APPEAL from the Circuit Court of Cook County; the Hon. ELMER
J. SCHNACKENBERG, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Plaintiffs, Albert A. Chatkin and other public accountants, are prosecuting this appeal from a decree of the circuit court of Cook County, in a proceeding challenging the constitutionality of the Public Accounting Act of 1943, wherein the court held section 4(b) of the act unconstitutional, and enjoined defendants from enforcing it. Defendants, University of Illinois et al., originally filed a cross appeal from that portion of the decree holding section 4(b) unconstitutional; however, after the legislature amended that section of the act in June, 1951, defendants dismissed their cross appeal.
Although plaintiffs' complaint challenged the constitutionality of the entire act, their argument on appeal has been limited to section 4, and the primary issue presented herein is whether that section of the Public Accounting Act of 1943 (Ill. Rev. Stat. 1947, chap. 110 1/2, par. 28,) or any part thereof, violates the constitutional doctrines of separation of powers, equal protection of the laws, and due process of law.
From the uncontroverted facts it appears that plaintiffs, other than plaintiff Bestock, whose special circumstances will be considered hereinafter, are public accountants, licensed under the waiver provisions of section 10(1)(b) of the Public Accounting Act of 1927, (Ill. Rev. Stat. 1937, chap. 110 1/2, par. 16,) whereby persons who had practiced as public accountants in Illinois for one year prior to the enactment of that act could obtain certificates as public accountants without taking the examination required by that statute and given by the Department of Registration and Education. This 1927 act was comprehensively repealed by the Public Accounting Act of 1943. Under section 4 thereof, it was provided, in substance, that persons licensed as public accountants in Illinois could apply for certificates as certified public accountants if they held their certificates as public accountants on the basis of written examinations under the 1927 act, or on the basis of C.P.A. certificates issued by other States. However, those who received their public accountant certificates without having taken an examination could procure certificates as certified public accountants only if they passed a special oral or written examination under section 4(b), or took the regular C.P.A. examination under section 2 of the act.
Plaintiffs contend in their complaint that section 4(b), which provided for the special examination, as originally enacted, violated the doctrine of separation of powers by delegating legislative functions to a special board of examiners, without providing any standards for such examinations, in violation of article III and section I of article IV of the Illinois constitution, and, consequently, section 4(a)(2), which is germane to section 4(b), must necessarily be deemed void also. Moreover, plaintiffs allege, the classification established by section 4, between public accountants who received their public accountant certificates on the basis of examinations and those who received their public accountant certificates without having taken any examination, unjustly discriminates against plaintiffs, thereby denying them equal protection of the laws in violation of section I of the fourteenth amendment of the Federal constitution, and of section 22 of article IV of the Illinois constitution, and depriving them of their property without due process of law in violation of the fourteenth amendment of the Federal constitution and section 2 of article II of the Illinois constitution.
It is urged, on behalf of plaintiff Bestock, who received his public accountant certificate on the basis of passing an examination given by the Department of Registration and Education under the act of 1927, but failed to apply for the C.P.A. certificate within one year after the passage of the 1943 act, that the time limitation therein is an unconstitutional deprivation of his rights.
Defendants deny that the 1943 Public Accounting Act infringed any constitutional doctrines, and alleged in their answer that, according to the legislative history respecting public accountants and certified public accountants, it has been the consistent policy of the State under the acts of 1903, 1927 and 1943, hereinafter analyzed, that persons desiring to style themselves as certified public accountants must pass an examination, and that plaintiffs, except plaintiff Bestock, have voluntarily deprived themselves of this privilege by not taking any examinations at any time, but chose, instead, to secure their licenses solely by virtue of the waiver provision in the 1927 act. Moreover, defendants allege, the 1943 act did not arbitrarily classify applicants for the C.P.A. certificate into favored classes, but on the contrary it is plaintiffs who are seeking to have the court create a privilege by permitting them to obtain C.P.A. certificates without ever taking an examination under the statute, in violation of the legislative policy. The 1943 act, furthermore, in no way invalidates plaintiffs' certificates as public accountants under the 1927 act or modifies the extent of the practice in which they may engage, and thereby deprives them of no existing rights.
The circuit court sustained plaintiffs' motion to strike defendants' answer, denied defendants leave to file an amendment alleging the character of the examination given under section 4(b), and held that section 4(b) as originally enacted improperly delegates legislative power to the special board which was to conduct the examination, since the statutory provision contained no statement of standards, scope or content of the examination to be given under section 4(b), or any mandatory provision that any rules be made from which a court might determine the standards, scope or content of such examination.
Inasmuch as the court did not expressly hold the remainder of section 4 unconstitutional, plaintiffs have appealed from the decree, urging that section 4(a)(2) is so germane to section 4(b) that it must, of necessity, fall with it, and, furthermore, that section 4 unconstitutionally discriminates against plaintiffs.
During the pendency of the appeal, section 4(b) was amended, (Ill. Rev. Stat. 1951, chap. 110 1/2, par. 28,) and defendants, no longer obliged to sustain the constitutionality of the original section, dismissed their cross appeal. They contend, however, that the circuit court did pass upon and sustain the constitutionality of section 4(a)(2) and the remainder of section 4. In fact, defendants maintain, unless the court did pass thereon, plaintiffs have mistaken their remedy and the present appeal could not properly lie.
It is, therefore, incumbent upon this court to ascertain first the scope of the decree of the circuit court, and then determine, in the light of the legislative history and judicial precedent whether section 4, or any part thereof, violates plaintiffs' constitutional rights.
From an examination of the sequence of hearings in the record, it appears that although the court requested the parties to submit briefs upon only the issue of the constitutionality of the original section 4(b), which the court deemed applicable to plaintiffs' status, nevertheless, the court, after examining section 4(a)(2), unequivocally refused to hold it unconstitutional, and struck from the decree drafted by plaintiffs a statement holding that section unconstitutional, despite plaintiffs' argument that section 4(a)(2) and section 4(b) were so closely related that if one provision were held unconstitutional the other must also be deemed void. The court predicated its decision holding section 4(b) unconstitutional, not on the fact that an examination was required of persons in plaintiffs' class, but on grounds peculiar to section 4(b), i.e., that it improperly delegated legislative power to an administrative agency without prescribing proper standards.
Admittedly, the record of the hearings does not reveal oral argument on the issue of whether section 4(a)(2) unjustly discriminated against plaintiffs by requiring them to take an examination, but that issue was raised by the pleadings, and the decree has the legal effect of passing upon and rendering res judicata all matters at issue, even though the form of the decree does not expressly so provide. (Phelps v. City of Chicago, 331 Ill. 80; Randolph v. Hinck, 288 Ill. 99.) The legal effect of the decision holding only section 4(b) unconstitutional in a proceeding where the constitutionality of the entire act is challenged is that the remainder of the act is constitutional.
In adjudging the propriety of this determination by the circuit court, the terms and provisions of section 4 must be analyzed in the background of the legislation regulating public accountants and certified public accountants. The act of 1903 did not regulate the practice of public accounting, but provided that no person could designate himself as a certified public accountant without having the qualifications set forth in the law, and without first passing an examination given under the law by the University of Illinois. The act did except from the examination ...