delivered the opinion of the Court:
This is an appeal from a judgment of ouster, rendered by the Criminal Court of Cook county, upon an information in the nature of a quo warranto, against Joshua C. Knickerbocker, from the office of judge of the probate court of Cook county, on the alleged ground the act of the legislature providing for the establishment of probate courts is unconstitutional and void. The title of appellant is not questioned on any other ground. It is conceded, if the act is constitutional the judgment of the court below should be reversed. On the other hand, it is agreed that if it is unconstitutional the judgment should be affirmed. It will therefore be perceived that the only question presented for our determination, is the constitutionality of the law establishing those courts.
By the first section of the act of 1877, entitled “An act to establish probate courts in all counties having a population of 100,000 or more, to define the jurisdiction thereof, and regulate the practice therein, and to fix the time for holding the same, ” it is provided, “that there shall be established in each county of this State now created and organized, or which may be hereafter created and organized, and which has a population of 100,000 or more, a court of record, to be styled, ‘the probate court of (name of) county.’ ” The amendatory act of 1881 simply modifies the first section of the act of 1877 above recited, so as to extend its provisions to all counties in the State having a population of 70,000 or more. (See Session Laws of 1881, p. 72.) It is manifest that if the first section of the original act can not be maintained on constitutional grounds, there is nothing in the amendatory act that relieves it from that objection, and the converse of this proposition must be accepted as true. We shall therefore, for the sake of convenience and of avoiding prolixity, as far as possible treat these acts as but á single act.
Counsel for appellant have pressed upon the attention of the court, with much earnestness and in strong terms, the supposed inconveniences and great hardships that will probably result from holding the act in question unconstitutional, as a reason why such a construction should not be given to it. The argument of db inconvenienti should have hut little weight, if any, in solving the question before us. Considerations of this character address themselves to the official duty and conduct of the court, rather than to the question in hand. While they afford the strongest reasons why the court should act with great caution and mature deliberation in the consideration of the case, yet they do not throw a particle of light upon the vital question upon which it depends. It is not claimed that considerations of this character can have any controlling influence in a case where the act of the legislature is clearly unconstitutional, but it is urged they may be looked to in doubtful cases. This view has the sanction of authority, yet it is rather plausible than forcible, for where an act of the legislature is manifestly unconstitutional, it is the duty of courts to so hold, however disastrous the consequences may be. On the other hand, if there is a reasonable doubt as to its unconstitutionality, the act should be sustained, whether any evil consequences would flow from holding it invalid or not.
The validity of the act in question involves a construction of the provisions of the constitution relating to the distribution of the judicial power of the State, and the establishment of courts therein, and also of other provisions supposed to have more or less bearing on the question in hand. Section 1, article 6, of the constitution, provides: “The judicial powers, except as in this article is othenvise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns.” It is clear, if the constitutional convention had not in other portions of the constitution provided for courts other than those specified in the first section, the power of the legislature to establish courts would be confined to such courts as are specifically enumerated in that section; but the convention, as indicated by the exception in the introductory part of the first section, proceeded to provide for the establishment of other courts not enumerated in the first section. The 11th section provides for appellate courts, the 20th for probate courts, the 23d for the Superior Court of Cook county, and the 26th for the Criminal Court of Cook county.
These several sections, so far as they relate to the power of the legislature to establish courts, must be construed precisely in the same way as if all the courts had been enumerated in the first section, and the words, “except as in this article is otherwise provided, ” had been omitted. In that case the enumeration in the first section would have exhausted the entire judicial power of the State, whereas, as the constitution is constructed, it is only exhausted by the enumeration as contained in the 1st, 11th, 20th, 23d and 26th sections, and the legislature is authorized to provide for the establishment of these courts, subject to any limitations that may apply to them respectively, but for no others.
Section 20, of article 6, of the constitution, which authorizes the legislature to provide for the establishment of probate courts, is as follows: “The General Assembly may provide for the establishment of a probate court in each county having a population of over 50,000, and for the election of a judge thereof, whose term of office shall be the same as that of the county judge, and "who shall be elected at the same time and in the same manner. Said courts, when established, shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators, and settlement of their accounts, in all matters relating to apprentices, and in cases of the sales of real estate of deceased persons for the payment of debts. ” Appellees insist that under this section the legislature has no power to authorize the establishment of such a court in any county, notwithstanding the number of its inhabitants may be ten times 50,000, and the necessities of business may absolutely demand it, except upon the condition it at the same time and hy the same act provides for like courts in all other counties in the State having a population in excess of 50,000, however small that excess may be, although the people of such other counties may neither need nor desire the establishment of such courts in them. Whatever the framers of the constitution may have intended by this section, it is clear they have not, in express terms, said what appellees impute to them. The construction contended for can only be reached by interpolating terms which the convention did not use, and which, we think, are not warranted by the context. It is but reasonable to assume that it was intended by the framers of the constitution that these courts should be created from time to time, as the wants of the people and business necessities might require, subject to the qualification they were not to be established in any county not having a population in excess of 50,000. By this limitation upon the power of the legislature to establish such courts, the authors of that instrument determined in advance there never would be any necessity for this class of courts in counties not having a population in excess of 50,000. As to all other counties, the whole subject was left under the control of the legislature, to the same extent as if no limitation had been imposed. The legislature was left entirely free to establish such courts, or not. Doubtless the convention, in leaving this matter within the discretion of the legislature, expected and intended that it would' be exercised wisely, and in furtherance of the best interests of the people of the respective counties in which such courts might, or might not, be created. It is altogether unreasonable to suppose that it was intended that these courts should be established in counties having no need for them, although they might have a population of something over 50,000, or that it was intended that counties having a need for such courts, by reason of having several hundred thousand inhabitants, should be deprived of them merely because there might be other counties, not excluded by the limitation, that have no need or desire for such courts. To create a court of this kind in a county that has no need for it, is to impose an unnecessary burden upon the people, and to refuse to establish one in a county having the requisite population, when the necessities of the people require, it, is to deprive them of a right the framers of the constitution evidently intended to secure to them, and we can not, therefore, sanction a construction which leads to either of these results.
We are unable to discover anything in the terms used by the convention to authorize the construction contended for. The language used is, “the General Assembly may provide for the establishment of a probate court in each county having a population,” etc. When may the legislature do this? Neither this section nor any other portion of the constitution affords an answer, in express terms, to this inquiry, yet the implication as to what the answer should be is so strong as to hardly admit of serious doubt. The constitution having authorized the legislature to establish one of these courts in each county of the State, subject to the limitation with respect to population, and having fixed no time for the exercise of such authority, the clear and necessary implication is, that the framers of the constitution intended the legislature should determine for itself when and under what circumstances, it would exercise the authority conferred.
It is conceded by counsel on both sides that this, as well as all other provisions of the constitution, must be read and construed, if it can be done without involving an inconsistency or absurdity, in the popular and ordinary sense in which the people understood it when voting for it. Applying this test to the provision in question, we have no doubt of the correctness of the construction we have given it. To illustrate: Suppose a farmer having several flocks of sheep, with a view of stimulating his son, who has charge of them, to greater care and watchfulness in their management, says: “My son, you may, if you desire, sell and appropriate to your own use one-fifth of the annual increase in each of my flocks.” Now, no' one, we presume, would contend for a moment that the right of the son, in the case supposed, to appropriate the increase in one flock, would, in any sense, depend upon the exercise of a similar right as to the others. He would not he bound to avail himself of the right at all, or he might exercise it as to all or any number of the flocks less than all. Again: Suppose the owner of several tracts of lands says to his neighbor: “You are authorized to enter upon each tract of my land for the purpose of getting your fire-wood. ” Here, as in the other case, the licensee would not be bound to exercise the authority conferred upon him at all. But suppose he does enter upon one tract for the purpose authorized, without entering upon the others also, would any lawyer contend for a moment that he was not fully justified in doing so ? Clearly not. We might go on indefinitely suggesting familiar examples which might occur in the ordinary transactions of life, as illustrative of the common understanding and use of the language under consideration, and sustaining the construction we have placed upon it, but it is unnecessary to do so. In short, it is ■ believed to be a general rule that where one is authorized to do a particular act, or exercise some special privilege with respect to a number of objects taken distributively, as in the ease before us, which the donee of such authority may exercise, or not, as he shall think proper, and there is no specific limitation to the contrary, the right to exercise the authority with respect to one or more of such objects will not be dependent upon its exercise as to the remaining objects.
Holding then, as we do, it was the intention of the framters of the constitution that the legislature, in giving effect to the section under consideration, should be guided entirely by the wants and necessities of the people, with respect to such courts, in the several counties in the State having the requisite population, it follows, the other provisions of that instrument must be- so construed as to give effect to- that intention, and if this can not be done without special legislation, the provision of the constitution prohibiting special legislation in all cases where the same end can be accomplished by a general law, will have no application. So, in this view, we deem it unimportant whether the act creating the probate court of Cook county be regarded as a general or special law, for it is a familiar principle, where there is a grant of power, everything essential to the exercise of the power not specifically mentioned will be deemed to have passed by implication.
The only other provision of the constitution which we deem important to notice is section 29 of article 6. It is as follows: “All laws relating to courts shall be general, and of uniform operation; and the- organization, jurisdiction, powers, proceedings and practice- of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform. ” As already indicated, this section must not be so construed as to defeat the objects intended to be accomplished by the adoption of the 20th section. The latter section, as we have just seen, provides for the establishment of a certain class of courts by the legislature in such counties in the State having a population in excess of 50,000, as the legislature in its discretion may deem necessary for the best interests of the people of those counties. The time of creating, and the necessity for, such a court, in any particular instance, having been left entirely to the discretion of the legislature, the 29th section could not have been intended to modify the 20th section in either of these respects. That section, therefore, can have no reference to the creation of courts of the kind we are considering, and the general terms in which it is conceived, must be so construed as to harmonize with and give effect to the 20th section, in the sense we have construed it. ■
It is manifest that the introductory clause of that section can not be given effect according to the literal meaning of the broad terms in which it is conceived. To do so would lead to the most absurd consequences, and would be in direct conflict with the decisions of this court. The words are: “All laws relating to cou/rts shall he general, and of uniform operation. ” Notwithstanding this provision the legislature is constantly in the habit of passing special laws fixing the commencement and the length of the terms of particular courts, which are manifestly laws relating to courts, and such acts, though neither uniform in their operation, nor general, within the sense of the constitution, are universally recognized as constitutional and valid. In discussing this matter, it was said, in Karnes v. The People, 74 Ill. 274: “Constitutions, like all other laws, must have a reasonable and practical interpretation. To give this language a literal application would require all courts in the State to meet on the same day, and the terms to be of the same length. This could not have b,een intended, because it must have been apparent to the framers of that instrument that such a thing could never be carried into effect. ”
The only object of the section of the constitution we are now considering was to prohibit special legislation with respect to certain matters affecting courts, in all cases where the object of the legislation could be attained by the adoption of a general law. By this section, as clearly appears from the concluding clause, all laws relating to “the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade,” are required to be general and uniform, and this was all the effect that was intended to be given to it by the framers of the constitution. This being its proper construction, it follows that the right of the legislature to establish a probate court for Cook county, or any other county having the requisite population, as provided by the 20th section of the constitution, is not at all modified or limited by that-section.
The judgment of the Criminal Court of Cook county is reversed, and the cause remanded, with direction to that court to quash the information.
Judgment reversed.