Blair v. Chicago/Dissent McKenna

Court Documents
Case Syllabus
Opinion of the Court
Dissenting Opinion

United States Supreme Court

201 U.S. 400

Blair  v.  Chicago

 Argued: January 11, 12, 15, 1906. --- Decided: April 2, 1906

Mr. Justice McKenna, with whom concur Mr. Justice Brewer and Mr. Justice Brown, dissenting:

This case as to questions common to all the railways depends mainly upon the acts of 1859 and 1865,-incidentally upon the act of 1861. The latter act may be omitted from special consideration, as it depends upon the others. Ill. Private Laws 1861, p. 340. It incorporated the Chicago West Division Railway Company and gave to that company all the powers conferred upon the other companies by the 2d, 3d, 4th, and 6th sections of the act of 1859.

It will be observed of the acts of 1859 and 1865 that they created corporations respectively for the period of twenty-five and ninety-nine years, and empowered them to construct, maintain, and operate a single and double track railway in Chicago.

The acts, as was remarked by the circuit court, fall into three divisions: (1) The granting part,-the authority of the companies to construct railways; (2) the identifying part,-the designation of the streets by the common council; (3) the terms and conditions of the occupation of the streets by the commpanies and the manner in which the terms and conditions shall be prescribed.

The meaning of the third division is one of the chief controversies in the case; in other words, the extent of the authority of the common council,-whether it was virtually an authority to grant rights in the streets or authority to regulate the rights conferred by the legislature; or, as it is aptly expressed by the circuit court, whether it was an authority to fix, by stipulation with the companies, that which relates 'to the physical side of the occupancy of the streets or the administrative side of the operation of the lines.' It will be convenient in the discussion to exhibit the acts of 1859 and 1865, showing wherein the latter amends the former, omitting the provision extending the corporate lives of the companies from twenty-five years to ninety-nine years, about which there is no dispute. The words in italics are the amendments made by the act of 1865:

'The said corporation is hereby authorized and empowered to construct, maintain, and operate a single or double track railway, with all necessary and convenient tracks for turn-outs, side tracks, and appendages, in the city of Chicago, and in, on, over, and along such street or streets, highway or highways, bridge or bridges, river or rivers, within the present or future limits of the south and [or] west divisions of the city of Chicago, as the common council of said city have authorized said corporators, or any of them, or shall from time to time authorize said corporations, or either of them, so to do, in such manner, and upon such terms and conditions, and with such rights and privileges, immunities and exemptions, as the said common council has or may, by contract with said parties, or any or either of them, prescribe; and any and all acts or deeds of transfer of rights, privileges, or franchises between the corporations in said several acts named, or any two of them, and all contracts, stipulations, licenses, and undertakings made, entered into, or given, and as made or amended by and between the said common council and any one or more of the said corporations, respecting the location, use, or exclusion of railways in or upon the streets, or any of them, of said city, shall be deemed and held and continued in force during the life hereof as valid and effectual, to all intents and purposes, as if made a part, and the same are hereby made a part, of said several acts; provided that it shall be competent for the said common council, with the written consent or concurrence of the other party or parties, or their assigns, to any of said contracts, stipulations, licenses, or undertakings, to amend, modify, or annul the same.'

It is obvious, as far as words can accomplish it, and as directly as words can accomplish it, the companies were granted the right 'to construct, maintain, and operate' railways upon the streets of the city. And no other power could have granted such right. Chicago City R. Co. v. People, 73 Ill. 541.

That such grant must come from the state is, of course, not denied; but it is urged that the grant of rights passed to the railway companies through the agency of the city, the city receiving a delegation of the state's power. This is based upon the words of the city's charter, and the authority given in the acts of 1859 and 1865 to designate the 'terms and conditions' upon which the streets might be occupied.

The view I take of the acts makes it comparatively unimportant to consider the city's charter. There seemed to be a necessity for the acts, and they were complete in themselves, independent of other grants of power, except what were continued or confirmed by them. If the charter was adequate to invest in the city plenary power over the streets, we may wonder at the enactment of those statutes and many years of misapprehension of them and concern about them. Counsel for the companies assert, and the assertion does not seem to be denied, that an injunction was issued by the circuit court of Cook county, restraining the laying of tracks under the ordinance of 1858. The extent of the power of the city, however, I shall presently consider more at length, and will now pass to those parts of the act which the city insists conferred authority on the common council.

The stress of the argument is on the words 'terms and conditions,' in the third division. The city contends, and the court decides, reversing the decree of the circuit court, that the authority of the city to prescribe terms and conditions of the occupation of the streets included the authority to fix the time of occupation. I dissent from that interpretation for several reasons. It is opposed to the context in which the words 'terms and conditions' are used. It is opposed to their primary and natural meaning. It would be a careless employment of them, and disregard or destroy distinctions necessary to be observed. As was said by the circuit court, ordinarily in legal phraseology those terms are not employed 'to convey power over or relating to the time or period through which the tenure dealt with is intended to run; but conveys power over, or relates to the means, the methods, and the incidents connected with the exercise of such tenure.' Citing Hurd v. Whitsett, 4 Colo. 77; Chicago Terminal Transfer R. Co. v. Chicago, 203 Ill. 576, 68 N. E. 99. Of course, directness and simplicity of methods are not always used, but some argument can be based on their omission, and it is natural to believe that had it been intended to give the power contended for to the city, words would not have been employed which would have to be turned from their first and legal signification to express it, and which could be claimed to be in opposition to other parts of the act, and made dependent, besides, upon contracts with the companies, which could only be amended by consent of the companies. The power would have been more directly conferred by a delegation of the whole matter to the city, and would have been absolute,-not limited or embarrassed or opposed by conditions unnecessary to it.

The act of 1859 was certainly a direct grant from the state to the companies for the time of their charter life, and the necessity or the advisability of conferring authority upon the city of limit the time of occupancy of the streets could not have entered into the head of anybody. No conditions existed which suggested the necessity or prudence of giving such authority. The time of occupancy expressed in the ordinance of 1858, the time of the life of corporations prescribed in the act of 1859, and the time for which the franchises conferred by that act could be exercised, all coincided. It could not have occurred to anyone that twenty-five years, the term fixed in all the instruments, was injuriously long and demanded authority somewhere to limit its excess. To these considerations as proof that the words 'terms and conditions' were not intended to give authority to prescribe a time of occupancy of the streets may be added that of contemporary practice.

By an ordinance passed in 1859 the time of occupation was expressed to be 'during all the term in the said act of the 14th of February, A. D. 1859, specified and prescribed.' This, as said by counsel for the companies, 'is a distinct recognition of the fact that the term for the enjoyment of the franchise was to be found in the statute, and was not among the elements of the contract which the ordinance might prescribe.'

With the act of 1865 there came a change,-differences from the act of 1859 of conspicuous and striking import. These differences were too full of meaning not to be considered enlargements of the act of 1859, and they were not misunderstood. The lives of the corporations were extended to ninety-nine years. There is no dispute about this, and it would seem necessarily that the other provisions were on account of and completed the purpose of the extension. And the extension had some valuable purpose. It was certainly not for the purpose only of extending the time of the abstract beings with nothing to do,-no functions to exercise, no rights, no obligations,-and the latter might, we can conceive, be as necessary for the public to enforce as the former for the companies to exercise. Chicago Union Traction Co. v. Chicago, 199 Ill. 484, 59 L. R. A. 631, 65 N. E. 451. It would be a strange confusion and confounding of purposes to make the existence of a corporation more important than that which it was created to do. Necessarily, life and functions went together, the term of the rights and obligations of the corporations coinciding with the term of their life.

This coincidence of the life and the rights of the corporations being kept in mind, we can easily resolve whatever ambiguities are in the statute of 1865. It will give to every word a use and meaning, and keep distinct the power which was exercised by the legislature and the powers to be exercised by the common council. Let me, at the expense of repetition, enter into some detail. The act of 1865, amending the act of 1859, enlarged the life of the corporations from twenty-five years to ninety-nine years, and in § 2 empowered the companies to 'construct, maintain, and operate' a single or double track of railway in the streets of Chicago. These words necessarily imported a continuing power. Time was of the very essence of the right. It is true that there was no designation of time but the life of the corporations, but this was sufficient, in the absence of qualification, and there was no qualification; certainly none in explicit words. Streets were not designated by name, but, in a certain sense, all streets were subject to whatever right was given, though it could be exercised in none without the designation of the common council. This is sought to be made very dominant,-determinative, indeed, of the power of the city,-making the city, in effect, the source of the rights of the companies, not merely the regulator of the manner of exercising those rights.

Upon what reasoning is the conclusion based? Before considering the question, however, let me refer to the statement in the opinion that 'the council made, and the companies accepted, specific ordinances fixing the time of occupancy, as had been done in the original ordinances of May 23, 1859. And neither before nor after the passage of the act of 1865 was the ninety-nine-year term recognized or acted upon in ordinances granting the use of the streets.' I am uncertain as to the conclusion deduced from the statement. It needs some explanation. Standing alone it may produce an erroneous impression. If the companies accepted the ordinances, conceding the power of the city, without protest or reservation of their rights under the act of 1865 to longer terms of occupancy, there could be no controversy over the interpretation of the act of 1865. Other considerations would supervene and demand attention. Counsel for the city contended for an estoppel against the companies, and because the court has not responded to that contention, but discusses and bases its opinion upon the meaning of the act, I also have discussed its meaning as necessary to the case and determinative of it; and I recur to the question, Upon what reasoning is the plenary power of the city supported?

First, let me quote the language of the act of 1865, separated from the parts which I think are not relevant to the present part of the discussion: 'The said corporation is authorized and empowered to construct, maintain, and operate a single or double track railway . . . in the city of Chicago, and in, on, over, and along such street or streets . . . as the common council of said city have authorized said corporators, or any of them, or shall from time to time authorize said corporations, or either of them, so to do, in such manner and upon such terms and conditions . . . as the said common council has (prescribed) or may by contract with said parties, or any or either of them, prescribe, . . . and any and all acts or deeds of transfer of rights, privileges, or franchises between the corporations in said several acts named, or any two of them, and all contracts, stipulations, licenses, undertakings made, entered into, or given, and as made or amended by and between the said common council and any one or more of the said corporations, respecting the location, use, or exclusion of railways in or upon the streets, or any of them, of said city, shall be deemed and held and continued in force during the life hereof, as valid and effectual to all intents and purposes as if made a part of said several acts . . .' (Italics mine.)

The language is orderly and, to me, unmistakable in its relations and meaning. What element is omitted necessary to the clear expression of a definite purpose? Not one. We have already seen that the rights given would have been, if there had been no other expression of time, coincident with the life of the corporations, but time was not left to implication, however clear the implication might have been. It was expressed. It is true it is not said that the rights, contracts, etc., shall be 'held and continued in force' for ninety-nine years. If it

In Chicago Union Traction Co. v. Chicago, 199 Ill. 484, 524, 59 L. R. A. 631, 645, 65 N. E. 451, 462, it is said: 'The word 'prescribed,' to which the word 'has' applies, was accidentally omitted.' had, there certainly would be no ambiguity. It would suit with the other words, and complete their meaning without change of a single syllable. Why then is there any ambiguity, if we substitute an equivalent for the phrase 'for ninety-nine years?' If 'during the life hereof' is not the equivalent for 'ninety-nine years,' that is, the life of the corporations, what does it mean?

There are various answers offered, some accepting that meaning, others disputing it. One counsel for the city submits rather tentatively that the words 'during the life hereof' may be words of limitation, and that 'the grants by the common council thus ratified by the act should continue for their full term,' unless 'the corporate existence of one or more of the corporations be terminated by dissolution or forfeiture within the period for which its privileges in the streets were granted.' It is said, 'Thus construed, the act means precisely and exactly what it says, that is, during the life, i. e., during the corporate lives of the several companies, the contracts made with them by the common council are as valid and effectual as if made part of the act. . . .'

Other counsel for the city leave a choice of interpretations. They say 'The expression 'during the life hereof" is vague and ambiguous. It may be capable of three interpretations: As meaning the life of the act; or the life of the deeds, licenses, and contracts; or the lives of the railway corporations, respectively. They incline rather to the second, and say that 'during the life hereof' means the life of the section or the matters mentioned in the section, and 'hereof' should be changed to 'thereof.' The court accepts neither of the interpretations, but gives its authority to another. It was apparent that the interpretations advanced by counsel were too restricted and ignored too much the words of the act. It was apparent that the clause referred to the lives of the corporations (ninety-nine years), continued something for those lives, and the court selects as the things so continued 'the acts or deeds of transfer between the corporation so far as they relate to franchises which are not subject to the express limitations of the act-that they shall stand as made.' The construction, however, is not confidently asserted. It seems to be adopted in submission to the rule of strict construction. A word, therefore, as to that rule.

I concede the rule to be that nothing passes by a grant of franchises, such as those conferred by the acts under review, unless it be clearly stated or necessarily implied; but I do not think the statutes under review call for an application of the rule. Whatever is ambiguous in the acts yields a definite and consistent purpose and meaning by the application of the simple rules of interpretation. In such case there is no place for the rule of strict construction. Our reports abound in cases where, against bold and able controversy, public grants have been sustained, and where division in the court has marked with emphasis the strength of the doubts which existed. And we have taken care to warn against a misunderstanding of the rule in a case of significant import. It will be conceded, I think, that the power of taxation is the highest attribute of sovereignty, one the most necessary to it, and against the limitation of which all intendments proclaim. The Delaware Railroad Tax, 18 Wall. 206, 21 L. ed. 888. Limitations of this power have been sustained in favor of private individuals, arising from statutes of disputable meaning. In Citizens' Bank v. Parker, 192 U.S. 73, 48 L. ed. 346, 24 Sup. Ct. Rep. 181, interpreting the charter of the bank, it was held that the bank was exempt from the license tax, and we there said that the rule of strict construction is to be used to solve ambiguities, not to create them. There was a dissent that pressed the rule against the reasoning and conclusions of the court.

Returning, then, to the argument of the court, not required by any rule to find ambiguity in the statutes, but required by every rule to solve if found, what is that argument? Its first premise is the assumption that it was the policy of the state to vest in the city the control of the streets. Some control, yes; but how much? Was it a policy of unlimited or qualified control; the grant of rights in them or the regulation of rights? Or, to use a technical term, the grant of franchises or the grant of power of administration over their exercise? The answer is found in the case of Chicago City R. Co. v. People, supra.

The case was based on the act of 1859, and the right derived from it as distinguished from the rights derived from an ordinance of the city. It was said: 'It is a misconception of the law to suppose the railway company derives its power to construct a railroad from any ordinance of the city. All its authority is from the state, and is conferred by its charter. The city has delegated to it the power to say in what manner and upon what conditions the company may exercise the franchises conferred by the state, but nothing more.' The reason given was that the ordinance emanated from a source not 'competent to grant a franchise.' That power the legislature alone possessed. The date of the ordinance was November 13, 1871. It is manifest therefore, that the policy of the state of Illinois up to 1871, and necessarily in 1859 and 1865, was not to give its municipal corporations the authority to grant a right in the streets, but only empowered them to regulate the right. And it was necessary to decide the kind and the extent of authority that was vested in the city. It was urged that the ordinance passed on purported to grant 'special privileges' or 'franchises,' and was therefore void under the Constitution of 1870. The court replied that the ordinance did not grant a franchise, and that by no construction could the Constitution be said to be a 'limitation upon the municipal corporation to designate certain streets and fix the conditions upon which a railway company, organized under a special charter previously granted, or under a general law since the adoption of the Constitution might lay its track.' (P. 548.)

This view acquired emphasis from the dissenting opinion, which took issue with the court, and virtually made the city the source of the rights of the railway, and not the state, and, describing what the court said as to the power of the city, observed: 'These special privileges of the rights of the railway upon particular streets are said to be conferred, not by the city, by its ordinance, but by the state, by the company's charter, and the city only regulates the use.' (Italics mine.)

The case was decided in 1874, and the principle it declared is the exact contention of the railways to-day, and, to the strength of the reasoning of the court, may be added the consideration that the property acquired and the investments made under the sanction of the decision for thirty-two years now claims its protection against impairment. Such considerations should prevail over ambiguity, could ambiguity ever have been asserted to exist. It received its solution and should never again be brought forward to cloud the meaning of the statute.

The distinction between the plenary and the limited control over the streets by the city is substantial in the controversy between it and the railway companies. Manifestly, the power to grant a franchise is not the same as the power to designate streets on which the franchise can be exercised. Of course, the streets must be designated before the franchise can be exercised, and therefore the power to designate may be magnified and confounded with the other power. It is so magnified, and the inability of the railroads to compel any action upon the part of the city is urged and dwelt on by counsel. The argument is that, as the city could have refused to designate any street, it had the right to exact anything of the railroads. In other words, the defects in the remedies of the railway companies enlarged the power of the city and changed the nature of the grant to the companies. Or it may be put this way,-the power given to the city as a subordinate instrumentality of the state may be employed to defeat the purpose of the state. This cannot be done. Pittsburgh's Appeal, 115 Pa. 4, 7 Atl. 778; Atlantic City Waterworks Co. v. Consumers Water Co. 44 N. J. Eq. 427, 15 Atl. 581; Galveston & W. R. Co. v. Galveston, 90 Tex, 399, 36 L. R. A. 33, 39 S. W. 96, 91 Tex. 17, 36 L. R. A. 44, 39 S. W. 920; Homestead Street R. Co. 171, 172, 27 L. R. A. 383, 30 Atl. 950, 955. And I may observe that there are some duties, the performance of which cannot be immediately coerced. It need not be pointed out that the agencies of government are kept, in a great measure, to co-operation by sense of duty and propriety, and if they should, disregarding that sense, exercise the mere physical power possessed to refuse to act, disorder, temporary at least, would result. It is, besides, a strange contention to me that a municipality of a state, because of its ability, physical, it may be, more than legal, to refuse to exercise powers conferred upon it, can assume or assert other powers. Let us not overlook that a municipality must have warrant, express or necessarily implied, for what it does. It, too, is within the rule of strict construction. Dill. Mun. Corp. § 91.

In the grant of franchises from the state and their regulation merely by the city there was no inconsistency, and this division of functions was not only natural of itself, but comported with the policy of the state, as explained in Chicago City R. Co. v. People, supra. The decision cannot, it seems to me, be explained away. It was nearer in time to the enactment of the statutes than we are to-day, and it is the conditions of that time we should try to realize. This is not as easy as it seems to be. Whatever we may profess, it is not easy to realize the conditions, thoughts, and purposes of another time. In 1859 nothing indicated the necessity of giving the city the power now contended for. In 1859 there could be no foresight of the development of street railways. Then they were just beginning to be thought of as a means of transportation and the city was as eager to procure them as capitalists to construct them. It is said that time is the wisest thing on earth, and taking to ourselves its wisdom, in 1906, we are sure we would have seen in an enterprise just starting, and yet tentative, the growth it might attain and the measures that would be necessary to restrain and control it. But if there was anyone capable of such prophecy, the act of 1859 did not challenge its exercise. There was nothing in it excessive, as I have already pointed out; nothing to invoke a jealous care. I dwell on this because the provisions of the act of 1859 were carried into the act of 1865, and certainly were not intended to give a greater power to the city than when used in the act of 1859. In other words, a provision which could have had no purpose in the act of 1859 to give power to the city to fix the time of the occupation of the streets could not, by mere repetition in the act of 1865, have such purpose.

The situation in 1859 was exceedingly simple. Certain persons had been given the power by an ordinance of the city to construct a street railway. The right under the ordinance was questioned, maybe it had been adjudged illegal, and the act of 1859 was passed. It explicitly gave, in my opinion, the right to construct and operate railways in the streets, and gave authority to the city only to regulate the exercise of the right. But granting that some of its words are ambiguous,-granting that the words 'terms and conditions' can be interpreted to authorize a limitation of time,-such interpretation is not the only one of which they are susceptible. We should, therefore, consider whether that interpretation can be adhered to in view of the other provisions of the act of 1865.

First, I may lay down as a fundamental rule that we must seek the meaning of the act from its words, and that we should so exercise interpretation 'as to bring a sense out of the words used, and not to bring a sense into them.' McCluskey v. Cromwell, 11 N. Y. 593, 602. And with the consequences of the act we should not concern ourselves. This court has said that a plain meaning of a provision of a statute, not contradicted by another provision, must prevail, even against a charge of absurdity and injustice, unless they by so monstrous that all mankind would, without hesitation, unite in rejecting the meaning. Sturges v. Crowninshield, 4 Wheat. 122, 202, 4 L. ed. 529, 550. With these rules in mind, and by referring to § 2 of the act of 1865, it will be observed that its parts are providently arranged and its words are clear,-so clear, that conjecture must be pur to work and speculation must be indulged in to resist their manifest meaning.

The section makes provision for certain things, to wit (1) the acts or deeds of transfer of rights, privileges, or franchises between the corporations; (2) contracts, stipulations, licenses, and undertakings made and entered into 'and as made or amended' between the corporations and the common council 'respecting the location, use, or exclusion of the railways in or upon the streets.' And what is done with these things? The answer is in the following provision: 'Shall be deemed and held and continued in force during the life hereof as valid and effectual, to all intents and purposes, as if made a part, and the same are hereby made a part, of said several acts.' Can a distinction be made between the things provided for? Which of those things shall 'be deemed and held and continued in force during the life' of the corporations? I say life of the corporations, as that, it is decided, is the meaning of the phrase.

Considering the language of the provision, there can be but one answer. It permits no exception of any of the things, nor a distinction between them. A distinction is, however, asserted, and the provision is confined to the instruments transferring 'franchises,' as distinguished from the instruments transferring 'rights and privileges,' and is denied all application to the 'contracts, stipulations, licenses, and undertakings' between the companies and the city. In what way is this done and with what consequences?

It will be observed that the provision does not simply confirm or ratify either the acts or deeds of transfer or the contracts; it does more. It continues them in force and makes them valid and effectual for the life of the act, the conceded equivalent of the life of the corporations. The provision is not, therefore, that the contracts and privileges obtained from the city shall 'stand as made,' but shall be continued in force during the life of the corporations,-a distinctly different purpose,-one which the words of the act sustain and at the same time exclude the other. It was not a provision for simple ratification which would carry, by necessary force, the time limits of the contracts, but one which adopts another measure of time, the life of the corporations. And a provision was necessary to make the new measure of time applicable to the contracts. It was afforded, and again the necessity is demonstrated of adhering to the words of the act, unless we may regard it a mistake in the act for any of its words to have a purpose.

Plainly, therefore, the phrase 'during the life hereof' cannot be limited to the acts or deeds of transfer of franchises. To do so is not only to distinguish between the instruments of transfer of franchises and the instruments of transfer of rights and privileges, but is to detach the phrase and its correlated words from its immediate objects, the 'contracts, stipulations, licenses, and undertakings' entered into by the common council and the companies, and to leave those objects without provision, without connection with anything, coherence, or purpose. Against this all the rules of interpretation protest, and the rules of construction cannot be invoked to justify a greater liberty. The purpose of construction, it is true, is to arrive at conclusions beyond the absolute sense of the text. (Leiber, 53.) But the integrity of the text cannot be disregarded. I do not overlook the fact that the court sees an inconsistency between the parts of § 2, and attempts to reconcile them. But in what way? As it seems to me, by magnifying the obscure in one part of the section and making it prevail over the manifestly clear in another part. By making the words 'terms and conditions'-doubtful necessarily, and which, as I think, can only by an extreme indulgence be given the meaning put upon them-dominate everything else, even to the breaking of the section into unrelated and meaningless parts. To my mind a strange situation is presented. The legislature of the state had in its mind, we are told, a simple purpose,-the purpose to create corporations and to give them power to acquire rights from the city; and how did they express the purpose-simply, directly, and obviously? No; but in such way that the words it employed con fused or opposed the purpose. And the legislature was dealing with important rights, some to be confined to twenty-five years, others to be extended to ninety-nine years, and we are asked to believe that it bunched those rights indiscriminately and trusted to a searching construction to sort them afterwards and take them out of the meaning of words which included them all.

There is another consideration of potent weight. The construction of the court was not the contemporary construction of the act of 1865. It was not the construction proclaimed by the governor, justifying his veto of the act. He pointed out that the necessary effect of extending the lives of the corporations was to extend their rights in the streets of the city, and that he had received petitions signed by a large number of the citizens of Chicago, protesting against the measure as one which had been passed without their assent, or that of the corporate authorities, and that it extended the franchise for ninety-nine years in advance of the term already vested in the corporation. And he also pointed out that the right given to the city to purchase the railway property at the end of twenty-five years, secured to it by the ordinance of August 16, 1858, was also extended to ninety-nine years. And, upon a fair construction, the governor said, 'the act seems hardly susceptible of any other meaning,' and he had heard, he further said, 'none other claimed for it.' The governor also considered the clause which continued in force the acts or deeds of transfer, and, so far as his words indicate, he perceived no difference betwen the instruments of transfer.

Seldom has a statute enacted at a distant time received so clear and influential proclamation of its meaning and effect as is afforded of the act of 1865, by the governor's message. It seems now, forty years removed from the enactment of the law, that the governor, who was close to its enactment, and the citizens of Chicago, who protested against it, were mistaken in its meaning. And the governor was part of the lawmaking power. It was his duty, therefore, to study the statute, and to try to know its purpose, not only from its text but from external circumstances. His misunderstanding needs to be accounted for. The misunderstanding of the protesting citizens of Chicago needs to be accounted for. Explanation cannot be found by asserting ambiguities in the act. There is not a syllable of evidence to indicate that any were perceived or regarded of consequence. The governor was confident in his views. Of one of the effects of the act, and one which could not result unless his construction was correct, he said he had heard no other claimed for it than that which he entertained and expressed. There was no doubt with him, therefore,-no disguise of the measure by its advocates. We are, however, now asked to believe that the legislature alone either saw or was persuaded of the real merits of the measure, and passed it over a groundless veto and ignorant opposition, with consciousness that it would be construed to have the meaning now given it.

I am unable to so believe and am constrained to dissent from the judgment.


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