and otherwise complying with the statute. In the one instance the law is just to the miner who was employed when the law went into effect, as it permits him to continue his employment, while it does not in any way work an injustice to the miner who has for years, or even temporarily, abandoned the mining of coal and again desires to be employed in that calling. We are therefore constrained to hold that the statute does not discriminate in favor of the class of miners who were employed as miners when the act became effective or discriminate against the class of miners who were not so employed when the act became effective.

In Williams v. People, 121 Ill. 84, the defendant was prosecuted for a violation of an act regulating the practice of medicine in the State of Illinois. The statute under which he was prosecuted, among other things, provided. “that the provisions of this act shall not apply to those that have practiced medicine within this State for ten years,” and the constitutionality of the statute was attacked on the ground that the statute, by reason of that provision, amounted to discriminatory legislation and was void. The court held otherwise, and on page 88 of the opinion said: “This proviso does not. confer upon the ten years’ practitioners any special privilege, immunity or franchise. It does not confer upon them anything. It leaves them as they are.” The case of Kettles v. People, 221 Ill. 221, is also in point.

It is further contended that the statute is discriminatory in this: that the qualifications required of the members of the miners’ examining boards exclude from such boards all persons who are not practical, experienced and skillful miners of at least five years’ continuous experience, and who are not, at the time of their appointment, actually engaged in mining coal in the county for which they are appointed. The right to be appointed or elected to an office is not a property right which is conferred upon the citizen by the constitution, but it is a privilege, and when an office is created by the legislature we think it may provide the qualifications which shall be required of the citizen to hold such office, and the fact that all of the citizens of the State do not possess all of the qualifications or requirements which may be necessary to hold such office does not make the statute creating such office and fixing the qualifications of the persons who may hold such office unconstitutional. The legislature had the power to provide, if it saw fit, that only practical, experienced and skilled miners of at least five years’ continuous experience, who were then actually engaged in mining coal in the county for which they were appointed, should be qualified to act as members of the miners’ examining boards, and by so doing no inhabitant of the State was discriminated against. The courts have nothing to do with the wisdom of a statute, and cannot declare a statute unconstitutional by reason of the fact that it may be impolitic or unwise.

The further contention is made that the statute provides only for the appointment of miners’ examining boards in counties where coal is mined, and that it also provides only for the examination of miners who reside in a county in which a miners’ examining board is appointed, the result of which, it is urged, is to exclude from examination and certification all miners who reside outside of the State of Illinois, or who reside outside of a county in,which coal is mined and in which a miners’ examining board is appointed. This contention is based upon the language, “that the said board shall examine under oath all persons residing in the county in which said board resides who apply for certificates.” A statute must have a reasonable construction. It need not, however, have a literal construction. This statute does not require members of the board to be appointed in the county in which they reside, but they must be “actually engaged in mining coal in the county for which they are appointed.” It is apparent, therefore, that the “residence” of the board, referred to in the statute, means the place for which the members of the board may be appointed,—that is, in a county in which they are actually engaged in- mining coal. It is usually true that the legislature will be deemed to have úsed a word in a statute, where it is used more than once, in the same sense, unless the context shows the word to have been used in the statute at different- times in a different sense, and it is a rule of statutory construction that a court will not so construe a statute as to render it abortive or annul 'it, if such construction can be avoided. If the clause found in the statute, “shall examine under oath all persons residing in the county,” is used in the same sense that the word “residence” is used in defining the' qualification of the members of the miners’ examining boards, the statute, if given a literal construction, would read, “shall examine under oath all persons who are actually engaged in mining coal in the county where a miners’ examining board had been appointed.” If, however, the entire statute is'given a liberal construction and with a view of not rendering it unconstitutional but with a view of rendering it valid, it should be so construed as to authorize the miners’ examining board of any county in the State to examine all miners who reside in a county where no miners’ examining board has been appointed, or who reside outside of the State and desire to be examined with the view of becoming employed in coal mining in this State and in the county in which the board to which application for examination was made had been appointed and was then in session, which construction- would make the statute constitutional. In People v. Harrison, 191 Ill. 257, will be found a full discussion of the rules of statutory construction. If the rules of statutory construction announced in that case are applied to the Miners’ Examining Board statute, then every miner, be he a resident or non-resident of the State or of the county where he makes his application for examination, who has had two years’ experience in mining coal and desires to engage in mining in the county where he applies for examination, can take the examination and be granted a certificate and engage in mining coal in this State. We think the statute should be so construed, and when so construed it- is not subject to constitutional objection.

It is also urged that the statute is unconstitutional by reason of the fact that it prohibits any person from entering a coal mine in this State unless he is selected, appointed or designated by some duly certificated miner, and it is said this will prohibit all persons in the State except those favored few who may be selected by certificated miners from becoming practical coal miners, and that such arbitrary discrimination in the selection of helpers or apprentices renders the act void. The portion of the statute upon which this contention is baspd is found in section 1, and reads as follows; “That any such certificated miner may have one uncertificated person working with him and under his direction for the purpose of learning said business of mining and becoming qualified- to obtain a certificate in conformity with the provisions of this act.” We think the plaintiff in error misinterprets this section of the statute. Clearly the class of persons referred to as “uncertificated persons” are not to be selected and appointed by the certificated persons with whom they are to work and under whose direction they .are to work, but such uncertificated persons must necessarily be employed by the persons who own and operate the mine and who are to pay them for their work. If the statute be thus construed the argument of the plaintiff in error upon this branch of-the case is without force. We do not think the provision of the statute which provides for the employment of uncertificated persons in coal mines renders the statute unconstitutional.

It is finally contended that that portion of the statute which provides that money paid into the State treasury by the miners’ examining board shall be paid out again upon warrants issued by the several county judges of the State is invalid. That this provision of the statute is unconstitutional is conceded by the defendant in error, and it is too plain for argument that the portion of the statute which authorizes a county judge to draw warrants against money in the State treasury must be held to be unconstitutional. The other provisions of the statute, however, are not dependent upon this provision, and, eliminating from the statute the portion admittedly unconstitutional, the remaining part of the statute is valid and constitutional.

Finding no reversible error in this record the judgment of the county court will be affirmed.

Judgment affirmed.