Phillips v. Browne

Mr. Justice Craig,

dissenting:

Under the rule for determining the constitutionality of a statute we should hold the statute constitutional unless we are satisfied that it is unconstitutional beyond all reasonable doubt. This rule particularly applies to the statute in question, which affects certain privileges which the General Assembly has seen fit to grant to the members thereof the better to facilitate their work. Section 22 of article 4 of the constitution provides: "The General Assembly shall not pass local or special laws in any of the following enumerated cases: * * * Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” The constitution does not prohibit the granting of a special or exclusive privilege, immunity or franchise by general law,—the prohibition is against doing so by a local or special law. The constitution, by article 3, expressly divides the powers of the government of the State into three distinct departments,—the legislative, executive and judicial. This, in itself, is a classification by the fundamental law of the State, and places the members of the legislative department, constituting the General Assembly, in a class by themselves, distinct from other State officers. Aside from this the classification is not arbitrary, and there are good reasons for holding the law in question valid and necessary.

In Munn v. People, 69 Ill. 80, section 22 of article 4 of the constitution is quoted, and with respect to its meaning it is there said (p. 85) : “The inhibition extends only to passing special laws for such purpose. But- the law in question is general in its objects, operative throughout the State, and confers no immunity or special or exclusive privilege or franchise upon any individual, association or corporation. It deals with an existing business closely associated with the great agricultural interests of the State and seeks to regulate it by law. This is the whole scope of the act.”

The point in question is the distinction between “local,” “special” and “general” laws. A local law is defined in People v. Wilcox, 237 Ill. 421, (on page 424,) as being a. law which relates to only a portion of the territory of the State, and it is said the word “special” is more appropriately applied to laws -that grant some special right, privilege or immunity to some portion of the people of the State less than all. In People v. People’s Gas Light Co. 205 Ill. 482, it was held that the act of 1897, authorizing merger of gas companies in the same city, was not violative of section 22 of article 4 of the constitution, prohibiting special laws granting exclusive privileges to any corporation, association or individual, for the reason that it applied to all gas companies doing business in the same city. On page 494 of the opinion, with respect to whether or not a law is special, it was said: “These laws áre general and uniform, not because they operate upon every person in the State, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the laws. They are general and uniform in their operation upon all persons in the like situation, and the fact of their being general and uniform is not affected by the number of those within the scope of their operation.”

Laws public in their objects may be confined to a particular class of persons if they be general in their application to the class to which they apply, provided the distinction is not arbitrary but rests upon some reason of public policy growing out of the condition or business of such class. Such distinctions are being constantly made, as in cases of infants, married women, laborers, heads of families, common carriers and the like. For example, it may be public policy to give laborers a lien or other preference for the collection of their wages not given to other, creditors, or give a lien to laborers in some one line of employment while it would be neither practicable, nor policy to give it to laborers in other employments. Laws which provide that the homestead to the value of $1000 to the head of a family and $400 in personal property shall be exempt from forced levy and sale for debt have never been questioned. Section 4 of chapter 78, entitled “Jurors,” exempts certain persons and public officers from jury service, and if the act in question is unconstitutional then that act also must be held unconstitutional. So long as a law applies equally to all engaged in that kind of business, treating them all alike, subjecting them to the same restrictions and giving them the same privileges under similar conditions, it is public in its character and not subject to the objection of being partial or unequal legislation, provided, of course, as already stated, the distinction made is based on some reason of policy and is not purely arbitrary. Potwin v. Johnson, 108 Ill. 70; People v. Wright, 70 id. 388; People v. Martin, 178 id. 611; Dawson Soap Co. v. City of Chicago, 234 id. 314; People v. Nellis, 249 id. 12; People v. Kaelber, 253 id. 552.

- Section 126 of the Practice act is not a special law granting an exclusive privilege or immunity to an individual. Every member of the legislature or any individual elected to that office has certain powers and duties, and, it may be said, certain special privileges common and necessary to that office. Among these is the right to a voice and vote in the enactment of laws, the right to receive a salary and certain perquisites, the right to a seat in the branch of the General Assembly to which elected, and to the use of the capítol building. Under the constitution every member is privileged from arrest except for certain offenses. Sections 66 and 126 merely bestow those privileges which the law-making power has deemed necessary and incidental to properly performing the duties of that office. They can not be said to be exemptions to an individual who has no public duties to perform. They are exemptions pertaining to the office, bestowed on all those, as a class, who hold such office. The fact that other officers of the State have not been granted such an exemption is no reason why members of the General Assembly should not be allowed that privilege. ‘ There is so great a difference between members of the General Assembly and other State officers as to qualifications, tenure, residence and general duties that it would be impossible to place them all in one classification for all purposes. Many of the other State officers are provided with assistants and a considerable office force, so that the business of their respective offices goes on in case of an enforced absence. But this is not true of members of the General Assembly. They must be personally present during the sessions and cannot delegate their votes and the proper performance of their duties to others. Other State officers would be exempt from service during the whole of their terms of office, while members of the General Assembly,— representatives elected for terms of two years and senators for four years,—would not be exempt from the service of process during the whole of their terms of office, but, on the contrary, for only a part of such terms, viz., while the legislature is in session. It is undoubtedly the intent of all laws governing the procedure of the legislature that the members should go into session, transact the necessary business of that body and adjourn, and not remain in continuous session. They should not be harassed by lawsuits and compelled to absent themselves from the sessions of the legislature when the actual presence of each member is necessary in order that all the people may have representation.

It is difficult to see how section 126 is contrary to section 22 of article 4 of the constitution, unless section 66 is also and for the same reason contrary to the constitution. It cannot be said that a right to a continuance merely because the party to a suit, or his attorney, is a member of the General Assembly is not a privilege or immunity just as much as the exemption of a member of the General Assembly from the service of civil process while the General Assembly is in session. The constitutionality of section 66 has never been questioned. It has frequently been construed by this court, and we have held that it is error to refuse to continue a case on application where the party applying for a continuance has brought himself within the provisions of the section. St. Louis and Southeastern Railway Co. v. Teters, 68 Ill. 144; Chicago Public Stock Exchange v. McClaughry, 148 id. 372; Ware v. City of Jerseyville, 158 id. 234.