dissenting:
I am wholly unable to concur with the majority of the court in its decision of this case. It may, I think, be assumed that the great body of the people understood, when the constitution of 1848 was adopted, that there were various kinds of banks; that the term did not exclusively or generally imply a corporation authorized to issue its bills or notes to circulate as money; that the term embraced corporations and individuals receiving money on deposit, loaning the same, and buying and selling exchange, but issuing no circulation. They must have known that both kinds of banks had existed for centuries, and banks of the latter character existed long before banks of issue were created.
The section of the organic law claimed to be violated is the 5 th of article ten, and is this: “ Ho act of the General Assembly authorizing corporations or associations with banking powers, shall go into effect or in any manner be in force unless the same shall be submitted to the people at the general election next succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for and against such law.” This language seems to me to be plain, unambiguous, and free from all doubt as to its meaning. The charter under consideration undeniably confers banking powers. It authorizes the body to loan money, buy and sell exchange, discount paper, receive money on deposit, and to issue negotiable paper,—in fact to exercise all the banking powers incident to corporations created for the purpose, unless they be banks of issue. The language of the section then, beyond all question, if it stood alone, prohibits this charter unless it had been submitted to and had been adopted by a vote of the people as therein required.
That it was intended to prohibit the adoption of such charters as this by the General Assembly is manifest from the language employed in the 4th section. By that, the stockholders in corporations created for banking purposes, issuing bank notes or any kind of paper credits for circulation as money, are made liable for the debts and liabilities of the corporation to the extent of their several shares. Now here, there is made a clear and unmistakable distinction between banks of deposit and loan, and banks of issue, because the liability of shareholders is confined to banks of issue, and by implication excluding shareholders in all other kinds of banks.
The 5th section does not, in terms, provide that such banks as are named in the 4th section are to be alone sanctioned by a vote of the people, but it, in terms, embraces all corporations with banking powers. The language is more comprehensive, and it is apparent to my mind that it was intentionally made so by those who framed the section. It is a well recognized rule of interpretation of such instruments, that the language used must be understood in its general or popular sense unless a different sense is manifest from the context or other portions of the instrument. An examination of the context and every other portion of this article, or in fact the entire constitution, utterly fails, as I think, to show that the term banking powers was used in any but its popular and well understood sense.
The framers of the section, knowing that the term as generally understood embraced all banks and banking institutions of every description, if they intended to exclude from its comprehensive reach any kind of banking corporations, acted most singularly that they, by proviso or otherwise, did not exclude all but banks issuing bills or notes for circulation. If such was their intention they acted strangely in what they did.
When the language employed in such an instrument is vague, indefinite or equivocal in its import, then various means may be resorted to for the purpose of determining the meaning intended to be attached to the language employed. But not so when its meaning is clear and unmistakable. Courts have no right to go outside of plain language to create a doubt that construction may be had. When plainly expressed, courts can only say “ thus it is written,” and enforce it as the language expresses the requirement. Courts have no power to resort to the circumstances existing when the organic law is adopted, to change the meaning of the language when plainly expressed. We must suppose that those who framed the instrument understood the meaning of the words they used, and that as it was to be read, understood and obeyed by all, they used the words employed in the sense usually attached to them. I think this language is so plain that there is no room for construction, and that it does prohibit, most clearly, the enactment of this charter, and by its provisions the act never became a law, and that no rights were conferred by its enactment.
Nor does the history of such institutions induce me to believe that the framers of the constitution supposed they were of such public benefit that they desired to encourage and foster them to aid in the transaction of the business of the country. On the contrary we may presume they knew that they inflicted loss, distress and great wrong on depositors and those transacting business with them. And I infer it was the intention that until sanctioned by a vote of the people, they should have no place in the polity of our State. Their history has repeated itself in the past few years by the failure of saving banks and incorporated companies all over the Union, resulting in almost the entire loss of the deposits of the unwary who have trusted them with their means. Had they never been created, great suffering and destitution would have been avoided.
As to contemporaneous construction, I understand the rule to be settled and uniformly recognized that it is only admissible in cases of doubt, but never where the language is plain and unambiguous. Where the language is plain and free from doubt there can be no construction, contemporaneous or otherwise. The provision may be violated, but not construed. In such cases it is the duty of courts to enforce the provision as it is written, and if hardship is produced the fault is not theirs, but of those who framed and the people who adopted it as the fundamental law. I can see that to enforce this section, as I understand it, much hardship and inconvenience may ensue, but the same is generally true of all unconstitutional enactments, and such considerations should not induce the courts to endeavor to avoid such results, unless in cases of doubt, hence the argument of inconvenience, urged by counsel, should not control in this case.
It is urged by counsel, that the provision of the constitution of 1870 has rendered this charter valid, even if it was not so in its inception. I am unable to appreciate any force in the argument. The government of the State was on the point of undergoing a change from one constitution to another, and to remove all possibility of a doubt whether such a change would or might be held to affect legally organized corporate bodies then existing, the provision was inserted. It was to secure and protect them in their legal rights, but not to confer new powers or legalize unconstitutionally or illegally organized corporate bodies. To my apprehension this and no more was the purpose of the adoption of this provision.
I regard the title to the act creating this corporation as wholly insufficient under the constitution; that it is so clearly in violation of the requirements of that instrument that the charter is and should be held void.
The 23d section of article 3 has this provision: “No private or local law which may be passed by the General Assembly shall embrace more than one subject, and that shall be .expressed in the title.” The title of this law is: “An act to incorporate the International Trust Company.” That this is a private or local law is so manifest that it will not be denied. Then, who would suspect, from the title, that it was an act to incorporate a -bank? ■ As well suppose it was to incorporate a body for any one of the hundreds of corporate purposes for which charters are sought and obtained. It seems to me that the mere citation of the constitutional requirement and the title of.-the act demonstrates its unconstitutionality. If this title complies with the constitution, I am at a loss to know what kind of a title to any description or character of law enacted under it would not be valid. The provision was surely intended to have some operation, but if this be held a compliance with the requirement, it is difficult for me to comprehend where it can become effective.
Again, it is perfectly clear to my mind that the charter never became a law, because the requirements of the constitution were not observed on its passage.
Section 21 of article 3 of the Constitution of 1848 is this: “Bills may originate in either house, but may be altered, amended or rejected by the other; and on the final passage of all bills, the vote shall be by ayes and noes, and shall be entered on the journal; and no bill shall become a law without the concurrence of a majority of all the members elect in each house.” This bill originated in and was passed by the Senate, and was thén sent to the House, where, after being-amended, it was there passed and returned to the Senate as passed with amendments, but no further action on the bill appears by the journal of the Senate to have been taken in that body. The next heard of it is that it -was engrossed and signed by the speakers of the two houses and approved by the Governor. The journal of the House does not show in wffiat the amendment consisted. It may be that all was stricken out but the title and the last -section, and the bill may have been changed from a milling or some other corporation to the provisions it now contains. Or the change may have been slight. But I think no one has any basis, from the journals or the law as we find it, to conjecture that the amendment was the one or the other.
Now, this provision is to my mind so plain,that a bill that does not receive the assent of a majority of - the members elect of both houses on a vote by ayes and noes, in the shape that it receives the approval of the Governor, must be void. See The People v. Reitz, 62 Ill. 253.
In that case the bill.originated in and passed one house, and was amended in the other, and being returned to the house in which it originated, that house refused to concur, and the bill was returned to the house which made the amendment, and on a motion to recede, the motion was adopted by a majority of a quorum, but not by a majority of the members elect, and it was held that the bill was not finally passed by the constitutional majority, and that it was void. In that case we see that it was Ireld that a majority of all the members elect was essential to strike out the amendment. Or that receding from the amendment was a final passage of the bill. If, then, the receding from an amendment is, under such circumstances, a final passage of the bill, why is not the adoption of an amendment by the other house a final passage of the bill as amended ? If it required a majority of all the members of the House to recede from its amendment, how can the distinction be justly taken which should not require an amendment adopted by the other house to be passed in the same mode?
Again, the bill was reported back to the House by its committee, and they recommended that- it should pass as amended. It is clear to my mind that the bill as it came from the Senate was amended by the House committee, and the report to the Senate that the House had passed the bill with the amendments renders it clear that the House did amend the bill. How could the House committee know the bill had been amended by the Senate before it was passed by that body, as the journals wmre not before them? It, I think, is clear the House amended this bill, and if so, it should have been then passed by the Senate by ayes and noes to have been finally passed as required by the constitution.
The bill was not finally passed by the Senate before it was sent to the House. Nor was it finally passed by the House with the amendments. Nor does the journal of the Senate show that it ever passed that body Avith the amendments of the House, either by ayes and noes or otherwise."
It is true that when we find a bill signed by both speakers and approved by the Governor the presumption is raised that the bill has been constitutionally adopted. But we have held in many cases that this presumption may be rebutted by the journals of the two houses. If they fail to shoAV that the bill Avas passed by a majority of the members elect in each house, and that the ayes and noes were not entered on the journals of the two houses on its final passage, then the presumption is overcome, and the supposed law is held to be Amid because the evidence of the constitutional passage of the laAV is Avanting.
As I understand, the practice of the two houses, since the adoption of this provision, has been, when an amendment is made to a bill in the house in Avhich it did not originate, on its return to the house in which it did originate it is put on its final passage, and the ayes and noes are entered on the journals. That not having been done in this case, all presumption that it Avas finally passed by both houses, by a majority of the members elect to each, and the ayes and noes were entered on the journals, is overcome.
Nor do the journals shoAAr that the Senate in any manner concurred in the House amendment, either by the ayes and noes or in any other manner, and hence we have nothing appearing from which it can be inferred that the law was ever passed, and I think the requirement of the constitution has been wholly disregarded.
We have held in the cases of Spangler v. Jacoby, 14 Ill. 297, The People v. Starne, 35 id. 121, Wabash Railroad v. Hughes, 38 id. 174, and a number of other cases, that the journals must shoAV a concurrence of a majority of the members elect to each house, on the final passage of a bill, or the act will have no force, and the ayes and noes is the only test of the passage of a bill, and they must be entered on the journals; that when a bill has become a law there is record evidence of every material requirement, from the introduction of the bill until it becomes a law, and this evidence is found in the journals. I believe that this bill never became a law, and should be held invalid, and that no rights have been acquired under it.