McCoy v. City of Chicago , 1889 Ill. App. LEXIS 458 ( 1889 )

Gary, P. J.

This is a bill filed by a taxpayer of the city of Chicago to enjoin it from making any contract with the German-American Publishing Company, one of the appellees, for, or paying any money of the city to that company for publishing in the German language those matters and things required by law, or any ordinance of the city to be published in a newspaper.

The only question in the case is, whether the city has a right to expend the money of the city for that purpose. If it has no right to so expend the money, the right of the appellant to an injunction is beyond dispute. Wright v. Bishop, 88 Ill. 302, and many cases there cited.

In 1875 the eity^ was incorporated under the act of 1872, provided for the incorporation of cities and villages. Before such corporation Sec. 15, Chap. 3, of the Charter of 1863, contained a provision that the common council might in its discretion provide for such publication. By an act of March 9, 1867, it was provided that “ the proceedings, notices and ordinances of the city and the departments, shall be published in the newspaper, printed in the German language, having the largest daily circulation in said city,” etc. This act effectually repealed, by repugnancy, the former provision of the charter, by taking from the city all discretion as to such publication, either as to publishing at all, or in what paper. Then came the act of March 10, 1869, which required the common council biennially, on the second Monday in December, or as soon thereafter as might be, beginning in 1869, to designate the German newspaper for publication, etc. The only effect this act had upon the imperative provisions of the act of 1867, was to fix the time when the common council should ’designate the paper in which the publication should be made. ¡None of these provisions are in form or substance, in whole or in part, incorporated in the general act of 1872. In various sections of that act, publication of ordinances, notices, etc., in a “newspaper” is required,but with no mention of the language in which that newspaper shall be printed. It is not a pertinent inquiry in this case, whether the general act of 1872 repeals the charter provision of 1863, as was held to be the case as to other special provisions in Law v. People, 87 Ill. 385, and Cairo v. Bross, 9 Ill. App. 406. It is too clear for argument that that provision, making this act discretionary, is superseded, and therefore repealed by the subsequent legislation, making the same act compulsory, and prescribing the manner and time of doing.it, with restrictions added. From 1869 to 1875 the city could not have justified such publication, without complying with the acts of 1867 and 1869, by referring to the charter of 1863 as their authority, and the repeal of those acts did not revive the charter provision. The appellee’s counsel concedes that the legislation of 1867 is inconsistent with the general law of 1872, and that concession carries the act of 1869 also.

The counsel, however, insists, that even if the charter provision of 1863 is not in force, yet, without any express power to be found in any legislation, the city has the discretion, because of the benefit, to publish in German, from the general powers conferred upon the common council by Sec. 63, Art. 5 of the act of 1872, and specially by clauses 91 and 96 of that section. Whatever might otherwise be the force of that argument it is met and overcome by the 18th section of the schedule of the constitution, that “ all laws of the State of Illinois, and all official writings, and the executive, legislative and judicial proceedings, shall be conducted, preserved and published in no other than the English language.”

It is true that this section would be an objection to the validity of the charter provision of 1863, if that had not been repealed by the acts of 1867 and 1869; and if there had been no such repeal, and if it was not repealed by the act of 1872, this court would have, under the law conferring jurisdiction, no power to decide the question; but the views already stated leave no such question in the case. Questions involving the construction of the constitution, without involving the validity of a statute, are within the concurrent jurisdiction of the Supreme Court, and of this court; of the Supreme Court by Sec. 88 of the Practice Act of 1872, and of this court by Sec. 8, as amended in 1887, of the Appellate Court Act of 1877. This section of the constitution has no reference to individual conduct. It is no restraint upon private enterprise.

The publisher of a newspaper in any language may translate and publish as much as he pleases of the laws, official writings, and executive, legislative and judicial proceedings in this State, without offense. But it is a restraint upon official conduct, and as stringent upon publishing as it is upon conducting and preserving such laws, etc. If the city may publish at public expense in German, why may it not pass ordinances and conduct its business in Greek?

This constitutional provision is the only express law on the subject; yet, if even the directors of a school district should attempt to keep their records in a foreign language, it would seem absurd to everybody. “ Official,” as an adjective, is derived from “ office,” as a substantive, and by the constitution, Sec. 24, Art. 5, “ an office is a public position, created by the constitution or laws, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed.” Every officer of the city is within that definition. Wilcox v. People, 90 Ill. 186.

Their acts as officers are official; the record of their acts as officers are “ official writings,” to be “ preserved and published in no other than the English language.”

The constitution of 1848 contained the same prohibition, and though the question might have been made long ago, it never has been; but no provision of the constitution becomes obsolete by neglect.

The decree of the Circuit Court dismissing the bill is reversed and the cause remanded, with directions to perpetually enjoin the city, as prayed in the bill, and that the appellant recover his costs. The costs both here and in the Circuit Court are to be paid by the German-American Publishing Company.

Jdeversed and remanded.