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its of the case, is an official declaration of impotency, the boldness of which is exceeded only by its unjustness.
In Smith v. Stevens, 82 Ill. 556, a law which had been passed by the legislature, giving a new remedy, was under consideration, and the Supreme Court, in considering it, said:
It is emphatically a remedial act, and, in accordance with a well established canon, it must receive a liberal construction and be made to apply to all cases which, by a fair construction of its terms, it can be made to reach.
Now, that rule of construction is fair and will commend itself to all people as being sound common sense and supporting the constitutional idea of right and justice. But let us see how easily a different whim may be applied.
Every one has heard of the Mechanic's Lien Law, and the general idea of the statute is that it was enacted to give a remedy to workmen and contractors for the recovery of the amount due them for labor or materials. Then, under the decision last cited, it should be liberally construed, should it not?
In B:langer v. Hersey, 90 III. 72, the court said:
The statute which gives a mechanic a lien is in derogation of the common law [of England) and must receive a strict construction; and no person can obtain a lien under it unless a clear compliance is shown with the requirements of the statute. See also 64 Ill. 336; 64 Ill. 452; 64 Ill. 502; 65 Ill. 67; 74 Ill. 375.)
Other illustrations of the manner of construing legislative acts may be obtained by comparing the following cases:
The case of Frye v. C., B. & Q. R. R., 73 Ill. 399, was for the recovery of damages against the railroad company for bringing Texas cattle into the State, and the liability depended upon the construction given to a certain statute. The court applied the following rule of construction:
The fittest course, in all cases where the intention of the legislature is brought into question, is to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand in the act, rather than enter upon an inquiry as to the supposed “intention."
The effect of this construction was to let the company out of all liability. Nevertheless the rule is a fair one, but it is not always followed, as may be seen by the next case against the same railroad corporation.
In Anderson v. C., B. & Q. R. R., 117 Ill. 28, the Supreme Court was called upon to construe an act of the legislature, “that all bridge structures across any navigable * streams, forming the boundary line between the State of Illinois and any other State, “shall be assessed by the township or other assessor, in the county or township where " the same is located, as real estate.” The bridge of the Burlington company across the Mississippi river was therefore taxed, but the company commenced suit to enjoin the collection of the tax. The Supreme Court said:
Stress is laid upon the word “all”—“all bridge structures,” that this must include the bridge in question; that it is not allowable to interpret what has no need of interpretation. It must be admitted that this bridge comes within the letter of the statute, but it is not within its meaning. A thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers. In determining the meaning of a statute, we are not confined to its words, but may regard its purpose-consider it, in connection with other statutes in pari materiü, and in view of the condition existing.
The injunction was sustained and the bridge was not taxed, as provided for in the statute quoted.
In People v. Loewenthal, 93 Ill. 198, the whim of the court is expressed in the following language:
Words often have a popular sense, different from their strict technical import, and courts are not infrequently called upon, in the construction of language, to hold that words are used in a popular sense where they have a different technical meaning.
This resulted in the conclusion, that the phrase “corporations with banking powers,” as used in the constitution of 1848, did not include a corporation “to loan money, to “ buy and sell, exchange bills, notes, bonds, or other securities, to have and hold
money and issue letters of credit.” The court went so far as to admit that the corporation, “unquestionably, has some banking powers, but it has not full banking pow“ers, as it is not authorized to issue bank notes to circulate as currency,” but the neck of the corporation depended on some kind of construction, and the court declared that the popular understanding of a corporation with banking powers “is that of a “ bank of issue, and that there is reason to believe that the words banking powers in “this case were employed in accordance with such popular understanding.” The court used over fifteen pages of explanation for arriving at such a conclusion, and then follows seven pages of dissent from the chief justice, which far outweighs the opinion of the majority. He says:
This language of the constitution seems to me to be plain, unambiguous and free from all doubt as to its meaning.
Courts have no right to go outside of plain language to create a doubt that construction may be had. In such cases it is the duty of courts to enforce the provision as it is written, and if hardship is produced the fault is not theirs, but of those who framed, and the people who adopted it as the fundamental law. I can see that to enforce this section, as I understand it, much hardship and inconvenience may ensue, but * * such considerations should not induce courts to endeavor to avoid such results unless in cases of doubt; hence the argument of inconvenience, urged by counsel, should not control in this case.
In Town of Bruce v. Dickey, 116 Ill. 527, the Supreme Court was called upon to construe the following section of the constitution:
Sec. 16, Art. 6. From and after the adoption of this constitution no judge of the Supreme or Circuit Court shall receive any other compensation, perquisite or benefit in any form whatsoever, nor perform any other than judicial duties to which may belong any emoluments.
The court construed this as not prohibiting one of its own number from “ practicing law for a compensation.” If the Supreme Court is right, then it is only a question of whim as to whether its seven members should not hire out as general solicitors for railroad corporations and each take turns in practicing before its own court, and as only four are necessary to every decision, three members of the court might continually practice laws. That they would is perhaps an extreme supposition, but it well illustrates the extent of the rule. What a ridiculous spectacle it would be to see two railroad corporations fighting each other in the Supreme Court, each being represented by a judge of that court acting as attorney under the pay of the respective corporations, and at the same time drawing a salary from the State as judge; or how equally ridiculous would it be for supreme judges to advocate or oppose the claims of railroad corporations before a Circuit Court, and then review the finding of the trial court on appeal, either openly or in the star chambers conferences of their own body.
At the time the subject of this constitutional provision was being discussed by the constitutional convention, the provision then read that “no judg, of any court shall receive any other compensation," etc. Mr. Springer said: I have an amendment to strike out the word “any” before “court'
and insert in lieu thereof the words “the supreme or circuit.” The way it reads now it includes the judge of the Probate Court and the judge of the County Court. It is not the intention, I believe, to make these officers' salaries sufficient for them to live on, and the amendment I offer will give them an opportunity to pursue some other business. It is sufficient, in my judgment, to exclude the Circuit and Supreme julges from receiving any additional compensation. The section as it now stands will almost destroy the efficiency of the County Courts. It will be necessary, if we elect a lawyer judge of the County Court, to permit him to practice in the Circuit Courts. He could then serve as county judge for a comparatively small salary.
The amendment offered by Mr. Springer was thereupon agreed to.
The intention of the convention is, therefore, too plain to need comment, but as a further quotation, indicating the intent of this provision, it may be added that Mr. Skinner, the chairman of the committee which prepared the section, said:
The committee endeavored to make the language so broad as to cover everything beyond salary.
Not only does this language seem to prohibit the practice of law for additional compensation, but it also seems to exclude the “benefit” of railroad passes or other continuous gratuities or pensioning.
These cases illustrate the deplorable uncertainty which exists in one distinct department of our State government. From them it appears that if any legislative act is submitted to the hired men of the judiciary for review, it may be strictly construed to produce one result; it may be liberally construed to produce something else; the court inay confine itself to the “ words” of the statute; it may ramble among “supposed intentions,” or the words may be considered in a popular or technical sense, as its own whim inclines; and in either or any case it will be able to fortify its opinion by preccdents of its own manufacture.
This should be taken into consideration before legislators are abused for not accomplishing som end desired by the people. Thus it appears almost useless to elect repres ’ntatives to pa33 new laws or to harmonize our conflicting statutes, and this perhaps explains why so many acts are a dead letter on the statute books. This winter a bill relating to the taxation of corporate property will come before the General Assembly for consideration, but of what use will it be to pass any measure to equalize the taxes for the relief of the people, if its plain language is to be frittered away by the Supreme Court, as was done regarding the taxing of all bridge structures before referred to?
In Ferguson v. People, 90 Ill. 510, 1878, the Supreme Court decided that the Circuit Court had no original jurisdiction in cases of assault, or assault and battery, and a criminal was accordingly set free; but in 1830, in Wilson v. P:ople, 94 III. 427, the Supreme Court said that in deciding the Ferguson case their attention wis not called to article 6 section 12 of the constitution, which declares that “the Circuit Courts shall have original jurisdiction in all cases of law and equity."
Thus it appears that these hired men, after having taken an oath of office to support the constitution, frankly admit that in deciding this c.132 they entirely overlooked an important constitutional provision which relates exclusively to their own department of the government.
I do not at all intend to impute that members of the judiciary intentionally violate the obligations of their oath, but I do think that the records clearly show that the courts have carelessly neglected the requirements of that declaration of the bill of rights which proclaims that:
A frequent recurrence to the fundamental principles of civil government is absılutely necessary to preserve the blessings of liberty.
If rights were determined in reference to these principles a large body of the people would not find it necessary to demand compulsory arbitration as a means of settling grievances.
About a year ago Judge H. T. Gilbert, of Ottawa, Illinois, published a book entitled “ Railroads and the Courts," in the preface of which he says:
Out of a total of sixty-three judgments rendered by the Circuit Courts against the four leading railroal companies of this State, in cases which involved the question of negligence, and were tried by jury, and which came before the Supreme Court for review, from June, 1873, to June, 1884, fifty-three were reversed and but ten affirmed, five of which were affirmed upon the first trials, and the other five upon the second and third trials. Ou the other hand, out of a total of fifty-three judgments of conviction in criminal cases, reviewed by the Supreme Court during the period covered by the last ten volumes (101-110) of the Illinois Reports, thirty-two were affirmed and but twenty-one reversed.
These facts, taken in connection with the further fact that nearly all the judgments rendered by the Circuit Courts against the four railroad coinpanies referred to, are appealed from, and that a majority of the judgments of conviction in criminal cases are acquiesce:) in, and not attempted to be reversed upon error, seemed to the author, after due consideration, to be wholly inconsistent with a reasonably perfect system of administering justice.
That the administration of justice in this State is discreditable has long been a matter of common notoriety, but as to who must be held responsible for the inju3tice done in our courts, there is, of course, a wide difference of opinion.
The views entertained by the judges of inferior courts, and which, of course, are not to be found in written opinions, but are nevertheless frequently otherwise expressed in clear and unmistakable term3, are that the responsibility for our present lamentable condition of affairs belongs to a great extent to the Supreme Court, and it is believed the same views are entertained by a majority of the intelligent members of the legal profession.
Judge Gilbert then enters into elaborate comparisons of the opinions of the Supreme Court in accident cases, and demonstrates to a certainty that in such cases right and justice have been almost abandoned, and abstract legal problems, and hair splitting technicalities have been uniformly resorted to, with unjust and unequal benefits to railway corpɔrations and wealthy monopolies and great detriment to the people. His work concludes with many valuable suggestions, and is well worth the careful study of all lovers of American liberty and equality. He demonstrates with statistical reliability that in about six out of seven cases against railroad companies, involving negligence by the company, which resulted in bodily injury or death, and in which the jury found a verdict against the company, the Supreme Court upsets such verdict by the use of strained constructions and technicalities.
That these railway corporations huve such remarkable success in the Suprem Court, when lien laws are strictly construed, and erroneous rulings of trial courts are not corrected because of some formal mistake of lawyer or clerk, is a subject which may well deserve the consideration of thoughtful citizens.
The constitution of 1870 contains the following provisions:
making any irrevocable grant of special privileges or iinmunities shall be passed.
Art. 11. Sec. 1. No corporations shall be created by special laws, nor its charter extended, changed or amended. [Except for charitable and other purposes to be under control of the State.]
Art. 11. Sec. 2. All existing charters, or grants of special or exclusive privileges, under which organization shall not have taken place, or which shali not have been in operation within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever.
Art. 11. Sec. 12. Railways heretofore constructed or that may bereafter be constructed in this State are hereby declared public highways, and shall be free to all persons for the transportation of their persons and property thereon under such regulations as may be prescribed by law. And the General Assembly shall from time to time pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads of this state.
The proceedings of the convention which formed this new organic law indicate that
these provisions received as thorough discussion as any subject which was presented for consideration. The old Dartmouth College case, vested rights, corporate oppressions, and rights granted but not then in exercise or operation, were considered in
The intent of Art. 11, Sec. 2, is made more clear by reference to the debates of the convention. This section was being debated and was. in substantially the same form as it now appears in the constitution, except that it was limited in its terms to grants to individuals. The late S. S. Hayes, of this city, said:
It occurs to me that we should provide uot only for individuals, but for other grants. For example, suppose a corporation-railroad corporation-have a grant, a privilege of making another road. There is a grant to a corporation. This substitute provides only for grants to individuals.
I move to amend, by striking out the words “ to individuals.” No matter whether these exclusive privileges are offzred to individuals or corporations, in either case they should be controlled.
The amendment of Mr. Hayes was accepted and was agreed to by the convention as it now appears in the constitution.
In discussing this provision Mr. Skinner said:
If there be vested rights, this provision will not divest them; if there are no vested rights, and the thing is merely ideal—in paper-unsubstantial—a potential, inchoate thing, then it is perfectly within the power of the legislature or this convention to wipe it out. * *
If there is a vested right, that vested right remains; but where there are no vested rights it wipes out this vast volume of special legislation which has been stolen through our general assemblies, and which will be used according to the theory of my opponents, for all time, to dwarf us and crush us.
Considering these several provisions respecting corporations in the light of the proceedings of the convention, I am led to the conclusion that their object was to declare that all grants to individuals who had not organized their corporations, or, if organized, all privileges which were not in actual operation, within the ter days specified, were by the constitution repealed, annulled and obliterated. No more special charters! No more special privileges! No more rights to be vested! No irrevocable contracts! ! But that every future corporation and every privilege afterward put “in operation should be “under such regulations as may be prescribed by law.”
At the time the constitution was voted upon by the people these speeches were fresh in mind, and it must be assumed that in adopting such provisions they were in. tended to shape the future policy of the State. They are the declarations of the mass of the people in their sovereign capacity. At that time a great public sentiment existed against the thousands of wild-cat charters and unused privileges which had been granted by the legislature and used for blackmail and other illegitimate purposes. special legislation was prohibited where a general law could be made applicable.
Now let me use a few illustrations of the manner in which the hired men of the judicial department have failed to apply these commandments, and they will also illustrate that our state of society depends, not as much on abstract principles as on the faithful application of such principles by servants trusted with such application.
At the time this constitution went into effect the Chicago & Evanston Railroad Company was existing, under a special charter passed in 1861 and amended in 1865, and was at that time entitled to operate its cars “ with animal power only.” In 1883 the common council passed an ordinance authorizing this horse-car corporation to conduct "all general business incident to railroads, by freight, passenger and other cars, or by steam or other power."