liquor may wholly deprive a saloonkeeper of the use of bar fixtures not adapted to other businesses,20 or an ordinance may, by requiring milk and cream bottles to have their capacity permanently indicated thereon, destroy the use and value of bottles not so marked.21 In such cases there is not a taking or appropriation to public use for which compensation must be made. But the annexation by a city of a narrow strip of territory when it destroys the use of a turnpike company's property as a toll road, is an act of eminent domain. When under the police power, the elevation of railroad tracks to eliminate grade crossings is required, the consequent damage to private property lying alongside is a taking or damaging for public use for which compensation must be made.23

22

Generality of legislation. The requirement of generality of action and uniformity of application implied by the expanded construction of this section restricts the arbitrary singling out of persons or groups upon whom the burdens and restrictions of a police measure will fall. Classification for the purpose of regulation is not improper so long as there is in the class created a natural distinction which makes it a proper subject for the regulation in view of the purpose and effect of the particular measure.24 It has been held by the Illinois Supreme Court that an act which prohibited persons engaged in a mining or manufacturing business from owning or operating a store for the furnishing of groceries, clothing and supplies, creates a class which is unnatural and arbitrary in relation to the prohibition imposed.25 But a somewhat similar statute applying to all employers was sustained in the United States Supreme Court.26 The Supreme Court of Illinois held invalid a law requiring corporations engaged in certain businesses to pay employees weekly on the ground that there was no reason which demanded weekly payments of wages by the corporations included which did not apply with equal force to many other kinds of businesses not included. But a New York statute which required railroad employees to be paid semi-monthly was sustained by the United States Supreme Court.28 In the opinion of the Illinois court there is nothing in the business of coal-mining which differentiates it from other occupations, so as to permit the General Assembly to deprive mine operators and employees of the right to contract without restraint as to wages and the methods of determining them,29 but this view was not shared by the United States Supreme Court.30 An ordinance forbidding persons engaged in selling dry goods, clothing, jewelry and drugs, to deal in meats, fish, butter, cheese, lard, vegetables or other provisions is a denial of a property right to a particular class which is not justified by any reason relating to the promotion of health, safety or welfare of the public. The court has declared discriminatory a licensing act for horeshoers limited to those in cities over a certain population; 32 a statute, which fixed a prohibitive license fee for the sale of patent medicine by itinerant merchants but permitted sales by resident vendors; and a law which required barbershops to close on Sunday.31

34

33

20 People v McBride, 234 Ill. 146 (1908).

21 City of Chicago v Bowman Dairy Co.. 234 Ill. 294 (1908).

23 City of Belleville v St. Clair County Turnpike Co.. 234 Ill. 428 (1908).

23 City of Chicago v Jackson. 196 Ill. 496 (1902).

Bailey v People, 190 Ill. 28 (1901); City of Chicago v Netcher. 183 Ill. 104 (1899).

25 Frorer v People, 141 Ill. 171 (1892).

20 Knoxville Iron Co. v Harbison, 183 U. S. 13 (1901).

27 Braceville Coal Co. v People, 147 Ill. 66 (1893).

28 Erie Railroad Co. v Williams. 233 U. S. 685 (1914).

29 Millett v People, 117 Ill. 294 (1886); Ramsey v People, 142 Ill. 380 (1892).

30 McLean v Arkansas. 211 U. S. 539 (1909); Rail and River Coal Co. v Yaple, 236 U. S. 338 (1915).

31 City of Chicago v Netcher. 183 Ill. 104 (1899).

32 Bessette v People, 193 Ill. 334 (1901).

33 People v Wilson. 249 Ill. 195 (1911).

34 Eden v People, 161 Ill. 296 (1896).

It is obvious that no precise standard as to proper classification can be made to govern all statutory enactments. It is equally true that judicial opinion may vary as to the application of this principle to a particular situation. In some instances, it may seem difficult to reconcile decisions of the same court as to different situations. The court held invalid a law which punished employers who secured non-resident workmen by means of misrepresentation or failure to disclose labor troubles and conditions.35 Apparently the court disapproves the classification of employers of workmen for the purpose of punishing misrepresentation, and finds no reason for a different measure of liability for such action in the case of resident workmen and those brought from other places. A classification may be a natural one for some purposes but for the purpose of the act creating it, a wholly arbitrary and unreasonable one. It is essential that there be a logical and proper relation between the purpose of the legislation and the group it affects. In most cases of classification for this purpose, there cannot be an exact exclusion or inclusion of persons or things and frequently, as to particular persons just within the class and those just beyond the limits of it, there may be no substantial difference.36 As was pointed out by the court in sustaining a ten hour labor law for women in hotels, the law must be considered as to hotels generally and not with reference to the character of the work performed and under the conditions existing in a particular instance.37 But the court held invalid a law which prohibited the use of emery wheels or belts in basement rooms for the reason that a basement room might be more sanitary than a room so used above the surface. And a law which limited the giving of assignments on wages and salaries, in the opinion of the court, made an improper classification since it included some who by reason of larger remuneration for their services, did not need protection against loan sharks.39

38

The question of classification for purposes of legislation is involved in the prohibition in section 22 of article 4 against granting special or exclusive privileges, immunities or franchises and a further discussion may be found under that section. (See discussion article 4, section 22, subheading, "Special privileges and immunities.")

Arbitrary discretion. The General Assembly may provide for the determination of certain rights by administrative boards or officials and the proceeding will constitute due process of law so long as the act itself determines a policy and prescribes a method for its application, either by laying down the rules or by requiring the administrative agency to formulate the rules and principles which are to govern the particular instance after the facts have been ascertained. But a measure which vests arbitrary power in an administrative agency to act in a manner affecting the rights of individuals, necessarily is subject to the objection that it is not general or uniform in its application. The court has held unconstitutional a statute which made the estates of insane patients liable for their support at state institutions but at the same time, permitted the board of administration to release or modify any claim that it might see fit."1 A gas safety appliance act was held objectionable for the same reason. It exempted from the requirements of the act, buildings which received less than a certain volume of gas unless the conditions endangered life or property. In that case the city fire marshal was vested with arbitrary authority to require such buildings to be equipped in a certain manner with gas safety appliances or to exempt them, as he saw fit.42 So an act amending the school law was held improper since it left to the

35 Josma v Western Steel Car & Foundry Co.. 249 Ill. 508 (1911); but see Commonwealth v Libbey. 216 Mass. 356 (1914).

36 Magoun v Illinois Trust & Savings Bank, 170 U. S. 283 ((1898).

37 People v Elerding, 254 Ill. 579 (1912).

39 People v Schenck, 257 Ill. 384 (1913).

39 Massie v Cessna, 239 Ill. 352 (1909).

40 Public Utilities Commission v C. & W. T. Ry. Co., 275 Ill. 555 (1916).

41 Board of Administration v Miles. 278 Ill. 174 (1917).

43

uncontrolled discretion of the county superintendent of schools the determination of what would constitute a satisfactory and efficient high school district. But the court sustained the validity of a fire-escape measure which gave to the factory inspector a large measure of discretion as to the number, location, material and construction of fire escapes on buildings coming within the class stated." And a statute may vest general power in an administrative body like the board of health to grant or refuse licenses for the treatment of human ailments, so long as the board is required to adopt rules and regulations which are applicable to all and which tend to test the qualifications of applicants.45

Section 3. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship.

46

This section guarantees the full and free right to entertain any religious belief, to practice any religious principle and to teach any religious doctrine limited only by the laws of morality and property and the personal rights of others, and prohibits compulsion as to religious faith or forms of worship. It was held by the Supreme Court that this section prohibits Bible readings in the public schools. To this opinion Hand and Cartwright JJ. filed a vigorous and able dissenting opinion. The constitutional provision guarantees three things; (1) freedom of religious belief and worship, (2) freedom from civil or political disability on account of religious belief and (3) freedom from compulsory support or taxation for a church establishment. The decision of the court is based on the first and third rights. "The free enjoyment", the court held, "of religious worship includes freedom not to worship". Reading the Bible in any version was held to be religious worship. It is said, as to the second ground, that the reading of the Bible in the public schools is sectarian instruction supported by public funds and therefore, prohibited. The dissenting opinion points out that "the framers of the constitution of 1870 expressly refused to incorporate into the constitution a provision excluding the Bible from the public schools". Religious toleration, in the view of the minority of the court, does not demand an entire absence of moral instruction nor does it forbid teaching the principles of morality by means of readings from the Bible. The decision in this case is against the weight of authority in the courts of other states and of the United States. In an earlier case, the court refused to issue a mandamus to compel the trustees of the University of Illinois to reinstate a pupil who had been expelled for failure either to attend chapel services or to make application to be excused. The decision of the court is based partly on the ground that the writ was not

47

43 Kenyon v Moore. 287 Ill. 233 (1919).

44 Arms v Ayer, 192 Ill. 601 (1901).

45 People v Kane, 288 III. 235 (1919).

46 Christian Church v Church of Christ. 219 Ill. 503 (1906).

47 People v Board of Education. 245 III. 334 (1910); but see Millard V Board of Education, 121 Ill. 297 (1887). For a full discussion, see Schofield. Religious liberty and Bible reading in Illinois public schools. Illinois Law Review, VI p. 17, 91 (1911).

asked in good faith to protect a personal interest.48 Religious worship has been construed to include every variety of religious faith and philosophy of life or death.49

The guaranty of religious freedom applies not only to individuals but to religious organizations, and all questions of membership, rites, discipline, doctrine and all ecclesiastical controversies will be left to the legislative and judicial bodies of such organizations.50 And, although the civil courts will take jurisdiction for the determination of property rights, even then, as to ecclesiastical issues involved, the adjudications of the church authorities will be binding on the civil courts unless their action is manifestly a deviation from the established laws of the organization and a perversion of the fundamental doctrines.51

The common law rule and the early law in Illinois disqualified a witness from testifying unless he affirmed a belief in a God and a personal accountability for sins.52 This section prohibits the denial of any civil or political right, privilege or capacity on account of religious opinion. The Supreme Court has held that the right to vote is a right, privilege or capacity within the meaning of this section and that it may not be denied on account of religious belief.53

54

The provision prohibiting compulsory support of a ministry or place of worship has been construed not to prevent school directors from permitting church organizations to meet in school buildings; nor is it a violation of this clause to permit the building of chapels on county poor farms.55 This prohibition against giving a preference by law to any denomination or mode of worship has been construed by the Attorney General to have no application to the case of the selection of chaplains in the state penal institutions.56 (See also, discussion article 8, section 3.)

Section 4. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.

Freedom of speech as guaranteed by this section is subject to some implied limitations. Thus, it may be limited by a proper exercise of the police power, such as a provision in the medical practice act prohibiting advertising under a false name." The exercise of free speech is also subject to the inherent right of courts to punish for contempt, but under the constitutional provision this power is restricted to actions not merely defamatory but calculated to hinder, obstruct or delay them in the exercise of their proper functions.58

The second clause expressly abrogates the common law rules both that the truth alone was a complete defense in civil actions for libel and that the truth was not a defense to criminal libel.59

48 North v Trustees of University of Illinois, 137 Ill. 296 (1891).

49 In re Walker, 200 Ill. 566 (1903).

50 Chase v Cheney, 58 Ill. 509 (1871): Fussell v Hail. 233 II 73. (1908). 51 Christian Church v Church of Christ, 219 Ill. 503 (1906); Presbyterian Church v Cumberland Church, 245 Ill. 74 (1910).

52 Central Military Tract R. R. Co. v Rockafellow, 17 Ill. 541 (1856).

53 Hronek v People, 134 Ill. 139 (1890).

54 Nichols v School Directors, 93 Ill. 61

(1879).

55 Reichwald v Catholic Bishop of Chicago, 258 Ill. 44 (1913).

56 Report Attorney General 1914, p. 130.

57 People v Apfelbaum. 251 Ill. 18 (1911).

58 Storey v People, 79 Ill. 45 (1875); People v Gilbert, 281 Ill. 619 ((1917). 59 People v Fuller. 238 Ill. 116 (1909); Ogren v Rockford Star Printing Co.,

Section 5. The right of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace, by a jury of less than twelve men, may be authorized by law.

Although the guaranty of the right of trial by jury in this section applies to both civil and criminal proceedings, the discussion here has been limited to civil cases. For jury trials in criminal prosecutions, see section 9 of this article and discussion thereunder.

The Supreme Court has said that the first clause of section 5 manifestly refers to a jury of twelve men," but that a jury of less than twelve may by law constitute a jury for justice of the peace courts," and "jury", as used in section 13 of this article, must be construed with reference to the two kinds of juries. So a statute may provide for eminent domain proceedings for road purposes in a justice of the peace court with a jury of six.62 The term "jury" as used here, has come to mean a jury from the county. But there is no guaranty in civil cases as in criminal prosecutions of trial by a jury of a particular district or county.63

It is the plain purpose of this section of the constitution of 1870 to preserve the right of trial by jury to the same extent and in the same manner that it had been enjoyed. The phrase "as heretofore enjoyed" appears in this connection for the first time in the constitution of 1870. The precise period of time referred to by this phrase is left somewhat uncertain by the decisions of the Supreme Court. The guaranty of jury trial in the constitution of 1848 was construed in the case of Ross v Irving to preserve the right of trial by jury as it was understood to exist at the time of the adoption of the constitution. In this case the court sustained the validity of an early statute which authorized seven commissioners to assess the value of improvements placed on land by an evicted claimant. This construction was adopted as to section 5 of the constitution of 1870 in an opinion in Commercial Insurance Company v Scammon holding that the appellate court may reverse the finding of a trial court and render final judgment. In passing upon this same question in 1896 in Borg v C. R. I. & P. Ry. Co., the court pointed out that courts of review at common law and prior to 1837 in this state reviewed questions of law alone, and that the power to reverse without remanding and to review questions of fact was given by statute, one in 1827 and the other in 1837. The court held that the right of jury trial adopted by the constitution of 1870 was the right as it existed subject to this power of the appellate court to review questions of fact." But the year following, 1897, in the case of George v People, the court sustained the validity of the indeterminate sentence law which fixed the amount of punishment in criminal cases instead of permitting juries to do so. It was there said that the guaranty of jury trial is substantially the same in the three constitutions, and that it is the right to trial by jury as it existed at common law, which these provisions protect. In 1898, however, in City of Spring Valley v Spring Valley Coal Co., the court affirmed the holding of Borg v C. R. I. & P. Ry. Co., and said that the right of trial by jury which is preserved by the constitution is the right as it had been enjoyed at the time of the adoption of the constitution.68 Two decisions followed,--Brewster v People in 1899 and Paulsen v People in 1902; both consider the right of a defendent in a criminal proceeding to waive a

67

60 McManus v McDonough, 107 Ill. 95 (1883).

61 Hermanek v Guthman, 179 Ill. 563 (1899).

62 McManus v McDonough, 107 Ill. 95 (1883).

63 People v Rodenberg, 254 Ill. 386 (1912); City of Chicago v Knobel, 232 Ill. 112 (1908).

64 Ross v Irving, 14 Ill. 171 (1852).

65 Commercial Ins. Co. v Scammon, 123 Ill. 601 (1888).

66 Borg v C. R. I. & P. Ry. Co., 162 Ill. 348 (1896).

67 George

v People, 167 Ill. 447 (1897).

68 City of Spring Valley v Spring Valley Coal Co.. 173 Ill. 497 (1898).