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HARVEY B. HURD.

SPECIAL ADDRESS.

STATUTE MAKING.

HARVEY B. HURD, OF CHICAGO.

There is a common saying among those familiar with statute making, that the more one knows about how statutes are made, the less he thinks of them—it should be the less he thinks of the statute makers. There is no more delicate function of government than making statute law, and it is fair to say none is so carelessly performed or performed by persons so illy prepared for the work. Many expedients have been resorted to to secure greater accuracy and harmony in the enactments of the Legislature, such as Beards of Revision, etc., but with little beneficial effect. It was thought a great corrective was found in the constitutional clause, “no law shall be revived or amended by reference to its title only, but the law revived or section amended shall be inserted at length in the new act;" and it must be admitted that it has brought about a considerable improvement in the making of a numerous class of amendments, but it leaves a more troublesome class unrestricted-amendments by implication. It is no doubt a wise construction of this clause which confines its operation to such amendatory acts as assuine in terms to amend a given section; for, as is said by our Supreme Court in The People vs. Wright, 70 Ill., 388, "It cannot be held that

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SPECIAL ADDRESS.

this clause of the Constitution embraces every enactment which in any degree, however remotely it may be, affects the prior law on a given subject, for to so hold would be to bring about an evil far greater than the one sought to be obviated by the clause."

There are, however, some examples in the enactments of our legislature that go far to show that this construction opens a wide door to evasion of the true spirit of the clause. It goes far to break down its restraining force and throw us back upon a very slender reliance—the, conscience and care of the legislature.

A single instance (and I might cite many) will suffice to illustrate this point. The act of March 26, 1872, with reference to changing the name, place of business, increasing or decreasing the number of directors of corporations, etc., allows these changes to be made on a vote of two-thirds of all the stock of the corporation at a meeting called by the directors. In a corporation that happened to have an even number of directors, a question arose upon which the directors were evenly divided. One of the parties controlled a majority of the stock, but not two-thirds. This party consequently wished to have the law so changed as to allow the number of directors to be increased by a majority vote. The desired amendment could have been affected by the change of the word "two-thirds” to “majority” in two sections. The straightforward way and the one the constitution makers intended and public policy demanded was to proceed directly to the amendment of those sections by a bill professedly for that purpose and in which the sections as amended would be "inserted at length in the new act.” But this course would most likely have drawn upon the bill the attention of the public, as well as that of the particular individuals whose rights were intended to be affected, and this is just what the proponements did not want. The course taken was to get an independent act passed; one that, although its only

HARVEY B. HURD.

purpose was to amend certain sections of an existing act, made no reference whatever to that act either in its title or in its text.

The new Revenue Act of 1898 is a flagrant violation of the spirit of the Constitution. There was no good reason why the changes made by that act for the assessment of the property for taxation should not have been incorporated into the old law by direct amendment of the several sections covering the subject. That this might have been done is shown by the fact that a bill was prepared and introduced into the General Assembly proceedings, the special session that passed the new act doing that very thing. Substantially all that is in the new act was in that bill and was taken directly from it, and in many instances verbatim. That this act ran a very close chance of being pronounced unconstitutional, on the ground that it violated the clause of the Constitution in reference to amendments, is evident from the following language of Justice Cartwright in the opinion in People vs. Stuckert, 183 Ill., 410: “An examination of the act in connection with the very forcible argument of counsel against its validity, raises most serious questions, whether it is not merely amendatory of prior existing laws for the assessment of property.

The mere fact that portions of the old law are kept in force, so that the statutes present the aspect of what has been called patchwork legislation, as they undeniably do, should not render the act void if it can be said that the act is reasonably complete and sufficient in itself upon distinct branches of the general subject." It is apparent from other language made use of in this opinion, that the circumstances of the case had some influence in determining the Supreme Court not to declare the whole act unconstitutional. It would have been a very serious thing to declare unconstitutional and void an act of such importance, -one that has been adopted after so many fruitless attempts,

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and at the cost of a Special Session called for the sole purpose.

The respect for the spirit of the Constitution ought to be so high among legislators that the passage of an act not within its teachings would be an impossibility. Such acts as those referred to overload and confuse the statutes, and tend to the evils of special and personal legislation.

To show the carelessness, not to say recklessness, of our legislators, I will give a few instances which most readily come to me.

The Constitution of 1870 provides that after the Xovember election in 1873, the county business in counties not under township organization, shall be done by a board of three commissioners. Until that time the County Court was to continue to do this business. The road law applicable to those counties being revised before that time, it retained the "County Court” in the body of the act as the agency for doing county business, but the revised act provided that after the election of commissioners in November, 1873, the duties therein required to be discharged by county courts, should devolve upon the board of county commissioners. The revision being published in 1874, after the election of the commissioners, the editor put the words, "county court" in italics and inserted after them in brackets the words “county board,” indicating, as explained in a foot note, that "county court” was to be omitted and “county board” read instead. So also wherever the words, “clerk of the county court" occurred, they were put in italics and "county clerk” inserted in brackets. In 1875, the legislature amended several of the sections in which this had been done, and instead of dropping the words “county court” and “clerk of the county court" and retaining the words "county board" and county clerk," both sets of words were retained and of course both enacted into law.

The revision of the road law of 1871 having legislated

HARVEY B. HURD.

the overseers of highways out of office, they rallied at the next election of members of the legislature, and in 1873 the legislature passed a new revision putting the overseers in again. In this revision, Section 68 required the damage to owners of land injured by opening ditches, drains, sluices or water courses, to be “levied and collected in the same manner as provided in Section 14, Art. 17 of the township organization law." At the time this act was passed there was nothing on the subject of levying and collecting such damages in the "township organization law," nor was there any Art. 17 in that law. It contained but fifteen articles. Although a note to this Section 68 in the Revised Statutes of 1874 called attention to these facts, the error was repeated in 1877 when the road law was again revised by the legislature. A history of the revisions and amendments of the road law in the last fifteen years would be curious reading. The bone of contention has been the overseers of highways, whether there should be such officers or not.

The General Assembly of 1877 passed two emergency acts. They were both approved on the same day and of course both went into effect on the same day. In one of these acts it was provided that the "State Board of Agriculture should on or before the first day of November, 1876, and biennially thereafter, make and deliver to the Governor a report of their actings," etc., "and no other annual or biennial report shall be made by such officers;" the other act provided that the State Board of Agriculture should immediately after their annual meeting in January in each year, make and deliver to the Governor a report of their doings, etc., and “no other annual report shall be made by such Board." In the first of the acts referred to, the “State Board of Agriculture” was grouped with certain State officers and in the other it alone was mentioned.

In 1875, Section 1 of the drainage act was amended so as to require that the petition for a drain or levee should be

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