People ex rel. Bartlett v. Dunne

Counsel for the petitioner has particularly pressed upon the court the importance, the great importance, of the cause now pending befSre the court. While, in my judgment, every cause that comes into court is of importance, yet I fully agree with counsel for the petitioner in the importance of this, and the great importance, of this particular cause.

There is considerable earnestness, if not feeling, on the part of the parties to the controversy. On the one hand the parties are engaged in the laudable effort of suppressing vice, and they can see that by and through the means of this court they can attain their object. On the other hand, the parties can see that here is an effort at interference through the means of the court with personal liberty. Questions of this kind. invariably arouse feeling.

But the court has no right to participate in the feeling of the parties. The court has but to declare the law, and, when it is declared, enforce it.

I can do no better than to quote here the remarks of Chief Justice Marshall in that great ease of Cohens v. Virginia, 6 Wheaton, 264, when he was determining a case in which great feeling existed on both sides. He says (p. 404) : “It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them; all we can do is to exercise our best judgment and conscientiously to perform our duty.”

In the case at bar there are two main questions presented, and they are these: First whether the state statute regarding the closing of saloons has any application within the city of Chicago. The contention by the defense that the Sunday law has no application in Chicago they seek to fortify by the argument of contemporaneous or practical construction. I do not regard them as two separate cases; I regard them as two divisions of one proposition. The other one is, What is, the power and the duty of the court when relief of this sort, is sought against the executive • department of the government? While these questions, as I have already stated, are-questions of great importance, I have been aided by the able arguments of eminent counsel on both sides, and to me the answers are so clear that I do not think I need any further time to determine upon the principles of law applicable.

Ás to the first proposition. The term “suspension of the state law” is used. I do not see that the position of counsel is aided by the use of the term “suspension” rather than the term “repeal.” The contention of counsel for the defense amounts to this,' that the state law is repealed by the enactment of the charter, the cities and villages act, and the previous special acts applicable to the city of Chicago.

WAen the question of repeal by implication, as this would be, because there is no express provision for repeal, is urged, there must be a very clear implication, and there must be an inconsistency, in the first place. I agree with the argument of Brother Church on that proposition, and I can see no rule for holding that the city incorporation laws, either the special acts or the cities and villages act, repealed the Sunday closing law. It is my opinion that the Sunday closing law is in full force and effect within the limits of the- city of Chicago, as it is elsewhere in the state.

Contemporaneous construction. The term construction here, meaning practical construction, has been urged by the city authorities in permitting, not licensing, the saloons to keep open without any restriction as to the days they might be kept open. I don’t think that is a sufficient argument, and I cannot feel convinced by that argument that the law must be regarded as repealed.

We come next to what I regard as the most serious question in the case, and that question involves the construction by the court of the constitutional principles and the application thereto to the situation before us, — whether as a general proposition the executive of this city shall be compelled by mandamus of this court to perform his official duty when the duty involved is the exercise of the police power. In this connection I want it borne in mind that in the exercise of the police power city officials are not acting on behalf of this city in its private corporate capacity, but purely as executive officers exercising the police power in a geographical division, — a portion of the state; and the term “executive” embraces the mayor and the police department under his control. When I use the expression, “as a general proposition,” I use it advisedly and intentionally. Although the petition .purports to point out a particular instance or two, yet it is clear upon the record before us that it is designed to compel the exercise of a general duty within the general exercise of the police power.

This is made plainer when we inspect the petition before us. The petitioners come as certain persons who claim no special injury to their property or their property rights, nor, ■indeed, to themselves, but who come to a court of law as one .or two of a general public 'and as having the same interest, .and only the same interest, as the general public. By the petition it is sought to obtain from the court a writ to pre-vent the mayor, an executive official of a co-ordinate branch .of the state government, from committing what, if the petition is true — and in that connection I refer to the intent — is a crime under the laws of the state, namely, the palpable neglect in the performance of his official duties.

There are two classes of cases cited on behalf of the petitioners — at least I divide them into two classes — considered as a sufficient reply to the proposition that an executive officer may be mandamused by the courts. It will be found that those cases which have been cited divide themselves into cases where property interests have been involved, where there - has been a property right involved, or the other class, where the performance of a specific duty to do a single particular act has been involved — -that is, not a general duty to enforce 'the law or the exercise of the police power.

I may here advert to the case of the State of Mississippi v. Johnson, 4 Wall. 475. In that ease it was sought to compel the president of the United States, by means of a mandatory injunction, to execute the laws of the United States, being a suit on behalf of a state. The bill was filed as an original bill in the supreme court of the United States, but the relief asked for was denied. The opinion of the court, by Chief Justice Chase, refers to those instances of compelling the performance of a ministerial duty that are spoken of in the cases that have been cited. But the court says, referring to that class of cases (p. 499) : “The law required the performance of a single specific act; and that performance, it was held, might be required by mandamus.”

It appears to me that that is a very clear distinction. At the commencement here it was argued that the proceeding partakes of the nature of an equitable proceeding. No bill in equity lies to prevent the commission of a crime; no bill in equity lies against the city authorities to enforce the performance of duty on behalf of one who has no property rights involved nor any interest involved aside from that which he possessed in common with the general public. These rules of law, applicable in suits in equity, I consider applicable here. Neither courts of law nor courts of equity possess the power to supervise or control executive officials in the administration of the duties of their respective offices where no property rights are involved except in the instance I have referred to and the instance spoken of in the case I last cited. Where there is involved merely the general proposition, Shall the official or shall he not within the scope of his particular office exercise the police power of the state delegated to him under the law of the state ? courts must keep their hands off. The remedy for dereliction of duty by an executive official in this respect, if any there be, lies with the people themselves.

Under our form of government executives have, generally speaking, no right and no power to coerce the judiciary in the performance of the duties of that department; neither has the judiciary department the right nor the power to coerce the executives in the performance of their duties. Each department in exercising the governmental function assigned to it is co-ordinate and totally independent of the other. That the law has provided for the punishment of judicial malfeasance or misfeasance, but emphasizes this principle. Punishment for such guilt lies with the criminal courts. That such punishment may be inflicted does not extend the jurisdiction of the courts of equity or courts of law.

I suppose the proper order under the view expressed by the court here would be to sustain the demurrer to the petition and overrule the demurrer to the answer.

NOTE.

The above case is now pending in the appellate court under the title of People ex rel., etc. v. Fred A. Busse, Mayor, et al. — Ed.