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dors of articles, and permitting it to purchasers of such articles; prohibiting it to sellers of commodities and permitting it to sellers of services, was a matter of legislative judgment; and we cannot say that the distinctions made are palpably arbitrary, which we have seen is the condition of judicial review. It is to be remembered that the question presented is of the power of the legislature, not the policy of the exercise of the power." The statute involved in this case had been held by the Missouri supreme court to be "limited to persons and corporations dealing in commodities and not to include combination of persons engaged in labor pursuits.” In view of this decision of the United States supreme court, it would seem that the Connolly case is no longer of weight, although the court in the International Harvester case expressly said that it was not overruling the Connolly case.
Limitation of the use of injunctions. The question as to the limitation of the use of injunctions in labor cases has not presented itself very definitely except in the case of Bogni v. Perotti, and the parts of that decision bearing upon this matter have been referred to under the preceding heading. It has already been suggested that the inferior federal courts are creations of congress, and that action by the United States supreme court upholding the provisions of the Clayton Act would not necessarily be decisive as to similar legislation in a state where the inferior courts were created by constitutional provision.
Punishment of contempts. Where a court is created by the constitution, the view has been generally taken that the power to punish for contempts is an inherent judicial power. This does not necessarily mean that the legislature has no authority whatever with respect to the matter of contempts, but it does pretty clearly imply that the presumption will be against any action by the legislature with respect to this matter. In a Virginia case which was decided in 1899,25 an act was involved which divided contempts into two classes, direct and indirect, and permitted the accused to obtain trial by jury in indirect contempts, the jury to fix the punishment by verdict. The contempt involved in the case was indirect and a jury was denied. The highest Virginia court upheld the action denying jury trial and said: "the power to punish for contempts is inherent in courts, and is conferred upon them by the very act of their creation." The court concluded that "in the courts created by the constitution there is inherent power of selfdefense and self-preservation; that this power may be regulated but cannot be destroyed or so far diminished as to he rendered
25 Carter's Case, 96 Va. 791 (1899).
ineffectual by legislative enactment; that it is a power necessarily resident in and to be exercised by the court itself and that the vice of an act which seeks to deprive the court of this inherent power is not cured by providing for its exercise by jury
This case reviews somewhat at length previous decisions upon the matter.
The Virginia constitution of 1902 provides in Section 63 that "the general assembly may regulate the exercise by courts of the right to punish for contempt". In Burdett's case,26 which arose after the constitution of 1902 had come into operation, the court takes the same view as in Carter's case, but apparently the legislature of Virginia had not acted since the constitutional provision of 1902 had come into effect.
In the Territory of Oklahoma in 1901, a case came into the court involving the constitutionality of legislation limiting the punishment of indirect contempts and providing for jury trial in such cases. The court in the case of Smith v. Speedasaid that the courts had derived their jurisdiction from act of congress, that their power to punish for contempt was inherent and that the legislative act was bad. In 1907 Oklahoma adopted a constitutional provision expressly directing the legislature to “pass laws defining contempts and regulating the proceedings and punishment in matters of contempt. Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court or a judge sitting as such, any order of injunction or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt until an opportunity to be heard is given."
The supreme court of Missouri in two important cases has held invalid legislative acts seeking to limit the conduct which may be punished contempt and also seeking
limit the amount of punishment for contempt.28 In the latter of these the provision
involved which limited the punishment for contempt to $50 fine ten days' imprisonment or both, or
both, or to thirty days' imprisonment in fine not paid. The decision holding this provision bad was by a bare majority of the court, three of the judges vigorously dissenting on the ground that a statute regulating the punishment of contempts within reasonable limits was valid and should be sustained.
A statute regarding jury trials in contempt cases has been expressly sustained in Kentucky. The Kentucky statute provided that “a court shall not, for contempt, impose upon the offender a fine exceeding $30, or imprison him exceeding thirty hours, without the intervention of a jury."29 The Missouri statute held un
26 103 Va. 838 (1904).
11 Okla. 95 (1901).
28 State v. Shepherd, 177 Mo. 208 (1903); C. B. & Q. Ry. Co. v. Gildersleeve, 219 Mo. 170 (1909).
>> Richards v. Commonwealth, 149 Ky. 497 (1911).
constitutional expressly exempted from its terms certain matters with respect to the enforcement of judgments of courts, and the Kentucky court took the view that similar matters were intended to be exempted by the statute upheld in that state.
The constitutions of Georgia, and Louisiana, contain provisions that the power of courts to punish for contempts may be limited by law. The supreme court of Georgia, however, has taken a view in the construction of this constitutional provision which seems to read substantially all meaning out of it. $0
The Arkansas constitution contains a provision that "the general assembly shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts or in disobedience of process."
Courts are likely to take a narrow view with respect to constitutional provisions limiting their power to punish for contempts. Attention should, however, be called to the fact that cases regarding these matters have more often arisen with respect to newspaper criticisms of the courts than with respect to labor controversies.
A rejected constitutional proposal in Ohio in 1912 provided that “laws may be passed prescribing rules and regulations for the conduct of cases and business in the courts of the state, regulating the proceedings in contempt and limiting the power to punish for contempt. No order of injunction shall issue in any controversy involving the employment of labor, except to preserve physical property from injury or destruction; and all persons charged in contempt proceedings with the violation of an injunction issued in said controversy shall, upon demand, be granted a trial by jury as in criminal cases.' The voters of Colorado in 1912 rejected a proposed constitutional amendment allowing jury trial in cases of constructive contempt.
Conclusions. As has been suggested, the fact that there is federal legislation, and the further fact that there has been a decision by the United States supreme court which would seem to support validity of legislation such as that here under discussion, is not conclusive as to the state, and the weight of authority in other states is probably now against such legislation, in the absence of constitutional provision, although there is a tendency to recognize the legislature as having power to enact such legislation. Even if the legislation had been squarely upheld by the United States supreme court as not depriving of due process of law nor denying the equal protection of the laws, such decision, as has already been suggested, would not be decisive as to the constitutional question in the states.
The problem here under discussion relates to two things: (1) the substance of the law with respect to labor controversies, and (2) the machinery for the enforcing of such law. In such legislation as the Clayton Act, the two matters are united, and certainty a: 10 the suh
30 Bradley v. State, 111 Ga. 168 (1900).
stance of the law is pretty clearly more desirable than is a limitation of the machinery through which that law is administered. If any provision is to be placed in the constitution of Illinois regarding labor controversies, care should be taken so to phrase the provision that it will not prevent other forms of action desired in the future.
CORPORATIONS, RAILROADS, WAREHOUSES, PUBLIC
UTILITIES, BANKING AND INSURANCE,
This chapter seeks to discuss briefly the various provisions of the present constitution regarding corporations in general, and regarding specific types of businesses which are affected with a public interest.
Corporations. With respect to corporations, there are several sections of the present constitution which may raise issues for consideration by the constitutional convention. Section 2 of Article 11 is probably obsolete, and may with safety be omitted.
Section 3 of Article 11 raises several definite problems as to constitutional policy. Cumulative voting is expressly provided for in this section, and with respect to this matter the constitutional provision is self-executing. If it is desired to retain cumulative voting for corporations, the provision should remain unchanged.
The issue also presents itself under this section as to the organization of cooperative corporations. Illinois has a law for the organization of co-operative companies, and this law forbids any one person to own more than five shares of stock in one company. This statutory provision was inserted for the purpose of preventing any one individual from controlling a co-operative company,
It would have been constitutionally impossible to permit individuals to own a larger number of shares of stock than they should be permitted to vote. A number of states have copied the Illinois constitutional provision regarding cumulative voting of shares of stock in corporations (California, Idaho, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Pennsylvania, South Dakota, West Virginia). However, California expressly provides that in co-operative societies members may vote in the manner prescribed by law; and North Dakota in 1918 adopted a constitutional amendment under which “any cooperative corporation may adopt by-laws limiting the voting power of its stockholders.” The Wyoming constitution contains a section which requires the legislature to "provide by suitable legislation for the organization of mutual and co-operative associations or corporations. It is, of course, impossible under the Illinois constitutional language to limit voting power or to vary voting power as among different types of stock in corporations.
Article 11, section 14 is unnecessary, and in the view of the Supreme Court was merely inserted out of excess of caution. The right of eminent domain could be used for the condemnation of the prop erty and franchises of corporations irrespective of this provision, although the removal of the provision might be construed to involve implications against legislative power in this respect. This matter