III. PROBLEMS OF DRAFTSMANSHIP.

A constitutional convention differs from the regular legislative body in several important respects. The convention will deal with but one document which is fairly brief and all of whose provisions must harmonize with each other. A legislative body ordinarily deals with hundreds of proposals, relating to different matters, and without a necessity that each proposal harmonize completely with each other proposal. The legislative body is throughout a session of some months acting upon and adopting a number of laws, and if a law passed earlier in the session conflicts with one adopted later in the same session (as is often the case) the difficulty may be solved by the rule that the later act replaces the earlier in so far as there is conflict. No such possibility presents itself to a constitutional convention.

The proposals of a convention will presumably be agreed to and submitted to the people at the same time, and in view of this fact the problem of careful draftsmanship and of harmonizing all provisions is much more important than in a regular legislative body. Not only this, but a constitution is likely to remain for a long time unchanged. Each part of it will be judicially interpreted, and will be interpreted in view of earlier constitutional provisions and of decisions based upon such earlier provisions. There is of course need of great care in the draftsmanship of statutes, but there is even greater need for care in the drafting of an instrument which may continue in force for a period of fifty years, as has been the case with the present constitution of Illinois.

Language of the present constitution to which there is no objection should be left unchanged, for to change such language with a notion of making it clearer or with a notion of adopting better English, is apt merely to raise questions of interpretation which must go to the courts for decision. Language which on its face does not seem to mean what is desired, but which by judicial interpretation has obtained a meaning that is satisfactory, should also be left as it is, for here again to make a change is merely to invite difficulty.

Attention is called below to the questions which have presented themselves because the framers of the constitution of 1870 varied the phraseology of the guarantee of jury trial. The Illinois constitution of 1870 is on the whole a well drafted document, but numerous matters of phraseology in it have made difficulty, although they were probably not of importance in the substance of the constitution as framed.

. Certain types of difficulties which have presented themselves in the constitution of 1870 are commented upon below, not for the purpose of criticizing in any way the work of the convention of 1869-70,

but for the purpose of indicating things that should be avoided in the drafting of a new constitution or in the drafting of changes in the existing constitution.

The use of language which may be given a more extended meaning than was intended: The Constitution of 1870 guarantees the right of jury trial "as heretofore enjoyed." These words had not appeared in the constitutions of 1818 and 1848, and their addition in 1870 was probably nothing more than a rhetorical flourish. The question necessarily presented itself to the Supreme Court, however, as to whether the jury trial so adopted was the jury trial as it existed by statute in 1870, so that such statutes became substantially unalterable. Such a result was denied in the case of George v. People, 167 Ill. 447, (1897) pp. 456-458. As the court said, if such an interpretation were given, the general assembly would be powerless to abolish written instructions to juries or to alter the numerous statutory details as to jury trial. Both before and after the George case, however, the Supreme Court has resorted to statutes in force between 1818 and 1870 to determine what was jury trial "as heretofore enjoyed," although such resort has been had to support rather than to defeat legislative power. Borg v. C. R. I. & P. Ry. Co., 162 Ill. 348 (1896) pp. 352, 353; Spring Valley v. Spring Valley Coal Co., 173 Ill. 497 (1898) p. 503 et seq. So far as can be determined the effect of the pharse “as heretofore enjoyed" is that: (1) it does not keep in effect as constitutional requirements the statutory provisions existing in 1870, nor prevent changes in details of legislation in force in 1870 as to jury trial; (2) it does permit new legislation affecting jury trial provided a similar type of legislation was in force in this state before 1870.

Reference has previously been made to the decision of Fergus v. Russel, 270 Ill. 304, and to the broad construction there given to the powers of the Attorney General under the constitution of 1870. In order to accomplish the purpose of leaving the duties of attorney general subject to legislative control, the constitution makers would have had not merely to grant power to the general assembly, but also to insert an express denial of common law powers independently of legislation. An apparent grant of power to the general assembly by the constitution became a grant of authority to the attorney general and a denial of power to the general assembly.

So, the creation of the office of sheriff carries to that office common law functions which can not be withdrawn by legislative act, and this view has in Illinois a better logical argument in its support than has the case of Fergus v. Russell, for the sheriff has been a constitutional officer in Illinois since 1818. Dahnke v. People, 168 Ill. 102 (1907).

Constitutional provisions creating the offices of state auditor, secretary of state and state treasurer, also appear to confer constitutional powers upon these officers, although they are not common law officers, and although the constitution as to them also provides that they "shall perform such duties as may be prescribed by law."

Since about 1840, implied limitations in state constitutions have come to play through judicial construction almost as large a share as express limitations, and if undesired implied limitations are to be avoided language must be carefully chosen, and implications already drawn by the courts of this and other states in certain cases must be expressly negatived.

Similar clauses used in several parts of the Constitution: The constitution of 1870 requires a two-thirds vote of the two nouses of the general assembly in five cases; in the passage of emergency measures, (Art. IV, Sec. 13); in increasing the aggregate amount of appropriations once made, (Art. IV, Sec. 18); in the passage of bills over the governor's veto, (Art. V, Sec. 16); in the proposal of amendments to the constitution, (Art. XIV, Sec. 2); and in the submission to popular vote of the question of calling a constitutional convention, (Art. XIV, Sec. 1). In four of these cases the constitution specifies a vote of two-thirds of the members "elected" to each of the two houses; in one case it specifies "two-thirds of the members of each house," (Art. XIV, Sec. 1). Under general rules of judicial construction a difference in language may in so important a document as a constitution be presumed to intend a difference of meaning, and it would be easily possible to construe "two-thirds of the members of each house" to mean two-thirds of a quorum, rather than two-thirds of all elected. In fact judicial decisions in other states would support such a construction, (Green v. Weller, 32 Miss. 650 (1856,; State v. McBride, 4 Mo. 303 (1836), and a view supporting such a construction has also been recently taken by the United States Supreme Court, Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276 (1919). Yet the difference in language in the clauses here discussed was almost certainly a matter of pure accident.

The constitution of 1870 contains a number of provisions with respect to popular votes:

Separate Section, Vote on question of sale or lease of Illinois and Michigan Canal.

In some of these provisions differences in language were clearly intended to adopt different rules, but this was not true in all cases. For

example, Art. X, Sec. 5, provides for the adoption of the township system "by a majority of the legal voters of such county, voting at any general election", and for the abolition of the township system if at a general election "a majority of all the votes cast upon that question shall be against township organization". It seems pretty clear that no difference in meaning was here intended, and that the purpose of the constitutional convention of 1870 was that merely of adding a provision for the abolition of the township system by the same vote as that required to establish the system, carrying out the principle laid down by the State Supreme Court in People ex rel. Manier v. Couchman, 15 Ill., 142 (1853).

So, with respect to indebtedness and expenditures, Art. IV, Sec. 33, requires a majority of all votes cast at a general election to authorize additional expenditures for the construction of the state house; while Art. IV, Sec. 18, requires for the incurring of indebtedness by the State in excess of $250,000, a majority of the votes cast for members of the general assembly.

For the calling of a constitutional convention, the constitution (Art. XIV, Sec. 1) requires a majority of those voting at a general election. For the adoption of a constitutional amendment it requires (Art. XIV, Sec. 2) a submission "at the next election of members of the general assembly" with "a majority of the electors voting at said election". Under this latter clause the argument was a plausible one that the difference in phraseology was intentional and made the vote for members of the general assembly the test by which to determine whether an amendment had been adopted. In order to settle this issue a decision of the Supreme Court was necessary, and this decision was by a divided court. People v. Stevenson, 281 Ill., 17 (1917).

Throughout the whole of the Constitution of 1870 runs the principle that the compensation of officers shall not be increased or diminished during their terms. Provisions with respect to this matter appear in the Constitution at least eight times (Art. IV, Sec. 21, Sec. 22, Cl. 20; Art. V, Sec. 23; Art. VI, Secs. 7, 16, 25; Art. IX, Sec. 11; Art X, Sec. 10), and are reinforced by still another provision (Art. IV, Sec. 19). It has required a decision of the Supreme Court to determine that the differently phrased clauses mean the same thing. Foreman v. People, 209 Ill., 567 (1904). A single clause stating one principle would have been wiser. See also People ex rel. Holdom v. Schweitzer, 280 Ill., 436 (1917).

The Constitution of 1870 expressly prohibits any member of the general assembly being interested in contracts with the State or any county authorized by a law passed during his term, (Art. IV, Sec. 15); prohibits members of the General Assembly or other officers of the State being interested in printing and certain other contracts (Art. IV, Sec. 25); and also expressly prohibits teachers and school officers being interested in school supplies (Art. VIII, Sec. 4).

The question as to the effect of these three provisions upon legislative power has not presented itself to the Supreme Court of this State, but under the view taken by the Supreme Court in the case of People ex rel. Hoyne v. McCormick, 261 Ill., 413 (1914), the view

might well be taken that the Constitution by prohibiting certain types of interests in contracts, by implication prevents the general assembly from forbidding any other officers being interested in contracts and in fact guarantees them by the Constitution a right to be so interested. This, of course, was not the purpose of the framers of the Constitution, but illustrates the possible dangers of dealing with a matter piecemeal in different parts of the Constitution. It is much better in a matter of this kind to deal with the subject by one provision, as is done in the Constitution of 1870 with respect to the extension of terms of office (Art. IV, Sec. 28).

With respect to special and private legislation also a policy of prohibition runs throughout the Constitution. Upon this subject there is a series of clauses:

Art. IV, Sec. 22,

Art. IV, Sec. 16,

Art. IX, Sec. 3,

Art. X, Sec. 11,

Art. X, Sec.

5.

Art. XI, Sec.

1,

Prohibits local or special legislation in twentythree enumerated cases.

Prohibits appropriations in private laws. Requires that exemptions from taxation be only by general law.

Provides that fees shall be fixed only by general law.

Forbids special laws with reference to township organization.

Forbids the creation of corporations by special laws.

These provisions are supplemented by provisions requiring that laws relating to the courts be general and of uniform operation (Art. VI, Sec. 29), and that the jurisdiction of justices and police magistrates be uniform (Art. VI, Sec. 21).

To find what is prohibited as special legislation therefore requires a search of the whole text of the Constitution. In some cases judicial construction of these clauses has restricted their application. On the basis of Fergus v. Russel, 277 Ill., 20 (1917), the prohibition of appropriations of money in private laws means less than its language seems to mean. On the other hand the prohibition of local or special laws "granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever", has come by interpretation to mean much more than its language seems to mean.

Language permitting or leading to technical constructions: An effort should be made in drafting a constitution to avoid imposing upon the courts the necessity of determining whether "or" is used in the sense of "and," and other types of technical constructions. Article IX, Sec. 9, of the Constitution provides for local improvements "by special assessments or by special taxation of contiguous property or otherwise." The phrase here would appear to permit a combination of special assessments and special taxation, but the Supreme Court has held the "or" of this clause to make necessary the use of one or the other methods, so that the words "or other