dissenting:
I cannot agree with the majority opinion on the construction and constitutionality of the controverted statute, and find certain ambiguities and inconsistencies in that opinion. Therefore, I am obliged to dissent.
Primarily, I cannot accept the premise of the majority opinion that “The legislature in adopting the act in question has merely held as public policy that punitive damages cannot be recovered under the action in question.” That statement is in direct conflict with the terms of the act, and also with the prior portion of the opinion holding that the statute bars damages for the seduction and pregnancy, since such damages are not punitive, but rather compensatory in character, designed to recompense the injured party for the injury she sustained. (Fidler v. McKinley, 21 Ill. 308; Fitzinger v. Ahrens, 151 Ill. App. 396.) Furthermore, since the act does bar some compensatory damages, the statement in the majority opinion that the “actual damages” allowed by the statute are synonymous with “compensatory damages” is also inaccurate.
Moreover, after labelling the damages relating to the pregnancy and seduction as “aggravated,” and therefore barred by the statute, the opinion approves the remaining prayers for relief in counts II and III, except the prayer in count II for aggravated damages. Yet count II deals entirely with the damages in consequence of the seduction and pregnancy, and count III claims a variety of elements of damage which are affected by the terms of section 1 of the act (Ill. Rev. Stat. 1955, chap. 89, par. 25,) which the court does not even consider. Certainly the legislative declaration in section 1 that the “award of monetary damages in such actions is ineffective as a recompense for genuine mental or emotional distress,” affects plaintiff’s claim in count III for damages for mental anguish, injury to her health, humiliation and degradation in the eyes of her friends and the community, loss of the worldly position she would have attained if defendant had complied with his promise, and loss of opportunity, while engaged, to meet other suitors. Does the statement in the opinion giving approbation to count III, except for that part relating to the seduction, mean that all of these other elements are proper, regardless of section 1 of the act? I think this portion of the opinion warrants clarification; otherwise it will merely nurture litigation.
Before presenting my own conclusion with respect to the construction and validity of the statute in the light of its avowed purpose and legislative history, I shall review plaintiff’s common-law right of action in order to properly evaluate the extent of the modification effected by the controverted statute.
The common-law action for breach of promise of marriage has been recognized in this State since the early case of Tubbs v. Van Kleek, 12 Ill. 446, decided in 1851. Illinois, in accordance with the weight of authority, (11 C.J.S. 808-812,) has allowed damages in such actions for such elements as mental anguish, injuries to plaintiff’s health, reputation, future marriage prospects, loss of financial and social advantage which would have resulted from the marriage, (Jacoby v. Stark, 205 Ill. 34; Douglas v. Gausman, 68 Ill. 170; Witton v. Nelson, 294 Ill. App. 612,) as well as damages for any seduction or pregnancy under the promise of marriage, (Tubbs v. Van Kleek, 12 Ill. 446; Fidler v. McKinley, 21 Ill. 308; Judy v. Sterrett, 153 Ill. 94; Poehlmann v. Kertz, 204 Ill. 418; Nelson v. Sutton, 232 Ill. App. 93,) and exemplary or punitive damages if defendant were guilty of fraud or deceit, or was moved by evil motives in making the promise or breach thereof. McQuillen v. Evans, 353 Ill. 239 ; Jacoby v. Stark, 205 Ill 34.
With respect to these elements of damage, it is significant to note that damages for seduction have been allowed in this action since its inception, as a recompense to plaintiff for her injury, rather than to punish the defendant. ( Tubbs v. Van Kleek, 12 Ill. 446; Fidler v. McKinley, 21 Ill. 308; Poehlmann v. Kertz, 204 Ill. 418.) The court in the Fidler case stated at p. 313: “In a case of a breach of promise, accompanied with a seduction, the injury is infinitely greater than where there is only a breach of promise,” and held that “every consideration of justice requires him to repair the injury as far as it may be done by adequate damages.” Similarly, in Fritzinger v. Ahrens, 151 Ill. App. 396, the court specifically labelled damages for seduction as “actual damages,” given to compensate plaintiff, as distinguished from exemplary or punitive damages imposed as punishment for the public good, or to make a public example, and held that plaintiff was entitled to damages for seduction “as a matter of right.”
In 1935, however, the action for breach of promise was abolished by the Heart Balm Act, (Ill. Rev. Stat. 1941, chap. 38, par. 246.1,) which was held unconstitutional in 1946 on the ground that it violated section 19 of article II of the Illinois constitution. (Heck v. Schupp, 394 Ill. 296.) The following year the legislature enacted the controverted statute governing breach of promise actions, requiring notice within three months of the date of the breach, reducing to one year the time for bringing suit, limiting damages to “actual damages,” and prohibiting punitive, exemplary, vindictive and aggravated damages. Ill. Rev. Stat. 1947, chap. 89, pars. 25-34.
Similar statutes were enacted at the same session respecting actions for alienation of affections (chap. 68, pars. 34-40,) and for criminal conversation (chap. 68, pars. 41-47) j however, these statutes contained the additional provision specifically setting forth the elements not to be considered in determining damages, including the wealth or position of defendant, plaintiff’s mental anguish, shame, humiliation, sorrow, or injury to the good name or character of plaintiff or his or her spouse, or dishonor to plaintiff’s family, resulting from the criminal conversation or alienation of affections.
In construing the Breach of Promise Act in the light of this history, it might be argued that since this statute contains no such provision enumerating the elements of damage omitted, as do the companion statutes, those elements may be deemed to- be included. However, according to elementary canons of statutory construction, before considering such negative implications from other statutes, we must first construe the statute itself in its entirety. The statute authorizes the recovery of “actual damages.” Light on the meaning of the phrase may be derived from the legislative declaration of necessity appearing in section 1. (chap. 89, par. 25.)
This section sets forth the legislative concern over abuses of the action, the conviction that the award of monetary damages in such actions is ineffective as a recompense for genuine mental or emotional distress, and the declaration of public policy that the best interests of the people will be served by limiting the damages in such actions, and by leaving the punishment of wrongdoers guilty of seduction to proceedings under the criminal laws of the State, rather than by imposing punitive, exemplary, vindictive or aggravated damages.
Although the statute is by no means unequivocal, it appears that the foregoing section evidences a legislative intent not merely to' abolish punitive and exemplary damages, as found by the majority opinion, but also to restrict the compensatory damages by excluding damages for the greater injury of seduction and pregnancy, and for the mental and emotional distress caused by the breach of a promise of marriage, all of which have been integral elements of damage in such action since its inception at common law. Holcroft v. Dickinson, 124 Eng. Rep. 933 (1672); 4 Sutherland, Damages, 3662.
It must be determined next whether these modifications infringe the constitutional guaranties of section 19 of article II of the Illinois constitution. This section provides: “Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay.”
Although the controverted statute does not completely abolish plaintiff’s right to bring an action for breach of promise, as did the statute condemned in Heck v. Schupp, 394 Ill. 296, the “certain remedy” afforded plaintiff under this act does not compensate her for the injuries sustained. The monetary loss, for which damages are allowed, is small in actions of this character, as compared with the loss of community respect, injury to reputation, and mental distress, for which damages are barred.
I am cognizant that the legislature, pursuant to the police power, may modify or abolish such nonvested rights to damages, (Grasse v. Dealer’s Transport Co. 412 Ill. 179; People ex rel. Eitel v. Lindheimer, 371 Ill. 367,) and that the act in question was enacted in the exercise of this power. However, the legislative determination of what constitutes a lawful exercise of the police power is not conclusive, and it is the province of the courts to determine whether the measure has any real substantial relation to the public health, comfort, safety or welfare, or is essentially arbitrary and unreasonable. People ex rel. Heydenreich v. Lyons, 374 Ill. 557, 563; Thillens, Inc. v. Hodge, 2 Ill.2d 45 ; Klein v. Department of Registration and Education, 412 Ill. 75.
The police power is invoked herein because of the legislative concern over the potential abuse of the breach of promise action, and to prevent spurious suits. These grounds, however, have been rejected by this court as a justification for the exercise of the police power in Heck v. Schupp, 394 Ill. 296, since “Almost any common-law cause of action may be used, and at times is used by blackmailers and extortionists.” Similarly, the Federal court in Wilder v. Reno, 49 F. Supp. 727, held that the potentiality of abuse did not justify an exercise of the police power to bar breach of promise and alienation of affections suits. The court reasoned that the very purpose of courts is to separate the just from the unjust causes, and if the courts are to be closed against actions for breach of promise because some suits may be brought in bad faith, the same reason would close the door against litigation of all kinds. It was further stated that, on the contrary, if the police power is to be invoked at all, it should be in favor of the right to maintain such action, since it is in the interest of public policy that a woman injured by a man who has broken his promise to marry her should have the right to recover just damages, and that there should be a restraint against those who- would break such contracts.
Although the statutes in the Schupp and Wilder cases abolished the action entirely, the exercise of the police power does not become more reasonable or appropriate where the action remains available, but with the greater part of the recovery barred. For it is patent from the terms of this act, whereby plaintiff is precluded from recovering for the real injury which she sustained, and its legislative history indicating that it was enacted immediately after the statute abolishing breach of promise actions was held unconstitutional, that this statute was designed to accomplish essentially the same result by so restricting plaintiff’s right to damages that the remedy would be nominal. Such chimerical rights do not satisfy constitutional guarantees, for the legislature cannot accomplish by indirection that which it cannot do directly. People ex rel. Bell v. New York Central Railroad Co. 10 Ill.2d 612.
Moreover, it is not clear just how the legislative purpose of barring spurious breach of promise actions may be effectuated by allowing plaintiffs who are seduced under a promise of marriage the same measure of damages as plaintiffs who have not sustained that additional injury to their person and reputation, or by limiting the damages of those who have established the legitimacy of their claims.
Nor can the damage restrictions imposed by the act be justified as an exercise of the police power because of the difficulty of their computation, since it is equally difficult to compute the money value of pain and suffering for which damages are allowed by juries each day in personal injury actions, and the same elements barred herein are allowed in suits for slander (Moore v. Maxey, 152 Ill. App. 647); for malicious prosecution (Walker v. Martin, 52 Ill. 347) ; for fraud and deceit in aggravated cases (Laughtin v. Hopkinson, 292 Ill. 80); and for seduction of a minor daughter (Garretson v. Becker, 52 Ill. App. 255). In fact, the difficulty of computing certain types of compensatory damages has been recognized and rejected as a ground for their denial. In People v. Schwarts, 151 Ill. App. 190, 193, the court stated: “In order to entitle a party to have damages estimated as an equivalent for the injury sustained, the loss to be compensated need not always be distinct and definite, capable of exact description or of exact measurement in dollars and cents. Damages are, in proper cases, allowable for injured feelings, bodily pain, grief of mind, injury to reputation, and for other suffering which it would be impossible to make subject of exact proof and computation in respect to the amount of the loss sustained.”
Therefore, since the damage restrictions imposed by the controverted act cannot be deemed to constitute a lawful exercise of the police power, the deprivation of plaintiff’s rights thereunder violates section 19 of article II of the Illinois constitution, guaranteeing a certain remedy for all injuries and wrongs to person, property and reputation.
It is further argued that the act violates section 22 of article IV of the Illinois constitution, providing that the General Assembly shall not pass local or special laws créating a special or exclusive privilege, immunity or franchise. It is established that a law is not special if it embraces all who occupy a like position. (People v. Chicago Transit Authority, 392 Ill. 77.) However, the classification of such persons must be based upon a substantial and reasonable distinction in the situation and circumstances between those embraced and those excluded from the operation of the statutes. People ex rel. Reilly v. City of Chicago, 337 Ill. 100.
Defendant argues that the statute is not special because it affects all those having causes of action for breach of promise to1 marry. As hereinbefore noted, there is no rational distinction for limiting the elements of damage in such actions, any more than in any other common-law actions, since the same elements of damage are allowed in other actions, which, in turn, are also subject to abuse by unprincipled plaintiffs. Therefore, insofar as the limitation of damages in this act relieves defendants of liability for a substantial portion of the injury they have inflicted, whereas other wrongdoers must recompense plaintiffs for injuries to reputation, seduction and mental anguish, this statute creates a special privilege for defendants guilty of breach of promise actions in violation of section 22 of article IV of our constitution.
It is argued further that the constitutionality of this act could be sustained if the statute were deemed to bar merely exemplary and punitive damages, and the term “actual damages” were construed to be completely synonymous with “compensatory damages,” so that plaintiff could recover for the mental anguish, humiliation, injury to reputation, loss of worldly position and opportunity to meet other suitors, seduction and pregancy, and the expenses and loss of wages incurred thereby, all of which, plaintiff claims, were the actual and real results of defendant’s breach of his promise to marry. (4 Sutherland, Damages, 3662, 3665.) Such a construction, however, would be in utter disregard of section 3 of the act (chap. 89, par. 27) barring aggravated damages, and of the legislative declaration in section 1 of the act (chap. 89, par. 25), affecting damages for seduction and mental distress. Construing a statute whereby one provision is in conflict with another merely creates ambiguities, and is unsound no matter how desirable the particular result may be.
Furthermore, to divide the cohesive legislative design to give plaintiff but a nominal remedy in these cases, by holding that the restrictions of punitive and exemplary damages are a proper exercise of the police power, but that the restrictions of compensatory damages for the seduction and the mental and emotional distress offend the constitution, as hereinbefore noted, would be tantamount to the enactment of a law which the legislature never intended. Its scheme for restricting this action must be adjudged in its entirety.
It is my judgment, therefore, that inasmuch as the controverted statute is not a proper exercise of the police power and consequently violates section 19 of article II and section 22 of of article IV of the Illinois constitution, it is invalid, and does not constitute a bar to the counts of plaintiff’s complaint which were improperly stricken by the trial court.