The Rock Island Argus. (Rock Island, Ill.) 1877-1885, 1882-01-28

sidering and reversing its judgments,
recognized its constitutionality. This
fact, together with the fact that
the court in question had been
four or five years in undisturbed
operation, formed a sufficient reason In the
iudgnent,of the supreme court Of Califor.
mia why the question of the Constitution
atty of its original creation should not be
discussed. Judge Garys brief note as
sumes that the bar and the public are
familiar with the repeated recognition OF
the constitutional existence and validity OF
the probate court which have ocQsIred IN
the business of the supreme court. In one
case the supreme court reversed decision
of the appellate court on appeal from the
probate court and affirmed a Judgment Of
the court which they now say had no ex-
istencels In the mandamus case OF The
People, ETC., Us. LOOMS, the supreme courl
repeatedly afffrms that tho probate court
of Cook county is court created under,
and in pursuance of, the constitution. The
objection to the destruction of the pro
bate court by judicial decision at this late
day is of the same character, though not
quite so strong, as would be a decision OF
the supreme court of the United States,
| abolishing the supreme court of Illinois on
the ground that it is in conflict with the
constitution of the United States, or with
the ordinance of 1879, or with some act Of
congress passed in pursuance thereof.
Mr.. J. Fl. Kedzie puts the case in the
clear and simple point that the language
of the constitution is not what the supreme
court in opinion represents it to be. 1t
does not provide for the creation of pro
bate courts" IN all counties having more
than $4,000 population, but for the crea-
ton of a probate court in each county OF
that character. The language clearly left
in the legislature the power to pass a
special act creating a probate court for
Cook county only. ,-.s.=s -.-....---s :.
Mr.. Woke denies that the right Of Cook
county to Probate court should, in point
of legislative policy, be made to turn on
the question whether any. other county in
the. state needed or desired one. Mr.;
Locke served long and unexceptionably in
the legislature, and he well knows that the
evils which it was desired to guard against
in imposing constitutional checks to spec
ial legislation were of a totally, different
character from that of granting Cook coun-
ty its own special Probate court. On the
contrary, sectan 20 of the constitution had
no other intent or aim than to make sure
to Cook county its own Probate court.
Upon this point there are several gentle
men of Chicago who are well qualified to
state the motives which led, in the consti-
tutional convention, to the adoption of sec
ton 30 of article 6, empowering the legis-
lature to create Probate court in each
county having more than $4,000 popula-
lation, i. e., in effect, in each county named
Cook. Among these are Charles Hitch
cock, the president of the convention,
Joseph Me1iH. Elliott Anthony, and e.
NJ Hainss The public would be glad to
hear@an authoritative statement of all these
of the constitutional convention,
as to whether they meant what they wrote
in the Goth section of article 6, viz. That
the legislature might create Probate court
in eaeA county having $4,000 population;
or whether they meant what the Supreme
court now says they did, that the legis-
lature should create Probate courts in all
such counties.
Mr. Allen c. Story thinks the supposed
conflict with the constitution should be
disposed of by regarding the limitations in
the act of 1877, TO counties having 100,
300 population, and in the act of 1881 to1
counties having &c, 900 population, as sim
ply void or as if both clauses had used the
words fifty thousand popu-
alton" This amounts to dissent from
he course of the Supreme court, in the
effect they purport to give to
heir decision. while it is open to the OBJ
ection that it fastens the Probate court on
counties that do not want it, /
Ind which, if they had anticipated this
fleet from it, woHld have voted against it. |
t is also open to the objection that it does |
lot assert in behalf of Cook county its
constitutional right, under section 20, to a
Probate court of its own, whether any
ther county wants one or not. Besides, |
t is not only necessary to strike out of |
hose two acts the words Zone hundred |
thousand" and seventy thousand, in
rider to effect the result Mr.. Story intends,
ut to insert in lieu thereof the words
fifty thousand;" otherwise the acts would
pply to ''every county in the state having
population" wholly irrespective
f the question whether the population
ERE $4,000 or less. This would not only
e acting upon strictly immaginary canons
construction, but it would not reach
ny considerable end
1t seems to US highly important that the
ench and bar of Chicago should on this
uestion, take prompt, concerted, and or
anized action in the interest of sound jur-
prudence.