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department from exercising any power confided to another: Const. 1848, Art. 2, Secs. 1, 2.
The legislative authority is vested in the General Assembly, the executive in the governor, and the judicial in the courts: Const. 1848, Art. 3, Sec. 1; Art. 4, Sec. 1; Art. 5, Sec. 1.
The powers of the government are thus wisely distributed among the three independent departments, and each is prohibited from exercising only such authority as is specially confided to it; thereby creating checks and balances, indispensable, in a representative government, to the security of the people against usurpation and the preservation of their rights and institutions in fact as well as in form.
It is the province of the judiciary to declare what is the law in any given case for judicial determination, and to enforce only valid enactments of the legislature.
An act, therefore, of the legislative department, notwithstanding the powers confided to it, when brought in question judicially, must, if necessary, be held void; otherwise the natural tendency to the concentration of power in the most powerful branch of the government would, in time, effect a silent but sure revolution in our political system. The legislative department assuming, and being allowed to judge of the character and extent of its own powers, would soon become the ex parte arbiter of private rights, and the frequent dispenser of justice between citizen and citizen unrestrained and according to its own notions of right.
The people have wisely, by constitutional provisions, guarded against consequences, and so long as these provisions are sacredly regarded and enforced their rights of persons and property will remain secure from aggression under color of authority.
In Speight v. People, 87 Ill. 595, the court was called upon for an opinion, at length, on all questions raised by the attorneys, which the court declined to give, apparently on the ground that a statute requiring such detailed opinion was an unwarranted interference by the legislative department, and that the legislature could not exercise any control over the judiciary.
In People v. Thistlewood, 103 III. 139, the court held that the statute relating to mandamus proceedings had no application to it, and would be followed only as a matter of courtesy.
The legislative department undoubtedly has the right to determine what "remedy in the laws” a man shall have against his neighbor. That is, whether the remedy shall be in law, or in equity, or in either, or not at all; but, after that remedy has been declared, the administration of it must remain with the courts. The act of the legislature can relate only to the person, and not to the court. The legislature can not be held responsible for a failure to administer justice. The constitution, and the inherent right of the court to prescribe its own rules of procedure, gives the courts all necessary power to properly conduct its own business in its own way, and it should, therefore, be held to a strict account by the people for any of the failures of its own distinct department.
The legislature provided that "no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing.” It is well known that this law has produced a great deal of confusion in the decisions of the court, and has served as the basis of many unjust reversals by the higher courts. The instruction to the jury is nothing more than the legal opinion of the judge, in reference to the facts in the case at issue. If the legislature can not compel an opinion at length, as was held in the Speight case, before referred to, how can it compel a judge to give an opinion in writing? The same principle must control both cases. As was held in the Thistlewood case, all such statutes are followed merely by courtesy. If, therefore, the court elects to adopt such statute, as a rule of procedure, and it leads to results distasteful to the people, it alone must take the responsibility and the consequences.
If the hired men who are now employed to administer the affairs of the judicial department have not conducted their business in a satisfactory manner, it may be an easy matter for the people to discontinue the service of these hired men, at the expiration of the term of employment. But, before the office of supreme judge can be regarded As a desirable position by such constitutional lawyers as should hold the office, the laws must be changed by the legislature in several respects. When legal ability is a man's capital, it is for sale in the market, as any other man's stock in trade, and the people should not expect to purchase the best ability when corporations stand always ready to take it at a higher price. It is frequently the case that judges and prominent lawyers accept a salaried position from a corporation when they would look with disdain on the position of supreme judge. Not long ago a supreme judge resigned to accept the office of circuit judge, because the inferior office was the most desirable; and it is well known that the late Justice Dickey also desired to make a similar change.
The legislature should change the place of holding court to Springfield, or some other central locality, where it should be always in session. The State of Iowa has recently abolished the plan of requiring the judges to “ board around,” and it should be done here. At present there are only two terms a year for the Appellate and Supreme Courts, and as a consequence it takes about two years from the time a case is commenced in the Circuit Court to the final hearing in the Supreme Court. This is a burlesque on the constitutional provision that every person ought to obtain right and justice “ promptly and without delay.” The terms of court should be so arranged that a case appealed from the Circuit Court could be finally disposed of within ninety days after, and the parties attending to their regular business.
The legislature should increase the salary of the supreme judges to not less than the circuit judges are now paid in Cook county, which is $7,000, and inasmuch as these judges would be compelled to support two residences-one at the place of holding court and the other their own home, they should also be provided with living quarters by the State in one of the public buildings, or a building should be erected for that purpose.
It is an outrage that discredits our system of government, that public servants who are called upon to spend the best years of their life in such high and responsible positions of trust should be confronted with a prospect of poverty after service, or an alternative of increasing their incomes by accepting railway passes and practicing law for a compensation. It is with the greatest difficulty that a judge can regain a general practice of the law, and if his salary has been so small and expenses so great that want must necessarily follow to one's person and family, it would be a strange exhibition of human nature if public duty entirely overcame personal suffering.
The legislature should pass a law under which matters of right and justice could be determined with certainty. The rights of persons should no longer depend on distinctions between actions, nor should rights be denied in one suit because a different form of action is more technically appropriate. All or any of the known legal writs should be proper in any legal or equitable suit where such writ will aid in the administration of free right and justice. If it has been determined by a court that a party is entitled to a certain sum, that party should have the right to collect that sum either by execution, mandamus or decree. I suggest the following bill:
An Act RELATING TO Civil Rights. 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly: That any person who has received or may receive from any other person or persons, any injury or wrong in his person, property or reputation, shall find a certain remedy in the laws, by filing his declaration in any of the actions at law now existing or hereafter to be created; or such person may, at his option, file a petition in chancery, according to the practice of chancery courts in other cases, such person hereby being given a complete and prompt remedy in law or in equity..
2. In all such suits in chancery, actions at law or other judicial proceedings, the same shall not be dismissed, nor shall the relief asked for be denied because either party, or any of the parties, may have any other or different remedy; and in all such suits, actions and proceedings, or in either of them, the writs of ejectment, execution, habeas corpus, injunction, mandamus, quo warranto, replevin or restitution, shall be issued either at law or in chancery as prayed for, where such writs or either or any of them will provide an effective remedy in determining the right and justice of the subject-matter in controversy. :
3. The words “person," or "party,” as used in this act, shall be held to extend to and include persons, parties, corporation, corporations, receiver, receivers, trustee, trustees, company, companies, partner, partners, and all other individuals acting either for themselves or in a representative capacity, and all bodies politic and corporate. And the remedies hereby given may also be applied for, either at law or in equity, to prevent any abridgment of rights, or any injury to person, property, or reputation, or to enforce any or all rights, duties or obligations of whatsoever kind. And in case such injury, rights, duties or obligations, affect or include a large number of persons, any one of such persons may commence his proceeding in law or in equity to determine the same, and all such persons who are not joined as plaintiffs or complainants may be made party defendants. And in case two or more persons have received similar injury, or their rights have been similarly abridged, they may join in one such suit, action or proceeding.
4. All acts and parts of acts in conflict with this act are hereby repealed.
In support of such a bill, it may be said that a plain, simple system in the judicial department of the State would undoubtedly promote a speedy administration of right and justice, but such a simplification would undoubtedly be opposed by judges and many lawyers. However, our present system has for some time been so growing in disrepute, that a code practice has been suggested by some and others have favored the equity system exclusively. It has been my attempt in drawing this bill, to allow both the common law and equity practice to remain, leaving the complaining party to his choice. Both the law court and the chancery court have for many years had jurisdiction of accounts, which concurrent jurisdiction, I think, has never given any cause for complaint. It is frequently the case that a remedy is denied in chancery after a long and expensive litigation, merely because the party has a remedy at law. If this kind of injustice is continued it is the fault of the legislature.
Now I will explain another inequality between persons which this bill is intended to correct, and will also show how the “remedy in the laws” has been doctored for the unequal protection of corporations. . When a man dies, his property goes to his children. If it is partnership property, the death terminates the partnership and the business is closed up. In case the business was successful and the man worked up a great name, it often happens that the value of the good name-cailed good will—is in a business sense lost. To avoid this, as well as the necessity of closing up the business, the law allows men to incorporate, in which case the amount of interest the man has is 'represented by shares of stock. Then, in case of death, the corporation goes right on, the good will is preserved and it is only the shares of stock which go to the Probate Court for administration. The corporation is just the same as a man, except that the man dies and the corporation does 19
not. Corporations may be formed for almost every purpose—from a church or social club to a railroad combine. But what I wish to call attention to particularly, is, that while the man and the corporation live they are in theory of law of equal rights.
It is of course well known that a warrant may be sworn out against a man at any time charging murder, and thus he may be wrongfully put on trial to defend his life; or, he may be charged with stealing, and thus his property may be put in jeopardy. In either case he may be thrust in jail and thus restrained of his liberty. But suppose a railway company, which is illegally organized and is operating under an illegal charter, desires to use a man's lot as a freight yard, or suppose it unlawfully lays its track in front of a man's house. Under the present laws and decisions that man can not question the legality of the corporation or its charter, without first obtaining the consent of either the State's attorney or the Attorney general, which is seldom given—and such illegal proceedings can not be enjoined unless the man can show some irreparable injury or special damage, which is over and above the damage suffered by the people in general.
Why these corporate persons should be so carefully protected, when the property and even the lives of natural persons may be so easily subjected to annoyance, is not reasonable or just, and need not be fortified by argument—it is self-evident.
Not very long ago a great railroad manager was reported as having said, “the public be damned.” It occurs to me that under our constitutional form of government the public can not be damned unless it damns itself. But that it has allowed itself to be damned can not be doubted. Every citizen who was not born with wealth has a labor problem of his own to solve, and he must do it for himself. It has been too much the custom of the people not to investigate the principles of our government, or whether the servants employed to administer those principles have been faithful to their trust or not, but, waiting in ignorance till the eve of an election, the people are deceived by the flippant oratory of professional politicians. By all means the people should organize themselves into clubs or societies, in which they can discuss their grievances and promote their interests. Birds of a feather should flock together osten. If the people will not so understand the remedy, by ballot, that they may use it to promote their own interests, and not the interests of moneyed corporations and pools—they should suffer their own damnation without complaint. The most important duty of every citizen is to see that the judicial department of the government is kept pure; that it is administered by men whose nominations were not purchased by political assessment, or political service, and who enter upon their duties without any restraints or obligátion, except to faithfully perform the requirements of their oath of office, that right and justice may be obtained freely and without being obliged to purchase it, completely and without denial, promptly and without delay.
C. L. BONNEY, 175 Dearborn St., Chicago.
CONSTITUTION OF 1870.
[*59 Adopted in conrcntion Day 13, 1870; ratificd by thc people July 2, 1870; in force August 8, 1870. PREAMBLE. Wc, tic people of the state of Illinois-grateful to Almighty God for tho civil, political and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations--in order to form a more perfect government, establish justice, insure domestic tranquillity, provide for the common defense, promote the genoral welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the state of Illinois.
BOUNDARIES. The boundaries and jurisdiction of the state shall be as follows, to-wit: Beginning at the mouth of the Wabash river; thence up the same, and with the line of Indiana, to the northwest corner of said state; thence east, with the line of the same state, to the middle of Like Michigan; thence north, along the middle of said lake, to north latitude 42° and 30'; thence west to the middle of the Mississippi river, and thence down along the middle of that river to its confluence with the Ohio river, and thence up the latter river, along its northwestern shore, to the place of beginning: Provided, that this state shall exercise such jurisdiction upon the Ohio river as she is now entitled to, or such as may hereaster be agreed upon by this state and the state of Kentucky.
DILL OF RIGHTS, § 1. All men are by nature free and independent, and have certain inherent and inalienable rights-among these are life, liberty, and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed.
§ 2. No person shall be deprived of life, liberty or property, without due process of law.
$3. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the state. No person shall be required to attend or support any ministry or plac: of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship.
$ 4. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.
$ 5. The right of trial by jury as heretofore enjoyed, shall remain in violate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law.
$ 6. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.
$7. All persons shall be bailable by sufficient sureties, except for capital offenses, *601 where the proof is evident or the presumption great; and the privilege or writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
$ 8. No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia, when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases.
$ 9. In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation and to have a copy thereof, to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.
$ 10. No person shall be compelled in any criminal case to give evidence agaiust himself, or be twice put in jeopardy for the same offense.
$ 11. All penalties shall be proportioned to the nature of the offense, and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person be transported out of the state for any offense committed within the same.