author: Mr. Justice Mulkey Mr. Justice Scott, Mr. Justice Walker :

text:
    Joshua C. Knickerbocker v. The People ex rel. Otto C. Butz.

      Filed at Ottawa March 23, 1882.

    1. Probate courts—constitutionality of the act restricting them to counties having a population of 70,000 or more, thereby excluding some counties which have a population exceeding 50,000. Section 20 of article 6 of the constitution of 1870 declares: “The General Assembly may provide for the establishment of a probate court in each county having a population of over 50,000.” This is construed to mean that the General Assembly may, in its discretion, establish a probate court in any one or more of the counties in the State, at any time it may deem proper, subject only to the limitation that such court can not be established in any county which has not a population exceeding 50,000.
    2. So it is held, the act of 1877, “to establish probate courts in all counties having a population of 100,000 or more,” and the amendatory act of 1881 extending the provisions of the act of 1877 to all counties in the State having a population of 70,000 or more, are constitutional, notwithstanding the fact that there are counties in the State which contain a population of over 50,000, but do not contain a population of -70,000, and so are excluded from the operation of either of the acts.
    3. Same—effect of sec. 29 of art. 6, in respect to uniformity of laws concerning courts. Section 29 of article 6 of the constitution, prescribing the rule of uniformity in respect to all laws relating to courts, is not to be understood as a limitation upon the power of the legislature, as conferred by section 20 of that article, to establish probate courts at such times as it may think proper, and to determine the necessity for such a court in any particular instance. The only object of section 29 was to prohibit special legislation concerning certain matters affecting courts, in all cases where the object of the legislature could be attained by the adoption of a general law. The purpose was to require all laws relating to “the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, ” to be general and uniform, and that was all the effect intended to be given to it.
    4. Same-—as to special legislation. In giving a construction to the 20th section, in respect to the power of the legislature to establish probate courts, it may be considered, that if the intention of the framers of the constitution in that regard can not be given effect without special legislation, then the provision of the constitution prohibiting special legislation in all cases where the same end can be accomplished by a general law, will have no application.
    5. Same—of authority in respect to one or more of several objects—as imolving a rule of construction. It is a general rule, that where one is authorized to do a particular act, or exercise some special privilege with respect to a number of objects taken distributively, which the donee of such authority may exercise or not, as he shall think proper,' and there is no specific limitation to the contrary,-the right to exercise the authority with respect to one or more of such objects will not be dependent upon its exercise as to the remaining objects.
    6. Same—implication as to the mode of executing an express power. Where there is a grant of power, everything essential to the exercise of the power, not specifically mentioned, will be deemed to have passed by implication.
    7. Constitutionality op a statute—of the argument ah inconveniente. In considering the question of the constitutionality of an act of the legislature, the argument ah inconveniente should have little if any weight. Considerations of this character may well be regarded as affording the strongest reasons why the court should act with great caution and mature deliberation, but can have no influence upon the determination itself.
    8. In a clear case of the unconstitutionality of a statute, such an argument can have no controlling influence whatever. In doubtful cases there is authority sanctioning the doctrine that it may be invoked, yet that is rather plausible than forcible, for if a statute be clearly unconstitutional no considerations of inconvenience or hardship can be entertained, and if there is a reasonable doubt upon the question, the act should be sustained, without reference to any evil consequences which might.have followed a different result.
    Appeal from the Criminal Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Mr. George W. Smith, Mr. W. C. Goudy, Mr. John P. Wilson, and Messrs. Rosenthal & Pence, for the appellant. Messrs. Decker & Douglas, Mr. Consider H. Willett, and Mr. John W. Waughop, also presented briefs on the same side.
    Mr. James McCartney, Attorney General, and Mr. Edward Osgood Bbown, for the appellee. •
   Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of ouster, rendered by the Criminal Court of Cook county, upon an information in the nature of a quo warranto, against Joshua C. Knickerbocker, from the office of judge of the probate court of Cook county, on the alleged ground the act of the legislature providing for the establishment of probate courts is unconstitutional and void. The title of appellant is not questioned on any other ground. It is conceded, if the act is constitutional the judgment of the court below should be reversed. On the other hand, it is agreed that if it is unconstitutional the judgment should be affirmed. It will therefore be perceived that the only question presented for our determination, is the constitutionality of the law establishing those courts.

By the first section of the act of 1877, entitled “An act to establish probate courts in all counties having a population of 100,000 or more, to define the jurisdiction thereof, and regulate the practice therein, and to fix the time for holding the same, ” it is provided, “that there shall be established in each county of this State now created and organized, or which may be hereafter created and organized, and which has a population of 100,000 or more, a court of record, to be styled, ‘the probate court of (name of) county.’ ” The amendatory act of 1881 simply modifies the first section of the act of 1877 above recited, so as to extend its provisions to all counties in the State having a population of 70,000 or more. (See Session Laws of 1881, p. 72.) It is manifest that if the first section of the original act can not be maintained on constitutional grounds, there is nothing in the amendatory act that relieves it from that objection, and the converse of this proposition must be accepted as true. We shall therefore, for the sake of convenience and of avoiding prolixity, as far as possible treat these acts as but á single act.

Counsel for appellant have pressed upon the attention of the court, with much earnestness and in strong terms, the supposed inconveniences and great hardships that will probably result from holding the act in question unconstitutional, as a reason why such a construction should not be given to it. The argument of db inconvenienti should have hut little weight, if any, in solving the question before us. Considerations of this character address themselves to the official duty and conduct of the court, rather than to the question in hand. While they afford the strongest reasons why the court should act with great caution and mature deliberation in the consideration of the case, yet they do not throw a particle of light upon the vital question upon which it depends. It is not claimed that considerations of this character can have any controlling influence in a case where the act of the legislature is clearly unconstitutional, but it is urged they may be looked to in doubtful cases. This view has the sanction of authority, yet it is rather plausible than forcible, for where an act of the legislature is manifestly unconstitutional, it is the duty of courts to so hold, however disastrous the consequences may be. On the other hand, if there is a reasonable doubt as to its unconstitutionality, the act should be sustained, whether any evil consequences would flow from holding it invalid or not.

The validity of the act in question involves a construction of the provisions of the constitution relating to the distribution of the judicial power of the State, and the establishment of courts therein, and also of other provisions supposed to have more or less bearing on the question in hand. Section 1, article 6, of the constitution, provides: “The judicial powers, except as in this article is othenvise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns.” It is clear, if the constitutional convention had not in other portions of the constitution provided for courts other than those specified in the first section, the power of the legislature to establish courts would be confined to such courts as are specifically enumerated in that section; but the convention, as indicated by the exception in the introductory part of the first section, proceeded to provide for the establishment of other courts not enumerated in the first section. The 11th section provides for appellate courts, the 20th for probate courts, the 23d for the Superior Court of Cook county, and the 26th for the Criminal Court of Cook county.

These several sections, so far as they relate to the power of the legislature to establish courts, must be construed precisely in the same way as if all the courts had been enumerated in the first section, and the words, “except as in this article is otherwise provided, ” had been omitted. In that case the enumeration in the first section would have exhausted the entire judicial power of the State, whereas, as the constitution is constructed, it is only exhausted by the enumeration as contained in the 1st, 11th, 20th, 23d and 26th sections, and the legislature is authorized to provide for the establishment of these courts, subject to any limitations that may apply to them respectively, but for no others.

Section 20, of article 6, of the constitution, which authorizes the legislature to provide for the establishment of probate courts, is as follows: “The General Assembly may provide for the establishment of a probate court in each county having a population of over 50,000, and for the election of a judge thereof, whose term of office shall be the same as that of the county judge, and "who shall be elected at the same time and in the same manner. Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts. ” Appellees insist that under this section the legislature has no power to authorize the establishment of such a court in any county, notwithstanding the number of its inhabitants may be ten times 50,000, and the necessities of business may absolutely demand it, except upon the condition it at the same time and hy the same act provides for like courts in all other counties in the State having a population in excess of 50,000, however small that excess may be, although the people of such other counties may neither need nor desire the establishment of such courts in them. Whatever the framers of the constitution may have intended by this section, it is clear they have not, in express terms, said what appellees impute to them. The construction contended for can only be reached by interpolating terms which the convention did not use, and which, we think, are not warranted by the context. It is but reasonable to assume that it was intended by the framers of the constitution that these courts should be created from time to time, as the wants of the people and business necessities might require, subject to the qualification they were not to be established in any county not having a population in excess of 50,000. By this limitation upon the power of the legislature to establish such courts, the authors of that instrument determined in advance there never would be any necessity for this class of courts in counties not having a population in excess of 50,000. As to all other counties, the whole subject was left under the control of the legislature, to the same extent as if no limitation had been imposed. The legislature was left entirely free to establish such courts, or not. Doubtless the convention, in leaving this matter within the discretion of the legislature, expected and intended that it would' be exercised wisely, and in furtherance of the best interests of the people of the respective counties in which such courts might, or might not, be created. It is altogether unreasonable to suppose that it was intended that these courts should be established in counties having no need for them, although they might have a population of something over 50,000, or that it was intended that counties having a need for such courts, by reason of having several hundred thousand inhabitants, should be deprived of them merely because there might be other counties, not excluded by the limitation, that have no need or desire for such courts. To create a court of this kind in a county that has no need for it, is to impose an unnecessary burden upon the people, and to refuse to establish one in a county having the requisite population, when the necessities of the people require, it, is to deprive them of a right the framers of the constitution evidently intended to secure to them, and we can not, therefore, sanction a construction which leads to either of these results.

We are unable to discover anything in the terms used by the convention to authorize the construction contended for. The language used is, “the General Assembly may provide for the establishment of a probate court in each county having a population,” etc. When may the legislature do this? Neither this section nor any other portion of the constitution affords an answer, in express terms, to this inquiry, yet the implication as to what the answer should be is so strong as to hardly admit of serious doubt. The constitution having authorized the legislature to establish one of these courts in each county of the State, subject to the limitation with respect to population, and having fixed no time for the exercise of such authority, the clear and necessary implication is, that the framers of the constitution intended the legislature should determine for itself when and under what circumstances, it would exercise the authority conferred.

It is conceded by counsel on both sides that this, as well as all other provisions of the constitution, must be read and construed, if it can be done without involving an inconsistency or absurdity, in the popular and ordinary sense in which the people understood it when voting for it. Applying this test to the provision in question, we have no doubt of the correctness of the construction we have given it. To illustrate: Suppose a farmer having several flocks of sheep, with a view of stimulating his son, who has charge of them, to greater care and watchfulness in their management, says: “My son, you may, if you desire, sell and appropriate to your own use one-fifth of the annual increase in each of my flocks.” Now, no' one, we presume, would contend for a moment that the right of the son, in the case supposed, to appropriate the increase in one flock, would, in any sense, depend upon the exercise of a similar right as to the others. He would not he bound to avail himself of the right at all, or he might exercise it as to all or any number of the flocks less than all. Again: Suppose the owner of several tracts of lands says to his neighbor: “You are authorized to enter upon each tract of my land for the purpose of getting your fire-wood. ” Here, as in the other case, the licensee would not be bound to exercise the authority conferred upon him at all. But suppose he does enter upon one tract for the purpose authorized, without entering upon the others also, would any lawyer contend for a moment that he was not fully justified in doing so ? Clearly not. We might go on indefinitely suggesting familiar examples which might occur in the ordinary transactions of life, as illustrative of the common understanding and use of the language under consideration, and sustaining the construction we have placed upon it, but it is unnecessary to do so. In short, it is ■ believed to be a general rule that where one is authorized to do a particular act, or exercise some special privilege with respect to a number of objects taken distributively, as in the ease before us, which the donee of such authority may exercise, or not, as he shall think proper, and there is no specific limitation to the contrary, the right to exercise the authority with respect to one or more of such objects will not be dependent upon its exercise as to the remaining objects.

Holding then, as we do, it was the intention of the framters of the constitution that the legislature, in giving effect to the section under consideration, should be guided entirely by the wants and necessities of the people, with respect to such courts, in the several counties in the State having the requisite population, it follows, the other provisions of that instrument must be- so construed as to give effect to- that intention, and if this can not be done without special legislation, the provision of the constitution prohibiting special legislation in all cases where the same end can be accomplished by a general law, will have no application. So, in this view, we deem it unimportant whether the act creating the probate court of Cook county be regarded as a general or special law, for it is a familiar principle, where there is a grant of power, everything essential to the exercise of the power not specifically mentioned will be deemed to have passed by implication.

The only other provision of the constitution which we deem important to notice is section 29 of article 6. It is as follows: “All laws relating to courts shall be general, and of uniform operation; and the- organization, jurisdiction, powers, proceedings and practice- of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform. ” As already indicated, this section must not be so construed as to defeat the objects intended to be accomplished by the adoption of the 20th section. The latter section, as we have just seen, provides for the establishment of a certain class of courts by the legislature in such counties in the State having a population in excess of 50,000, as the legislature in its discretion may deem necessary for the best interests of the people of those counties. The time of creating, and the necessity for, such a court, in any particular instance, having been left entirely to the discretion of the legislature, the 29th section could not have been intended to modify the 20th section in either of these respects. That section, therefore, can have no reference to the creation of courts of the kind we are considering, and the general terms in which it is conceived, must be so construed as to harmonize with and give effect to the 20th section, in the sense we have construed it. ■

It is manifest that the introductory clause of that section can not be given effect according to the literal meaning of the broad terms in which it is conceived. To do so would lead to the most absurd consequences, and would be in direct conflict with the decisions of this court. The words are: “All laws relating to cou/rts shall he general, and of uniform operation. ” Notwithstanding this provision the legislature is constantly in the habit of passing special laws fixing the commencement and the length of the terms of particular courts, which are manifestly laws relating to courts, and such acts, though neither uniform in their operation, nor general, within the sense of the constitution, are universally recognized as constitutional and valid. In discussing this matter, it was said, in Karnes v. The People, 74 Ill. 274: “Constitutions, like all other laws, must have a reasonable and practical interpretation. To give this language a literal application would require all courts in the State to meet on the same day, and the terms to be of the same length. This could not have b,een intended, because it must have been apparent to the framers of that instrument that such a thing could never be carried into effect. ”

The only object of the section of the constitution we are now considering was to prohibit special legislation with respect to certain matters affecting courts, in all cases where the object of the legislation could be attained by the adoption of a general law. By this section, as clearly appears from the concluding clause, all laws relating to “the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade,” are required to be general and uniform, and this was all the effect that was intended to be given to it by the framers of the constitution. This being its proper construction, it follows that the right of the legislature to establish a probate court for Cook county, or any other county having the requisite population, as provided by the 20th section of the constitution, is not at all modified or limited by that-section.

The judgment of the Criminal Court of Cook county is reversed, and the cause remanded, with direction to that court to quash the information.

Judgment reversed.

Mr. Justice Scott,

dissenting:

As the questions involved in this case are of unusual importance, I deem it proper I should state at length the reasons, or at least some of them, for dissenting from the conclusion reached by a majority of the court.

In all investigations of legal matters it is well first to ascertain accurately the exact question in controversy. The decision in this ease involves the determination whether the act of the General Assembly of 1877, “to establish probate courts in all counties having a population of 100,000 or more, to define the jurisdiction thereof, and regulate the practice therein, and to fix the time of holding the same, ” is constitutional. The act has relation to a class of counties having a population of 100,000 or more. It is so limited by the express terms used. No question as to the power of the General Assembly to establish a probate court in any one of the counties in the State, by name, having a population of over 100,000 inhabitants, is involved. It will be time enough to discuss that question when the legislature shall assume to enact any such Statute. The legislature has never assumed to establish a probate court in any county, by name. If it shall be now held, by judicial construction, the act of 1877 establishes a probate court in Cook county, as by name, it is, in effect, to do that which the legislature never assumed to do in that way; and more than that, the acts of 1877 and 1881, in relation to probate courts in counties having a population of 100,000, and of 70,000 or more, are legislative constructions, most solemnly expressed, that the General Assembly possesses no power to establish probate courts in any one of the several counties having a population of over 50,000 inhabitants, by name, and by special act. On both occasions the General Assembly undertook to classify the counties by population, and to establish probate courts therein, by a general law. Thus it is seen the General Assembly, in every instance where it has spoken on the subject, has utterly ignored the position taken in this case, that the legislature may at any time establish a probate court in any one of the counties having over 50,000 inhabitants, by a special law. Its previous acts are equivalent to a disclaimer of any such power under the constitution. A construction uniformly given by the legislative department to a constitutional provision ought not to be disregarded by the courts, except for the clearest and most cogent reasons.

It may also be well, before entering upon the discussion of the principal question, to ascertain the definition of a “general law,” as those terms are used in the constitution ef 1870. This court has heretofore adopted a definitionJormulated and sanctioned by decisions, of courts and text writers. No new principle is declared when it is stated “general laws are those which relate to or bind all within the jurisdiction of the lawmaking power, limited as that power may be in its territorial operation, or by constitutional restraints. ” The People v. Cooper, 83 Ill. 585; Sedgwick on Stat. and Const. Law, p. 30. A law applicable to all counties of a class, as made or authorized by the constitution, is neither a local nor a special law. If it applies to all the counties of a class authorized by the constitution to be made, it is a general law, and whether there may be few or many counties to which its provisions will apply, is a matter of no consequence. A principle analogous with this was declared in The People v. Wright, 70 Ill. 388, and in Jefferson County v. Jones, 63 id. 531, it was recognized.

Another principle ought not to he lost sight of in this discussion. It is, that the General Assembly possesses no power to classify counties, for legislative or other purposes, in any manner other than as is provided in the constitution it may be done. Any classification of counties otherwise than as authorized by the constitution, is invalid, and a law applicable to such classification is a local or special law, and is forbidden by the constitution, and is, therefore, void. This principle has been twice declared by the decisions of this court, and must now be regarded as the settled law of this State. Devine v. Commissioners, 84 Ill. 594; Worcester v. Cheney, 94 id. 470. Keeping these plain definitions constantly in view, the subsequent discussion of the principal question will be more readily understood.

Section 1, art. 6, of the constitution, declares, “the judicial powers, except as in this article is 'otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns. ” Heading this section of the- constitution in connection with the remaining sections of the same article, as must be done, it will readily be seen what courts are created by the constitution, and what courts may be created by law. It will be noted the General Assembly may by law create courts “in and for cities and incorporated towns, ” and after the year 1814, “inferior appellate courts, of uniform organization and jurisdiction, may be created in districts to be formed for that purpose.” All other courts in which the judicial powers of the State are vested are created by the constitution itself. In this connection it may be remarked, that all courts created by the constitution, except justices of the peace and police magistrates, are given a defined jurisdiction, of which they may not be deprived by the General Assembly.

It is made the duty of the General Assembly to provide for the organization of all courts created by the ' eonstitution, and provide for the election of judges, and the times and places of holding such courts, where it is not done by the provisions of that instrument. This duty is absolute and imperative with regard to all courts created by the constitution, except as to probate courts in counties having over 50,000 inhabitants. With regard to probate courts in such counties, the General Assembly has a discretion as to the time when it will provide for the organization of such courts and the election of judges thereof, hut it has no discretion as to how such courts may be established. That is fixed, absolutely and positively, as will he made to appear, by the constitution itself. Other courts provided for ‘by the constitution, and not mentioned by name in the first section of article 6, are the “Superior Court of Cook county,” and the “Criminal Court of Cook county.” A correct reading, therefore, of the whole of the 6th article of the constitution, concerning the judicial department, is, that the judicial powers of the State are vested in one Supreme Court, in circuit courts, county courts, in justices of the peace, police magistrates, the Superior Court of Cook county, the Criminal Court of Cook county, in probate courts in counties having over 50,000 inhabitants, and in such courts as may be created by law in and for cities and incorporated towns, and after the year 1874, in inferior appellate courts, when created by law. It is apparent, then, that probate courts are created, in counties having over 50,000 inhabitants, in precisely the same manner as are circuit courts in the several counties, and as is the Superior Court of Cook county. This would seem to be so plain as to admit of no construction. That which is plainly expressed, admits of no interpretation. But if contemporaneous construction is worth anything, and it is conceded it sometimes renders most valuable aid, it may be found in the debates of the constitutional convention. When article 6, concerning the judicial department, was under discussion, section 1, being then in the exact form it now is, Mr. Archer said: “I move to amend, by inserting after the words ‘ county courts,’ in the second line, the words ‘probate courts.’ I think this section does not now recognize probate courts.” Mr. Browning (than whom the convention.contained no abler jurist) said: “This article does provide for judges in counties having a population in excess of 50,000. ‘The judicial power, except as in this article is otherwise provided, shall be vested,’ etc., and it has otherwise provided for probate courts.” Mr. Archer then said: “But only in counties having over 50,000 people. Does that provide for counties having less than 50,000?” To which Mr. Browning replied: “In those counties it is vested in the county courts, so that all are provided for. ” Mr. Archer then said: “With that understanding I withdraw the amendment.” Yol. 1 Const. Debates, p. 976.

The fact the constitution vested the judicial powers of the State in certain courts named, and in such courts as may be created by law, in the manner specified, is a limitation upon the power of the General Assembly to establish other courts it is not at liberty to disregard. Only power is given to the legislature to 'create courts in and for cities and incorporated towns, and after the year 1874, to create inferior appellate courts in districts to be formed for that purpose. All other courts in the State that may rightfully exercise judicial ■ powers are created by the constitution. It is made the duty of the General.Assembly to provide for the time of holding courts in each county,- (that is, circuit courts,) and it is apprehended that no election for circuit judges could have been held, under the constitution of 1870, until the legislature had fixed the boundaries of the several circuits, unless, perhaps, for circuit judges in Cook county, as that county is, by the constitution, made a circuit by itself. Nor can there be any election for judges of probate courts, in counties having over 50,000 inhabitants, until the General Assembly shall so provide.

It has been seen the legislature has a discretion as to the time when it will establish probate courts in counties having over 50,000 inhabitants, but in no other respect. How, then, may probate courts be established ? The constitution has definitely declared, and its mandate must be observed. Section 20, article 6, provides, the General Assembly may provide—not create, as is erroneously assumed,—for the establishment of a probate court in each county having over 50,000 inhabitants, and for the election of a judge thereof. Observing the previous decisions of this court, how may this be done ? Obviously, it can be done in one way only, and that is, by grouping the counties together in a class, as is done by the constitution,—that is, constituting a class of all counties having over 50,000 inhabitants, and providing for a probate court in each county of the class, by general law. It can be done in no other way, without an utter disregard of the jilain provisions of the constitution. It is an undeniable proposition, that when the constitution has provided a way in which a thing may be done, it is not in the power of the General Assembly to do it in any other mode. It is equivalent to an express limitation upon its powers in that regard. The word each, as used in this section of the constitution, is to be understood in its ordinary acceptation. Commonly it is understood to mean “every one of the two or more individuals composing the whole, considered separately from the rest. ” It is precisely the same word, and is used in the same sense, as it is used in section 14 of the same article, which makes it the duty of the General Assembly to provide for the times of holding a court (that is, a circuit court,) in “each county.” Certainly not in any one of them, but in every one of the whole number. That is precisely the sense in which the same word “each” is used in this 20th section of article 6. Had it been the intention the General Assembly might establish a probate court in any county having over 50,000 inhabitants, whenever it might see proper to do so, apt words would, no doubt, have been used to express that intention, as was done in section 13 of the same article, where it is said, when the business of the circuit court of any one or of any two or more contiguous counties, containing over 50,000 inhabitants, shall occupy nine months of the year, the General Assembly may make of such comity or counties a separate circuit. Construing the words “each county, ” as used in the 20th section of article 6, as meaning any one of the counties named, is to utterly disregard the meaning the framers of the constitution attached to the word “each,” as used in the context in that instrument, and as it is commonly understood by persons speaking the English language. Courts are not at liberty, in construing a constitution, to suppose one thing or another was meant, unless it is plainly expressed, or arises by necessary implication from unambiguous terms employed. It would be far better there should be no constitution, if courts may construe it to mean one thing or another, as local interests may seem to require or be supposed to demand. Its limitations would be utterly worthless, and less binding than “ropes of sand. ”

There is no power given to the General Assembly to provide that counties having over 100,000 inhabitants shall constitute a class of counties in which probate courts may be established or organized. The constitutional restriction is, if done at all, probate courts are to be established in “each county” having over 50,000 inhabitants, and this restriction the General Assembly may not disregard. But section 29, of article 6, contains a restriction on the powers of the General Assembly concerning legislation relating to courts, that is equally obligatory. It is, that “all laws relating to courts shall be general, and of uniform operation.” The limitation in this regard is absolute and imperative. One of the counsel who has argued the case for respondent with marked ability, has discerned the true meaning of this clause in section 29, and has had the candor to express it. As he construes it, “it declares that all laws concerning courts shall be general, and of uniform operation. It does not attempt to create courts. It does recognize the context of the article of which it forms a part, and by which it appears that courts are independently or differently constituted. It must therefore relate to' courts established or to be established, and it is fair to say it means that courts shall be governed by general laws of uniform application. It has the effect to extend the prohibition against special legislation, found in the article concerning the legislative department, to the cases of courts.” Had counsel gone but a single step further, and conceded, what another counsel for respondent says is the true construction of section 20, it would follow, as a corollary from his argument, the act under consideration is plainly unconstitutional. His construction is, “in section 20 a probate court is created,—potentially, at least; in every county judicial power is given to such court, and its jurisdiction defined, upon two conditions: Such court may go into .operation, first, there must be a population of more than 50,000 in the county; second, the General Assembly must •determine that such court is needed, and, being the holder of the public purse, must provide for the same. The words, ‘provide for the establishment,’ can not, for obvious reasons, mean that the General Assembly is to create the court. ” Both concessions made by counsel are warranted by correct reading of the constitution, and may be adopted as the true construction of the paragraphs to which they relate. As before observed, probate courts are created by the- constitution itself, in each county having over 50,000 inhabitants, in precisely the same manner that circuit courts are created by that instrument in each county of the State. It is therefore apparent, from the provisions of section 29, that all laws relating to courts thus established must be general, and of uniform operation. Any other construction is to render these words of the constitution meaningless.

-When the constitution was adopted, in 1870, there were but few counties in the State that contained a population in excess of 50,000. Since then the population has increased with remarkable rapidity. Now, by the last census, there are at least six counties that contain a population in excess of that number. When the census shall be taken at the end of the present decade, many more counties will appear to have a population of over 50,000. As counties obtain the requisite population, the constitution, by its own force, extends over and creates a probate court in each of them, in precisely the same manner as the act of 1875, to increase the number of judges of the Superior Court, took effect and became operative when it was ascertained by the census of 1880 Cook county contained a population in excess of 400,000. Should the present constitution stand—which, of course, is not at all probable—until every county contained a population in excess of 50,000, it would be true, as counsel in effect concedes, that the constitution creates a probate court,—potentially, at least,—in every county in the State. It is doubtless true, that when the census shall be taken at the end of the present decade, it will appear very many counties will have a population that will secure to them the privilege of a probate court; and it may also be true that before the end of a second decade LaSalle and St. Clair counties may have a population in excess of 100,000, and under the act of 1877, if it shall stand, would.be entitled to a probate court as well as the county of Cook, and if the amendatory act of 1881 is a valid law, it is doubtless true'that counties other than LaSalle and Cook, before the expiration of that period, will have a population that will entitle them to a probate court under that law. The argument made in this connection, that section 20 of article 6 was introduced into the constitution that Cook county alone might have a probate court, and that no other county in the State needs such a court, is as idle as it is foolish and absurd. It can not be judicially known that other counties do not desire or need such a court as well as the county of Cook. But that is a matter of no consequence. The constitution has provided, probate courts, when established, if done at all, are to be in each county having over 50,000 inhabitants, and it is not for the courts or the legislature to say that only one or two of the whole number of counties entitled to such courts really, in fact, need them. That is a question concerning which the General Assembly has no discretion.

It is but stating an admitted truth to say that all limitations imposed by the constitution must be observed by the General Assembly and the courts. Any law, therefore, having special application to any one or more counties' less than the whole number of counties having over 50,000 inhabitants, which must constitute a class of counties in which probate courts may be established, is a local or special law, and is void, as being inhibited by the constitution. Devine v. Commissioners, 84 Ill. 594. A law providing all counties having a population of over 100,000 shall constitute a class in which probate courts may be organized, would apply only to Cook county, as definitely as though limited hy express terms to that county. Should counties having a population of over 70,000 be grouped together as a class, this court judicially knows such a law would and could apply to only two counties in the entire State, viz: Cook and LaSalle counties. Counsel, with commendable candor, concede that which is the true construction of the constitution: that the clause of section 29, article 6, that declares, “all laws relating to courts shall be general, and of uniform operation, ” has the effect to extend the prohibition found in the article concerning the legislative department, to the cases of courts, or it is as if there were added to section 22 of article 4 the- further enactment, so that it might read, “the General Assembly shall not pass local or special laws * * * concerning the organization, jurisdiction, practice dr process of courts which this constitution permits to be established. ” It would therefore seem clear, that any law applicable to one of a class would be local and special, for the reason such county constitutes only a part of the class of counties in which the constitution provides probate courts may be established. It is known St. Clair, McLean, Adams and Peoria counties each contains a population in excess of 50,000, and any classification of counties for legislation in regard to probate courts, that by its terms excludes those counties from its operation, is a local law, and is forbidden by the constitution. It is, as has been seen, for the reason the constitution has declared each county having a population of over 50,000 may have á probate court established therein, and the legislature possesses no rightful authority to make any other or different classification of counties for that purpose.

Considerations as to the serious results that might flow from holding the law in regard to probate courts in counties having a population in excess of 100,000, unconstitutional, have been pressed on the attention of the court with unusual zeal. Should serious consequences result from such a decision, it would be indeed much to be regretted. Evil results, if any there would be, would be confined to a single locality. But be the results what they may, it can not. authorize an erroneous construction of the constitution by a court of last resort. It should be remembered this court is called upon, under the highest possible sanctions, to construe the constitution for the people of the entire State and the interest of the entire State, and not for that of any particular locality. Infinitely more serious consequences would flow from any toleration by this court of any infraction of the constitution that would permit the enactment of local or vicious special legislation, far more injurious to the people of the State, whose laws this court is obligated to administer, than any mere .temporary inconvenience the people of any locality would suffer in consequence of declaring a local law unconstitutional. This court, in more than one instance, has assumed to exercise this extraordinary power, and no serious consequences have followed, but, on the contrary, none but the best results have come from a rigid adherence to the limitations imposed by the constitution. The only line of safety lies in a strict adherence to all constitutional limitations. Believing, as I do, the act of the General Assembly under consideration is in plain and obvious conflict with the constitution, I should be wanting in self-respect if I did not express that belief in the strongest possible terms. The evils most to be avoided are not the loss of property and temporary inconvenience to the people of a particular locality, but a more serious disaster is the giving a construction to the constitution that would authorize a flood of local and vicious special legislation in behalf of any locality that might demand it. This, indeed, would be an evil of such magnitude it would be most desirable it should be avoided. Any toleration by this court of any violation of the constitution weakens the value of its limitations, no matter how necessary and essential they may be to the preservation of public and private interests.

But the consequences, to flow from holding the act under consideration unconstitutional, have been much over-stated and exaggerated. Nothing is hazarded in saying, the suggestion the acts of the officer administering the office of judge of the probate court in Cook county were void, has absolutely nothing in its support, either in law or reason. Although the law under which he was elected may have been unconstitutional, it is a principle of universal application the acts of a de facto officer administering any office are valid, and will be so held until the incumbent is ousted from the same by some proceeding instituted for that purpose. The affairs of government could not be administered if this were not the law. Irregularities in the election of officers must frequently occur, but the interests of the public will not be allowed to suffer on that account. A vice common to all the arguments made in behalf of respondent, with one exception, lies in the assumption the General Assembly created the probate court in counties having the requisite population, as specified in the act under consideration. It is erroneously stated the information in this case is filed to test the constitutionality of the act of 1877, “creating and establishing” probate courts in counties having a population of 100,000 or more. Neither the word “create,” nor “creating,” is found in the enacting clause of that statute. Nor is it true the legislature ever assumed to create such a court. It has no power to" do so. As has been seen, the constitution itself creates probate courts in counties containing the requisite population, in like manner as circuit courts are created by that instrument in each county. Past all doubt, where an office exists under the constitution, or otherwise, the acts of the incumbent, although his appointment or election may have been under an unconstitutional law, will be as valid as the acts of an officer de jure. This is not a declaration of any new principle of law. In The People v. Bangs, 24 Ill. 184, it was held a circuit judge elected under an unconstitutional statute had color of office, and that his acts as such officer were as valid as if the law had been constitutional. That is precisely the case here, and the principle of the case cited ought to control in the case at bar. The office, the function of which respondent assumed to exercise, existed by the constitution, as did the office in the case of People v. Bangs, and the same conclusion is warranted, as in that case, the acts of the incumbent done under color of office will be valid.

In my opinion the judgment should be affirmed.

Mr. Justice Walker :

I concur fully with my brother

Scott in the views presented in his dissenting opinion in this case.


source: Caselaw Access Project

author: Mr. Chief Justice Craig

license: Public Domain

text:
    Henry Sahlinger et al. v. The People of the State of Illinois.

      Filed at Springfield March 28, 1882.

    1. ' Criminal daw—general conviction sustained, if any good counts. Judgment will not be arrested, nor will a judgment be reversed, on a general verdict of guilty, in a criminal case, because one count in the indictment is bad, if other counts are good.
    2. Same—larceny—recent possession of stolen goods. A recent possession of stolen property after the theft is sufficient to warrant a conviction, unless the attending circumstances so far overcome the presumption thus raised as to create a reasonable doubt of the prisoner’s guilt, when an acquittal should follow.
    3. Same—waiver of constitutional right to he present at trial. The constitutional right of a prisoner to appear and defend in person and by counsel, to demand the nature and cause of the accusation, and to meet the witnesses face to face, is conferred for the protection and benefit of one accused of crime, but, like many other rights, it may be waived by him.
    4. So where a prisoner, after his trial has begun, voluntarily abandons the court room, and refuses to appear, he will be regarded as having waived a right which is guaranteed to him, and the court is under no obligation to stop the trial, but may proceed in his absence to final judgment. He will not be allowed to take advantage of his own fault.
    5. Evidence—relevancy of fact on cross-examination. On the trial of one for burglary, and the larceny of certain goods, there is no error in refusing to allow the prosecuting witness, on cross-examination, to state the names of the firms from whom he purchased goods, as this could throw no light on the question of the defendant’s guilt or innocence.
    6. Same—opinion of witness as to fact. On a trial for burglary and larceny, a witness for the defendants testified very fully that they were not away from home on the evening the crime was committed, stating that they were not away from home that evening, and went to bed at ten o’clock. The witness was then asked if they were away from home as much as half an hour, to which she replied, not that she knew of. She was then asked could they have been gone that time without her knowing it, which question the court held improper: Held, that the ruling was correct, as the answer would have been a mere matter of opinion.
    7. New triad—newly discovered evidence. A new trial will seldom be granted in a criminal case on the ground of newly discovered cumulative evidence, and this only when it seems to be decisive in its nature.

      Writ of Error to the Criminal Court of Cook county; the Hon. Kirk Hawes, Judge, presiding.
    Mr. Thomas Shirley, for the plaintiff in error:
    The law seems to be settled that if the bad count is for an offence substantially different from the good count, or if the evidence admitted under the bad count is not admissible under the good count, in such a case, after verdict of guilty, there should be a new trial, or after judgment upon such a verdict, there should be a reversal. Wharton’s Crim. Pl. and Pr. sec. 771; Wood v. People, 58 N. Y. 117.
    The court told the jury that “the possession of stolen property immediately after the theft is sufficient to warrant a conviction. ” Such is not the law, nor is it proper for the court to tell the jury what facts are sufficient to justify a conviction. It is true, the court adds: “unless the attending circumstances or other evidence overcomes the presumption thus raised, so as to create a reasonable doubt of the prisoner’s guilt, when an acquittal should follow. ” What presumption thus raised? See Comforts. People, 54 Ill. 404; Conkwright v. People, 35 id. 204.
    An alibi, if proven, is a complete defence, and if not satisfactorily proven it yet may be a complete defence, if the evidence to sustain it creates a reasonable doubt of the guilt of the accused. Hopps v. People, 31 Ill. 393.
    Mr. James McCartney, Attorney General, for the People:
    The verdict could with perfect propriety have been found under either of the three good counts. Lyons v. People, 68 Ill. 271; Townsend v. People, 3 Scam. 326; Curtis v. People, Breese, 197; Holliday v. People, 4 Gilm. 111.
    There was no error in the first instruction for the People. It is drawn exactly according to the advice of the court in Conkwright v. People, 35 Ill. 204. See, also, Unger v. State, 42 Miss. 642; Foster v. State, 52 id. 695; Tucker v. State,
      57 Ala. 503; Brown v. State, 59 id. 456; State v. Turner, 65 N. C. 592; Commonwealth v. Randall, 119 Mass. 107; Knickerbocker v. People, 43 N. Y. 177; Comfort v. People, 54 Ill. 404.
    That there was no error in proceeding with the trial in the voluntary absence of one of the defendants, see Fight v. State, 7 Ohio, 327; State v. Warnire, 16 Ind. 357; McCorkle v. State, 14 id. 39; Price v. State, 36 Miss. 531; United States v. Davis, 6 Blatchf. 464; Williams v. State, 19 Ga. 402; Lord Morley’s case, 6 State Trials, 770; Hill v. State, 17 Wis. 697; Prim v. Com. 18 Pa. St. 103; Wilson v. State, 2 Ohio St. 319; Rose v. Ohio, 20 Ohio, 33.
    When the affidavit for a new trial discloses evidence which, if introduced on the trial, would not have changed the result, a new trial should not be granted. Bulliner v. People, 95 Ill. 394.
   Mr. Chief Justice Craig

delivered the opinion of the Court:

This was an indictment against Henry Sahlinger and Samuel Sahlinger, for larceny and burglary. The indictment contained four counts. The first count charged larceny of a certain quantity of cloth, the property of Alfred Hitchcock. The second count charged defendants with receiving stolen goods knowingly. The third count charged burglary of the same goods from the same person, with force, on the 1st day of April, 1890. The fourth count is like the third, except the burglary was charged without force, and on April 1,1880. On a trial before a jury the defendants were found guilty, in manner and form as charged in the indictment. The value of the stolen property was found to he $318, and the term of imprisonment of defendant Henry Sahlinger fixed at seven years in the penitentiary, and the other defendant ten years. The court overruled a motion for a new trial and in arrest of judgment, and rendered judgment on the verdict.

It will be observed that the jury returned a general verdict of guilty, in manner and form as charged in the indictment, and as the third count of the indictment was bad, it is urged that the judgment on the verdict is erroneous. The indictment contains three good counts, and under the uniform ruling of this court the judgment was proper and regular, although the indictment contained one bad count. Townsend v. The People, 3 Scam. 326; Holliday v. The People, 4 Gilm. 111; Lyons v. The People, 68 Ill. 272.

It is next urged that the court erred in giving instruction number one for the People, which was as follows:

“The jury are instructed, as a matter of law, that possession of stolen property, immediately after the theft, is sufficient to warrant a conviction, unless attending circumstances or other evidence so far overcomes the presumption thus raised as to create a reasonable doubt of prisoner’s guilt, when an acquittal should follow. ”

“ The law is well settled that recent, possession of stolen property, in no manner explained by the prisoner, will warrant a conviction. As was said in Comfort v. The People, 54 Ill. 404: “The books agree that a recent possession of stolen property after the theft is sufficient to warrant a conviction, unless the attending circumstances or other evidence so far overcomes the presumption thus raised as to create a reasonable doubt of the prisoner’s guilt.” The instruction does not seem to conflict in any manner with the doctrine announced in the case cited, but seems to be in entire harmony with the rule there announced, which is fully sustained by the authorities. We perceive no substantial objection to the instruction, and do not believe the jury were in any manner misled by it.

It is also contended that the last instruction given for the People is erroneous. It is as follows:

“The jury are instructed, as a matter of law, that their verdict should extend also to the case of the defendant Samuel Sahlinger, though he is not now present in court. ”

It appears from the record that this case was called for trial May 11, 1881, and a default was taken against Samuel Sahlinger, who was not then present. A jury was called and sworn to answer questions, when an adjournment was had until the following day. On May 12th, when court opened, as appears from the record, all the defendants appeared, and a jury was impaneled to try all of the defendants. On May 13th all the defendants were present, but on May 14th, when the trial was concluded and the instructions given, it appears that Samuel was absent. On the motion for a new trial the defendant read an affidavit of one Eosa Memliek, from which it appears that he came to her house on the afternoon of the last day of the trial, and was taken sick while there. The defendant, however, although he filed his own affidavit on another subject, does not undertake to give any excuse for leaving the court while the trial was in progress, nor does he give any reason for his absence. The question presented by the instruction is, whether a defendant in a criminal ease can stop the progress of a trial, and thus defeat the. ends of justice, by deserting the court room during the last hours of a trial, or has the court the power to proceed and finish the trial in the absence of a defendant.

In Holliday v. The People, 4 Glim. 111, which was an indictment for procuring an abortion, where the verdict was received in the absence of the defendant, it was held, according to the principles of the common law, in all capital eases, the verdict must be received in open court, and in the presence of the prisoner; but that rule did not apply to a misdemeanor. No opinion was, however, expressed in regard to what was the proper rule in cases of felony. There is no doubt but a prisoner on trial for a felony has the right to be present at every step taken in his case, and it would be error for the court to deprive him of that right without his consent, unless it might become necessary to remove him from the court room, temporarily, for disorderly conduct; but where a prisoner, after a trial has begun, wrongfully and voluntarily abandons the court room, and refuses to appear, he must be regarded as having waived a right which is guaranteed to him if he sees proper to avail of it, and the court is under no obligations to stop the trial until the defendant thinks proper to return, but in such a ease the court would not transcend any of its legitimate powers by proceeding with the case to final judgment. The constitutional right of a prisoner to appear and defend in person and by counsel, to demand the nature and cause of the accusation, to meet the witnesses face to face, was conferred for the protection and the benefit of one accused of a crime, but, like many other rights, no reason is perceived why it may not be waived by the prisoner. He may, if he sees proper, waive any trial, and plead guilty to an indictment. If he may do this, he may waive the right to cross-examine a witness, or to be present when his case is argued to the jury, or when the verdict is received.

A similar question arose in Wilson v. The State, 2 O. S. 319, where it is said: “The remaining error assigned is, that the verdict was received in the absence of the defendant below. If he had been in prison, or had been prevented by improper means from being present when the verdict was rendered, we should regard this as a fatal error. ”

In Ross v. Ohio, 20 Ohio, 33, it was held that it was the right of the prisoner to be present at the time the verdict was rendered, and if deprived of this right by imprisonment or any other improper manner, the verdict should not be followed by judgment. But the defendant was not imprisoned, nor was he prevented by any improper means from being present at the rendition of the verdict. He was at large on his own recognizance, and presumed to be present if he kept it. He can not, in such a case as the present, voluntarily absent himself at the moment the verdict is rendered, and take advantage of that absence to avoid judgment upon the verdict. What was said in the case cited applies here. The defendant was not imprisoned, nor was he prevented by any improper means from being present when the verdict was rendered. He voluntarily and wrongfully absented himself, and he can not now claim any advantage on account of such absence. It was the duty of defendant to be present when the ease was submitted to the jury and when the verdict was returned, but he can not claim any advantage from a failure to observe that duty, when he was absent of his own accord. (Hill v. The State, 17 Wis. 697.) He can not be permitted to take advantage of his own wrong, and thus defeat the ends of justice. It was the defendant’s own fault that he was not present when the verdict was rendered. The defendant’s voluntary abandonment of the trial must be regarded as a waiver of the right to be present when the verdict was returned into court.

It is also urged that the court erred in the modification of certain instructions, but what the modification was, and in what the error consisted, has not been pointed out, and we are unable to determine, from an inspection of the record, whether any error occurred in this regard or not. If any serious objections existed to the modification of the instructions, they should have been pointed out in the argument.

It is contended that the court erred in refusing to allow the witness Hitchcock, on cross-examination, to state the names of the houses in Baltimore of whom he purchased goods. Much latitude is often given in the cross-examination of witnesses, especially where it appears that the witness is attempting to evade or conceal the truth, but the witness Hitchcock seemed to be perfectly fair, and endeavored to tell the truth fully and fairly, and we are at a loss to perceive how the names of the firms of whom the witness purchased goods could throw any light on the question of the guilt or innocence of the defendants.

It is also claimed that the court erred in refusing to permit the defence to ask the witness Annie Sahlinger whether defendants were away from the house on the night of the larceny, from the time they went in until she went to bed. Upon an examination of the record it will be found that this witness testified very fully on the subject. She says, in substance, that the defendants were not away from the house that evening, and went to bed at ten o’clock. She was further asked if defendants were away from the house as much as half an hour. To this she replied, not that she knew of. She was then asked could they have been gone that time without her knowing it. This question the court decided was improper, and we think properly, as the witness had detailed fully all she knew on the subject. The answer would be a mere matter of opinion of the witness. Other objections of a similar character have been made to the ruling of the court on questions of evidence, but we do not find any of them well taken.

It is also claimed that a new trial should have been granted, because of newly discovered evidence. The newly discovered evidence is that of one John L. Simins. He states that he knows who stole the goods in question, and that the defendants are innocent; that he saw the goods ■ in a certain room in Chicago after they were stolen, and went with the goods, when they were taken from Chicago, as far as DeKalb, Illinois. This evidence, had it been before the jury, could not be regarded as decisive. The rule adopted in this State is, that a new trial will seldom be granted to let in newly discovered cumulative evidence, and then only when it seems to be decisive in its nature. (Sulzer v. Yott, 57 Ill. 164.) This evidence is not of that character. If the affidavit of the proposed witness be true, it is apparent that he himself was a party to the crime, and had he been a witness before the jury, his evidence, when weighed in connection with the other evidence in the case, could not have turned the scales in the defendants’ favor.

After a careful examination of the whole record we fail to find any substantial error. The judgment .will be affirmed.

Judgment affirmed.


author: Mr. Justice Walker

text:
    The Hannibal and St. Joseph Railroad Company v. J. C. Crane, for use of Chauncey Ladd.

      Filed at Springfield March 28, 1882.

    1. Garnishment—foreign corporation liable. A foreign corporation doing business and having property in this State is liable to garnishment, the same as a domestic corporation, and service of process may rightfully be made on its agent in this State.
    2. Same—service on foreign corporations. Foreign corporations doing business in this State are liable to be sued, the same as a domestic corporation or citizen, and process may be served upon its agent in this State, and the word “process” in the Practice act embraces process of every kind, including garnishee process.
    3. Same—costs. The act giving costs to the successful party has application to garnishee proceedings; but the garnishee should never be required to pay costs out of his own-means, unless he resorts to unnecessary and protracted litigation. Judgment for costs, when the court has jurisdiction, binds the principal debtor, and is a part of the recovery.
    4. Common law—how far adopted. The courts of this State are not required by our statute adopting the common law of England, to enforce local customs of that realm, as it does not prescribe local customs and statutes as a rule of action in this State. On the contrary, they are excluded.
    5. Attachments—laws relating to, liberally construed. Our statute relating to attachments, from its provisions and the spirit of the whole act, is entitled to, and should receive, a liberal, and not a strict construction.
    6. Action—whether local—and of a prior demand. A debt due from a foreign corporation to one. of its employes residing in the same State, payable by its treasurer, is not local, nor is the action to recover on the same a local action, to be brought in such State. Neither is any demand necessary in this State to authorize an action in our courts for its recovery.
    Appeal from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Messrs. Maesh & McFadon, for the appellant:
    A non-resident is liable to garnishment only in three cases: First, where, when garnisheed, he has in the State property of the principal defendant in his hands; second, where, when garnisheed, he is bound to pay the principal defendant money in such other State; or third, where, when garnisheed, he is bound to deliver the principal defendant goods at some particular place in such State. Drake on Attachments, sec. 474; Jones v. Cummings, 6 N. H. 498.
    When the only thing reached by the process is a debt due from the garnishee to the principal defendant, such debt is' regarded local, having a situs where the garnishee resides, and is not the subject of garnishment in another and different State. Smith v. B. C. and M. R. R. Co. 33 N. H. 342; Sawyer v. Thompson, 4 Foster, 510; Tingley v. Bateman, 10 Mass. 346; Ray v. Underwood, 3 Pick. 302; Green v. Farmers’ Bank, 25 Conn. 452; Bates v. New Orleans R. R. Co. 4 Abb. 72; Willett v. Equitable Ins. Co. 10 id. 193. See, also, Hart v. Anthony, 15 Pick. 445; Gold et al. v. Housatonic R. R. Co. 1 Gray, 425; Taft & Co. v. Mills & Co. 5 E. I. 393.
    The court should not have rendered judgment, against the garnishee for costs. By the statute the costs are made a matter of discretion. Rev. Stat. 1874, chap. 62, sec. 27.
    Messrs. Emmons & Wells, for the appellee:
    Foreign corporations doing business in this State must submit to such terms as are imposed on them by our law, and that subjects them to the same restrictions, liabilities and duties as domestic corporations. Rev. Stat. 1874, chap. 32, see. 26; Ducat v. City of Chicago, 48 Ill. 172; Mineral Point R. R. Co. v. Keep, 22 id. 9; Midland Pacific Ry. Co. v. McDermid, 91 id. 170.
    That domestic corporations are liable to garnishment, see Mineral Point R. R. Co. v. Barron, 83 Ill. 365; Penn. Co. v. Sloan, 1 Bradw. 370; Roche v. Rhode Island Ins. Ass. 2 id. 360; Moore v. Chicago, etc. R. R. Co. 43 Iowa, 385; Fithian v. New York and Erie R. R. Co. 31 Pa. St. 114; McAllister v. Penn Ins. Co. 28 Mo. 214; Bronser v. New England Fire Ins. Co. 21 Wis. 506.
    Where the garnishee is indebted, it will not vary his liability that his contract with the defendant is to pay the money in another State. Drake on Attachments, (4th ed.) sec. 597; Blake v. Williams, 6 Pick. 286; Sturtevant v. Robinson. 18 id. 175; 2 Bradw. 362; Adams Express Co. v. Scott, 104 Mass. 164.
    The judgment against the appellant in this State is a good bar to any suit in Missouri by defendant, Crane. Morgan v. Neville, 74 Pa. 52; Allen v. Watt, 79 Ill. 284.
    The appellant ought to be liable for the costs. Smith v. Lyons, 80 Ill. 600.
   Mr. Justice Walker

delivered the opinion of the Court:

This was an action by attachment,' brought before a justice of the peace of Adams county, by Chauncey Ladd, a resident of this State, against one Crane, a resident of the State of Missouri. No property of Crane being found, the Hannibal and St. Joseph Railroad Company was summoned as a garnishee. The company filed an answer on the return day of the writ of attachment. The justice of the peace issued a scire facias against the company, and on the return day the company filed-a second answer, and the justice of the peace thereupon rendered a judgment against the company, in favor of Crane, for the use of Ladd, for $17.72. From that judgment the company appealed to the circuit court, where the judgment of the justice of the peace was affirmed. An appeal was prosecuted to the Appellate Court, and the judgment being affirmed, the case is, on a certificate of the judges of that court, under the statute, appealed to this court.

The material facts of the ease are, that the Hannibal and St. Joseph Eailroad Company is a- company organized under the laws of the State of Missouri, and has its general office and principal place of business in that State, as required by law, and its railway tracks are wholly in the State of Missouri. The railway company, before and at the time of suing out the attachment, and the service of the garnishee summons, ran its trains regularly into the city of Quincy, in Adams county, over and across the bridge at that place. The company then, and previous to that time, kept an agent in the city, and received freight and passengers for transportation over its road, and the company then had personal property in the city, to-wit: engines and ears. The company, by its answer, admits an indebtedness to Crane, but denies it held any property of his in possession or under its control.

These are the conceded facts, and the object of this appeal is, to determine whether a corporation of another State, doing-business and having property in this State, may be garnisheed for a debt it owes to a resident of the State of its domicil, in the courts of this State. The question is presented for the first time in tips court.

It is familiar law that when a corporation is created it becomes an artificial person, and may perform all acts and claim all rights with which it is empowered and endowed by its charter, and it may, within the scope of the powers thus conferred and duties imposed, like a natural person, acquire rights and incur liabilities precisely as a natural person. If so empowered, it may contract debts, purchase, sell and enjoy property; and it is not denied in this case that this company, was empowered to contract the debt, and that it owed the money to Crane. It, then, for the purposes of this suit, must be regarded as a person capable of owning property, and of being indebted, and liable to be sued for its indebtedness. If this be true, it must be treated the same, in all respects, as a natural person placed in the same situation. This, we think, will not be contested, as we are aware of no law giving such bodies preeminence or special privileges over natural persons. Suppose a merchant in Missouri, transacting his principal business there, had located a branch in Quincy, in this State, and the agent of that branch had been garnisheed for a debt his principal owed his chief clerk or book-keeper in the principal place of business, could the garnishee process be sustained in such a case ? If so, then it must lie against this railroad company.

In this and the supposed case, the artificial and the natural persons are both non-residents, both owe an employé who is indebted to a non-resident of the State of their domicil, are both doing a branch or collateral business at the place of the residence of the creditor of their employés, and we will suppose that in both cases that creditor sues out an attachment against their several employés, and garnishee summons is served on then* several agents. Can any person, without extreme refinement and impalpable distinctions, say that the one proceeding should be sustained and the other defeated ? It would seem,' on principle, that no reasonable or justifiable distinction could be made. Then, would a natural person be liable to this process under these circumstances ? We feel confident that he would, on a fair construction of our Attachment law, if not on precedents giving construction to substantially the same kind of statutes in other States.

It can not be contested that had the attachment been against the railroad company, its property in the county might have been levied on- under the writ, and all persons owing the road, or having property, effects and choses in action belonging to the road in their hands or possession, might have been garnisheed; and there can scarcely be a doubt that the road might have been sued, and the service had on the agent- at Quincy, so as to have given the court jurisdiction. Such a service on such an agent of a domestic corporation, we presume, none would have questioned as being sufficient.

In the case of Mineral Point R. R. Co. v. Keep, 22 Ill. 9, it was held, the act providing for service of process on corporations was not confined to domestic corporations,—that it was passed to embrace corporations having property in this State and their officers and places of business. in another State,—and this has been the received construction ever since.

In Peoria Ins. Co. v. Warner, 28 Ill. 429, it was held this was a remedial statute, and should be most liberally construed. It does not require a liberal construction to bring foreign corporations within the act. The provision is, that “in all cases where suit has been or may hereafter be brought against an incorporated company, process shall be served. ” Language more comprehensive could scarcely have been employed. It says any corporation, without the slightest reservation or limitation. A thing may be embraced in the provisions of a statute by being specifically named, or by being embraced in a class that is named. Here the class named is "all corporations, and when the statute says any corporation, appellant being an individual corporation, it comes within the provision as fully as had its name been employed specifically in the statute. It would have been no more comprehensive had it said all corporations of every kind, whether domestic or foreign, doing business in this State.

In Mineral Point R. R. Co. v. Keep, supra, and in Midland Pacific Ry. Co. v. McDermid, 91 Ill. 170, it was expressly said that the section applied to and embraced foreign, as well as domestic corporate bodies doing business in this State. In the latter of these cases the plea was that the railroad was a Nebraska company, doing business alone in that State, and the plea averred that the company had no property, nor did they transact any business or have an agent, in Illinois. It was on this last averment the case was decided in favor of' the railroad company. Nor is this rule lacking the support of precedent. It has been held in other tribunals that a foreign corporation, by establishing an agency in another State, thereby so far becomes an inhabitant of the latter State as to become subject to the process of its courts, (Fithian v. New York and Erie R. R. Co. 31 Pa. St. 114, McAllister v. Penn Ins. Co. 28 Mo. 214, and Branson v. N. E. T. Ins. Co. 21 Wis. 516,) and the doctrine is reasonable and just. If a foreign corporation is so far an inhabitant in a State into which it comes, as to transact its business, it should be so far held an inhabitant as to be sued and served with process on the officer who transacts its business, and the statute has so provided. Section 26, chap. 32, Eev. Stat. 1874, entitled “Corporations,” subjects foreign corporations to all of the liabilities, restrictions and duties that are imposed on like corporations of this State. One of the liabilities of corporations organized under the laws of this State is, to be sued by service on an officer or agent, and if the liability of foreign bodies is in all respects the same, then they may be sued and served with process in the saíne manner. No one will deny that our corporations may be garnisheed, and the process served on an officer. or an agent transacting their business; and if so, it must follow that a foreign corporation is under the same liability. The language of the provision is broad enough to embrace this corporate body in this liability, and there is nothing to exclude it from this or any other liability. The legislature had the power to impose it, and the courts must enforce it, and there is neither injustice nor hardship in complying with the requirement.

If, then, the transaction of such business and the location of such an office in this State, by a corporate body of another State, authorizes a service that would bind such a body on a judgment rendered against it, why will not such a service bind it as a garnishee ? No distinction has been taken in argument, or reason assigned, nor is any perceived. The fifth section of the Practice act says process, and it must mean all process, as no exceptions are specified or otherwise made. It would, therefore, seem to embrace all process. This garnishee summons is process, and is, therefore, within the terms of the statute, nor has any sufficient reason been ■ shown for taking this class of eases out of its operation. It is true that a number of cases of highly respectable courts of other States giving construction to their statutes are referred to as having a bearing on this question. We, however, do not regard them as of controlling authority in giving construction to our statutes. The policy which dictated the adoption of then- and our statutes may have been essentially different. Great wrong and injustice was perpetrated on our people by corporations, located in other jurisdictions, sending agents into this State, who, in the name and on the behalf of such corporations, transacted business with our people, acquired and held property belonging to the corporate body, and when the body became liable it defied the creditor and denied his right to sue in this State. Not only so, but many of our domestic corporations had the directors, officers and place of business in New York or other eastern cities, and insisted that all creditors must sue the company there, and not in this State. It was to correct these evils and prevent such wrongs that the act of 1853 was adopted, and to effectuate and not to thwart that policy this court has held the act must have given to it a liberal construction. We do not know the policy that prompted the adoption of the laws of other States on this subject.

It is urged that the statute requires insurance companies of other jurisdictions to file a written consent the service on its agent shall be accepted as service on the company, before it will be permitted to transact business in the State, and we must therefore conclude that this is legislative construction that the fifth section of the Practice act should apply alone to our own corporations. It is more reasonable to suppose that as the General Assembly were engaged in regulating and prescribing the terms upon which foreign insurance companies should be permitted to transact business in this State, the consent was required to prevent such litigation as this. It was no doubt done to settle and put at rest this question of service. And when the General Assembly, if it ever shall, comes to place all foreign corporations under regulations, it would be, in the promotion of justice to our own citizens, eminently proper to impose a similar requirement upon each of such bodies. Thus, whilst extending to them the rights, privileges and immunities enjoyed by our domestic corporations, they shall be subjected to the same burthens and liabilities. This is eminently just. When natural persons come into the State, whether from other States of the Union or as aliens, they are required to conform and submit to the laws that govern our own citizens, and why not foreign corporations, who only transact their business at sufferance, while natural persons are here as a matter of right ? Corporate bodies should be content to have extended to them the same rights that are enjoyed by natural persons, and foreign corporations should be content to receive the same privileges and protection as are extended to our own corporate bodies. There certainly is no law making any distinction.

It is urged that the garnishee must reside in the territorial jurisdiction of the court to render the process effective to reach the fund, and attachment according to the custom of London is referred to in support of the proposition. We are not bound or required by our statute adopting the common law of England, to enforce local customs, as it does not impose local customs and statutes as a rule of action in this State., On the contrary, they are excluded. The proceeding by foreign attachment was unknown to the common law. It, by local custom, existed in London, Exeter, and may have existed in some other places. (1 Eoll’s Ab. 552; 1 Com. Dig. 580.) It was a local custom, and wholly governed by the special custom. As our legislature in nowise refers to it in adopting our earliest Attachment law, or subsequent amendments or revisions, we have no ground to suppose that body had those customs in mind, or could have intended them to have any bearing in giving these acts construction. The decisions of other courts, however, are referred to in support of the same doctrine. It may be their attachment laws are borrowed from and based on these customs, and if so, their construction is justified, if not required. At any rate, those courts manifestly give a strict construction to their attachment laws. On the contrary, our statute is most liberal, intending to remove all technical objections, by permitting almost every kind of amendment at almost any stage of the proceeding, and expressly providing the writ may issue and be served on Sunday, when facts specified in the act are shown to exist. In view of these liberal provisions, and the spirit of the whole act, we should defeat the undoubted intention of the General Assembly by adopting a strict construction. Hence the cases referred to are not of controlling authority.

It is urged, and the agreed facts show, that the debt was owing in Missouri, by a Missouri corporation, to an inhabitant of that State, payable by the treasurer of the company to the creditor in that State, and therefore the company should not be required to pay it elsewhere, or in any other ■ manner. Such debts are not local, nor to recover them must the action be local. It is urged that the demand being thus payable in Missouri, and by the treasurer of the corporation, a demand was required before an action could be maintained , at another place. The doctrine that a plaintiff suing on a promissory note, payable at a specified place, need not aver and prove a demand, has been the settled law in this State for more than forty years. It was so announced in Butterfield v. Kinzie, 1 Scam. 445, and Armstrong v. Caldwell, id. 546. In the first of these cases the court said the doctrine was so well settled by numerous authorities that it was unnecessary to refer to the decisions, or to examine the reasons upon which they were based. The question was again before the court in the case of Hunt v. Divine, 37 Ill. 137. In that case the former decisions were referred to, and controlled the decision, and decisions of a number of courts were referred to in illustration of the rule. The same question was again before the court in the case of Wood v. Savings, Loan and Trust Co. 41 Ill. 267, with the same result. At that time a large number of authorities were referred to as supporting the doctrine. We, notwithstanding all that has been urged against it, must consider the doctrine as settled, and must hold a demand was unnecessary to a recovery. Nor do we see that the fact it was agreed that it was to be paid by the treasurer of the company can be of the slightest importance.

It is believed to be the custom, without perhaps a single exception, that the treasurer of all corporate' bodies holds and pays out their money. That is the purpose of the creation of his office and his appointment. It is a mere matter of convenience, to avoid the calling together the directors to make every payment by the body. Such a fact can have no legal significance, or change the rule of law governing ordinary transactions, or the .legal rights of any one. The corporation is an artificial person, and in the pursuit of its legitimate business, unless it has express exemptions, must conform to the same rules that govern natural persons in like transactions.

Appellant refers to the Eevised Statutes of the United States, section 739, as having some bearing on this question, but what, is not apparent. That section seems, as quoted, to regulate the service of process in some of the .District Courts of the United States; but how, or for what possible reason, it can have the slightest effect on the State courts is not perceived. Even if it were possible to concede that Congress has the slightest power to regulate the practice of the State courts, there is no pretense that this act, in terms, or otherwise, assumes to attempt any such thing. As well refer to the practice act of any State in the Union as controlling the practice of our courts. If that section can have the slightest effect, it is not perceived.

It is urged, with apparent earnestness, that the justice erred in rendering judgment against appellant for costs, and the circuit court erred in affirming the judgment. No error is perceived in such practice. The Cost act entitles successful parties to recover their costs, and we are unable to see why he may not in garnishee proceedings; but the garnishee should never be required to pay costs out of his' own means and at his own cost, unless he resorts to unnecessary and protracted litigation. Where the court has jurisdiction of the subject matter and the garnishee, the judgment is binding on the principal debtor. Allen v. Watt, 79 Ill. 284. The judgment for costs constitutes a part of the recovery, and could have been as justly set off against' what the company owed Crane, as the amount of recovery for the use of Ladd. In that, there is no error in any of the courts through which the case has come; but whether the costs incurred in the several appeals is a proper set-off in an adjustment between ■appellants and Crane is not a question presented for discussion or decision in this case; but the justice of the peace had full jurisdiction, and appellant had admitted that it owed Crane more than he owed Ladd, and no reason is perceived why Ladd should not have recovered his costs, leaving appellant and Crane to adjust that between themselves.

Perceiving no error in the record, the judgment of the Appellate Court is affirmed.

Judgment affirmed.


author:
Mr. Justice Dickey
      Mr. Chief Justice Craig : Mr. Justice Walker :

text:
    Frank Austin v. The People of the State of Illinois.

      Filed at Springfield March 28, 1882.

    Criminal practice—comments on defendants neglect to testify. Any allusion to or comments by the prosecution in a criminal case" on the fact the defendant has not testified as a witness in his own behalf, especially when allowed by the court over the defendant’s objection, is such a violation of the letter and spirit of the statute, and such an error, as to require a reversal of a judgment of conviction, when the proofs of guilt are not so clear and conclusive that the court can affirmatively say the accused could not have been harmed from that cause.
    - Writ of Error to the Circuit Court of Adams county; the Hon. John H. Williams, Judge, presiding.
    Messrs. Scofield & Scofield, and Messrs. Ewing & Hamilton, for the plaintiff in error.
    Mr. James McCartney, Attorney General, for the People.
   Mr. Justice Dickey

delivered the opinion of the Court:

Austin was convicted in the circuit court of the county of Adams, upon an indictment charging him with the crime of rape. The indictment was found in the circuit court of the county of Hancock, and the cause was removed to Adams county, by change of venue.

We have carefully examined and considered all the proofs given upon the trial, and they fail to convince us of the truth of the charge. It may be that if the cause had been properly submitted to the jury, we might not feel compelled to disturb the conviction on merely a consideration of the evidence, but the record shows what we regard as manifest error, which may have seriously affected the result of the trial.

On the trial the accused did not testify. In the opening argument to the jury by the State’s attorney of Adams county, he, among other things, said to the jury: “There are only two persons in this wide world who absolutely know whether the offence charged has been committed—the prosecuting witness and the defendant. She swears positively that the crime was committed, and the defendant has not testified on this trial, although”— At this point his remarks were interrupted by an objection interposed by counsel for the accused. The court said to the State’s attorney, “It is not proper for you to allude to the fact that the defendant has not testified in the ease, ” and that attorney made no further allusion to that fact in his argument.

After argument in behalf of the accused, in which Mr. Scofield took part, the closing argument was made by Mr. Mason, the State’s attorney of the county of Hancock, who assisted the State’s attorney of the county of Adams in the conduct of the prosecution. In that closing argument Mr. Mason, among other things, said: “Mr. Scofield, in his argument for the defendant, has quoted to you the maxim of Lord Hale, to the effect that rape is a crime easily charged, hard to be proven, and more difficult to be defended, and has pressed it home to the minds of the jury with much amplification and great force of reason. This was once a very celebrated maxim, and no doubt a very just one. But the letter of the law and the spirit of the law have undergone great change. In the time of Lord Hale rape was a crime easily to be charged and hard to be defended, for the very reason the nature of the crime was such that in all human probability it would be committed out of the presence of all persons except the defendant and the prosecutrix. By policy of the common law, the mouth of the defendant was sealed during the trial. This is no longer the case in our State. The defendant now has a right to give his version of the affair. Since the legislature passed a statute giving the defendant in criminal cases the right to testify in his own behalf, it can no longer be said as a maxim of law that rape is a crime hard to be defended. So far as the spirit of law is now fixed by a statute, I know of no crime on the statute book the charge of which is more easily to be defended against than the crime of rape. ”

To these statements of Mr. Mason, at the time they were made, the defendant objected, but the court overruled the objection, and permitted the statements to go to the jury,— 'to which ruling of the court the defendant then and there excepted.

Section 426 of our Criminal Code (Rev. Stat. 1874, p. 410,) after providing that in criminal cases the accused may, on his own motion, testify in the case, declares in a proviso that “his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect. ” In this case there was a reference made to the neglect of the accused to testify, not only in the opening argument for the prosecution (which was rebuked by the court), but also in the concluding argument for the prosecution, where Mr. Mason was expressly permitted by the court to insist that Lord Hale’s suggestions as to the caution to be exercised by juries and courts in cases of alleged rape are no longer applicable to such cases, since “the legislature passed a statute giving the defendant in criminal cases the right to testify in his own behalf. ” The letter and spirit of this statute were both obviously violated in these proceedings. When the statute says that no pre sumption against the accused shall be created by his neglect to testify, it clearly meant that in cases where the defendant should not choose to avail himself of the privilege offered by the statute, the trial should be conducted in the same manner, and upon the same presumptions, as if the statute had not been passed. It was plainly, then, error in the circuit court to permit counsel to insist before the jury, that by reason of the passage of that statute the presumptions of law formerly applicable to such eases had become inapplicable.

It is, perhaps, not easy to say how courts can best enforce this proviso forbidding allusion or reference to the fact of the neglect of the accused to testify. Though the court may promptly arrest remarks of this kind, and even punish counsel for contempt in violating the rule laid down by the statute, still, if reference has in fact been made in the hearing of the jury, the mischief has been done, and can not be undone by the court in the progress of that trial.

We do not see that this statute can well be completely enforced, unless it be adopted as a rule of practice that such improper and forbidden reference by counsel for the prosecution shall be regarded good ground for a new trial, in all eases where the proofs of guilt are not so clear and conclusive that the court can say affirmatively the accused could not have been harmed from that cause. In this case the proofs, all considered, are not of such convincing character. The verdict in this case ought to have been set aside on account of the violation of this provision of the statute. In the absence of most satisfactory proof of guilt, no conviction, obtained through a palpable and willful violation of law (to the prejudice of the accused) done by the officers of the law conducting the prosecution, should be allowed to stand.

Upon these considerations the judgment of conviction is reversed, and the cause is remanded for a new trial.

Judgment reversed.

Mr. Chief Justice Craig :

I do not regard the remarks of the State’s attorney ground for reversal of the judgment. "What he said was merely in reply to an argument made by counsel for the defence, and' as a reply was not improper.

Mr. Justice Walker :

I am unable to hold that what was said, in the manner it was said by the prosecuting attorney, is such error as should reverse. It was highly reprehensible on the part of those officers, but that does not necessarily constitute error.