People v. Harper

91 Ill. 357

• Court: Illinois Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinions

Mr. Justice Scholfield

delivered the opinion of the Court:

The points urged against the sufficiency of the declaration are:

1. The authority granted to the Eailroad and Warehouse Commissioners to fix the rates of charges for the inspection of grain and compensation of officers, is an unwarrantable delegation of legislative power.

2. The act is void, so far as it attempts to classify warehouses into classes A, B and C, and provide for the appointment of an inspector in cities where is located a warehouse of class A, because it is special and local.

3. The General Assembly is not authorized, directly or indirectly, to impose burthens, for specific purposes, upon grain and produce, and so the inspection fees are illegal.

4. It is an imposition, a burthen, levied in a manner and by officers not authorized by the constitution.

5. The condition of the bond is not broad enough to hold the principal or sureties for the fees collected, as the bond is a guaranty only against a misinspection of grain.

6. The accumulation of a surplus was unwarranted by law, and the. sureties are not liable for the same.

These will be considered in the order in which they are presented.

1st. The constitution, art. 13, § 7, requires that “ the General Assembly shall pass laws for the inspection of grain, for the protection of producers,, shippers and receivers of grain and produce.” Ho system is prescribed, and the General Assembly is, therefore, left to the exercise of its discretion in the enactment of statutes, in compliance with this mandate.

By “An act to establish a board of railroad and warehouse commissioners and prescribe their powers and duties,” in force July 1, 1871, a commission, styled “Railroad and Warehouse Commission,” is created. It is composed of three persons, appointed by the Governor, by and with the advice and consent of the Senate, and the term of office is for two years and until their successors are appointed and qualified. Rev. Stat. 1874, p. 828, § 129.

In addition to the duties imposed on this commission in reference to railroad corporations, by § 14 of “An act to regulate public warehouses, and the warehousing of grain, and to give effect to art. 13 of the constitution,” the Board of Commissioners of Railroads and Warehouses are empowered “ to fix the rate of charges for the inspection of grain, and the manner in which the same shall be collected,” and also “ to fix the amount of compensation to be paid to the chief inspector, assistant inspector, and all other persons employed in the inspection service, and prescribe the manner and time of their payment.” The chief inspector is appointed by the Governor, by and with the advice and consent of the Senate. Assistant inspectors and other employees are appointed by the Board of Commissioners of Railroads and Warehouses, upon the nomination of the chief inspector; and that board is also empowered to appoint a warehouse registrar and such assistants as may be deemed necessary. The entire inspection is expressly placed under the supervision and control of the Board of Railroad and Warehouse Commissioners. “All neces- • sary expenses incident to the inspection of grain, and to the office of registrar, economically administered, including the rent of suitable offices, shall be deemed expenses of the inspection service, and shall be included in the estimate of expenses of such inspection service, and shall be paid from the funds collected for the same.”

The charges for inspection are required to “ be regulated in such a manner as will, in the judgment of the commissioners, produce sufficient revenue to meet the necessary expenses of the service of inspection, and. no more.”

That the board thus created is a quasi public corporation, admits of no controversy. Angelí & Ames on Corporations, §§ 23, 24; Dillon on Municipal Corporations, § 9. And it is now too late to question the power to create such agencies in the administration of the government, and invest them with such legislative power as shall be appropriate and necessary to effectuate the objects of their creation. Cities, towns, villages, counties, townships, road districts and school districts are familiar instances of local, corporate and quasi corporate agencies in the administration of the government, invested with powers to some extent of a legislative character. Besides these, and of a different character of public agencies, are boards for the control of the public charitable, penal and reformatory institutions, and that for the construction, management and operation of the Illinois and Michigan canal, — all of which have been and are invested with power and authority to make contracts, fix prices, and adopt such rules, regulations and bylaws as shall be reasonably adapted to and necessary to carry out the purposes of their creation. And the last named board, since the act in relation to the construction, etc., of the canal, approved January 9, 1836, has been invested with and exercised the power of making rules, regulations and by-laws for fixing tolls to be paid for transportation, for governing persons employed about the canal, for injuries done to the canal, locks and tow-paths, and for the management and navigation of the canal. 1 Purp’s Stat. 432, § 75; id. 467, § 261; Rev. Stat. 1874, 189, § 98. During this period, now nearly forty years, although the people have twice remodeled their constitution, this delegation of legislative power has neither been condemned by the people nor questioned by the courts.

And, as further illustrative of the principle, reference may be also had to the corporations created for park purposes, which are invested with extensive legislative powers and. the commissioners of which we have said “are agents, by whom in part the people of the State carry on the government. Their functions are essentially political, and concern the State at large, although they are to be discharged within certain local limits. Wilcox v. The People, 90 Ill. 192. See also, Chicago v. Wright, 69 id. 318.

The right to pass inspection laws belongs to the police power of the government. Cooley’s Const. Limitations (1st ed.) 584^5. Inspections are necessary incidents to the execution of quarantine and health laws, and laws to prevent fraud, imposition and extortion in quality or quantity in sales; and the power to provide for them has been uniformly recognized as the subject of delegation to municipal corporations. Cooley’s Const. Limitations, supra; Sedgwick on Stat. and Const. Law, 463.

If, therefore, the power here conferred upon the Railroad and Warehouse Commissioners had been conferred upon the city council of Chicago, the objection that it involved a delegation of legislative power, would have been, to the apprehension of all, destitute of any plausible basis.

But, it was said in The People ex rel. v. Salomon, 51 Ill. 50: “ There is no prohibition which we have been able to discover, and we have been pointed to none, against the creation by the legislature of every conceivable description of corporate authority, and when created to endow them with all the faculties and attributes of other pre-existing corporate authority. Thus, for example, there is nothing in the constitution of this State to prevent the legislature from placing the police department of Chicago, or its fire department, or its water works, under the control of an authority which may be constituted for such purpose by a vote of the people, and endow it with power to assess and collect taxes for their support, and confide to it their control and government.” Again, it was said: “ The constitution nowhere commits corporate objects or purposes irrevocably to authorities now existing, nor does it prohibit the committal of them to such corporate authority as may be called into life by the same law which creates the subject, and commits it to their jurisdiction.”

In The People v. Draper, 15 N. Y. 532, a like principle is announced. It was there held: “ The legislature may, constitutionally, establish new civil divisions of the State, embracing the whole or parts of different counties, cities, villages or towns, for general purposes, permanent or temporary, of civil government, provided the divisions recognized by the constitution are not abolished, nor'their capacity impaired, to subserve the purposes and arrangements to which they are made instrumental by the constitution.” See also, to the same effect, Police Comrs. v. City of Louisville, 3 Bush, 597.

And again, in The People v. Shepherd, 36 N. Y. 285, it was held the legislature has authority to arrange the distribution of police'powers, “as the public exigencies may require; apportioning them to local jurisdictions to such • extent as the law-making power deems appropriate, and committing the exercise of the residue to officers appointed as it may see fit to ordain.” See also, People v. Pinckney et al. 32 N. Y. 377.

Analogous principles have been recognized by this court in Bush v. Shipman, 4 Scammon, 186; Trustees, etc. v. Tatman, 13 Ill. 27; County of Richland v. County of Lawrence, 12 id. 1.

Where it is sought to impose burdens upon municipal or quasi municipal corporations to be discharged by revenues raised by taxation on the local constituency, under the constitution, the burden can only be imposed by the local corporate authorities—as held in Harward et al. v. St. Clair Drainage Co. 51 Ill. 130, and other cases of kindred character; and the corporation can not be imposed upon the locality without its consent signified by a majority vote of its electors, as held in People ex rel. v. Salomon, supra.

But this is a protection against taxation, only, and not a limitation upon the powers of the State government in selecting agencies through which to protect the people against wrong and injustice, where no local burden is sought to be imposed. .

No taxation is imposed on any locality by this law; and the power to be exercised is solely for the benefit of commerce in grain which is necessitated to pass through a particular channel, exposing producer, shipper and receiver to the danger of loss through imposition, extortion and fraud, and it can, in no proper sense, be deemed a burden upon the locality. •

There is no provision of the constitution which, either expressly or by necessary implication, inhibits the General Assembly from committing the inspection of grain to a board created for that purpose; and we are not authorized to say that the Board of Commissioners of Railroads and Warehouses is not quite as legitimate as any other board that could have been selected or created for that purpose.

It evidently was not designed that the inspection should be made a source of revenue, either to the State or to municipalities ; for it is not enjoined as a means of raising revenue, but solely for the “ protection of producers, shippers, and receivers of grain and produce;” and there is natural justice in requiring that the expenses occasioned by the inspection should be borne by those presumably benefited by it. Certainly no clause of the constitution is violated by this requirement.

The principle, repeatedly recognized by this and other courts of last resort, that the General Assembly may authorize others to do those things which it might properly, yet can not understandingly or advantageously do itself, seems to apply with peculiar force to the fixing of the amount of inspection fees—so as to adjust them properly with reference to the expenses of inspection.

The expenses of inspection must necessarily vary, to some extent, from time to time, with the changes in the price of labor, office rent, fuel, lights, stationery, etc., and the amount to be received at a given rate per cent for inspection fees must also necessarily vary in proportion as the quantity of grain to be inspected, from time to time, increases or diminishes. And hence an arbitrary permanent rule, as one by statute would have to be, would be liable either to produce less than the inspection expenses demanded, or an excess which would not be needed, and which would therefore, to that extent, be an unjust imposition on those paying the fees-.

It would seem obvious that anything like a fair approximation to an adjustment of the fees to the expenses could only be made upon thorough local knowledge, and by changing the rate per cent of fees to be paid, from time to time, and as often as experience should prove to be necessary to correspond with changes in expenses and the fluctuations in the quantity of grain to be inspected.

The delegation of this legislative function may therefore well be regarded as a necessary incident to- the exercise of this branch of the police power of the government; and the reasoning which sustains a like delegation to a city council must be of equal potency here. We can not say we are clearly satisfied the constitution has been thereby violated.

The officers in respect of whom the constitution speaks of fees and salaries fixed by law, are only those specifically named in that instrument. Davis v. The State, 7 Md. 161.

2d. It may be conceded that the statute under consideration is local and special, as, in a certain sense, it is, without bringing it within the inhibition of any provision of the constitution. Local or special laws are only prohibited in the enumerated cases in sec. 22, art. 4, of the constitution, and “ laws for the inspection of grain ” are not included. Besides, the constitution itself, in sec. 2, art. 13, discriminates between public warehouses in cities of not less than 100,000 inhabitants, and those in cities of less population, and recognizes that there is a necessity for regulations in respect to the former not necessary to the latter.

The difficulties that may be encountered in the practical execution of a law are never regarded as of controlling-significance in determining its constitutionality.

3d. Inspection laws are not regarded as imposing burdens upon trade, nor as unjustly discriminating in favor of one class at the expense of another, so long as they are reasonable. That the statute before us is not liable to the objection of unco nstitntionality on this ground is sufficiently shown by the reasoning in Munn et al. v. The People, 69 Ill. 80, and Munn v. Illinois, 94 U. S. (4 Otto) 113.

4th. The objection that the inspection fee is a burden levied in a manner and by officers not recognized by the constitution, is based upon a misapprehension.

Inspection fees are not taxes, nor is the right to impose them to be found under the power to impose taxation. They are imposed as compensations for services rendered presumably beneficial to the party upon whom they are imposed under and by virtue of the general police powers of the State. Cooley on Taxation, 413; Charleston v. Rogers, 2 McCord, 495.

It is somewhat significant that all objections to the burdensome and oppressive character of these fees come not from those by whom they‘were paid, but from the man who has confessedly appropriated them to his own use and those who are soxight to be held liable for his appropriation as his sureties.

5th. In The People v. Tompkins et al. 74 Ill. 482, when the chief inspector’s bond was executed the Commissioners of Railroads and Warehouses had not designated the chief inspector as the collector of the inspection fees and custodian of the fund when collected, and we held that his sureties were not chargeable with knowledge by the law that he would be required to collect aud have the custody of the fund. But we said, “ Had the duty been enjoined upon Tompkins, as chief inspector, when the bond was executed, to collect this fund and retain its custody, a different and much stronger case in favor of the plaintiffs would have been presented,” and we declined an expression of what we would have held in that event.

In the present case, the chief inspector was designated and appointed as collector of the inspection fees and charged with the custody of the fund thus raised, and required to make payment on bills chargeable to the inspection service, and of the residue in his hands to his successor in office, when the bond in suit was executed.

The statute declares, that “the chief inspector of grain and all assistant inspectors of grain, and other employees connected therewith, shall be governed. in their respective duties by such rules and regulations as may be prescribed by the Board of Commissioners of Railroads and Warehouses; and the said board of commissioners * * * shall also have

power to fix the rates of charges for the inspection of grain, and the manner in which the same shall be collected.” When rules and regulations were adopted, in conformity with the statute, they became just as much the law describing and regulating the duties of the chief inspector as if they had been fexpressly enacted as a part of the statute, and the undertaking of the bond is, that the said William H. Harper shall “faithfully and strictly discharge the duties of said Office of chief inspector of grain according to law, and the rules and regulation prescribing his duties,” etc.

We do not think it admissible to say, as contended by counsel for defendants, that the undertaking here is simply that the chief inspector will pay all damages to any person or persons who may be inj ured by reason of his neglect. This view entirely excludes the preceding sentence, which requires that he shall “ faithfully and strictly discharge the duties of his said office of inspector, according to law and the rules and regulations prescribing his duties,” which constitute all that is needed to a complete official bond. The next clause is then inserted, not as a limitation upon, but as an addition to, this undertaking, and must so be construed.

When, therefore, the bond was executed, the law gave notice that power was given the commissioners to prescribe and regulate the duties of the chief inspector in his office. Those duties were prescribed, and it devolved upon those guaranteeing their performance to ascertain what they were. If the sureties did not know, Avhen they signed the bond, that it was the duty of the chief inspector to collect inspection fees, pay them out from time to time, as the inspection service demanded, and pay over the residue to his successor in office, it was their own folly. The means of information were before them, and they can not be heard to say they did not know what they ought to have known.

The undertaking of the sureties is, that their principal shall faithfully and strictly discharge the duties of his office of chief inspector, as well those prescribed by the Commission of Railroads and Warehouses as those prescribed bjr law. It Avas no less his duty to pay over the surplus inspection fees in his hands to his successor in office, than it was to make careful and honest inspections, and for this default, his sureties are, in our opinion, clearly responsible.

6 th. We think it clear the statute does not contemplate the accumulation of a large and constantly increasing fund to be derived from inspection fees, and that the fund thus collected shall be only sufficient to meet the demands of the inspection service. This is substantially its language. But it must have a reasonable construction, and, in giving it such construction, it is obvious that there must be accumulations of fees in the hands of the chief inspector amounting to considerable sums and varying at different times according to circumstances. It is impracticable that the inspection fees for each bushel, or even each car load of grain, shall go directly from the hands of the party paying them into the hands of those having claims upon the fund. The amount of the fees must necessarily be fixed in advance of their collection, and Avhile, Avith proper care by the board of commissioners, the general demand upon the inspection fund may be anticipated with a reasonable approximation to exactness, it is very evident that the amount of fees to be received, may, by reason of sudden and exceptional fluctuations in the shipments of grain, sometimes fall far beloAv a reasonable anticipation, and at other times rise as much in excess of it.

There is nothing in the record before us from Avhich Ave can determine that the balance in Harper’s hands is, in fact, even if we regarded that as material, in excess of the inspection service. For aught that appears, through his negligence in paying bills, or otherwise, there may be ligitimate demands upon the fund to cover every dollar of it.

But we do not regard this as important. From the mode of collecting the fund, and the nature of the claims upon it, we think the only reasonable conclusion is that it must have been anticipated some amount would accumulate in his hands, greater or smaller as circumstances might affect it. The rules and regulations of the Railroad and Warehouse Commissioners contemplated there might be a surplus in his hands, which they made it his duty to. pay over to his successor. The sureties undertook that he should discharge this duty, and in doing so, having before them knowledge of the purpose of the fund, the source from which it was to be raised and all the circumstances that might affect it, they voluntarily took the chances of the amount. It does not lie with them to say that it is larger than it ought to be. If those for the benefit of whom the inspection was made, without protest and voluntarily paid money as inspection fees to Harper, it lawfully became a part of the inspection fund, and as such must be accounted for.

There are ample means known to the law by which the amount to be raised by inspection fees can be restrained within reasonable limits, and we doubt not they will speedily be found by producers, shippers, etc., and by those representing the State, when any necessity therefor shall exist.

We see no objection to the parties. The people, as payees, are proper plaintiffs, though the balance due, when collected, must be paid into the fund for which the fees were originally collected.

The averment is that Harper acted as chief inspector of grain until the expiration of the term for which he Avas so appointed, to-Avit, until the 3d day of April, 1875, and that aftei’Avards, to-Avit, on the 24th day of April, 1875, John C. Smith was duly appointed to the office of chief inspector of grain in and for the said city of Chicago, and thereby became and from thence hitherto has been the successor of William H. Harper in said office. The term of office of the chief inspector is limited to two years, not until his successor shall be elected and qualified. We therefore think the allegation here is sufficient as to the expiration of Harper’s term of office, and since his duty was to pay to his successor, without other qualification to that term, it is sufficiently averred that he had a successor, to whom he has failed to pay over the moneys in his hands after demand made for that purpose.

The objection that judgment should have been obtained against Harper for his default, before suit could be brought on his bond, is without merit.

Harper was bound either to pay the money he had received to his successor, or lawfully account for its disposition, and having done neither, a liability is sufficiently established against him and his sureties upon his bond. (Rev. Stat. 1874, p. 730, § 13.) Comrs. v. The People, 76 Ill. 390.

The judgment is reversed and the cause remanded.

Judgment reversed.