O'Connor v. Leddy , 64 Ill. 299 ( 1872 )

Mr. Justice Thornton

delivered the opinion of the Court:

The court below ordered the plea of the general issue to be stricken from the files, because the defendant did not file with it an affidavit of merits, as required by “An act to regulate the practice in the circuit court of Cook county.” (Sess. Laws 1853, p. 172.) Judgment by default was thereupon rendered against the defendant.

This act was abrogated by the constitution of 1870. It purported to regulate the practice and proceedings of the circuit court and the court of common pleas of Cook county, and had no application to the other circuit courts of the State.'

The constitution (Art. 6, sec. 29,) provides that, “All laws relating to courts shall be general, and of uniform operation ; and the organization, jurisdiction, powers, proceedings and practice of all the courts of the same class or grade, so far as regulated' by law, and the force and effect of the process, judgments and decrees of such courts, severally, shall be uniform.”

The court in which the judgment was rendered is of the same class or grade with the circuit courts throughout the State. Its organization and jurisdiction are the same as the organization and jurisdiction of the circuit courts. Hence, its powers, practice and proceedings should be uniform with the circuit courts.

The plain intent of the constitution was, that all courts of the same class or grade should have a uniform practice, so far as the same was regulated by law. The act in question is wholly inconsistent with such uniform practice. There is a necessary repugnancy between it and the constitution. The one prescribed a practice in a court in Cook county, of the same grade as the circuit courts, which was not required, by any general law, to be adopted by the circuit courts. The other required that the practice should be the same in all courts of the same class, so far as the law should regulate it.

The repugnancy between the constitution and this special act is conceded, but it is contended that the constitution is prospective in its operation, and an argument is based upon the words, “so far as regulated b.y law.” It is assumed that these words refer to future, and not to past, legislation; and as the legislature had regulated the practice in Cook county by a law prior to the constitution, such law should stand until repealed by the law-making power.

These words were inserted in the section for an entirely different purpose. They Avere intended to distinguish between any provision of the constitution and an enactment of the •legislature regulating the organization, jurisdiction, powers, proceedings and practice of the courts. The constitution might make a distinction, but the laAV must not. The language, “so far as regulated by laAV,” does not necessarily refer to future legislation. It merely indicates, as an exception to the rule of uniformity in the practice in the courts, any differences established by the constitution, and the right and pOAver of all courts to adopt and enforce rules to facilitate the administra.tion of the laAV.

Under our former constitution, the legislature enacted quite a variety of laws regulating the practice and proceedings in different circuits. The systems thus established were, to a certain extent, unlike. There was no uniformity in the practice in courts of the same jurisdiction in the State. This was an evil often inconvenient to counsel, and mischievous sometimes to parties. This variety of practice and proceedings in courts of the same grade, and vested Avith the same jurisdiction, prevailed in a number of circuits. The suitor might be familiar with the course of proceedings in one circuit, but in another he had to learn a practice entirely variant. The constitution intended to remedy this mischief.

Section 22 of Article 4 of the constitution ^provides against this character of legislation in the future. It prohibits the legislature from the enactment of any local or special law regulating the practice in courts of justice. Thus ample provision was made for the future.

If section 29 of Article 6 has also reference to future legislation only, then the constitution contains two provisions identical in object. A conclusion which leads to such an absurdity should not be made.

As section 22 so clearly prohibits future legislation in regard to practice in the courts, except by general law of binding force throughout the State, we must conclude that section 29 of Article 6 was designed for some other purpose. Its object was to abrogate all special la\vs in relation to practice, so that all courts of the same class or grade should be governed by an uniform law.

If these local and special laws continued in force until a repeal by the legislature, the constitutional provision was useless, and the evil must exist until the legislature may choose to remove it. The constitution intended uniformity in practice, but the legislature might thwart this intention by a neglect to repeal the obnoxious laws. The operation of the constitution then, in securing uniform practice and proceedings in courts, depends wholly upon the will of the legislature,.and not upon the fiat of the people.

Such conclusions are absurd, and defeat the apparent object of the instrument. That interpretation should be adopted which will give efficacy to the constitution and enforce uniformity in practice, rather than one which will impair its operation and make it obligatory only at the pleasure of the legislature. Thus the instrument is made effectual, and the obvious mischief of former legislation is avoided.

A similar construction was given to the constitution in the case of The People v. Rumsey, ante, p. 44.

See also Hills v. The City of Chicago, 60 Ill. 86.

We are of opinion that the special act was abrogated by the constitution.

The judgment is reversed and the cause remanded.

Judgment reversed.