The Chicago v. Smith

• Court: Illinois Supreme Court
• Writing for the Court: THORNTON
• Citation: The Chicago v. Smith, 62 Ill. 268, 1871 WL 8384, 14 Am.Rep. 99 (Ill. 1871)
• Decision Date: 30 September 1871
• Parties: THE CHICAGO, DANVILLE & VINCENNES R. R. CO. et al.v.FREDERICK SMITH.

62 Ill. 268

1871 WL 8384 (Ill.)

14 Am.Rep. 99

THE CHICAGO, DANVILLE & VINCENNES R. R. CO. et al.

v.FREDERICK SMITH.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Will County; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. E. WALKER, for the plaintiff in error. Mr. G. D. A. PARKS & Mr. CHAS. A. HILL, for the defendant in error.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

Defendant in error filed his bill in the Circuit Court to enjoin the collection of taxes levied under an act of the legislature and in pursuance of a vote of the people, to aid in the construction of a railroad.

The act authorized all towns acting under the township organization law, to appropriate such sums of money as they should deem proper to aid in the construction of the road, to be paid as soon as the track should have been located and constructed through the towns.

The road was completed before the appropriation was made; and it was a donation to the company, and not a subscription to its capital stock.

Upon the hearing the Circuit Court made the injunction perpetual, and pronounced the act unconstitutional.

The officers of the town, who made the appropriation and levied the tax, were the “corporate authorities” of a municipal corporation; and they acted in the premises, after a majority of the legal voters of the municipality had authorized the appropriation, upon the condition of the prior construction of the road.

The only question is as to the power of the legislature to authorize municipalities to subscribe to the capital stock of railroad companies, and to appropriate money, as a donation, to aid in the construction of the roads.

The only difference between this case and numerous cases decided by this court is, that the money appropriated by virtue of the statute in question is a donation instead of a subscription.

But for this difference we might stand securely upon the maxim: Stare decisis et non quieta movere. Frequent fluctuations, in the opinions of courts of last resort, involve the court in absurdities; render the law uncertain; destroy that feeling of reliance so essential to the strength and stability of all authority, and produce mischiefs innumerable. The decisions of courts had better be involved in some error, than subject to change upon every change of the judiciary.

In the discussion of legislative power, we have nothing to do with questions of policy or expediency. The constitution has created the legislative and judicial departments; the one to make the law, the other to construe and administer it. It may be mischievous in the effects, burdensome upon the people, conflict with our conceptions of natural right, abstract justice, or pure morality, and of doubtful propriety in numerous respects; and yet we would not be justified to hold, that it was not within the scope of legislative authority for such reasons.

The question as to the repugnancy of a law to the constitution is always one of much delicacy, and courts will never indulge the supposition, unless the repugnancy is manifest to the understanding.

In Lane v. Dorman, 3 Scam. 238, this court said: “The determining of a question involving the inquiry whether an exercise of power, by the legislative department of the State, is constitutional, is readily conceded, not only to be a matter of delicacy, but of grave import, and demands the most deliberate and mature consideration. It should not, however, be decided but in cases of clear necessity, and where the character of the act done is in plain and obvious conflict with the constitution.”

The law should not be pronounced void in a doubtful case, or upon slight implication. “The opposition between it and the constitution must be clear and strong.” People v. Marshall, 1 Gilm. 672.

The infringement of the constitution must be evident before the courts will interpose and hold the act nugatory. People v. Hatch, 33 Ill. 130.

In Ex parte M'Collum, 1 Cow. 504, Savage, Ch. J. said that a court ought not to declare a law unconstitutional, unless a case is presented in which there can be no rational doubt.

In delivering the opinion in the case of Fletcher v. Peck, 6 Cranch, 87, Ch. J. Marshall said: “The question, whether a law be void for its repugnancy to the constitution, is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by a duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

In the same court, whose decision is chiefly relied on to induce a reversal of the former opinions of this court, equally explicit language, in regard to the duty of courts, has been used.

In Twitchell v. Blodgett, 13 Mich. 152, Cooley, J. said: “It is conceded to be the settled doctrine of this State, that every enactment of the State legislature is presumed to be constitutional and valid; that before we can pronounce it otherwise, we must be able to point out the precise clause in the constitution which it violates, and that the conflict between the two must be clear, or free from reasonable doubt, since it is only from constitutional provisions, limiting the legislative power and controlling the legislative will, that we derive authority to declare void any legislative enactment.”

We might multiply extracts from the opinions of the ablest courts to the same effect. Enough has been cited to show the firm position of the judiciary, that the courts ought not, and, in justice to the rights of a co-ordinate department of the State government, can not, declare a law to be void, without a strong and earnest conviction, divested of all reasonable doubt, of its invalidity.

An objection to this law is urged, which has been made since the origin of the character of legislation now under consideration.

It is assumed that the taxes levied are to be appropriated to a private and not a public purpose; that the benefits, resulting to the public--the people at large--from the construction of railroads, are merely incidental; that the profits, arising from their operation, enrich the individuals who form the private corporation; and, therefore, all laws imposing taxes to aid in the building of railroads, to be owned and operated by private corporations, are unconstitutional.

If the premises are correct, that the corporations are strictly private, and the benefits to the public purely incidental, the conclusion might logically follow. The argument assumes, as unquestionable, the point to be determined; as true, the fact to be ascertained.

In the enactment of laws the legislature must exercise its judgment and discretion. As to questions of pure policy and expediency, no express or necessarily implied constitutional provision intervening, it is the sole judge. It has also the undoubted right to take a comprehensive view in determining the necessity of a law, and the character of the purpose to be accomplished by it. A court, with any propriety, can not arrogate to itself all power and wisdom in such matters; and if there be grave doubt as to the nature of the purpose, the doubt must always be solved in favor of the action of the legislature.

Concede that taxation for a mere private enterprise is wrong and invalid, is the construction of the road to which the aid is proposed to be given of that character?

It is a road from Lake Michigan to a point opposite Vincennes, in the State of Indiana, traversing nearly the entire length of the State. The road was completed before the payment of any money was asked, though it was built upon the faith of it.

Are the advantages which accrue to the public from the construction and operation of railroads merely incidental in the...