dissenting:
As the questions involved in this case are of unusual importance, I deem it proper I should state at length the reasons, or at least some of them, for dissenting from the conclusion reached by a majority of the court.
In all investigations of legal matters it is well first to ascertain accurately the exact question in controversy. The decision in this ease involves the determination whether the act of the General Assembly of 1877, “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 of holding the same, ” is constitutional. The act has relation to a class of counties having a population of 100,000 or more. It is so limited by the express terms used. No question as to the power of the General Assembly to establish a probate court in any one of the counties in the State, by name, having a population of over 100,000 inhabitants, is involved. It will be time enough to discuss that question when the legislature shall assume to enact any such Statute. The legislature has never assumed to establish a probate court in any county, by name. If it shall be now held, by judicial construction, the act of 1877 establishes a probate court in Cook county, as by name, it is, in effect, to do that which the legislature never assumed to do in that way; and more than that, the acts of 1877 and 1881, in relation to probate courts in counties having a population of 100,000, and of 70,000 or more, are legislative constructions, most solemnly expressed, that the General Assembly possesses no power to establish probate courts in any one of the several counties having a population of over 50,000 inhabitants, by name, and by special act. On both occasions the General Assembly undertook to classify the counties by population, and to establish probate courts therein, by a general law. Thus it is seen the General Assembly, in every instance where it has spoken on the subject, has utterly ignored the position taken in this case, that the legislature may at any time establish a probate court in any one of the counties having over 50,000 inhabitants, by a special law. Its previous acts are equivalent to a disclaimer of any such power under the constitution. A construction uniformly given by the legislative department to a constitutional provision ought not to be disregarded by the courts, except for the clearest and most cogent reasons.
It may also be well, before entering upon the discussion of the principal question, to ascertain the definition of a “general law,” as those terms are used in the constitution ef 1870. This court has heretofore adopted a definitionJormulated and sanctioned by decisions, of courts and text writers. No new principle is declared when it is stated “general laws are those which relate to or bind all within the jurisdiction of the lawmaking power, limited as that power may be in its territorial operation, or by constitutional restraints. ” The People v. Cooper, 83 Ill. 585; Sedgwick on Stat. and Const. Law, p. 30. A law applicable to all counties of a class, as made or authorized by the constitution, is neither a local nor a special law. If it applies to all the counties of a class authorized by the constitution to be made, it is a general law, and whether there may be few or many counties to which its provisions will apply, is a matter of no consequence. A principle analogous with this was declared in The People v. Wright, 70 Ill. 388, and in Jefferson County v. Jones, 63 id. 531, it was recognized.
Another principle ought not to he lost sight of in this discussion. It is, that the General Assembly possesses no power to classify counties, for legislative or other purposes, in any manner other than as is provided in the constitution it may be done. Any classification of counties otherwise than as authorized by the constitution, is invalid, and a law applicable to such classification is a local or special law, and is forbidden by the constitution, and is, therefore, void. This principle has been twice declared by the decisions of this court, and must now be regarded as the settled law of this State. Devine v. Commissioners, 84 Ill. 594; Worcester v. Cheney, 94 id. 470. Keeping these plain definitions constantly in view, the subsequent discussion of the principal question will be more readily understood.
Section 1, art. 6, of the constitution, declares, “the judicial powers, except as in this article is 'otherwise provided, shall be vested in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns. ” Heading this section of the- constitution in connection with the remaining sections of the same article, as must be done, it will readily be seen what courts are created by the constitution, and what courts may be created by law. It will be noted the General Assembly may by law create courts “in and for cities and incorporated towns, ” and after the year 1814, “inferior appellate courts, of uniform organization and jurisdiction, may be created in districts to be formed for that purpose.” All other courts in which the judicial powers of the State are vested are created by the constitution itself. In this connection it may be remarked, that all courts created by the constitution, except justices of the peace and police magistrates, are given a defined jurisdiction, of which they may not be deprived by the General Assembly.
It is made the duty of the General Assembly to provide for the organization of all courts created by the ' eonstitution, and provide for the election of judges, and the times and places of holding such courts, where it is not done by the provisions of that instrument. This duty is absolute and imperative with regard to all courts created by the constitution, except as to probate courts in counties having over 50,000 inhabitants. With regard to probate courts in such counties, the General Assembly has a discretion as to the time when it will provide for the organization of such courts and the election of judges thereof, hut it has no discretion as to how such courts may be established. That is fixed, absolutely and positively, as will he made to appear, by the constitution itself. Other courts provided for ‘by the constitution, and not mentioned by name in the first section of article 6, are the “Superior Court of Cook county,” and the “Criminal Court of Cook county.” A correct reading, therefore, of the whole of the 6th article of the constitution, concerning the judicial department, is, that the judicial powers of the State are vested in one Supreme Court, in circuit courts, county courts, in justices of the peace, police magistrates, the Superior Court of Cook county, the Criminal Court of Cook county, in probate courts in counties having over 50,000 inhabitants, and in such courts as may be created by law in and for cities and incorporated towns, and after the year 1874, in inferior appellate courts, when created by law. It is apparent, then, that probate courts are created, in counties having over 50,000 inhabitants, in precisely the same manner as are circuit courts in the several counties, and as is the Superior Court of Cook county. This would seem to be so plain as to admit of no construction. That which is plainly expressed, admits of no interpretation. But if contemporaneous construction is worth anything, and it is conceded it sometimes renders most valuable aid, it may be found in the debates of the constitutional convention. When article 6, concerning the judicial department, was under discussion, section 1, being then in the exact form it now is, Mr. Archer said: “I move to amend, by inserting after the words ‘ county courts,’ in the second line, the words ‘probate courts.’ I think this section does not now recognize probate courts.” Mr. Browning (than whom the convention.contained no abler jurist) said: “This article does provide for judges in counties having a population in excess of 50,000. ‘The judicial power, except as in this article is otherwise provided, shall be vested,’ etc., and it has otherwise provided for probate courts.” Mr. Archer then said: “But only in counties having over 50,000 people. Does that provide for counties having less than 50,000?” To which Mr. Browning replied: “In those counties it is vested in the county courts, so that all are provided for. ” Mr. Archer then said: “With that understanding I withdraw the amendment.” Yol. 1 Const. Debates, p. 976.
The fact the constitution vested the judicial powers of the State in certain courts named, and in such courts as may be created by law, in the manner specified, is a limitation upon the power of the General Assembly to establish other courts it is not at liberty to disregard. Only power is given to the legislature to 'create courts in and for cities and incorporated towns, and after the year 1874, to create inferior appellate courts in districts to be formed for that purpose. All other courts in the State that may rightfully exercise judicial ■ powers are created by the constitution. It is made the duty of the General.Assembly to provide for the time of holding courts in each county,- (that is, circuit courts,) and it is apprehended that no election for circuit judges could have been held, under the constitution of 1870, until the legislature had fixed the boundaries of the several circuits, unless, perhaps, for circuit judges in Cook county, as that county is, by the constitution, made a circuit by itself. Nor can there be any election for judges of probate courts, in counties having over 50,000 inhabitants, until the General Assembly shall so provide.
It has been seen the legislature has a discretion as to the time when it will establish probate courts in counties having over 50,000 inhabitants, but in no other respect. How, then, may probate courts be established ? The constitution has definitely declared, and its mandate must be observed. Section 20, article 6, provides, the General Assembly may provide—not create, as is erroneously assumed,—for the establishment of a probate court in each county having over 50,000 inhabitants, and for the election of a judge thereof. Observing the previous decisions of this court, how may this be done ? Obviously, it can be done in one way only, and that is, by grouping the counties together in a class, as is done by the constitution,—that is, constituting a class of all counties having over 50,000 inhabitants, and providing for a probate court in each county of the class, by general law. It can be done in no other way, without an utter disregard of the jilain provisions of the constitution. It is an undeniable proposition, that when the constitution has provided a way in which a thing may be done, it is not in the power of the General Assembly to do it in any other mode. It is equivalent to an express limitation upon its powers in that regard. The word each, as used in this section of the constitution, is to be understood in its ordinary acceptation. Commonly it is understood to mean “every one of the two or more individuals composing the whole, considered separately from the rest. ” It is precisely the same word, and is used in the same sense, as it is used in section 14 of the same article, which makes it the duty of the General Assembly to provide for the times of holding a court (that is, a circuit court,) in “each county.” Certainly not in any one of them, but in every one of the whole number. That is precisely the sense in which the same word “each” is used in this 20th section of article 6. Had it been the intention the General Assembly might establish a probate court in any county having over 50,000 inhabitants, whenever it might see proper to do so, apt words would, no doubt, have been used to express that intention, as was done in section 13 of the same article, where it is said, when the business of the circuit court of any one or of any two or more contiguous counties, containing over 50,000 inhabitants, shall occupy nine months of the year, the General Assembly may make of such comity or counties a separate circuit. Construing the words “each county, ” as used in the 20th section of article 6, as meaning any one of the counties named, is to utterly disregard the meaning the framers of the constitution attached to the word “each,” as used in the context in that instrument, and as it is commonly understood by persons speaking the English language. Courts are not at liberty, in construing a constitution, to suppose one thing or another was meant, unless it is plainly expressed, or arises by necessary implication from unambiguous terms employed. It would be far better there should be no constitution, if courts may construe it to mean one thing or another, as local interests may seem to require or be supposed to demand. Its limitations would be utterly worthless, and less binding than “ropes of sand. ”
There is no power given to the General Assembly to provide that counties having over 100,000 inhabitants shall constitute a class of counties in which probate courts may be established or organized. The constitutional restriction is, if done at all, probate courts are to be established in “each county” having over 50,000 inhabitants, and this restriction the General Assembly may not disregard. But section 29, of article 6, contains a restriction on the powers of the General Assembly concerning legislation relating to courts, that is equally obligatory. It is, that “all laws relating to courts shall be general, and of uniform operation.” The limitation in this regard is absolute and imperative. One of the counsel who has argued the case for respondent with marked ability, has discerned the true meaning of this clause in section 29, and has had the candor to express it. As he construes it, “it declares that all laws concerning courts shall be general, and of uniform operation. It does not attempt to create courts. It does recognize the context of the article of which it forms a part, and by which it appears that courts are independently or differently constituted. It must therefore relate to' courts established or to be established, and it is fair to say it means that courts shall be governed by general laws of uniform application. It has the effect to extend the prohibition against special legislation, found in the article concerning the legislative department, to the cases of courts.” Had counsel gone but a single step further, and conceded, what another counsel for respondent says is the true construction of section 20, it would follow, as a corollary from his argument, the act under consideration is plainly unconstitutional. His construction is, “in section 20 a probate court is created,—potentially, at least; in every county judicial power is given to such court, and its jurisdiction defined, upon two conditions: Such court may go into .operation, first, there must be a population of more than 50,000 in the county; second, the General Assembly must •determine that such court is needed, and, being the holder of the public purse, must provide for the same. The words, ‘provide for the establishment,’ can not, for obvious reasons, mean that the General Assembly is to create the court. ” Both concessions made by counsel are warranted by correct reading of the constitution, and may be adopted as the true construction of the paragraphs to which they relate. As before observed, probate courts are created by the- constitution itself, in each county having over 50,000 inhabitants, in precisely the same manner that circuit courts are created by that instrument in each county of the State. It is therefore apparent, from the provisions of section 29, that all laws relating to courts thus established must be general, and of uniform operation. Any other construction is to render these words of the constitution meaningless.
-When the constitution was adopted, in 1870, there were but few counties in the State that contained a population in excess of 50,000. Since then the population has increased with remarkable rapidity. Now, by the last census, there are at least six counties that contain a population in excess of that number. When the census shall be taken at the end of the present decade, many more counties will appear to have a population of over 50,000. As counties obtain the requisite population, the constitution, by its own force, extends over and creates a probate court in each of them, in precisely the same manner as the act of 1875, to increase the number of judges of the Superior Court, took effect and became operative when it was ascertained by the census of 1880 Cook county contained a population in excess of 400,000. Should the present constitution stand—which, of course, is not at all probable—until every county contained a population in excess of 50,000, it would be true, as counsel in effect concedes, that the constitution creates a probate court,—potentially, at least,—in every county in the State. It is doubtless true, that when the census shall be taken at the end of the present decade, it will appear very many counties will have a population that will secure to them the privilege of a probate court; and it may also be true that before the end of a second decade LaSalle and St. Clair counties may have a population in excess of 100,000, and under the act of 1877, if it shall stand, would.be entitled to a probate court as well as the county of Cook, and if the amendatory act of 1881 is a valid law, it is doubtless true'that counties other than LaSalle and Cook, before the expiration of that period, will have a population that will entitle them to a probate court under that law. The argument made in this connection, that section 20 of article 6 was introduced into the constitution that Cook county alone might have a probate court, and that no other county in the State needs such a court, is as idle as it is foolish and absurd. It can not be judicially known that other counties do not desire or need such a court as well as the county of Cook. But that is a matter of no consequence. The constitution has provided, probate courts, when established, if done at all, are to be in each county having over 50,000 inhabitants, and it is not for the courts or the legislature to say that only one or two of the whole number of counties entitled to such courts really, in fact, need them. That is a question concerning which the General Assembly has no discretion.
It is but stating an admitted truth to say that all limitations imposed by the constitution must be observed by the General Assembly and the courts. Any law, therefore, having special application to any one or more counties' less than the whole number of counties having over 50,000 inhabitants, which must constitute a class of counties in which probate courts may be established, is a local or special law, and is void, as being inhibited by the constitution. Devine v. Commissioners, 84 Ill. 594. A law providing all counties having a population of over 100,000 shall constitute a class in which probate courts may be organized, would apply only to Cook county, as definitely as though limited hy express terms to that county. Should counties having a population of over 70,000 be grouped together as a class, this court judicially knows such a law would and could apply to only two counties in the entire State, viz: Cook and LaSalle counties. Counsel, with commendable candor, concede that which is the true construction of the constitution: that the clause of section 29, article 6, that declares, “all laws relating to courts shall be general, and of uniform operation, ” has the effect to extend the prohibition found in the article concerning the legislative department, to the cases of courts, or it is as if there were added to section 22 of article 4 the- further enactment, so that it might read, “the General Assembly shall not pass local or special laws * * * concerning the organization, jurisdiction, practice dr process of courts which this constitution permits to be established. ” It would therefore seem clear, that any law applicable to one of a class would be local and special, for the reason such county constitutes only a part of the class of counties in which the constitution provides probate courts may be established. It is known St. Clair, McLean, Adams and Peoria counties each contains a population in excess of 50,000, and any classification of counties for legislation in regard to probate courts, that by its terms excludes those counties from its operation, is a local law, and is forbidden by the constitution. It is, as has been seen, for the reason the constitution has declared each county having a population of over 50,000 may have á probate court established therein, and the legislature possesses no rightful authority to make any other or different classification of counties for that purpose.
Considerations as to the serious results that might flow from holding the law in regard to probate courts in counties having a population in excess of 100,000, unconstitutional, have been pressed on the attention of the court with unusual zeal. Should serious consequences result from such a decision, it would be indeed much to be regretted. Evil results, if any there would be, would be confined to a single locality. But be the results what they may, it can not. authorize an erroneous construction of the constitution by a court of last resort. It should be remembered this court is called upon, under the highest possible sanctions, to construe the constitution for the people of the entire State and the interest of the entire State, and not for that of any particular locality. Infinitely more serious consequences would flow from any toleration by this court of any infraction of the constitution that would permit the enactment of local or vicious special legislation, far more injurious to the people of the State, whose laws this court is obligated to administer, than any mere .temporary inconvenience the people of any locality would suffer in consequence of declaring a local law unconstitutional. This court, in more than one instance, has assumed to exercise this extraordinary power, and no serious consequences have followed, but, on the contrary, none but the best results have come from a rigid adherence to the limitations imposed by the constitution. The only line of safety lies in a strict adherence to all constitutional limitations. Believing, as I do, the act of the General Assembly under consideration is in plain and obvious conflict with the constitution, I should be wanting in self-respect if I did not express that belief in the strongest possible terms. The evils most to be avoided are not the loss of property and temporary inconvenience to the people of a particular locality, but a more serious disaster is the giving a construction to the constitution that would authorize a flood of local and vicious special legislation in behalf of any locality that might demand it. This, indeed, would be an evil of such magnitude it would be most desirable it should be avoided. Any toleration by this court of any violation of the constitution weakens the value of its limitations, no matter how necessary and essential they may be to the preservation of public and private interests.
But the consequences, to flow from holding the act under consideration unconstitutional, have been much over-stated and exaggerated. Nothing is hazarded in saying, the suggestion the acts of the officer administering the office of judge of the probate court in Cook county were void, has absolutely nothing in its support, either in law or reason. Although the law under which he was elected may have been unconstitutional, it is a principle of universal application the acts of a de facto officer administering any office are valid, and will be so held until the incumbent is ousted from the same by some proceeding instituted for that purpose. The affairs of government could not be administered if this were not the law. Irregularities in the election of officers must frequently occur, but the interests of the public will not be allowed to suffer on that account. A vice common to all the arguments made in behalf of respondent, with one exception, lies in the assumption the General Assembly created the probate court in counties having the requisite population, as specified in the act under consideration. It is erroneously stated the information in this case is filed to test the constitutionality of the act of 1877, “creating and establishing” probate courts in counties having a population of 100,000 or more. Neither the word “create,” nor “creating,” is found in the enacting clause of that statute. Nor is it true the legislature ever assumed to create such a court. It has no power to" do so. As has been seen, the constitution itself creates probate courts in counties containing the requisite population, in like manner as circuit courts are created by that instrument in each county. Past all doubt, where an office exists under the constitution, or otherwise, the acts of the incumbent, although his appointment or election may have been under an unconstitutional law, will be as valid as the acts of an officer de jure. This is not a declaration of any new principle of law. In The People v. Bangs, 24 Ill. 184, it was held a circuit judge elected under an unconstitutional statute had color of office, and that his acts as such officer were as valid as if the law had been constitutional. That is precisely the case here, and the principle of the case cited ought to control in the case at bar. The office, the function of which respondent assumed to exercise, existed by the constitution, as did the office in the case of People v. Bangs, and the same conclusion is warranted, as in that case, the acts of the incumbent done under color of office will be valid.
In my opinion the judgment should be affirmed.
Mr. Justice Walker :I concur fully with my brother
Scott in the views presented in his dissenting opinion in this case.