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The constitutionality of this ordinance was presented to the Supreme Court (112 Ili. 611) but what was the result? The majority opinion mildly dismisses this important constitutional question without discussion and by this feeble remark:
We can not say that the charter of this company was not in operation at the time of the adoption of the constitution of 1870.
After a lengthy discussion of other questions, the supposed power of the council to create a railroad for general business out of the charter of a horse car company, is sus. tained, but fifteen pages of a dissenting opinion are added, in which is demonstrated beyond question that the majority of the court was wrong, and that the company could have no legal existence as a corporation for general raiiroad business.
The charter of this company is that notorious piece of legislative corruption called the “ Ninety-Nine Year Act,” which was passed over the governor's veto in 1865, and which also applies to the north, south and west side railways of Chicago. What would be said if the council should now propose to convert the North Clark street, South State street and West Madison street horse car roads into steam roads for general freight and passenger traffic? The numerous railroad ordinances which have been passed by the common council of Chicago in recent years have subjected the members of that body to very uncomplimentary criticism, but in the same connection it should be remembered that in almost every case in which aldermanic jobbery for railroads has been submitted to the Supreme Court for review, that jobbery has been consummated only by legal quibbles and unjust technicalities through the aid of the judicial department of the State. If our judicial departinent was conducted for the promotion of pure, simple “right and justice,” instead of the solution of legal theories, and if these franchises were to rest on fundamental principles instead of technicalities, at least one invitation for legislative corruption would not exist and a somewhat extensive and increasing contempt for courts would disappear.
In Chicago City Railway Co. v. People, 73 Ill. 541, it appears that the common council, in 1871, amended an ordinance which was passed in 1864, and which attempted to extend the time within which the Indiana avenue line of railroad might be constructed. The constitutionality of the extension being in question the court sustained the validity of the amended ordinance, and said:
Courts proceed with great caution in proceedings which have for their object the forfeiture of corporate franchises. It is not every non-performance of the condition in the act of incorporation, or every misuser, that will forfeit the grant.
But that the ordinance was in conflict with the new constitution was apparent to one judge, who, in a dissenting opinion, said (p. 552):
At the time of the passage of the ordinance of Nov. 13, 1871, it is apparent that the City Railway Company did not have the rights which that ordinance purports to have conferred. Had the legislature itself, at that time, granted such rights to this company, the act would have been in plain violation of the constitution, as granting by a special law to a corporation the right to lay down a railway track, and as granting, by a special law, a special privilege to a corporation. How can it be then that the common council of the city of Chicago can, by a special ordinance, give to a corporation the right to lay down railroad tracks, when the legislative power of the State can not, by special law, do so; that the agent can exercise a larger power than the principal? It is a general rule of law that the derivative authority expires with the original authority from which it proceeds. The derivative authority can not, generally, mount higher or exist longer than the original authority.
· Why the judicial department should apply a strict construction against a mechanic who seeks to obtain his rights under the lien law, when it proceeds “ with great caution" in considering the forfeiture of a corporate franchise, is not known to the writer and can not be explained; but it is safe to say that the difference in principle, if there is any, undoubtedly rests on some microscopic, aboriginal legal germ which will remain unknown until discovered and defined by such wonderful legal minds as emanate the decisions now under review.
In People v. Chicago West Div. R’y Co., the common council passed an ordinance permitting the company to extend its road on Ogden avenue to the city limits, and specifying that it should be in operation to Lawndale, “as soon as the same can be constructed, operated and kept in repair without actual loss.” In 1884, a committee of the council, upon notice to the company, found that the road could then be constructed, operated and repaired without actual loss, and so reported to the council. An order was then passed, directing the company to construct the road within sixty days. The company refused to comply with the order, and a mandamus suit was commenced to compel such compliance. The opinion of the court, after stating that the company, under its special charter of 1865, was authorized to construct roads on “such terms and conditions, and with such rights and privileges as the council has or may by contract prescribe,” says :
In the original ordinance, no right to alter or change the terms upon which the railway company accepted the terms of the ordinance was reserved, and in the absence of such reservation we are aware of no principle upon which the city, without the consent of the railway company, can impose upon it other and additional obligations.
This clearly is a re-affirmance of the decisions which were announced before the new constitution, and which held that such ordinances were “contracts,” but I can not understand how such a decision can now be maintained in the face of the constitutional provisions now existing, except that such provisions, as in the Wilson case, were not known to the court. The very essence of a “contract” is that both parties are mutually bound, and that neither can revoke it without consent of the other. The plain object of Sec. 14 of the Bill of Rights is to prevent such contracts and keep these railway corporations under governmental control. The laws passed by the council are therefore mere permits or licenses, and it is immaterial whether future regulation is expressly reserved or not.
This decision follows the noted Dartmouth College case, which was decided by the Supreme Court of the United States in 1819, but when we consider that the Federal court modified the effect of that decision by its opinion in the “Granger cases," and the “ Railroad Commission cases,” and that the people of Illinois, in 1870, provided in the new constitution, that no law making an irrevocable grant of special privileges or immunities should be passed, it seems strange that the servants of the judicial department of the State should still arbitrarily decide that an ordinance permitting a railroad to be built is a “contract,” in which the right of future regulation must be expressly reserved in order to exist.
In this connection it may be remarked that the first “Granger Law,” under the new constitution was declared unconstitutional; which decision so offended the people that the writer of the opinion was retired from the bench, and a man of supposed granger tendencies elected in his stead. Curiously enough it is the supposed granger who wrote this opinion which ignores the constitution.
Appended to this pamphlet will be found our State constitution, which will give in full the fundamental principles of our civil government. These principles should be familiar to every citizen, for on them rests the continuance of our boasted liberty. It is a political platform on which we can all stand.
It will be noted that the entire government is to be conducted by three distinct departments. But of the three, the most important is the one to which the common
people pay the least attention, and which is probably the poorest mnanaged. In this government of the people, for the people, by the people, the affairs of the judiciary should be conducted on business principles, with a view of administering right and justice between man and man, freely, without purchase, without denial and without delay, but it is not so.
The constitution does not state just what particular details of government shall belong to each department, and so if a question shall arise between the departments, or if any act of the executive or legislative departments be brought into question, the Supreme Court is the final arbitrator. So when we see that every act or question which may affect life, liberty, or the pursuit of happiness, may be brought before the judicial department for review, and that the judges of that department are bound only by an oath of office and the dictates of their conscience, and that their decision is often mere whim, we can not over-estimate the importance of a judicial election, and the character of the candidates. This is all the more so when we consider that while the term of office for governor and senators is only four years, and for representatives only two years, the Supreme Court justices hold office for nine years, with no provision for reinoving them except by impeachment in the State Senate.
There are seven justices of this court. The terms of five of them expire in June, 1888. The five that are elected at that time will constitute one more than is “necessary to every decision.” That majority will, in the succeeding nine years, have more control over the application of the fundamental principles of our State government, than all the governors, senators and representatives who will hold office during the same length of time, as it may, by artful construction, fritter away the effect and intent of all executive and legislative acts, or even abolish the constitution itself. The dangerous monopolies, conspiracies and pools which now threaten the safety of the Nation, well understand the importance of continuing judges in office who sympathize with their interests, and a desperate effort will quietly but surely be made by them to pack the supreme bench. Between now and the time of that important election, the common people will have abundant opportunity to fully examine the records of the court for the past nine years. It may be that life, liberty and the pursuit of happiness will be promoted by a clean sweep and a new deal. In such important offices the common people need servants who are thoroughly acquainted with the principles of the constitution, and who can apply those principles of equal rights and equal justice without fear or favoritism. These jugglers of legal technics have done more to unseal confidence in the laws, breed contempt for courts, and create fears that the supposed protection of law was inadequate, than the wild harangues of socialists. Bomb throwers and riotous strikers, without wealth, influence or intelligence, may be promptly dealt with, but wealthy conspirators and criminals with unlimited influence and unbounded cheek, aided by this juggling with the law by friendly courts, march onward triumphant and unrestrained.
If the purity of the ballot box can be maintained, and right and justice honestly administered, this Nation has little to fear from socialism or anarchy. Such chaotic conditions do not exist under a good administration of law and order. The sense of justice and fair dealing is innate. It starts with the first breath of life and exists so long as the heart palpitates. It is more an attribute of the untutored laborer than of the learning of the technical judge. Governments are not corrupted by socialism and anarchy; it is the corruption of the government by moneyed conspirators and unreliable courts which begets the socialist. The majesty of the law must be maintained by its faithful execution and not by the spasmodic use of policemen's clubs, armed detectives
militia supported by private contribution.
When that department of the government which was created solely for the administration of free right and justice becomes so biased and uncertain that the “remedy in the laws” is costly, incomplete and tedious, then, surely, the poor, illiterate and down trodden must take the law into their own hands, and we will enter upon a reign of communism, socialism and anarchy. It is lawlessness, under the forms of law which lead to contempt of and disrespect to the laws themselves.
We have reached the condition described by David Davis, a justice of the United States Supreme Court, a senator from Illinois and president of the National Senate, who said:
Great corporations and consolidated monopolies are fast seizing the avenues of power that lead to the control of the government. It is an open secret that they rule States through procured legislatures and corrupted courts; that they are strong in Congress; that they are unscrupulous in the use of ineans to conquer preju.lice and acquire influence. This condition of things is truly alarming, for, unless it be changed quickly and thoroughly, free institutions are doomed to be subverted by an oligarchy resting upon a basis of money and of corporate power.
That the judges should not escape responsibility for the defects and omissions in the laws, the following method of correction was provided for in the constitution:
Sec. 31, Art. 6. All judges of courts of record, inferior to the Supreme Court, shall, on or before the first day of June of each year, report in writing to the judges of the Supreme Court such defects and omissions in the laws as their experience may suggest, and the judges of the Supreme Court shall, on or before the first day of January of each year, report in writing to the governor such defects and omissions in the constitution and laws as they may find to exist, together with appropriate forms of bills to cure such defects and omissions in the laws.
In the constitutional convention Mr. Underwood said of this section:
This provision will be very useful if the judges do their duty. We would thus be enabled to make our laws plain. For judges like to have laws plain after they get on the bench, however intricate they may desire them when they are off the bench. We will be enabled to abbreviate and simplify the law, and in fifteen years we will have the most perfect laws and rules of judicial procedure in America.
It is now sixteen years since those remarks were made, and it is safe to say that either the judges have not done their full duty, or that the object of the constitutional provision has sadly miscarried.
The Chicago Tribune said, editorially, Dec. 15, 1886, in commenting upon the decision rendered in a certain case, as follows:
The decision * * is just one of those judicial outrages which bring courts into contempt and make people despair of ever getting justice so long as lawyers with pettifogging instincts, who obey the letter and not the spirit of the law, can get upon the bench. In this particular case the technicality was so small and indistinct that even the sharp eyes of the prosecuting attorneys who drew up the indictment failed to see it. It was reserved for the microscopic eye of Judge - to discover it, and to magnify it into such importance as to secure the discharge of two men who were admitted to be guilty of embezzlement, the offense charged against them-a grave offense, by the way, as it involved financial trusts. The decision does serious inischief, not alone in releasing the two criminals, but in the effect it will have on other cases. Smaller gnat was never discovered by camel-swallowing judge. Judge
has made a mistake in going upon the bench. Such sharp. ness of vision could have been engaged to better advantage in the microscopical detection of germs, spores and animalculæ.
Referring to the same case a Washington dispatch to the Chicago Times said:
A few recent instances of the administration of justice in this city are exciting pretty general attention. Eight years ago two men, Hitz and Prentiss, wrecked the German-American National Bank, which was mainly a savings bank, and several · hundred poor people lost $10,000. Hitz and Prentiss have succeeded in keeping their case in the courts and themselves out of the penitentiary until last week, wher,
it being too late to procure a new indictment, Judge — discovered that the indictment that has been hanging over them for eight years was worthless, because it omitted to specify that the German-American National Bank was doing business here at the time the crime charged occurred. On the same day an old man was sent to jail for six months for stealing five chickens. The people of Washington haven't quite recovered their breath since the shock to their nerves by the reduction of the bail of Walker, who shot a man opposite the patent office at midday early in the week. Walker was held in $20,000 bonds to a wait the result of his pistol practice. When his victim died, instead of increasing his bond or sending him to jail to await the action of the grand jury, his bail was reduced to $10,000.
Not long ago Judge Gresbain decided an important railway case against the company, which caused such general surprise to the country that it was published far and wide as a remarkable event. Commenting on this case the New York Times said, editorially, Dec. 9, 1886, as follows:
It is evident in a well regulated state of society the performers would be subjected to annoyances in the shape of criminal prosecutions as well as of civil suits, and that they would be secluded in public institutions for long periods. Yet what was done in Wabash has been done in other roads without subjecting the actors to anything beyond troublesome litigation, in which they have commonly succeeded in wearying and worrying the other side out of court. In this very case the scheme of confining payment to the friendly bondholders was carried into effect by the order of a court, and could not have been successful without such an order.
What is unfortunately novel is to find a judge who is not in the least deterred by the wealth which such persons have amassed by such practices, from telling the plain truth about them and their doings. * * The courage which is required to tell the truth, is by no means as frequent as it ought to be upon the bench.
The Chicago Times Dec. 10, '86, editorially said of the same case:
He has simply discharged a manifest duty, failure in which would have justly exposed him to reprobation, while the doing of it would not be considered, in a healthy condition of popular sentiment, as at all out of the natural order.
Why, then, should Judge Gresham be lauded as a judicial hero? Is integrity such a stranger to the bench, are faithful and upright judges so few, is it so rarely that the law is interpreted to the confusion of wealthy and powerful kuaves that a righteous decision in an important case should be hailed as an unexampled and most propitious event? This would be the natural inference from the hubbub which has been raised over the action of Judge Gresham in the Wabash matter. It shows that, rightly or wrongly, popular confidence in the integrity and independence of our judiciary is not very strong-a deplorable state of affairs, the causes of which may well engage the careful atttention of thoughtful minds.
The Supreme Court has recognized the distinction between the three governmental departments in several cases. In Newland v. Marsh, 19 III. 381, 1857, it is said:
The judicial department of the government, being ordained for the administration of the laws, under the sanctions of and in obedience to the mandates of the Federal and State constitutions, and the limits upon the legislative power in them contained, will consider acts of the legislature in connection with those constitutions and their limitations, and give the force of law to acts of the legislature in so far, and in so far only, as they are within the competency of the law-inaking power. And, although the courts will never pronounce acts of the legislature unconstitutional without mature reflection and clear conviction, yet, under no specious pretext or sophistical reasoning can they rightfully avoid the high and imperative duty imposed, of declaring them void, whenever, in their enactment, the legislature assumes power not within the scope of legislation, and withheld from it or reserved to another depart. ment by the written constitutions of the country.
The constitution of this State declares that: “ The powers of the government shall be divided into three distinct departments, each of them to be confided to a separata body of magistracy, to wit, those which are legislative to one; those which are executive to another, and those which are judicial to another," and prohibits each