dissenting:
The question presented here for determination is one of legislative power, and the argument that the operation of the Illinois and Michigan canal has ceased to be profitable and therefore it should be abandoned is beside the case. Such argument, if presented to the consideration of the legislature, if founded on fact, might be worthy of its consideration, but when urged here as a reason for holding the statute unconstitutional is without force. If, however, it is to be given force, the facts should not be lost sight of that the canal thus far has not been a burden to the State, and the evidence in this record does not show it ever will be burdensome to the State. The original cost of the canal, which was approximately $5,-000,000, was paid for from the sale of lands donated to the State by the general government for canal purposes, with the express understanding that the canal should be forever maintained by the State. From the time of its construction to the time of the filing of this bill the canal had earned more than $6,500,000, and there now remains in the State treasury, after paying all its expenses and after refunding to the State all moneys appropriated for its use, the sum of $338,695.76.
At the time the constitution of 1870 was adopted the canal was the most valuable piece of property owned by the State, and the framers of the constitution, to guard against its sacrifice, inserted a provision in the constitution, which was subsequently ratified by the people, that it should never be sold or leased unless the specific proposition for the sale or lease thereof should first have been submitted to a vote of the people of the State at a general election and approved by a majority of all the votes polled at such election. The adoption of that provision showed that it was the fixed intention of the people that they should not be deprived of said canal without their consent, and to effectuate such intention they took from the legislature the power to transfer the canal to any person or corporation, even for a temporary period. The constitution, it must be remembered, is a limitation upon and not a grant of power, and the people having provided that the canal shall not be sold or leased but shall remain the property of the State until, they have consented that it might be disposed of by sale or lease, it would seem clear the legislature, as their representative, has the right to provide for the preservation of the canal by the appropriation of funds from the State treasury so long as it belongs to the State, the same as it has for other property of the State, such as the State House, insane asylums, penitentiaries, etc., unless such power has been taken away by the constitution, either in express terms or by necessary implication. It having been provided the canal cannot be sold or leased except upon the vote of the people, the implication would be that it should be maintained and operated until it was sold or leased, and not that it should be allowed to fill up and fall into decay,—and the power to appropriate funds from the State treasury for such purpose would necessarily follow. The implications arising, therefore, are all in favor of the power to appropriate money for the operation and maintenance of the canal, rather than against it. This being true, we must therefore search the constitution and be able to point out the clause therein which prevents the legislature from appropriating funds from the State treasury with which to operate and maintain said canal, and if such prohibition cannot be pointed out, the power exists, as the power is vested, in the legislature unless it has been taken away.
It is contended such limitation or inhibition is found in the following paragraph of the constitution: “The General Assembly shall never loan the credit of the State, or make appropriations from the treasury thereof, in aid of railroads or canals: Provided, that any surplus earnings of any canal may be appropriated for its enlargement or extension.” We do not think the contention correct. It is a well known fact that prior to the year 1870 municipal aid had been voted to assist in railroad construction in many municipalities throughout the State in a most wild and extravagant manner; that the members who sat in the constitutional convention, held that year, had not forgotten the schemes for a system of internal improvements which in the early history of the State had threatened to bankrupt the State, and that new schemes for the construction of canals to furnish drainage to the city of Chicago, for the reclaiming of the swamp and overflowed lands of the State, and to furnish a waterway connecting the great lakes and the gulf, through the Illinois and Mississippi rivers, were again rife, and anyone who will take the time to read what was said at the time the provision under consideration was before the constitutional convention will conclude at once that the words “the General Assembly shall never loan the credit of the State, or make appropriations from the treasury thereof, in aid of railroads or canals,” were incorporated into the constitution to prevent the legislature from lending the credit of the State to or making appropriations from the State treasury in aid of railroads and canals which were not then built, and which, when constructed, were to be owned and controlled by private persons or corporations,—at least by parties other than the State,—and that said provision does not apply to the Illinois and Michigan canal.
This much seems to be conceded, but it is said the proviso following those general words, viz., “that any surplus earnings of any canal may be appropriated for its enlargement or extension,” clearly refer to the Illinois and Michigan canal, and prohibit an appropriation of funds from the State treasury for the maintenance and operation of said canal. We think the position untenable. It is conceded the usual office of a proviso is to limit the general provision which precedes it, and not to enlarge it. If this proviso is construed as a limitation, its effect would be to .take 'from the general provision some subject which, by the general words used in the provision which precedes the proviso, would be included in the general provision, but in no event could it be held to import into the general provision a subject which was not there before. As the Illinois and Michig-an canal was not included in the general provision preventing the pledging of the credit of the State or the appropriation of funds from the State treasury in aid of railroads or canals, the same was not imported therein by the proviso, and therefore the appropriation covered by the act of the legislature now in question is not prohibited by said constitutional provision, when considered separately or in connection with the proviso. It also appears from the debates in the constitutional convention when the provision now claimed to inhibit the passage of the act making the appropriation in question was under consideration, that certain members of the convention were strongly in favor of the enlargement and the extension of the Illinois and Michigan canal westward to the Mississippi river, and it would seem from the debate which then ensued, that the office of the proviso above set out was, in case the canal should be extended to the Mississippi river,—which also involved its enlargement to a ship canal,—to prevent the credit of the State and the moneys in the State treasury being used to pay for or the State becoming liable in. any manner for the cost of such extension or enlargement, except in so far as the surplus earnings of the canal would pay for such extension and enlargement.
As no other express provision of the constitution has been pointed out which it is claimed prevents the appropriation of moneys from the State treasury for the operation and maintenance of the Illinois and Michigan canal, and as the provision pointed out does not, in express terms or by implication, even remotely refer to the expenses of operating or maintaining the canal, we take it there is no provision of the constitution which prohibits such appropriation,—and such was the view of the gentleman who drafted the constitutional provision which has been relied upon to defeat said appropriation. While his view is not controlling",' he was admittedly a profound lawyer. At the time the provision was being voted upon he said “that this [the constitutional provision above quoted in full] does not touch the power of the General Assembly to keep the canal in repair,” and in case of-doubt we think the view as there expressed entitled to great weight, and that after that view has been accepted and acted upon for more than thirty years by the executive and legislative departments of the State it should not be set aside. In "considering the constitutionality of a statute it is the duty of the court to hold it constitutional unless the court can say it is clearly in conflict with the constitution, and if the court is in doubt and two views are presented, one of which would sustain and the other overthrow the law, the court should adopt the one favorable to the law and hold it constitutional.