dissenting:
I am unable, to concur in so much of the foregoing opinion of the majority of the court as holds that the law under consideration is not “local or special,” within the meaning of those words as used in section 22, article 4, of our constitution. That section provides: “The General Assembly shall not pass local or special laws in any of the following enumerated cases,—that is to say: * * * The opening and conducting of any election or designating the place of voting. * * * In all other cases where a general law can be made applicable, no special law shall be enacted.” It is, in my opinion, plain, from the ordinary meaning of the words “local or special, ” that they are here used in contradistinction to the word “general. ” (Bouvier’s 'and Webster’s Dictionaries, titles “Local,” and “Special.”) Within the contemplation of this section, all laws are either general, or local or special. There is no intermediate ground, and this, it seems to me, is put beyond all doubt by the concluding clause of the section,—“in all other cases where a general law can be made applicable, no special law shall be enacted. ” And we have accordingly held that under this section there can be enacted, upon the enumerated subjects, none but general laws, (People ex rel. v. Cooper, 83 Ill. 585,) and this is recognized, by implication at least, in Guild, Jr. v. City of Chicago, 82 Ill. 472, Devine v. Commissioners, 84 id. 590, and People ex rel. v. Meech, 101 id. 200. Laws may be local, and yet in every sense public laws. Levy v. The State, 6 Ind. 282; State v. Webster et al. 29 Md. 576 ; Cooley’s Const. Lim. (4th ed.). 482. But such laws are as clearly within the letter and the meaning of this section of the constitution as private local laws.
There has been upon the statute book, since the adoption of the present constitution, a general law regulating the opening and conducting of elections, and the designating of the places of holding elections, and that law, as amended from time to time, all concede, prior to the holding of the elections in the city of Chicago and the town of Lake for the adoption of this law, was in force in every part of the State, and is still in force in every part of it except where it may be superseded by the provisions of this act; Under the general law, the polls must be opened at eight o’clock A. M. and closed at seven o’clock P. M.; under this act, the polls must be opened at six o’clock A. M. and closed at four o’clock P. M. Under the general law, any one possessing the constitutional qualifieations for voters, whose name is on the registry list, or whose name not being on the registry list shall be proved by affidavit, in a manner specified, to be entitled to vote, shall be allowed to vote; under this act, no one shall be allowed to vote whose name is not on the registry list twenty-one days before the election. Under the general law the county board fixes the limits of the election precincts, designates the places of voting, and, with certain exceptions, where they are designated by law by virtue of holding certain offices, appoints the judges of election; by this act, all this is done by election commissioners appointed by the judge of the county court. Under the general law, the offences of illegal voting, bribery, etc., are punishable by fine or imprisonment in the county jail; by this act, these offences are punishable by confinement in the penitentiary. Under the general law, the violation by judges of election of certain prescribed duties is punishable by fine or imprisonment in the county jail; by this act, the same offences are punishable by confinement in the penitentiary.
There are still other matters of dissimilarity between the provisions of the general law and those of this act, equally as marked; but these are sufficient to show that this act is in no sense supplementary to the general law, and that it and the general law are not applicable to different conditions and states of fact, but that they contain radically different systems of law upon the same subject matter. .
I concede that a law may be general and yet have practical operation only at rare intervals and in particular localities, by reason of the peculiar subject matter upon which it operates,—as, for instance, a law applying to pilots would be the law in every part of the State, but it could only have practical application on water-courses at points where the vocation of pilot is called into operation. So, also, we have a law upon our statute book imposing penalties upon pérsons for failing to protect castor beans from stock. In very many of the counties no castor beans are ever raised, and so the law, in practical effect, applies to only a few counties. I also concede that the same general subject matter may be so varied and changed by different combinations of circumstances that a general rule applicable in the one instance can not be applicable in the other, and in such cases a law may be sufficiently general which lays down one rule as applicable to the subject matter under the one combination of circumstances, and another rule as applicable to it as varied and changed by the different combination of circumstances. And so we have held that a town under the Township Organization law, having its limits coextensive with the limits of an incorporated city, is so essentially different, in the subject matter of township law, from a town having its limits entirely in the country, that in many respects a different rule ought to be applied to the one from that applied to the other. But I deny that where there exists precisely the same subject matter for a law, and where, in that subject matter, or in the circumstances which can practically affect the application and enforcement of a law in regard to it, there is nothing to prevent a single uniform rule, it is competent to adopt and enforce, as respects the subjects enumerated in this section of the constitution, one rule in one locality and a different rule in another locality. I can not believe that a law arbitrarily classifying the subject matter of a law, and applying and enforcing different rules in conformity with such arbitrary classification, is general, or that it can be correctly denominated otherwise than “local or special. ” To justify classification the difference must be in the thing itself which forms the subject of legislation, and it must be substantial, and not simply fanciful. Hanner v. The State ex rel. Richards, 44 N. J. L. 667.
I assume that it is not questioned, for I do not see how it reasonably can be, that if the General Assembly had enacted that this act should apply to the city of Chicago and the town of Lake only, it would be “local or special, ” and therefore obnoxious to this section of the constitution. It is not possible that there can be any substantial reason why an election should be opened one hour earlier and closed three hours earlier in the town of Lake than in any of the other towns of Cook county outside of the city of Chicago,—why the county board should define the precincts and appoint the judges of election in the other towns of Cook county outside the city of Chicago, and that in that city, and in the town of Lake this must be clone by a board of commissioners appointed by the county judge. It is impossible to state a valid reason why illegal voting and malfeasance in office by judges of election are worse offences in the city of Chicago or the town of Lake, than they are in the village of Hyde Park, or, for that matter, in Peoria, Quincy, Bloomington or Springfield, or in the rural voting districts. But the act does not assume to be based upon any difference in the subject matter of the law, or in the local conditions or circumstances affecting it in different localities. It assumes, on the contrary, the subject matter and the local conditions and circumstances affecting it to be the same in every city, village or town having over five hundred electors; and it is claimed to be general solely because' any city, village or town having over five hundred electors may, by popular vote,' adopt the act, and thus make its provisions applicable to it. What there is in the rural election districts, and in cities, villages and towns with less than five hundred electors, to distinguish them from the municipalities that are allowed to adopt the provisions of this act, justifying the classification here assumed, I am unable to ascertain.
Although the title of the act indicates an act in force in cities, villages and incorporated towns, no portion of the act is that broad, and the scope of an act can not be enlarged by its title. (Potter’s Dwarris, p. 102, and notes.) The first section only assumes to enact “that the electors of any city now existing in this State may adopt and become entitled to the provisions of this act in the manner following. ” Section 14 reads thus: “Any village or incorporated town in this State may adopt this act in like manner, and the same shall be submitted to a vote of the people of said village or town, upon written application to said county court, of five hundred electors in such village or town.” And section 15 reads: “After and from the time of the adoption of this act, as aforesaid, the provisions of the same shall be aj^plicable to such cities, villages or towns.” ' Section 1 of article 11 then starts off as follows : “In every city, village and incorporated town so adopting this act, ” etc., and then follow the provisions of the act to be enforced in regard to elections; and so the act itself explicitly declares, without any'circumlocution, that it applies and is the law in such cities, villages and towns only, as a majority of the electors wish it to be the law, and so declare at an election held for that purpose, in conformity with the provisions of the act. If valid, its provisions in relation to the opening and conducting of elections are now the law only in the city of Chicago and the town of Lake. Elsewhere those provisions are not the law. In practical effect, as I understand the opinion of the majority here is: Section 22, article 4, of the constitution, has no application to any locality where a majority of the electors desire a special or local law, for if this act is law, then an act upon this subject may be framed to meet the peculiar wishes of a majority in every locality in the State, and, a majority afterwards voting to adopt it, each locality can be governed by a different law in regard to the opening and conducting of elections, and that, too, for the highest as well as the lowest officers to be elected by the electors of the State.
No provision of the constitution ought to be circumvented and its ends defeated by mere matters of form; and this court has solemnly announced, with the acquiescence implied, if not expressed, of every member then constituting the court, that the clauses of section 22, article 4, can not be thus rendered ineffective. People ex rel. v. Cooper et al. 83 Ill. 585; Devine v. Comrs. of Cook County, 84 id. 590.
The prohibition of the enactment of local or special laws in section 22, article 4, is absolute—unqualified by any provisos or exceptions. Had it been intended it should-have no application where a majority of the electors in any locality should desire to adopt a law applicable to that locality only, is the inference not irresistible it would have been so said in an exception or proviso at the end of the section ? Such a proviso is added to other sections of the constitution. Thus, in section 18, article 4, the State is prohibited from contracting a debt exceeding in the aggregate $250,000, unless the act authorizing the same shall, at a general election, be submitted to the electors of the State and receive a majority vote. By section 33 of the same article, the General Assembly is prohibited from making any appropriation to be expended on account of the new capítol in excess of $3,500,000, without first submitting the proposition for an additional expenditure to the electors of the State at a general election. By section 28 of article 9, county authorities shall never assess taxes the aggregate of which shall exceed seventy cents per $100 valuation, unless authorized by a vote of the electors of the county. By section 2, article 10, questions of dividing counties and removing county seats shall be submitted to votes of electors of the county. By section 1, article 10, questions of adopting or changing from township organization shall be submitted to a vote of the electors of the county. And another section prohibits the sale or lease of the Illinois and Michigan canal, except by a vote of the people. So the question of popular and local option was in the minds of the framers of the constitution, and yet they did not see fit to add it as a qualification, proviso or exception, to section 22, article 4. The maxim that the expression of one thing is the exclusion of another, is held to be as applicable to a written constitution as to a statute. Why does it not apply here ?
The fact, however, that we have held that municipal corporations incorporated under special charters may become incorporated under the general Incorporation law, or not, as a majority of the electors of the municipality shall determine, is claimed to be analogous and conclusive on the present question. With due respect to my brethren who so hold, it appears to my mind that this must be a misapprehension, and that the adoption of this act by the electors of a locality, and the changing from a special charter to the general Incorporation law, are not at all analogous. In the first place, as we have held, the constitution was designed to operate upon legislation prospectivly, not retrospectively. It did not assume to repeal or invalidate special or local laws in existence at the time of its adoption, but to prohibit the enactment of such laws in the future. Numbers of cities, towns and villages were then incorporated under special charters. These were not. disturbed. But the General Assembly could not thereafter enact special or local laws. It could only enact a general law, under which all cities, etc., thereafter becoming incorporated, and all cities thereafter desiring to change or amend their charters, could become incorporated, or have their charters changed or amended. They could not enact a number of general laws upon the same subject, and allow one city to become incorporated under one, and another city to be incorporated under another, and thus perpetuate the dissimilarities in their charters Avhich it was the object of the constitution to prevent,—and so we held in People ex rel. v. Cooper, and Guild v. City of Chicago, supra. When the General Assembly had enacted a single general Incorporation law, it had obeyed the mandate of the constitution. The fact that it did not apply to every municipal corporation was from no defect or optional feature in the law itself, but because it could only operate prospectively, and could therefore only affect corporations thereafter to be created, or whose charters should thereafter be changed or.amended; but it did affect and become obligatory, in precisely the same way, upon every municipal corporation thereafter created, or whose charter was thereafter changed or amended. It was not optional with corporations thereafter created whether they should be incorporated under this or some other law. The only option to the electors was, whether they would be incorporated,—not under what laAY. The law was absolute. The electors might exercise an option to become incorporated, or to change, if already incorporated, from their existing charter; but there their option ended. Does anybody pretend that it is optional with a locality to hold a general election or not?—that a majority can disfranchise a minority by the exercise of an option to not hold any elections? The holding of elections is guaranteed to all the voters by the constitution,—they must be held, whether many or few wish to vote at them; and when this constitution was adopted, different localities were not governed by different election laws, so that the General Assembly could, as in the case of cities and villages, only provide a general system for localities to be afterwards brought into being, and those which should wish to change from their existing systems. The city Incorporation law provides for uniformity in the future. This act provides for dissimilarity in the future.
But, in the second place, the adoption of this law in localities has the effect to suspend the general law in relation to elections in those localities. Section 2, article 2, of the constitution, declares that “no person shall be deprived of life, liberty or property, without due process of law. ” The words, “due process of law, ” in this connection, are held to be the equivalent of the words, “the law of the land. ” Cooley’s Const. Lim. (5th ed.) 431, 432; Sedgwick on Stat. and Const. Construction, (2d ed.) 474, 475, et seq. Mr. Webster, in his argument in the Dartmouth College case, 4 Wheat. 519, said: “By the law of the land is most clearly intended the general law. * * * The meaning is, that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.” Cooley says: “The legislature may suspend the operation of the general laws of the State; but when it does so, the suspension must be general, and can not be made for individual cases or particular localities.” Const. Lim. (4th ed.) 484. Undoubtedly there may be distinctions in regard to classes, or vocations, or localities, but as said in the work last quoted from, on page 486: “Limitations in these respects must rest upon some reason upon which they can be defended, like the want of capacity in infants and insane persons.” In The State v. Cooper, 2 Yerger, 599, the court says : “By Taw of the land* is meant a general and public law, operating equally on every individual in the community. ” The court then quotes from Lord Coke, (2 Inst. 51,) in which he says that the terms “ ‘law of the land,’ were used that the law might extend to all.” The correctness and importance of this doctrine are recognized and appreciated by all, for no one would pretend that the General Assembly could enact a distinct and different criminal code and a distinct and different civil code, or either, in respect of matters in which every part of the State and every individual therein has a like interest, for the different counties, cities, towns, etc., in the State; and if this, could not be done directly, it could not be done indirectly. What would be more absurd than submitting to the different counties, cities or towns the question of whether this or that enactment should be the law in the particular locality in regard to murder, robbery, forgery, perjury, arson, rape, burglary, larceny, etc., or whether, indeed, there should be any law at all in force in the locality in these respects ? And yet the reason why this can not be done is simply that persons deprived of life, liberty or property pursuant to such enactments, would be denied the guaranty of “due process of law, ”—the enactment would not be “the law of the land.”
But a law governing the opening and conducting of general elections is, in reference to a general subject, of like importance and interest in every part of the State, and, presumptively, to every citizen of the State. True, there are local elections,—that is, elections for officers having purely local duties to perform,—and a law in regard to them alone would be.in regard to a local subject. But this law is not limited' to local elections,—it applies to all elections. It seems to me that it can require no demonstration, because it is self-evident, that it is no more important to the honest voter in Chicago than it is to the honest voter in Cairo, that at a general election for State officers an illegal vote cast in Chicago be not counted, and that every legal vote cast there be counted as cast. An illegal vote at a general election for State officers, in any part of the State, is a wrong equally to all honest voters in every part of the State. At such an election the illegal vote in Chicago neutralizes or offsets the legal vote east in Cairo, just as much as it does the legal vote cast in Chicago. And the same observations are equally pertinent, to all elections in the election districts affected by this law, for members of Congress, members of the General Assembly, members of the State Board of Equalization, judge of Supreme Court, judges of circuit, Superior, county and probate courts, clerks of those courts, recorder, county treasurer, sheriff, State’s attorney, superintendent of schools, and county commissioners of Cook county. The locality of a wrong upon the ballot-box, is, to the candidate affected by it, and to every honest voter in the particular election district, plainly a matter that can not be of any practical importance. The situation, the circumstances, the rights affecting all voters within the district in which each particular officer is to be selected, must, in the very nature of things, be exactly the same. What can there possibly be, in the circumstances affecting it, to justify the distinction that if an illegal vote be east or an election officer be guilty of malfeasance in office in one voting precinct in Cook county, the person so guilty shall be punished by confinement in the penitentiary, and yet, if an illegal vote be cast or an election officer be guilty of the same malfeasance in office, under precisely the same-conditions and circumstances and in precisely the same way, at an election on the same day for the same officers in another precinct in Cook county, he shall be punished only by fine-, or by fine and imprisonment in the connty jail?—Or to allow* the voter in one precinct to prove by affidavit that he- is, entitled to vote, and to deny another voter, at an election for the same officers, on the same day, under precisely the same circumstances, in another precinct, to exercise that right? To my mind it would be no more absurd to discriminate, on account of locality, in regard to murder, larceny, forgery, rape or arson.
Our constitution, in various ways, which need not now be repeated, recognizes the existence of municipal corporations as a part of our system of government, and the municipal corporation thus recognized is one exercising delegated authority to make ordinances and by-laws in regard to local matters. Cooley, in his work on Constitutional Limitations, (4th ed. p. 230,) says: “It has already been seen that the legislature can not delegate its power to make laws; but fundamental as this maxim is, it is so qualified by the customs of our race, and by other maxims which regard local government, that the right of the legislature, in the entire absence of authorization or prohibition to create towns and other inferior municipal organizations, and to confer upon them the powers of local government, and especially of local taxation, and police regulations usual with such corporations, would always pass unchallenged. The legislature, in these cases, is not regarded as delegating its authority, because the regulation of such local affairs as are commonly left to the local boards and officers is not understood to properly belong to the State, and when it interferes, as it sometimes must, to restrain and control the local action, there must be reasons of State policy, or dangers of local abuse, to warrant the interference. ” See, also, Dillon on Municipal Corporations, (1st ed.) sec. 245. The class of powers, however, which it is competent for the legislature to delegate to municipal corporations, is limited to such as have reference" to matters which form appropriate subjects of municipal regulation. The power granted must be one which relates to legitimate and proper municipal purposes. It must be local in its general character, as well as in its operation. Freeman’s note to Robinson v. Mayor, 34 Am. Dec. 632.
There are also many eases where acts of an executive character are authorized by legislative enactment, where, from the very nature of the subject, there is an option or discretion vested in an individual,—as, where local ministerial acts are to be performed, and also where there are grants by the public to individuals; hut these are hardly to be regarded as laws, within the definition of Blaekstone, which he distinguishes from a transient sudden order, from advice or counsel, from contract or agreement, and which he says must have permanency, uniformity and universality. See 1 Blackstone, (Sharswood’s ed.) 44.
Acts for the creation of private corporations, though in the form of statutes, are but legislative grants by the State, constituting, when accepted, contracts, and therefore they are never binding until they are accepted. Angell & Ames on Corporations, (5th ed.) 381. See, also, remarks of Story, Judge, to like effect, in Charles River Bridge v. Warren Bridge, 11 Peters, 603; Trustees of Dartmouth College v. Woodworth, 4 Wheat. 518.
In each of the cases cited in the opinion, where a statute submitted to a vote of the people has been sustained, it was either a grant of power to a municipal corporation in regard to a local matter, or a grant of administrative power, or the grant of the right to form a private corporation. The first and leading case in this court upon the question, (People v. Reynolds, 5 Gilm. 1,) was upon the validity of a statute providing for the division of Gallatin county and the formation of the county of Saline, in the event that a majority of the electors within the territory should vote in favor of such division,—purely an administrative matter of local concern. And the court, in sustaining the validity of the act, among other things said: “We may well admit that the legislature can not delegate its general legislative authority. * * * Necessarily, regarding many things especially affecting local or individual interests, the legislature may act either mediately or immediately. We see, then, that while the legislature, may not divest itself of its proper functions, or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet can not understanding^ or advantageously do itself. *' * * Local laws almost universally call into action, to a greater or less extent, the agency and discretion either of the people or individuals, to accomplish in detail what is authorized or required in general terms. ” In People v. Salomon, 51 Ill. 37, it was submitted to the voters of a prescribed park district whether the act creating such district should be accepted as the law, and the validity of the enactment was sustained on the authority of People v. Reynolds, supra,—purely a local law. In Erlinger v. Boneau, 51 Ill. 94, the question was as to the validity of an act prohibiting stock from running at large in the counties of St. Clair and Monroe, a,nd the act was sustained on the authority of Reynolds v. People, and People v. Salomon, supra. It was clearly a local and special act, in regard to a matter of purely local government. In Guild v. City of Chicago, 82 Ill. 473, the controversy was in regard to an amendment to the general Incorporation law for cities and villages, but no question was there submitted to popular vote. In Home Ins. Co. v. Swigert, 104 Ill. 653, the portion of the opinion supposed to be pertinent is in reference to the 29th section of the Insurance act, imposing upon foreign corporations doing business in this State, like burdens as are imposed upon companies created under the laws of this State doing business in the State creating such foreign corporations. There was no question of option. The law is absolute. The only uncertainty is the measure of liability it imposed on different foreign corporations, and that depends on facts extraneous to the law. In neither of these cases was there any question of the effect of the 22d section of article 4 of the constitution, upon legislation that but for 'that section might be submitted to the local option of municipal corporations, and in neither of them was there any question whether a matter belonging to the domain of general law could be submitted for the adoption or rejection of local municipalities.
In brief, I feel compelled to hold that if this law relates to local matters, so as to be within the competency of the General Assembly to delegate its adoption or rejection to the locality to be affected, the law, when adopted, being the law no further than the localities adopting it, must be a local law, and so within the prohibition of the constitution. But I am unable to believe that it is confined to, local matters, and so I can not consent to the view that it can be delegated by the General Assembly to the localities to adopt or reject it. If, however, conceding the subject to be general, and that such a delegation is permissible, still, inasmuch as the law, although on a general subject, can have force as an election law only in the localities adopting it, it can not be the law of the land, and it must still be a local law, and so, also, within the prohibition of the constitution.
Mulkey, G. J., and Shops, J., concur in the foregoing views.