a unit in asserting that power. It is conceded that the courts, in the absence of specific legislation, have the power to prevent extortion and unjust discrimination on the part of common carriers. It was claimed by the counsel for the company in the Chicago and Alton case that this power is exclusively enjoyed by the judiciary. The court did not distinctly admit or deny the claim, nor give any authorities bearing upon it. This issue of law has often been raised, but never before in a connection of such transcendent importance.

§ 512. The most prominent state in adjudication on the question under consideration is New York. This issue has been often presented in the courts of that state, and learnedly discussed. The now well established doctrine of that commonwealth is correctly stated in these words: "The legislature possesses the whole legislative power of the people, except so far as limited by the constitution. In a judicial sense, and so far as the courts are concerned with its application and construction, their authority is absolute and unlimited, except by the express restrictions of the fundamental law. The state legislature is not restricted in power, any more than the British parliament, except by the state and federal constitution." 1

§ 513. There is nothing whatever in the constitu

1 For authorities see Abbott's Digest, every volume of which contains some citations in support of this doctrine. The following are among the more important cases: Appeals, 1863-Bank of Chenango v. Brown, 26 N. Y. 467; S. P. Cathcart v. Fire Department of N. Y. Id. 529. Supreme court, 1864-Clark v. Miller, 42 Barber, 255; Luke v. City of Brooklyn, 43 Id. 54; People v. Morrell, 21 Wend. 563; Butler v. Palmer, 1 Hill, 324; Bloodgood v. Mohawk and Hudson R. R. Co. 18 Wend. 9; Leggett v. Hunter, 19 N. Y. 445.

tion of the United States, nor in the organic law of Illinois, which by any possible construction could be made to support the assumption of paramount judicial authority. The national constitution makes no attempt to define the relative functions of different branches of a state government, and the constitution of Illinois not only affords no ground for asserting that the judiciary has exclusive jurisdiction in the premises, but on the contrary, it expressly confers that jurisdiction upon the legislature. Its language is: "The general assembly shall, from time to time, pass laws establishing reasonable maximum rates of charges for the transportation of passengers and freight on the different railroads in this state." 1 Not content with this, the same organic law adds in another section: "The general assembly shall pass laws to correct abuses and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this state, and enforce such laws, by adequate penalties, to the extent, if necessary for that purpose, of forfeiture of their property and franchises."2

514. The decisions of Illinois on legislative and judicial jurisdiction are explicit and harmonious. They entirely agree in every essential feature with the doctrine of New York. So very plain were the early decisions that of late years there has been no room for doubt, and it is only the supreme importance of the subject in its bearing upon practical results that has induced a reopening of the question.3

1 Ill. Constitution, art. xi, sec. 12.

2 Ibid. sec. 15.

The only

The following are the more important Illinois decisions on this issue: Field v. People, 2 Scam. 79; Mason v. Wait, 4 Scam. 127;

inquiry for the courts is, "Does the will of the representatives, as expressed in the law, conflict with the will of the people, as expressed in the constitution?" Of the cases cited it is only necessary to particularize The first is selected for this purpose, because that has been uniformly referred to as a just and binding precedent.

one.

§ 515. At the December term, 1839, the supreme court was called upon to decide whether A. P. Field or J. A. McClernand was entitled to the office of Secretary of State. The former had been elected to the office. The Governor of the state, Thomas Carlin, attempted his removal, and the appointment in his place of Mr. McClernand. The case resolved itself into the single question: Does the Governor possess the constitutional power of removing from office the Secretary of State, and appointing a successor at will? The decision was in the negative, and that because no specific grant of such power to the executive could be adduced from the constitution of the state. In its very elaborate and learned decision the court said: "The constitution is a limitation upon the powers of the legislative department of the government; but it is to be regarded as a grant of powers to the other departments. Neither the executive or the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the constitution." will be observed that the judiciary and executive are

It

People v. Marshall, 1 Gilm. 672; People et al. v. Reynolds, 5 Gilm. 1; Nelson v. People, 33 Ill. 390; Turney v. Wilton, 36 Ill. 385; St. Louis, Jacksonville and Chicago R. R. Co. v. Trustees, 43 Ill. 303; Chicago and Alton R. R. Co. v. Shannon, Ibid. 338; People v. Solomon, 51 Ill. 38.

classed together, and broadly distinguished from the legislature. The court continued: "Upon the principle of our government, that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries can be exercised, where a claim of power is advanced by the executive (judiciary), the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive, (judiciary); and if the grant cannot be shown, he has no title to the exercise of the power. 99 1

§ 516. In his essay on Crimes and Punishment, a treatise which bore a conspicuous part in the reform of the judicial system of France, Voltaire insists that "there is nothing more dangerous than the common axiom: the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinion. When the code of laws is once fixed it should be observed in the literal sense, and nothing more is left to the judge than to determine whether an action be or be not conformable to the written law." 2 This statement is simply the opinion of the author as to what ought to be the law.

517. In Potter's Dwarris occurs the following quotation credited to Cushing on Jurisprudence, section 40: "Legislation, though general, may, nevertheless, descend to minute details and particulars. When this is the case, it so far occupies the place which would otherwise be filled with jurisprudence." In the ninth chapter of Potter's Dwarris the relative

'Field v. People, 2 Scam. 79.

2 Beccoria on Crime, commentary by Voltaire, chap. 5.

functions of legislation and jurisprudence are discussed and succinctly stated as follows: "The great and essential difference between legislation and jurisprudence, that which separates one from the other distinctly, is the manner in which they respectively become established. The former takes the place. where the law-making power discovers occasion for it, and its provisions are framed prospectively for such classes of cases as the legislation thinks most likely to occur. The latter is only called into being when an actual case arises for its exercise, and is then adapted to the particular circumstances of the case.1 Legislation, when once established, becomes fixed and unalterable, and it receives no additions but by subsequent legislation. Jurisprudence is constantly progressive, and continually enlarging and extending itself, as cases occur for its exercise, and adapting its principles to the social and political changes which are perpetually going on in society." To this the American editor adds: "Under the American theory, the powers of the legislature are limited by written constitutions, beyond the bounds of which they may not pass; and it is conferred upon the courts of justice to declare all legislation void which is in excess of the fundamental law."2

'This fact explains the practical importance of the question of jurisdiction under discussion.

'As the authority to regulate railway charges and prevent extortion and discrimination is expressly conferred by the fundamental law of Illinois upon the legislature, its exercise is not only admissible, but imperatively binding upon that body. It could not, if it would, leave its exercise to the exclusive juris diction of the courts. To do so would be unconstitutional.