The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1882-03-25
THE COURTS.
The Supretn. Court.

On Thursday morning at The IecOnvenlnS oi
the Supreme Court, Justice Mulhey ANNOUNCED
that in the matter OF the Probate Court act, tax
en- before that body in the CASE OF Joshua Z.
RHcker6ocker V. The People eX rel. Butz u muJoil
ty of the court held TO The constLutlonallty OF
the act and tleu lengthy opinion enumerallns
the points upon which the decision was based.
In substance the opinion says: "lhc only ques-
ton presented for our determination Is the con
stitutionalty OF the law. The act OF 1877 Us
tablishing probate courts in counties of 100000
population was amended by the act Of 1881, cs-
tablishing such courts IN counties Of 7U,OO0. III
is manifest that il the first section OF the origi
nal act cannot be maintained on constitutional
grounds, there is nothing ia the amendalory
act that releases it from that obllgstlon and the
converse OF that proposition must be accepted
as true. The argument OF Inconvenience
should have but little weight, II any, in solving
the question before us. While questions OF that
kind afford the strongest reasons why courts
should act with caution, elaboration aud consd-
! Grafton, they do not throw any light upon The VI
tai question. Where an act Of tine legislature is
unconstitutional it is the duty OF the courts to so
hold, however disastrous the results may be; but
where there Is u reasonable doubt as to the con
lstitutionality the act should be sustained. Sec
ton l Of article provides for certain named
courts and such other courts as may be created ny
law in and for Incorporated cities and towns.
The constitutional convention seems To nave
contemplated the establishment Of other courts
sist that under section 70 the legislature has no
power to authorize such courts in any county, no
matter how large or what the demand Of busi-
ness unless at the same time, they provide Tor
like courts in all other counties having a popu
ation Of SO, OOO whether 1t is desired and needed
or not. The construction can only be reached
by iLterpolating terms which the convention
did not use. The trainers Of the constitution
intended that these courts should be established
In such counties and at such times as they were
needed aud not where they are not needed. we
are unable to discover anything IN the terms
used by the convention to authorize the construc'
ton contended for 1t Is conceded on both sides
that the constitution should be construed as In
tended by its trainers and the voters, and we
have no doubt of the correctness Of the construc-
ton we have given 1t. Holding then, as we do,
that it was the intention Of the convention that
the legislature should be guided entirely by the
| wants and necessities OF the people with respect
to such courts, it follows that the other proyls
ions Of that instrument must be so construed al
| to give effect to that intention, and II this can
not be done without special legislation, the pro-
vision Of the contitution prohibiting special leg
islation where the same end can be accomplish
ed by general law will have no application
| Hence we deem 1t uhmportant whether the act
creating the Probate Court OF Cook county be re
garded as general or special law. As regards
section %, same article Of the constitution. this
must not be so construed as to defeat the objects
intended by section 20 Notwithstanding that
the constitution SAYS all laws relating 10 courts
must be general and uniform, the Legislature are
constantly passing special laws fixing the com
mencement and length of the terms OF paricu
lur courts, whice are manifestly laws relating tc
courts; and such acts, which are neither general
nor uniform. are valid. The only object of the
section We are now considering was TO prohibit
special legislation when the object intended
could be attained by a general law. This being
the proper construction, there is no question a.
to the right to establish Probate Court in Cook
or any other county having the requisite popula
| ton.
Therefore the judgment OF the Criminal Cour
Of Cook county is reversed and the cause re
manded with directions to Guash the informa
| ton"
| BY the decision of the Court the establish
ment OF Probate Court in La Sale county Ii
again made possible, the constitutiOnality OF the
act of 1881 being involved in the above argu
ments. An election will therefore probably bt
held next fall as first intended The question o
concurrent jurisdiction OF the County Courts wat
not passed upon in this case, but will come uI
for rehearing when the Court reconvenes at MI
Vernon, where It was originally presented.
| To the above decision of the Court Justices
Scott and Walker file dissenting opinion.