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York in the case of Ives v. South Buffalo Railway Company, 201
Ohio constitutional amendments of 1912 with respect to the eighthour day on public works, workmen's compensation and several other matters were made necessary either by decisions of the Ohio courts or by decisions which it was thought such courts would make if certain types of legislation were enacted. That is, in a fair number of cases with respect to social and industrial matters, the courts have directly forced the placing of provisions in state constitutions, in order to overcome narrow decisions or in order to avoid possible future decisions. However, constitutional provisions of this type are not numerous, and do not in any way account for the great mass of detail which may now be found in state constitutions with respect to social and industrial problems and with respect to other matters.
It is clear that an easier amending process is needed in this State, even though the Constitution be made less detailed than at present, but even with an easy amending process a great deal of detail in the Constitution is still a means of preventing or retarding progress.
Another argument against increasing the detail in state constitutions should be referred to. Under state constitutions as they now exist in this country, putting a matter in the constitution means that the only way to change it is by a popular vote. That is, as to constitutional provisions, there is outside of Delaware a compulsory referendum in order to obtain a change, although in a few state constitutions matters of a clearly temporary character have occasionally been expressly made subject to legislative authority. However, it is generally true that putting a matter into the constitution means that there must be a popular vote in order to change that matter, no matter how unimportant it may be. Whatever may be said in favor of an optional referendum (that is, of a power in a certain proportion of the voters to force a popular vote upon a measure), there is little to be said in favor of any plan which forces popular voting upon unimportant matters, irrespective of whether any of the voters desire that such matter be submitted or not. The increased detail of state constitutions increases the matters that must be submitted to popular vote irrespective of any demand for such a vote, and in a large number of the states during the past 20 years proposals submitted by the legislatures as constitutional amendments (and necessarily submitted to popular vote), have been much less important than proposals submitted in the form of ordinary legislation. In the State of California since 1900 one hundred and fifty proposed constitutional amendments have been submitted, and most of these proposed amendments have been rendered necessary by the fact that a large mass of detail has been inserted into the constitution. Of course, it is possible to insert a great deal of detail in the constitution and to make such detail alterable by ordinary legislative action, with a referendum provided a popular petition requires a referendum upon such matters. This, however, is merely to say that if the matter were one to be left to ordinary legislative action it should have been omitted from the constitution.
III. PROBLEMS OF DRAFTSMANSHIP.
A constitutional convention differs from the regular legislative body in several important respects. The convention will deal with but one document which is fairly brief and all of whose provisions must harmonize with each other. A legislative body ordinarily deals with hundreds of proposals, relating to different matters, and without a necessity that each proposal harmonize completely with each other proposal. The legislative body is throughout a session of some months acting upon and adopting a number of laws, and if a law passed earlier in the session conflicts with one adopted later in the same session (as is often the case) the difficulty may be solved by the rule that the later act replaces the earlier in so far as there is conflict. No such possibility presents itself to a constitutional convention.
The proposals of a convention will presumably be agreed to and submitted to the people at the same time, and in view of this fact the problem of careful draftsmanship and of harmonizing all provisions is much more important than in a regular legislative body. Not only this, but a constitution is likely to remain for a long time unchanged. Each part of it will be judicially interpreted, and will be interpreted in view of earlier constitutional provisions and of decisions based upon such earlier provisions. There is of course need of great care in the draftsmanship of statutes, but there is even greater need for care in the drafting of an instrument which may continue in force for a period of fifty years, as has been the case with the present constitution of Illinois.
Language of the present constitution to which there is no objection should be left unchanged, for to change such language with a notion of making it clearer or with a notion of adopting better English, is apt merely to raise questions of interpretation which must go to the courts for decision. Language which on its face does not seem to mean what is desired, but which by judicial interpretation has obtained a meaning that is satisfactory, should also be left as it is, for here again to make a change is merely to invite difficulty.
Attention is called below to the questions which have presented themselves because the framers of the constitution of 1870 varied the phraseology of the guarantee of jury trial. The Illinois constitution of 1870 is on the whole a well drafted document, but numerous matters of phraseology in it have made difficulty, although they were probably not of importance in the substance of the constitution as framed.
. Certain types of difficulties which have presented themselves in the constitution of 1870 are commented upon below, not for the purpose of criticizing in any way the work of the convention of 1869-70, but for the purpose of indicating things that should be avoided in the drafting of a new constitution or in the drafting of changes in the existing constitution.
The use of language which may be given a more extended meaning than was intended: The Constitution of 1870 guarantees the right of jury trial was heretofore enjoyed." These words had not appeared in the constitutions of 1818 and 1848, and their addition in 1870 was probably nothing more than a rhetorical flourish. The question necessarily presented itself to the Supreme Court, however, as to whether the jury trial so adopted was the jury trial as it existed by statute in 1870, so that such statutes became substantially unalterable. Such a result was denied in the case of George v. People, 167 Ill. 447, (1897) pp. 456-458. As the court said, if such an interpretation were given, the general assembly would be powerless to abolish written instructions to juries or to alter the numerous statutory details as to jury trial. Both before and after the George case, however, the Supreme Court has resorted to statutes in force between 1818 and 1870 to determine what was jury trial “as heretofore enjoyed,” although such resort has been had to support rather than to defeat legislative power. Borg v. C. R. I. & P. Ry. Co., 162 Ill. 348 (1896) pp. 352, 353; Spring Valley v. Spring Valley Coal Co., 173 Ill. 497 (1898) p. 503 et seq. So far as can be determined the effect of the pharse “as heretofore enjoyed" is that: (1) it does not keep in effect as constitutional requirements the statutory provisions existing in 1870, nor prevent changes in details of legislation in force in 1870 as to jury trial; (2) it does permit new legislation affecting jury trial provided a similar type of legislation was in force in this state before 1870.
Reference has previously been made to the decision of Fergus v. Russel, 270 Ill. 304, and to the broad construction there given to the powers of the Attorney General under the constitution of 1870. In order to accomplish the purpose of leaving the duties of attorney general subject to legislative control, the constitution makers would have had not merely to grant power to the general assembly, but also to insert an express denial of common law powers independently of legislation. An apparent grant of power to the general assembly by the constitution became a grant of authority to the attorney general and a denial of power to the general assembly.
So, the creation of the office of sheriff carries to that office common law functions which can not be withdrawn by legislative act, and this view has in Illinois a better logical argument in its support than has the case of Fergus v. Russell, for the sheriff has been a constitutional officer in Illinois since 1818. Dahnke v. People, 168 Ill. 102 (1907).
Constitutional provisions creating the offices of state auditor, secretary of state and state treasurer, also appear to confer constitutional powers upon these officers, although they are not common law officers, and although the constitution as to them also provides that they “shall perform such duties as may be prescribed by law.”
Since about 1840, implied limitations in state constitutions have come to play through judicial construction almost as large a share as express limitations, and if undesired implied limitations are to be avoided language must be carefully chosen, and implications already drawn by the courts of this and other states in certain cases must be expressly negatived.
Similar clauses used in several parts of the Constitution: The constitution of 1870 requires a two-thirds vote of the two mouses of the general assembly in tive cases; in the passage of emergency measures, (Art. IV, Sec. 13); in increasing the aggregate amount of appropriations once made, (Art. IV, Sec. 18); in the passage oi bills over the governor's veto, (Art. V, Sec. 16); in the proposal or anendments to the constitution, (Art. XIV, Sec. 2); and in the submission to popular vote of the question of calling a constitutional convention, (Art. XIV, Sec. 1). In four of these cases the consutution specifies a vote of two-thirds of the members “elected” to each of the two houses; in one case it specifies "two-thirds of the members of each house," (Art. XIV, Sec. 1). Under general rules of judicial construction a difference in language may in so important a document as a constitution be presumed to intend a difference of meaning, and it would be easily possible to construe “two-thirds of the members of each house” to mean two-thirds of a quorum, rather than two-thirds of all elected. In fact judicial decisions in other states would support such a construction, (Green v. Weller, 32 Miss. 650 (1856, ; State v. McBride, 4 Mo. 303 (1836), and a view supporting such a construction has also been recently taken by the United States Supreme Court, Missouri Pacific Ry. Co. v. Kansas, 218 U. S. 276 (1919). Yet the difference in language in the clauses here discussed was almost certainly a matter of pure accident.
The constitution of 1870 contains a number of provisions with respect to popular votes:
Art. IV, Sec. 18, Contracting state debt;
Sec. 2, Division of counties;
upo. proposals submitted by convention; Art. XIV, Sec. 2, Vote upon proposed constitutional amend
ments. Separate Section, Vote on question of sale or lease of Illinois
and Michigan Canal. In some of these provisions differences in language were clearly intended to adopt different rules, but this was not true in all cases. For
example, Art. X, Sec. 5, provides for the adoption of the township system "by a majority of the legal voters of such county, voting at any general election", and for the abolition of the township system if at a general election "a majority of all the votes cast upon that question shall be against township organization”. It seems pretty clear that no difference in meaning was here intended, and that the purpose of the constitutional convention of 1870 was that merely of adding a provision for the abolition of the township system by the same vote as that required to establish the system, carrying out the principle laid down by the State Supreme Court in People ex rel. Manier v. Couchman, 15 Ill., 142 (1853).
So, with respect to indebtedness and expenditures, Art. IV, Sec. 33, requires a majority of all votes cast at a general election to authorize additional expenditures for the construction of the state house ; while Art. IV, Sec. 18, requires for the incurring of indebtedness by the State in excess of $250,000, a majority of the votes cast for members of the general assembly.
For the calling of a constitutional convention, the constitution (Art. XIV, Sec. 1) requires a majority of those voting at a general election. For the adoption of a constitutional amendment it requires (Art. XIV, Sec. 2) a submission "at the next election of members of the general assembly” with "a majority of the electors voting at said election”. Under this latter clause the argument was a plausible one that the difference in phraseology was intentional and made the vote for members of the general assembly the test by which to determine whether an amendment had been adopted. In order to settle this issue a decision of the Supreme Court was necessary, and this decision was by a divided court. People v. Stevenson, 281 Ill., 17 (1917).
Throughout the whole of the Constitution of 1870 runs the principle that the compensation of officers shall not be increased or diminished during their terms. Provisions with respect to this matter appear in the Constitution at least eight times (Art. IV, Sec. 21, Sec. 22, CI. 20; Art. V, Sec. 23; Art. VI, Secs. 7, 16, 25; Art. IX, Sec. 11; Art X, Sec. 10), and are reinforced by still another provision (Art. IV, Sec. 19). It has required a decision of the Supreme Court to determine that the differently phrased clauses mean the same thing. Foreman v. People, 209 I11., 567 (1904). A single clause stating one principle would have been wiser. See also People ex rel. Holdom v. Schweitzer, 280 Ill., 436 (1917).
The Constitution of 1870 expressly prohibits any member of the general assembly being interested in contracts with the State or any county authorized by a law passed during his term, (Art. IV, Sec. 15); prohibits members of the General Assembly or other officers of the State being interested in printing and certain other contracts (Art. IV, Sec. 25); and also expressly prohibits teachers and school officers being interested in school supplies (Art. VIII, Sec. 4).
The question as to the effect of these three provisions upon legislative power has not presented itself to the Supreme Court of this State, but under the view taken by the Supreme Court in the case of People ex rel. Hoyne v. McCormick, 261 I11., 413 (1914), the view