People ex rel. Burritt v. Comm'rs State Contracts

• Decision Date: 22 March 1887
• Citation: 11 N.E. 180,120 Ill. 322
• Parties: PEOPLE ex rel. BURRITT v. COMMISSIONERS STATE CONTRACTS.
• Court: Illinois Supreme Court

120 Ill. 322

11 N.E. 180

PEOPLE ex rel. BURRITT

v.COMMISSIONERS STATE CONTRACTS.

Supreme Court of Illinois.

March 22, 1887.

Petition for mandamus.

A joint resolution has the force of law. People v. Tyndale, 47 Ill. 538;Swann v. Buck, 40 Miss. 268;State v. Bailey, 16 Ind. 46;McPherson v. Leonard, 29 Md. 377; Footprints of Time, 416.

A joint resolution is the proper manner of expressing the will of a legislative assembly concerning mere temporary matters. Jeff. Man. § 21; Barc. Dig. (1872,) 113; Bancroft, Footprints of Time, 416; 3 Lalor, Cyclopedia Pol. Science, 89; Cush. Parl. Law, §§ 752, 2403; Wils. Dig. Parl. Law, 161; May, Parl. Law, 315.

Joint resolutions are not prohibited by our constitution, and the general assembly has every power that is not specially taken from it by the constitution.

The petition in this case only asks that a ministerial body be required to perform a ministerial duty. Section 1, c. 127, Rev. St.

Legislative construction of constitutional provisions should largely prevail in governing the actions of the courts under them. Sess. Laws Ill. 1871-72, p. 796; People v. Learned, 5 Hun, 626; Trammell v. Bradley, 37 Ark. 374;People v. Dayton, 55 N. Y. 367;Hahn v. U. S., 107 U. S. 402, 2 Sup. Ct. Rep. 494;U. S. v. Recorder, 1 Blatchf. 218;polk v. Hill, 2 Overt. 118;Love v. Hinkley, Abb. Adm. 436; U. S. v. McDaniel, 7 Pet. 1;U. S. v. Graham, 110 U. S. 219, 3 Sup. Ct. Rep. 582;McKeen v. Delancy, 5 Cranch, 22;U. S. v. Lytle, 5 McLean, 9;Philadelphia, etc., R. Co. v. Catawissa R. Co., 53 Pa. St. 20; Morrison v. Barksdale, Harp. 101; Kernion v. Hills, 1 La. Ann. 419;Union Ins. Co. v. Hoge, 21 How. 35;Rogers v. Goodwin, 2 Mass. 475;Opinion of Justices, 3 Pick. 517;Packard v. Richardson, 17 Mass. 122;Plummer v. Plummer, 37 Miss. 185;Attorney General v. Bank of Cape Fear, 5 Ired. Eq. 71;Bailey v. Rolfe, 16 N. H. 247;Chesnut v. Shane, 16 Ohio, 599.

Other states having similar constitutional provisions adopt similar measures by joint resolution. Const. Wis. art. 4, § 17; Id. art. 8, § 2; Sess. Laws Wis. 1859, joint resolution No. 12; Sess. Laws Wis. 1858, p. 20; Const. Charters U. S. pts. 1, 2; Sess. Laws Ala. 1876-1885; Sess. Laws Ark. 1875-1885; Sess. Laws Cal. 1863-1885; Sess. Laws Colo. 1865-1885; Sess. Laws Conn. 1850-1885; Sess. Laws Del. 1873-1885; Sess. Laws Fla. 1869-1885; Sess. Laws Ga. 1881-1885; Sess. Laws Ind. 1881, p. 722; Sess. Laws Iowa, 1882-1885; Sess. Laws Kan. 1883, 1885; Sess. Laws La. 1880-1885; Sess. Laws Me. 1881-1885.

This question was thoroughly investigated by the judiciary committee of the senate before the joint resolution was finally passed. Jour. Senate, 1885, 785, 798, 855, 864, 875; House Jour. 945, 977, 1045, 1046; Calder v. Bull, 3 Dall. 386;Swann v. Buck, 40 Miss. 268;People v. Hatch, 33 Ill. 9;Brown v. State, 5 Colo. 496;In re Manhattan, 82 N. Y. 142;Linsley v. Hubbard, 44 Conn. 109;Scanlan v. Childs, 33 Wis. 663;Solomon v. Cartersville, 41 Ga. 157;People v. Allen, 1 Lans. 248; U. S. v. Gilmore, 8 Wall. 330.

Mandamus is the appropriate remedy to compel the performance of a mere ministerial duty. Kendall v. U. S., 12 Pet. 524;Mason v. Fearson, 9 How. 248;Webster v. French, 12 Ill. 302;People v. Beveridge, 38 Ill. 307;Veazie v. China, 50 Me. 518;Milford v. Orono, Id. 529; People v. Supervisors Otsego Co., 36 How. Pr. 1;People v. Supervisors N. Y., 11 Abb. Pr. 114;State v. Harris, 17 Ohio St. 608;State v. Bordelon, 6 La. Ann. 68;State v. Bailey, 16 Ind. 46;People v. Brooks, 16 Cal. 11.

Courts will act with great caution in declaring acts of the legislature unconstitutional. Cochran v. Van Surlay, 20 Wend. 382;People v. Gallagher, 4 Mich. 244;People v. Blodgett, 13 Mich. 152;Ex parte McCollum, 1 Cow. 551;People v. Marshall, 1 Gilman, 672;People v. Hatch, 33 Ill. 130;Lane v. Doe, 3 Scam. 238;Chicago, D. & V. R. Co. v. Smith, 62 Ill. 268;Fletcher v. Peck, 6 Cranch, 87;Mason v. Wait, 4 Scam. 127;Hawthorn v. People, 109 Ill. 302;State v. Railroad Co., 12 Gill & J. 400;Cromwell v. State, Id. 257; Phillips v. Covington, etc., Bridge Co., 2 Metc. (Ky.) 219;Farmers' Loan, etc., Co. v. Stone, 20 Fed. Rep. 270; McPherson v. Leonard, 29 Md. 377; Story, Cont. § 408; Cooley, Const. Lim. 67; Goodrich, Science Gov. 174; Quick v. White-water Tp., 7 Ind. 570;Brown v. State, 5 Colo. 496;In re Manhattan Sav. Inst., 82 N. Y. 142;Linsley v. Hubbard, 44 Conn. 109;Scanlan v. Childs, 33 Wis. 663;Solomon v. Cartersville, 41 Ga. 157;People v. Allen, 1 Lans. 248; U. S. v. Gilmore, 8 Wall. 330.

Whenever legislation may be accomplished by joint resolution, it must follow substantially the same procedure required for the passage of a bill. It must receive the executive approval, where a bill would require it, or be passed over the executive veto. Const. U. S. art. 1; Story, Const. §§ 881-891; 6 Op. Atty. Gen. 680; Bouv. Law Dict. ‘ Sub voce Act;’ Hollingsworth v. Virginia, 3 Dall. 378;State v. Bailey, 16 Ind. 46;In re Picquet, 5 Pick. 64: Cush. Parl. Law, 2403; Boyers v. Crane, 1 W. Va. 176.

‘Where enacting words are prescribed, nothing can be law which is not introduced by these very words, even though others which are equivalent are at the same time used.’ Cush. Parl. Law, 819, 820; Seat of Government Case, 1 Wash. T. 115;May v. Rice, 91 Ind. 546.

A bill is merely a draft of a law submitted to a legislative body for enactment; a proposed or projected law; incomplete acts of congress, of a legislature, or of parliament. Abb. Law Dict.; Brown, Law Dict.; Bouv. Law Dict.; Burrill, Law Dict.; Rapalje & L. Law Dict.; Southwark Bank v. Com., 26 Pa. St. 446.E. M. Haines

and McCartney & Casey, for relator.

Geo. Hunt, Atty. Gen., for the Commissioners.

SHOPE, J.

The relator, Hiram B. Burritt, is shown to be a justice of the peace of Lake county, and files this petition in his own behalf as such officer, and in behalf of all town officers in counties under township organization, and of all justices of the peace in counties not under township organization, to compel the commissioners of state contracts to contract for and obtain, for the use of such town officers and justices of the peace, copies of a certain book known as ‘Haines' Township Organization Laws,’ as provided in a certain concurrent resolution passed and adopted by the general assembly at its session in 1885, and which resolution, it is averred, has all the force of law.

The resolution referred to is as follows: Resolved by the senate, the house of representatives concurring herein, that the commissioners of state contracts be, and they are hereby, authorized and directed to contract for and obtain such number of copies of a book commonly known as ‘Haines' Township Organization Laws' as shall be sufficient to supply seven copies to each organized township in this state, in counties under township organization, for the use of the town officers thereof, and one copy for each justice of the peace in counties not under township organization, at the price of one dollar per copy; said book to contain the laws of Illinois on the subject embraced therein, in force July 1, 1885, the same to be of good paper, equal in quality to the best editions of said book heretofore published, and to be properly bound in a style satisfactory to said commissioners; said books to be distributed by the secretary of state, to the various counties in the state, in the same manner as the Session Laws are distributed, and furnished to the organized townships and justices of the peace as hereinbefore contemplated; the amount of the cost thereof to be paid out of the appropriation for printing and binding, or any other appropriation made for that purpose: provided, the amount shall not exceed ten thousand dollars, ($10,000.)

It is averred that the publishers and owners of the copyright book referred to are ready and willing and have offered to enter into contract with the respondents to furnish such number of copies of the book as may be required under the resolution, and that respondents have heretofore and still do refuse to exercise the authority or to obey the direction in the resolution specified. It is also averred that this book is of great value to the town officers and justices of the peace, because it contains full information concerning the laws in force pertaining to, and directions respecting the performance of, the duties of their respective offices; and that, by the refusal of the respondents to act in the premises, relator and the officers named are deprived of the information and assistance this book would afford them, and the whole public suffer injury and loss. The further averment is that the obtaining and distribution of these books in the manner pointed out in the resolution is a matter of much public interest and importance, and that obedience to and compliance with the directions contained in the resolution is a public duty the respondents owe, as commissioners of state contracts, to the people of the state. And, finally, it is averred respondents are, in respect of the duties imposed upon them by this resolution, ministerial officers, who can only properly be directed as to their duty by the general assembly by resolution of that body; and that direction to executive and ministerial officers, by resolution of the general assembly, has become so established by usage and custom and general concurrence as to have become a law by legislative and executive construction. To the petition respondents have interposed a demurrer.

This proceeding is predicated upon the assumption that this resolution is, to all intents and purposes, a law, to be taken and accepted by the court as the formal will of the legislature constitutionally expressed, and effect given it as such. In other words, that this resolution is a law of this state, obligatory and binding upon the persons named therein and the court, and of controlling vitality and force in respect of its subject-matter. It is true, the relator has attempted to draw a distinction between a...