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jury and submits to them the exact points at issue for them to decide, without feeling that this is that system of trial which has, in all times and under all circumstances, called forth the just panegyric of the great jurists and publicists who have alike adorned and developed the common law.
Before we condemn trial by jury, let us have it for a while under favorable conditions, as to aid and guidance from the Court in charging upon law and facts, and see how it operates. One of the strongest arguments in favor of it is that under such unfavorable conditions it has worked so well and accomplished such good results. There is a common law right inherent in a Court to submit to a jury particular questions material to the issue, and thus to require a special verdict. It is suggested that it might be desirable in some cases to give a party the right to require the Court to exercise this discretion, and submit a rertain limited number of questions.
The present method of drawing a jury is generally believed to be satisfactory. It is, however, thought that in some localities it has not been found entirely adequate to secure a fair representation of the average character and intelligence of the community. It is understood that some attempt will be made to secure legislation on this subject this winter, and that a carefully prepared bill is already in the hands of those who have given the matter much attention. The subject is certainly worthy of the most earnest consideration.
(1.) The procedure in condemnation suits is such as to admit of great injustice to property owners in some cases. It is settled that the compensation for property taken under the power of eminent domain must be fixed by the valuation of the rroperty at the date of the filing of the petition.
Dupuis v. C. & North Wis. Ry Co., 115 III.. 97. And that until compensation is actually paid the petitioner is at liberty to abandon the proceedings and decline to take the property.
Schreiber et al. v. C. & E. R. R. Co., 115 III. 340. The filing of a petition virtually creates a lien on the land. By it the owner and petitioner are brought into the relation of vendor and vendee, the price being thereafter to be ascertained, and if not satisfactory to the petitioner, the trade may be abandoned. If, after a petition has been long pending, thus preventing the improvement or sale of the property, the petitioner abandons proceedings because the verdict finding compensation is unsatisfactory, it is obvious that the owner may sustain serious loss.
The law should be so amended as to provide that after verdict the petitioner should not be permitted to abandon proceedings, except by leave of Court and upon cause shown, and also that the owner shall have a right in the same proceeding to suggest such damages as he has sustained by the bringing of the petition, and have them assessed by a jury, ana have judgment therefor, as in an ordinary action at law.
(m.) The committee recommend that the second section of our statute, as to insolvent debtors, be so amended as to permit the party arrested to be discharged according to the provisions of law, even where malice is the gist of the action. If a man ought to be punished for fraud or malice, let the State manage the prosecution. It should not be entrusted to individuals, nor made a means of collecting debts.
The committee regret that Judge Wall felt it impossible, in the pressure of official duty, to act with them. They are, therefore, deprived of the benefit of his valuable aid and counsel.
On motion, the reports were received and ordered printed in the proceedings of the Association.
The Secretary also received through Mr. Dent, Chairman of the Committee on Law Reform, the following report of Mr. Gregory, of said committee. The report was received after the business meeting of the Association had adjourned, but for the information of the Association the Secretary publishes it in the proceedings : To the President of the State Bar Association :
Turning from questions substantially of procedure which have been treated by the report of the committee, some consideration may be given to topics in the main of wider interest. There is what can hardly be termed other than an abuse in connection with public office so universal and of such long standing that it may seem idle to attack it here. That is, the system by which railway companies distribute to legislators, executive officers, judges and others passes entitling them to free transportation over their lines.
This is prohibited by the constitutions of Alabama, Arkansas, California, Missouri and Pennsylvania. It is difficult to rest this custom upon defensible grounds -such favors are generally continued while the beneficiaries are in office, ceasing when the office expires. The motive of the donors would seem to be the establishment of friendly relations with the donees; what is expected in return? Obviously something; it can be nothing else than some official action.
It is much to be hoped that such expectation is not realized. In many cases it undoubtedly fails. At the same time, the practice is indefensible, and no argument is needed to show that it should be abolished. A pass is a valuable gratuity, and its bestowal upon a public officer by corporations who are vitally interested in his official action can hardly be discriminated in principle from the giving of a sum of money, or any other thing of value.
The abrogation by law of this practice would tend very materially to increase the confidence of the people in the honesty and fidelity of their public servants in their official dealings with corporations, and would be a salutary recognition of a healthy and growing public sentiment.
It might be desirable, in any legislation upon this subject, to provide that mem. bers of the legislature, judges, sheriffs and State officers voted for directly by the people should be carried free, while upon official business, going and returning by railway and other transportation companies within this State.
There is considerable interest now manifested in the question as to how far codification of the law is desirable.
In England it has gone to a considerable extent, and the same is true in all the States in a less degree.
The subject is worthy of very serious consideration. While the difficulties of embodying the law in the form of statutory enactment are great, still the experience of older communities seems to be in favor of very considerable change in this direction.
The writer, however, is not prepared to recommend any general scheme of codification, and is disposed also to the opinion that, so far as our system of pleading and practice is concerned, a change to a code like that of England or New York is not yet desirable.
Upon a most important subject, however, this State at an early day undertook to codify the law. The result was very far from satisfactory; and to-day the law of negotiable paper in Illinois is anamalous and utterly at variance with that splendid system founded upon the usages of trade and commerce, developed and applied by Mansfield Buller, our own Kent and Parsons, and other great jurists, and known to the world as the Law Merchant. At the time our statutes upon this subject were enacted and first construed, Illinois was purely an agricultural State; at the present time, it is a great commercial and trading community as well, and contains within its borders the third, if indeed it be not more justly the second, great commercial center in the country. Our mercantile and commercial relations are widely extended, and intimate with almost all sections of the country, and indeed our trade extends around the world.
It is highly desirable, therefore, that our system of commercial law should be as nearly like that of the rest of the country as possible. Senator Daniel, of Virginia, on the title page of his admirable work upon negotiable instruments, quotes the opposite language of the great Roman lawyer and orator:
“Non erit alia lex Romae, alia Athenis alia nunc, alia posthac, sed et apud omnus gentes et omni tempore, una, eademque lex obtinebit.”
"There shall not be one law for Rome, another for Athens, one now, another hereafter, but both among all nations and in all time, one and the same law shall obtain."
This is most highly desirable in this country, where in these days of rapid transit and easy communication, all sections are so intimately and constantly connected in business.
And in the opinion of the writer, the chapter on negotiable instruments should be so modified, as to leave the law merchant in force, as to demand for payment, protest, notice of dishonor, negotiability and liability of indorsers and other parties to commercial paper.
The great question of how to secure equal taxation, is always present with us, and always pressing for solution. A gifted judge in a neighboring State has thus spoken of the subject:
"The small property owners who constitute the great mass of the people, usually pay their taxes without question, and seldom combine for the purpose of procuring any special privileges or exemptions. But capital, always keen-eyed and vigilant, always equally ready to grasp at the profit and shrink from the burden, often able to bring to bear powerful and dangerous combinations of influence upon legislative bodies, will be sure to take : dvantage of such a construction of the constitution, and to shift upon others the burden which itself ought to bear. True, such injustice may be borne for one year, or even many years, without fully developing its fatal effects, but as the coral insects, though working almost imperceptibly, do, in process of time, erect islands and continents in the seas, so by an opposite process, unjust taxation, with a slow and steady destruction, eventually wastes the victims on wbom it is inflicted."
Kneeland v. Milwaukee, 15 Wis.. 454. It is believed that in this State, the largest proportion of taxation is paid by the small property owners, and that heavy interests, and particularly large corporations escape with very light contribution to public burdens. A radical reform is necessary in this respect; under proper limitations, so as to avoid double taxation, our revenue system should include
An income tax,
A tax upon the gross receipts of railway, express, telegraph, transportation and street car companies, and perhaps some others.
The first two measures of raising revenue were resorted to by the general government during the war.
A progressive income tax, while it possesses some features which perhaps incline the American people against it, is believed to be defensible upon the best and most scientific principles of taxation. It finds place in the economic system of England and some of the best governed countries in the world, and is generally favored by the most enlightened and intelligent publicists of the age.
A graduated succession tax, very small upon small estates and proportionately large upon Jarger accumulations, is believed at once to be one of the fairest and most practicable modes of taxation known to political science. It could always be readily ascertained and easily and inexpensively collected, being made a charge upon the property of a deceased person to be collected through the agency of the probate and county ccurts where such property is administered.
It would generally fall lightly upon the persons interested, as it would only slightly affect their distributive share in the estate. And where when the deceased left a great fortune it became more onerous, it would still be a limitation upon the acquisition of considerable wealth instead of a heavy burden upon property already enjoyed. Nor could it like a stamp-act or other method of taxing transfers of property be open to the objection of restricting or hampering commercial activity; for it is appointed unto all men once to die," and the administration of their property follows as a necessary incident.
If it should be held obnoxious to our existing constitution, then there should be no objection to amendment so as to permit this method of taxation.
Mr. Augustus Jacobson, of Chicago, recently read an able and exhaustive paper before the Philosophical Society which those interested in this subject would do well to consult.
The taxation of corporations proceeds upon somewhat different principles from those which should guide legislative action in the taxation of individual property. Individuals are said to have some natural rights, though whether, in law as against the sovereign power of the State, they possess any other than those secured to them by the constitution may well be doubted.
But a corporation being the creature of law is such as the law makes it, and nothing else. If it have rights or franchises they are the creation of the law; if it have duties or liabilities they also exist and are what they are by law, and being reciprocal to the rights and privileges conferred, must always attend as a condition of their exercise. No matter what privileges a corporation may enjoy as an incident of its corporate existence by a sort of comity from the sovereign where it so exists, as a matter of right its duties and liabilities are always strictly measured and defined by law. And attached to all grants of corporate power as a condition of its exercise is the right of the sovereign to supervise the manner in which such corpor. ate right is employed and reciprocal corporate duty is performed. Therefore, while taxation of individual property is permitted for public purposes in consideration of the benefits of membership in a common society which the individual enjoys, there may be, as to corporate property, not only a taxation of tangible property, but a tax upon the franchise enjoyed-not merely such a tax as is imposed at the time of its creation, but such an imposition as subsequent events and altered circumstances may warrant the law-making power in deeming reasonable.
In some of the States a tax such as that advocated, obtains with satisfactory results; and with the immense railroad systems and other interests centering in this State could be made highly productive, with no hardship to the corporations subjected to it.
There is now a widespread feeling that they do not bear their just proportion of the burdens of government to which they owe not merely the protection of their property, but their very existence. By this plan the State could see to it that they contributed their full share. But it may be asked whether there is necessity for augmentation of revenue for State purposes ? To this it may be replied that it is thought resort to these methods of taxation would tend to more equality of burden, and that their adoption does not necessarily involve increase of revenue.
But it is thought also that all revenue for State purposes might be appropriately raised perhaps exclusively from corporate license fees or tax on receipts, and that this revenue might with advantage be very considerably increased.
It is expected that at the present session of the legislature an effort will be made to establish two most worthy charities—the State Industrial Training School for Girls, and the State Home for Juvenile Offenders. It is thought with good reason by some that the scheme of the first named institution should be broadened so as to include children of both sexes. There is now, with one or two exceptions (institutions said to be full to overflowing), no place where boys of tender years, innocent of crime, can be properly cared for and instructed.
These and similar institutions should be properly provided for. The experience of ages has shown that individual impulse and voluntary contribution are not sufficient to secure for the poor, the sick and the unfortunate adequate and humane provision. It is commonly said that the rich are growing richer and the poor poorer.
Certain it is, that there is an immense amount of suffering, wretchedness and often resultant crime that goes band in hand with the most obvious and opulent luxury; and discontent, deep-seated and persistent, obtains among the laboring classes. The strong arm of the State should be stretched out to aid her unfortunate children; and in no way can this aid be more effectually rendered than in providing for the little ones who must otherwise be left to grow up starved in body and mind to a life of ignorance and too often of vice. Let us have training schools and homes where the children of the poor and the unfortunate may not merely receive a common school education, but manual training, instruction in trades and the like, anil he supported and cared for by the State so that these opportunities can be enjoyed.
This is not communism or socialism. It is a form of practical republicanism. It is not paternalism. If it is, then our free public schools come within the same category. By them we provide for the intellectual ailment of our children and make their support a charge upon the property of the State. But hundreds and thousands of little children never attend them because in the factory, in the shop, in the great hives of human industry, they are compelled to toil from morning to night to eke out a scanty and miserable subsistence.
Give them a chance to enjoy the advantages that are promised them. The time to reform criminals is before they become criminals. Let us have these charitable institutions where the young are provided for, and we shall save much now required for the support of penitentiaries and the administration of the criminal law, and much, too, now required for hospitals and dispensaries.
The accumulation of large property owners are not the results of their unaided effort. As has been clearly pointed out by the eminent economist, Henry George, there is an increment of value, the result of the combined efforts of all. Particularly where corporate adventure is so benefitted, may a kind of trusteeship for the general people be legitimately impressed upon its acquisitions, Created and armed with extraordinary powers pro bono publico, all that incorporated bodies of a quasi public character have they hold upon a public use and charged with a public trust, to be invoked and enforced by the State whenever in its sovereign judgment the public interest so requires. And this principle may be justly considered in determining the manner and extent of taxation of their property.
The liability of an employee for injuries sustained in the course of his employment is much more extensive in this State than in many others. It may be that it now rests on principles of as nearly substantial justice as those upon which any legislation could proceed. But the writer, with some lack of confidence in his own judgment, ventures the suggestion that this liability ought to be further extended, and that those accidents which are generally said to be part of the risks of service should impose some burden on the employer.
Upon wise considerations of public policy, it seems to the writer that where a workman or employee is injured in the service of his master, without negligence on his part either by machinery, defective or otherwise, or by the negligence of a fellow servant, the employer should be held liable.
A conspicuous instance of a case where an employee should be permitted to recover for defective machinery or appliances, where it was held he could not, is found in Wisconsin
Ballou v. C., M. & St. P. Ry Co., 54 Wis. 257, Citing
E. St. L., P. & P. Co. v. Hightower, 92 Ill. 139. A case where recovery ought to be permitted, though machinery was not defective, is found in new York
Sweeney v. Berlin, etc., Co., 101 N. Y. 520. A case where recovery ought to be permitted, but was denied on account of the relations of the injured party and those through whose negligence he was injured, is
Chi. & E. ll. v Geary, 110 Ill. 383. As ordinary servants have no control as to the character of machinery employed and very little means of knowledge as to its safety, and no control over their fellow workmen, or their employment, the master and not the servant should answer for the damage done by machinery and fellow servants unfit for the purposes of their employment. Thus, greater care in their selection would be secured and accidents would be less frequent. It is understood that the law of France and Germany is as here recommended;
0.81 London L T., 388. The writer is also of opinion that the limitation of damages to $5,000.00 for a death occasioned by the wrongful act or negligence of another is illogical and unreasonable. No good reason can be urged why a recovery should not be permitted in such cases, nor why it should in all cases be arbitrarily limited to that sum. If it be said the sympathies of juries will lead to excessive verdicts, then let the Courts exercise their power to correct this. Their judgment in the light of the facts of each case may surely be more appropriately trusted than the wisdom of the legislature to make a rule which shall answer for all cases.