Baird v. Hutchinson
53 N.E. 567
Ill.
1899
Check Treatment
Mr. Justice Boggs

delivered the opinion of the court:

The county court was lacking" in jurisdiction to entertain the petition. Section 96 of chapter 46 of the Revised Statutes, entitled “Elections,” provides the Supreme Court shall hear and determine contests of the election of judges of the superior court of Cook county. The jurisdiction of the Supreme Court is declared by the constitution, and as to original proceedings is confined by the express command of the organic law to cases relating to the revenue, in mandamus and habeas corpus. (Const. 1870, sec. 2, art. 6.) It is not within the power of the General Assembly to confer upon the Supreme Court original jurisdiction in other cases, and for that reason said section 96 of the chapter on elections is without legal force or effect. Canby v. Hartzell, 167 Ill. 628.

Section 98 of said chapter 46, entitled “Elections,” is as follows: “The county court shall hear and determine contests of election of all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made.” The position of appellant is, section 98 empowers the county court of Cook county to hear and determine a contest of the election of a judge of the superior court of that county for two reasons: First, the office of judge of the superior court of Cook county is a county office; and second, section 96 being void, the act contains no express provision for such contests, and the concluding clause of section 98 operates to vest the county court with power to hear and determine them.

It is unnecessary we should advert to the contention a judge of the superior court is a county officer, for the reason we think it affirmatively appears from the statute, taken as a whole, it was not the legislative intent to clothe the county court with power to hear and "determine contests of the election of such judges. The intent of a statute is the law, (Sutherland on Stat. Const. 234,) therefore the primary consideration in construing a statute is to ascertain and give effect to the will of the law-making body, and to accomplish this the court will consult the whole act and examine and compare each of the various sections and provisions thereof. (Soby v. People, 134 Ill. 66; People ex rel. v. Gaulter, 149 id. 39.) In subjecting" an enactment to such an investigation the court will not reject from consideration an unconstitutional section, if one there be, but will refer to it as constituting a part of the enactment for all the purposes of construction. (Owens v. People, 13 Ill. 59.) “The legislature pass an entire statute on the supposition, of course, that it is valid in all of its parts and to take effect as a whole,” (Sutherland on Stat. Const. sec. 178,) hence the value of an invalid section as an indication of the intention of the law-making body is in nowise diminished by the fact it is discovered, after the enactment of the law, it was not within the power of the legislature to enact it. “The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and validity to a provision of the law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional section of a statute is ‘stricken, out.’ For all the purpose of construction it is to be incorporated as a part of the act. The meaning" of the legislature must be gathered from all they have said, as well from that which is ineffective for want of power, as from that which is authorized by law.” (Dombaugh v. State, 20 Ohio St. 167.) Clauses, provisions or sections of an act, though unconstitutional and void, are to be considered in construing valid clauses, provisions or sections of the same act, in order to determine the legislative will. Swift v. Calnan, 102 Iowa, 212; Commonwealth v. Potts, 76 Pa. 164.

Rested by these rules of interpretation, that it was not the intention of the General Assembly to invest the county court with jurisdiction of contests of the election of judges of the said superior court is clear and unmistakable. Section 96 in express terms declares the Supreme Court shall hear and determine such contests. Though inoperative as law, this section unmistakably discloses it was the legislative will and intent to vest in the Supreme Court the power to hear and determine contests of the election of such judges. Having made that provision for such contests and believing the provision to be legal and effective, the insistence such judges were, in legislative contemplation, of that class of officers referred to in the final clause of section 98 “for the contesting of whose election no provision is made,” is entirely inadmissible. To hold otherwise would be to impute to the legislature the intention to adopt a void and inoperative section of the statute. Had section 96 been valid no one would have had the slightest doubt as to the intention of the law-making body. That it is inoperative as law has no tendency to make that a matter of doubt which would have been undoubted had the section been' effective.

The county court was lacking in jurisdiction to entertain the petition, and the judgment dismissing the cause must be and is affirmed.

T , , „ , Judgment affirmed.