IX. POWER OF THE COURTS TO DECLARE LAWS UNCONSTITUTIONAL.

Development of power in Illinois. The Illinois constitution of 1818 imposed few limitations upon legislative power and associated the judges of the supreme court with the governor in the exercise of the veto power over legislation. The judges as members of the council of revision had power to present objections to a measure before it became law, although the measure might be passed over such objections by a majority of the whole number of members elected to each house. Under the circumstances it was to be expected that few decisions upon the constitutionality of laws would be rendered under the first constitution of Illinois. During the period from 1818 to 1848, there were twenty-nine cases involving the constitutionality of seventeen laws. In seven cases, involving four laws, statutes were held invalid, but only two of the statutes were held invalid upon state constitutional grounds.

The constitution of 1848 materially increased the limitations upon legislative power, and practically recognized by the constitution itself a power in the courts to declare laws unconstitutional. Of the 111 cases in which statutes were contested upon constitutional grounds between 1848 and 1870, much the greater number dealt with constitutional limitations introduced in 1848. Sixty-five of the cases related to local and special legislation. With the increased number of decisions upon questions of constitutionality, the passing upon such questions by the court came to be a much less solemn and responsible function than before 1848, and in 1870 the supreme court passed upon the constitutionality of statutes in two cases when the question was not necessarily involved.

In the constitutional convention of 1870, the power of the courts to pass upon the constitutionality of legislation was recognized without question, and no action was taken upon a proposal "that the supreme court alone shall have power to decide questions arising upon the constitutionality of any act of the legislature; and that no act of the legislature shall be declared unconstitutional by the supreme court except upon unanimous concurrence of all the judges thereof."1

The action of the convention of 1869-70 indicates a grave distrust of legislative power. Numerous limitations upon the legislature were placed in the constitution of 1870. Detailed provisions against special legislation, limitation as to the form, content and method of enacting measures, and numerous other limitations hedge about the power of the general assembly on every side. The whole attitude of

1 Debates, Constitutional Convention of 1870 p. 321

the convention indicates that this mass of new limitations was to be enforced by the courts.

From 1870 to the end of the June term, 1913, the supreme court passed upon 789 cases involving the constitutionality of statutes and in more than a fourth of these cases statutes were declared invalid. To a great extent these cases were based upon limitations which first appeared in the constitution of 1870, or upon limitations whose stringency was then increased. For example, between 1870 and 1913, seventy-three cases dealt with the requirements as to titles of acts, twenty-five with technical requirements as to passage of laws, and eighty-seven with special legislation. The number of cases involving constitutional questions has steadily increased, and the cases between 1890 and 1913 outnumbered those between 1818 and 1889. Not only has the total number of cases steadily increased, but there has been an increase in the proportion of cases in which statutes have been declared unconstitutional, and the statutes declared unconstitutional have in recent years been relatively more important than previously.

It is customary now to raise the question of constitutionality as a matter of course in cases which involve new enactments, and in view of the fact that statutes are declared unconstitutional in a number of cases at each term of the supreme court, a declaration of unconstitutionality has necessarily lost the extraordinary and solemn characteristics which it may once have possessed. A function ceases necessarily to be solemn and extraordinary when it is exercised with great frequency. The steadily increasing bulk of cases involving constitutional questions may in great part be explained by (1) the growth of specific limitations upon the general assembly in the constitution itself; (2) the extended use of the "due process of law" limitation, and of the limitation against the enactment of local or special laws granting "any special or exclusive privilege, immunity or franchise. whatever", and (3) to the increased persistence with which constitutional objections to statutes have been urged upon the court. It may probably be said of judicial decisions in any field that the extent to which a particular doctrine is applied depends to a large extent upon the persistence of counsel in the argument of cases.

The extended application of "due process of law" and of other broad phrases in the constitution requires a further discussion. The constitution of 1818 and 1848 contained the provision that no one shall be "deprived of his life, liberty or property but by the judgment of his peers or the law of the land." In the constitution of 1870 the now familiar phrase "due process of law" appears, but apparently without any change in the meaning of the constitutional guarantee. The use of this clause, however, has been enormously expanded. Before 1848 there was but one decision (in 1845) based upon this provision, and in that case "due process" was regarded as a limitation upon procedure only. Between 1848 and 1870 there were nine cases (in a majority of which statutes were upheld), and with 1864 began the tendency to employ this limitation as one applying to the substance of statutes, as well as to procedure. Since 1870, and more especially since 1886 the principle

has developed, not only in Illinois, but also in the other states and in the United States supreme court, that a statute deprives of due process of law if it singles out certain persons or classes and imposes upon them burdens not imposed on others in like conditions, or if it seeks to impose regulations regarded by the court as unduly interfering with private rights.

This extended application of due process of law is one which, of course, makes the term impossible of definition, and no courts have sought to define it. The necessary absence of a definite standard as to what may or may not be done under the due process clause has, of course, made difficulty for the legislatures of this and other states. Due process as a limitation upon what the legislature may do is broad and indefinite; due process as a limitation of what procedure is proper under the constitution or statutes has on the whole a fair degree of definiteness. During the period between 1870 and 1913, 115 cases arose on the due process of law clause in Illinois, and of these seventy-four arose between 1900 and 1913.

From the preceding discussion, it may be concluded that (1) the great bulk of increase in the exercise of this power by the courts is to be attributed to increased limitations placed in the constitution itself; (2) that the most important single increase has been due not to an added limitation in the constitution itself, but to the extended application of the "due process of law" clause, and (3) that declaring a statute unconstitutional has now ceased to be a solemn and extraordinary func

tion.

One of the most serious problems which has presented itself with respect to the exercise of this power is that substantially identical clauses (such as the due process of law clause) in the various state constitutions and in the constitution of the United States have been differently construed by different courts. The supreme court of the United States, on the whole, has been more liberal in the construction of “due process of law" than have many of the state courts, and in a number of cases statutes which are "due process of law" under the federal constitution are violative of "due process of law" as construed by the supreme court of Illinois.

The earlier doctrine of the courts was that the question of the constitutionality of a statute should be decided only as an incident to the determination of a bona fide controversy between parties. For a number of years, however, the question of constitutionality has been decided primarily in cases where a person to be affected by a statute seeks an injunction to prevent the enforcement of the statute, or where a person seeks a mandamus to compel action under a statute. It may, of course, be possible to contend that in such cases the rights of the parties are the fundamental issue and the question of constitutionality a mere incident, but as a matter of actual fact, in most cases squarely involving the validity of a statute, the question of constitutionality is the one on trial, even though it is presented in the form of a bona fide controversy. This situation is well recognized by counsel in substantially all of the cases involving the validity of important statutes, and although it is probably true that there are few collusive cases with respect to this

matter, agreed cases to raise the issue of constitutionality are not uncommon in Illinois and in other states.

Ordinarily the question of constitutionality must first be presented to a trial court, although some important cases may be brought originally in the supreme court. The making of the constitutional issue in the trial court has, however, in this country become a rather formal matter, in order that an appeal may be perfected to the supreme court. The appellate courts of this state have no jurisdiction to pass upon questions of constitutionality, and if a question as to the validity of a statute has been raised in the trial court, taking the case to an appellate court waives this ground of objection.3

Proposals with respect to judicial power. Numerous criticcisms have been made of the exercise by the courts of their power to declare laws unconstitutional; and a number of proposals have been made with respect to this matter. Such proposals will be discussed briefly below.

(1) One of the simplest methods of reducing the power of the courts to declare laws unconstitutional is that of reducing the number of state constitutional limitations. It has already been suggested that in Illinois the greater part of the increase in cases involving questions of constitutionality has been due to the introduction of new constitutional limitations. Limitations regarding the procedure in the enactment of legislation and with respect to local and special legislation have been responsible for the annulment of a large proportion of the statutes declared unconstitutional in this state since 1870, and many of the statutes declared unconstitutional on these grounds have been important ones.

The constitution of Illinois provides in detail that various types of local and special legislation shall not be enacted. The constitution also contains a provision that "in all other cases where a general law can be made applicable, no special law shall be enacted." In Illinois, as in substantially all other states, this provision is interpreted by the courts as directed to the judgment of the legislature and not as an enlargement of judicially enforcible limitations.

Some states have adopted a plan with respect to local and special legislation different from that adopted in Illinois. Missouri, in 1875, introduced into its constitution a provision that "in all other cases where a general law can be made applicable no local or special law shall be enacted; and whether a general law could have been made applicable in any case is hereby declared a judicial question, and as such shall be judicially determined without regard to any legislative assertion on that subject." Similar clauses have been adopted in Minnesota (1892), Alabama (1901), Kansas (1906) and Michigan (1908). In Michigan there is an added provision that no local or

2 See, for example, the case of State ex rel Gullett v McCullough, 254 III. 9 (1912). Griveau v South Chicago Ry. Co., 213 Ill. 633 (1905); Indiana Millers Mutual Fire Ins. Co. v People, 170 Ill. 474 (1898).

special law "shall take effect until approved by a majority of the electors voting thereon in the district to be affected". Michigan does not in great detail forbid local and special legislation, but has accomplished the same purpose more effectively by requiring a local vote upon such legislation and by making the necessity for a special act a judicial question. The plan adopted in Michigan definitely enlarges judicial power over legislation, but is intended to submit to the court a specific question of fact. If the court confines itself to the question so submitted, little difficulty will result, and the plan adopted in Michigan is likely to prove more satisfactory than that of prohibiting in detail various types of special legislation, and thus raising a large number of questions for judicial determination. That is the enlargement of the judicial power with respect to this matter may result in an actual simplification of the judicial function of passing upon the constitutionality of statutes. The danger of the plan adopted in Michigan is that the term "special legislation" may be construed as meaning any legislation which, in the opinion of the court, deprives of what it regards as proper rights or makes a classification of which the court disapproves. There has been a tendency of this character in the interpretation of this clause in Missouri and Minnesota, and a basis for such an interpretation exists in Illinois in the present interpretation of the special privileges and immunities clause of Article 4, section 22, of the constitution.1

Some limitations upon legislative procedure were imposed by the constitution of 1848, but these restrictions were increased in 1870. It would probably be unwise to do away with many of these provisions, but the procedural limitations were primarily intended to guard against fraud or surprise in the enactment of legislation, and it has been urged that it is unnecessary for the accomplishment of their purpose that legislation should be for an indefinite time subject to overthrow because of some formal defect in its enactment. It has, for this reason been suggested that the value of most of the procedural limitations may be fully preserved and difficulties avoided by restricting to a fixed period, possibly one year, the opportunity of attacking legislation because of formal defects. Were this done, some special proceeding would have to be devised for the purpose, in order that a contest within the limited time could be brought, even though no bona fide controversy under the statute had arisen. For this purpose, a New Jersey plan might be copied. A New Jersey Act of 1873 provided that within one year after an act or resolution had been filed with the secretary of state, if "the governor or the person administering the government shall have reason to believe that any such law or joint resolution was not duly passed by both houses of the legislature, or duly approved as required by the constitution, he may, in his discretion, direct the attorney general to present a petition to the supreme court of this state, setting forth the facts and circumstances, and praying that the said law or joint resolution may be declared null and void".5

Upon this subject see F. E. Merrills: Some Aspects of Judicial Control over Special and Local Legislation, 47 Am, Law Review, 351.

See in re "An Act to Amend an Act entitled 'An Act Concerning Public Utilities' ", 83 N. J. Law 303 (1912).