Hawthorn v. People of State

• Decision Date: 20 November 1883
• Parties: GEORGE E. HAWTHORN et al.v.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

109 Ill. 302

1883 WL 10386 (Ill.)

50 Am.Rep. 610

GEORGE E. HAWTHORN et al.

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Springfield Nov. 20, 1883.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Kane county; the Hon. EDWARD E. LOVELL, Judge, presiding.

Mr. CHARLES WHEATON, and Mr. R. N. BOTSFORD, for the appellants.

Mr. JAMES MCCARTNEY, Attorney General, Mr. HIRAM H. CODY, and Mr. T. E. RYAN, for the People.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The prosecuting attorney of Kane county, at the June term, on the 12th day of July, 1883, filed in the county court of that county an information against appellants, for failing to file the bond required by the act of the 18th of June, 1883. (See Sess. Laws, p. 54.) It is not disputed that appellants were operating a butter and cheese factory in that county. It appears they received the milk of the farmers of the neighborhood, manufactured from it butter and cheese, for which they retained four cents a pound for butter, and two cents a pound for cheese, after selling it, and the balance was to be divided among those who furnished the milk, as we suppose, to each in proportion to the amount furnished and manufactured. Appellants sold in market all the butter and cheese they manufactured, and divided the proceeds as stated. It is admitted they did not give the required bond, and that appellants continued to operate their factory in the same manner after as before the time elapsed for the statute to become operative. On the trial in the court below, defendants asked the court to hold as a legal proposition that the law was passed in violation of the State constitution, but the court refused to so hold, and found the defendants guilty, and after overruling a motion for a new trial and in arrest of judgment, rendered a judgment for a fine of $200, and defendants appeal to this court, and urge a reversal.

The questions argued by counsel are: First, whether or not the General Assembly did transcend its constitutional power in enacting the law; and second, if it did not, whether, under the constitution, the title of the act is sufficient to sustain the law. These are the legal propositions arising on the record, and presented for decision.

There can be no doubt that the State legislature possesses supreme power, except so far as it is limited by the constitution or foundation of government, or such power has been delegated to the general government, or its exercise has been limited by the Federal constitution. A government, as such, can not exist without the governing or sovereign power adequate to the protection of the people from wrong and oppression. This supreme or sovereign power to enact laws has been confided to the representatives of the people, composing the General Assembly, and had there been no restrictions or limitations on the exercise of the legislative power, the people, through their representatives, would have been uncontrolled in the exercise of the legislative function. But for such limitations the legislature would have been supreme in the exercise of legislative power, as much so as the ruler in any kind of government. The sovereign or governing power of all governments is the same in character, but in liberal governments the exercise of a portion of the governing power is restrained to secure rights and privileges to the governed. These restrictions and limitations on the different branches in our system of government are alone found in our constitutions of government. The first section of article 4 of our constitution provides, that “the legislative power shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both to be elected by the people.” Had there been no restriction by other portions of that instrument, and no previous delegation of the legislative power to the general government, or any limitation of the power by the constitution, this delegation of the legislative power to our General Assembly would have been plenary, and without restraint, except its own will and sense of duty. But to restrain such power, and to secure the citizen in the enjoyment of such rights as are conceded to him, or he has been left in possession of by government, these limitations and restrictions are imposed by fundamental law.

It is said by Lord COKE: “The power and jurisdiction of Parliament is so transcendent and absolute that it can not be confined, either for persons or causes, within any bounds; and of this high court it may be said: ‘ Si antiquitatem spectes, est vetustissima; si dignitatem est honoratissima; si jurisdictionem est capacissima.’ It hath sovereign and uncontrolled authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal, this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. * * * It can change and create afresh even the constitution of the kingdom, and of Parliaments themselves. * * * It can, in short, do everything that is not naturally impossible; and therefore some have not scrupled to call its power (by a figure rather too bold) the omnipotence of Parliament. True it is, that what Parliament doth, no authority upon earth can undo.” 4 Inst. 36; Cooley's Const. Lim. (1st ed.) 85. Under our institutions this sovereignty or transcendent power of government resides in or with the people, and may be exercised in the manner they have provided by the constitution. The people can make and unmake constitutions. They can, within constitutional restrictions imposed by the Federal constitution, delegate the powers of government to whom and as they please. They can withhold or intrust it, with such limitations as they choose. They, in our State governments, have delegated the power to different departments, and have virtually withheld the exercise of the legislative power to themselves, inasmuch as, through their representatives, elected at short intervals, they carry into effect their will, formulated into laws, to be enforced by the other departments. Government would be but a rope of sand, that did not possess sovereignty, with its attributes and incidents,--and that indispensable sovereignty must rest in a body large or small, to have any efficiency whatever. The founders of our system of government, in their wisdom, entrusted that transcendent sovereign power to the people, to be exercised by them through their representatives, under the limitations or restrictions of our constitutions of government. Judge Cooley says, (Const. Lim. 85,) that in considering the legislative powers of our States it is natural that we should recur to those possessed by the British Parliament, upon which, in part, our legislatures have been modeled, and from which we derive our legislative usages and customs, or parliamentary common law, and the precedents upon which legislative power is based. He also says, it is natural that we should incline to measure such power in this country by the power of a like department in Great Britain; but we should not be misled, because we must bear in mind that in Parliament rests the sovereignty of the country, and it may therefore exercise all governing power, while complete sovereignty is not vested in ours because they are hedged about with limitations, imposed in express terms or by implication.

Where a law, therefore, is found on the statute books, the presumption is that it conforms to the constitution. This presumption arises from the fact that each member of both houses who pass the law, and the chief executive who has approved it, are under the same obligation to support the constitution as are the courts. Having performed all acts necessary to the adoption of the law, we must presume they acted in view of the constitution and all of its limitations. For these reasons the courts never interfere to declare a law unconstitutional in case of doubt. To authorize such action by the court, it must be clear the law violates some provision of the organic law. When, therefore, a law is challenged as unconstitutional, we must be able to turn to the provision of the instrument which prohibits the legislature from its enactment, and the repugnancy must clearly appear. These doctrines and constitutional principles are distinctly announced by this court in the cases of Field v. The People, 2 Scam. 79, The People v. Salomon, 51 Ill. 49, The People v. Marshall, 1 Gilm. 672, Lane v. Dorman, 3 Scam. 238, Bruce v. Schuyler, 4 Gilm. 221, Mason v. Wait, 4 Scam. 127, and The People v. Reynolds, 5 Gilm. 1, and coincide with the decisions of almost, if not all, courts.

Then, in this case, what provision of our constitution has been violated? No provision has been pointed out, except section 6, article 2, of our Bill of Rights. It provides that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall be inviolate.” This law in no sense invades any of those rights. It does not require the seizure of any person or his property,...