STATUTE MAKING IN ILLINOIS.

There is a common saying among those familiar with statute making, that the more one knows about how statutes are made, the less he thinks of them;-it should be the less he thinks of the statute makers. There is no more delicate function of government than making statute law, and it is fair to say none is so carelessly performed or performed by persons so illy prepared for the work. Many expedients have been resorted to to secure greater accuracy and harmony in the enactments of the legislature, such as Boards of Revision, etc., but with little beneficial effect. It was thought a great corrective was found in the constitutional clause "no law shall be revived or amended by reference to its title only, but the law revived or section amended shall be inserted at length in the new act;" and it must be admitted that it has brought about a considerable reform in the making of a numerous class of amendments, but it leaves a more troublesome class unrestricted-amendments by implication. It is no doubt a wise construction of this clause which confines its operation to such acts as assume in terms to alter or amend a given section; for, as is said by our Supreme Court in The People v. Wright, 70 Ill., 388, "It cannot be held that this clause of the Constitution embraces every enactment which in any degree, however remotely it may be, effects the prior law on a given subject, for to so hold would be to bring about an evil far greater than the one sought to be obviated by the clause."

There are, however, some examples in the enactments of our legislature that go far to show that this construction opens

a wide door to evasion of the true spirit of the clause. It nearly breaks down its restraining force and throws us back upon a very slender reliance-the conscience and care of the legislator. A single instance (and I might cite many) will suffice to illustrate this point. The act of March 26, 1872, with reference to changing the name, place of business, increasing or decreasing the number of directors of corporations, etc., allows these changes to be made on a vote of two thirds of all the stock of the corporation at a meeting called by the directors. Some difficulty sprang up in a corporation that happened to have an even number of directors, upon which the directors were evenly divided. One of the parties controlled a majority of the stock but not two thirds. This party conceived the idea that if they could add one or more to the number of directors, they might elect the new members and thus secure control of the board, but as the statute stood they could not come within its terms; so it was desirable that the statute should be amended. The desired amendment could have been made by the insertion of the words "or a majority of the stockholders" in one section, and the change of the word "two thirds" to "majority" in two other sections. The straightforward way and the one the constitution makers no doubt intended and public policy demanded, was to have proceeded directly to the amendment of those sections in this way, that is, by a bill professedly for that purpose and in which the sections amended would have been "inserted at length in the new act." This course would have drawn upon the bill for that purpose the attention of the public that is supposed to be interested in every change proposed to be made in a general law, as well as that of the particular individuals whose rights were intended to be affected. The course taken was to get an independent act passed; one that although its only purpose was to effect these changes in the existing law, made no reference to it whatever either in its title or in its text.

The respect for the spirit of the Constitution ought to be so high among legislators that the passage of an act not within its teachings would be an impossibility. Such acts as the one referred to overload and confuse the statutes, and tend

to the evils of special and personal legislation.

To show the carelessness, not to say recklessness, of our legislators, I will give a few instances which come to my mind.

The Constitution of 1870, provides that after the November election in 1873, the county business in counties not under township organization, shall be done by a board of three commissioners. Until that time the county court was to continue to do this business. The road law applicable to those counties being revised before that time, it retained the "county court" in the body of the act as the agency for doing county business, but the revised act provided that after the election of commissioners in November, 1873, the duties therein required to be discharged by county courts, should devolve upon the board of county commissioners. The revision being published in 1884 after the election of the commissioners, the revisor put the words "county court" in italics and inserted after them in brackets the words "county board," indicating, as explained in a foot note, that "county court" was to be omitted and "county board" read instead. So also whenever the words "clerk of the county court" occurred, they were put in italics and "county clerk" inserted in brackets. In 1875, the legislature amended several of the sections in which this had been done, and instead of dropping the words "county court" and "clerk of the county court" and retaining the words "county board" and "county clerk," both sets of words were retained and of course enacted into law.

The revision of the road law of 1871, having legislated the overseers of highways out of office, they rallied at the next election of members of the legislature, and in 1873 the legislature passed a new revision putting the overseers in again. In this revision, section 68 required the damage to owners of land injured by opening ditches, drains, sluices or water courses, to be levied and collected in the same manner as provided in Section 14, Art. 17 of the township organization law." At the time this act was passed there was nothing on the subject of levying and collecting such damages in the "township organization law," nor was there any article 17 in that law. It contained but 15 articles. Although a note to this section

68 in the Revised Statutes of 1874, called attention to these facts, the error was repeated in 1877 when the road law was again revised by the legislature. A history of the revisions and amendments of the road law in the last fifteen years, would be curious reading. The bone of contention has been the overseers of highways, whether there should be such officers or not.

The General Assembly of 1877 passed two emergency acts. They were both approved on the same day and of course both went into effect on the same day. In one of these acts it was provided that the "State Board of Agriculture should on or before the first day of November, 1876, and biennially thereafter, make and deliver to the governor a report of their actings," etc., "and no other annual or biennial report shall be made by such officers;" the other act provided that the State Board of Agriculture should immediately after their annual meeting in January in each year, make and deliver to the governor a report of their doings, etc., and "no other annual report shall be made by such Board." In the first of the acts. referred to, the "State Board of Agriculture" was grouped with certain State officers and in the other it alone was mentioned.

In 1875, Section 1 of the drainage act was amended so as to require that the petition for a drain or levee should be filed with the clerk of the town board of auditors." (The section before its amendment required the petition to be filed with the county clerk.) There was at the time of this amendment, no such officer as "the clerk of the town board of auditors." the filing of such a petition was jurisdictional and lay at the foundation of all the proceedings, this blunder rendered the drainage law useless, until a subsequent legislature corrected it.

As

Sec. 25 of the Practice act as it originally stood, provided that no amendment should be cause of continuance unless the party affected thereby should make affidavit that in consequence thereof he was unprepared to proceed to or with the trial of the cause at that term. The legislature of 1875 amended it by adding "stating in such affidavit what particular fact or facts the party expects to prove by such evidence,"

etc.

These added words presuppose that the cause for asking delay is that the party wishes to obtain evidence of certain facts; but the context says nothing whatever about proving any facts or obtaining evidence for the purpose. The words "such evidence" have no predicate in the section or in the act. If it were a mere matter of grammar this error would be of little consequence, but the amendment throws the whole section into doubt. Before the change, the court might have given a continuance for any sufficient reason shown in the affidavit, but since, it is not clear whether the absence of evidence is the only ground upon which a continuance can be granted, or whether if the cause is something else than the absence of evidence, the section is to be construed as before the amendment.

The history of these amendments is substantially this: some case arises either in court or out of court, in which it is believed it would have been better if the law had been otherwise than it is found to be, so an amendment is drawn and introduced into the legislature to cover that particular point. Usually it is by adding a proviso to some existing section. No examination is made of other parts of the statutes to see how they stand related to the section proposed to be amended, how many repeals by implication will be effected. In most cases, as in the instance last cited, not even the section itself is critically examined. It may be that it has been modified or repealed by some later act, if so, to recite it in the amendatory act, will be to give it new life and thereby to repeal by implication the act by which it was repealed or modified by implication. This will be the effect even though the object of the amendment is only to add some new matter. Being re-enacted, it is supposed to be the last expression of the legislature, and repeals everything that is inconsistent with it. Several such cases have occurred. One by an amendment made by the last legis

lature.

The result of this inconsiderate, careless way of legislating, is to fill the statutes with illy digested and contradictory enactments; to increase litigation and bring contempt upon all law. It is not enough that the legislator be satisfied of the fairness