Dunne v. People of State

• Decision Date: 30 November 1879
• Citation: 1879 WL 8671,34 Am.Rep. 213,94 Ill. 120
• Parties: PETER J. DUNNEv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

94 Ill. 120

1879 WL 8671 (Ill.)

34 Am.Rep. 213

PETER J. DUNNE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

November Term, 1879.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. WILLIAM H. BARNUM, Judge, presiding.

Mr. CHARLES A. GREGORY, for the plaintiff in error.

Mr. LYMAN TRUMBULL, Mr. HARRY REUBENS, and Mr. WOLFORD N. LOW, for the defendants in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Peter J. Dunne, having been summoned to serve as a juryman in the Criminal Court of Cook county, at the September term, 1879, it was made to appear he was a citizen of Illinois, twenty-two years of age, and that he was an enlisted, active member of the “Illinois National Guard,” in Company G, First Regiment, a military company organized and existing under a statute of this State, approved May 28, 1879, and in force July 1, of the same year, entitled “An act to provide for the organization of the State militia, and entitled the Military Code of Illinois,” and because of the facts appearing he claimed, under the provisions of the act, which so expressly declares, he was exempt from jury duty, but the court deemed the cause assigned insufficient in law to excuse the juror from service, and notwithstanding the decision of the court he refused to serve in the capacity of a juror, and on account of his contumacy he was fined in the sum of $50.

Acting on the suggestion of counsel, that it is the desire of both parties to obtain the opinion of this court as to the validity of the act of the General Assembly “to provide for the organization of the State militia,” approved May 28, 1879, all preliminary considerations as to the manner in which the case comes before the court, and the invalidity of the act under the constitution of the State, will be waived with a view to proceed directly to the question whether the act, or such parts of it as provide for the organization of the active militia of the State, known as the “Illinois National Guard,” is void by reason of its repugnancy to the constitution of the United States, and to the laws passed in pursuance thereof. It may be remarked, although no point is made that the act in question contravenes any provision of our State constitution, it seems to be in entire harmony with that instrument. Article 12, section 1, constitution of 1870, is, “The militia of the State of Illinois shall consist of all able bodied male persons resident in the State between the ages of eighteen and forty-five, except such persons as now are or hereafter may be exempted by the laws of the United States or of this State.” And section 2 of the same article is, “The General Assembly, in providing for the organization, equipment and discipline of the militia, shall conform as nearly as practicable to the regulations for the government of the armies of the United States.” On examination it will be seen the act of the General Assembly under consideration conforms exactly with these constitutional requirements, as will be made to appear more fully in the sequel of this discussion.

If, therefore, this act of the legislature is void, it must be for one of two reasons assigned: 1. Because of its repugnancy to the constitution of the United States; or, 2. Because it is inconsistent with and repugnant to the acts of Congress on the same subject, passed in pursuance with authority conferred by the Federal constitution. The importance of the questions involved has induced the most careful consideration, but it will be our purpose to avoid all unnecessary discussion and state our views as briefly as practicable.

The first proposition submitted against the validity of the act known as the ““Military Code,” is that the power of organizing, arming and disciplining the militia, being confined by the constitution of the United States to Congress, when Congress has acted upon the subject and passed a law to carry into effect the constitutional provision, such action excludes the power of legislation by the State on the same subject. This is not, in our judgment, an accurate-- certainly not a full expression of the law. Two things must be assumed to maintain this proposition: 1. That the constitutional provision in respect to the militia is of that character it can only be exercised by Congress, and that any State legislation would of necessity be inconsistent with Federal legislation under that article of the constitution. 2. That the constitution itself places a restriction, either directly or by implication, upon all State legislation in respect to the militia. Neither assumption is warranted by any fair construction of the constitution of the United States, nor by contemporaneous explanations by writers whose authority is to be respected, or by any subsequent judicial determinations with which we are familiar.

Article 1, section 8, division 15, confers power on Congress “to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” Neither this clause nor any other of the constitution inhibits in express terms State legislation in regard to the militia. Our understanding is, it is a matter upon which there may be concurrent legislation by the States and Congress. No doubt it is true that some powers granted to Congress are exclusive, and exclude by implication all State legislation in regard to the subject of such powers. It is not true, however, that all powers granted to Congress are exclusive, unless where concurrent authority is reserved to the States. Examples of concurrent authority readily suggest themselves. Congress has power, under the constitution, “to lay and collect taxes, duties, imposts and excises,” but it has never been supposed that grant of power was a restriction upon the States “to lay and collect taxes” for State purposes. Such a construction would destroy all State governments by taking from them the means of maintaining order or protecting life or property within their jurisdictions. Other examples might be mentioned, but this is sufficient for our present purpose. It might be well in this connection to call to mind that “powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The power of State governments to legislate concerning the militia, existed and was exercised before the adoption of the constitution of the United States, and as its exercise was not prohibited by that instrument, it is understood to remain with the States, subject only to the paramount authority of acts of Congress enacted in pursuance of the constitution of the United States. The section of the constitution cited does not confer on Congress unlimited power over the militia of the States. It is restricted to specific objects enumerated, and for all other purposes the militia remain as before the formation of the constitution, subject to State authorities. Nor is there any warrant for the proposition that the authority a State may exercise over its own militia is derived from the constitution of the United States. The States always assumed to control their militia, and, except so far as they have conferred upon the national government exclusive or concurrent authority, the States retain the residue of authority over the militia they previously had and exercised. And no reason exists why a State may not control its own militia within constitutional limitations. Its exercise by the States is simply a means of self-protection.

The States are forbidden to keep “troops” in time of peace, and of what avail is the militia to maintain order and to enforce the laws in the States unless it is organized. “A well-regulated militia” is declared to be “necessary to the security of a free State.” The militia is the dormant force upon which both the National and State governments rely “to execute the laws, * * * suppress insurrections and repel invasions.” It would seem to be indispensable there should be concurrent control over the militia in both governments within the limitations imposed by the constitution. Accordingly, it is laid down by text writers and courts that the power given to Congress to provide for organizing, arming and disciplining the militia is not exclusive. It is defined to be merely an affirmative power, and not incompatible with the existence of a like power in the States; and hence, the conclusion is, the power of concurrent legislation over the militia exists in the several States with the national government.

The case of Houston v. Moore, 5 Wheaton, 1, is an authority for this construction of the constitution. The question before the court in that case, as concisely stated by Kent, in his Commentaries, in discussing the power of Congress over the militia, was, whether “it was competent for a court-martial, deriving its jurisdiction under State authority, to try and punish militiamen, drafted, detached and called for by the President into the service of the United States, who refused and neglected to obey the call;” or, as stated by STORY, J., the only question cognizable by the court on the record before them arose on the refusal of the “State Court of Common Pleas to instruct the jury that the first, second and third paragraphs of the 21st section of the statute of Pennsylvania of the 28th of March, 1814, as far as they related to the militia called into the service of the United States under the laws of Congress, and who failed to obey the orders of the President of the United States, are contrary to the constitution of the United States and the laws of Congress made in pursuance thereof, and are, therefore, null and void. The court instructed the jury that those paragraphs were not...