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ciency? We are apt indeed to boast of high standards but we are reckless of human lives. A boy or girl who has been expelled from a school is liable to lose his self respect and in the majority of instances his career is blighted. The power to inflict this penalty should not be implied. There can, however, be no question of the correctness of the decision of the Illinois court in the instant case, for in Illinois the legislature itself has prescribed the penalty.

For a discussion of the Missouri case of Wright v. Board of Education supra, see Minn. Law Rev. VII 355.

A. A. B.


STATUTES_VALIDATING ACTS.—The power of the legislature to validate acts of public officers and bodies, invalid for want of power to act or failure to proceed as required by law, is complicated by the consideration that the legislature must not interfere with the judicial department of the government. This consideration has resulted in this refinement: The legislature cannot declare valid a particular proceeding or particular proceedings held invalid by the courts. (People v. Owen 286 Ill. 641; People v. Wiley 289 Ill. 174; People v. Clark 300 I11. 586, 589.) But it can declare acts of a specified kind, effective to accomplish certain results, such as the organization of a municipal corporation. (People v. Stilt 280 III. 557, 558, 559; Worley v. Idleman 285 Ill. 220. (Here the court distinguished between an adjudication in a suit brought by taxpayers to enjoin payment on bonds which were not legally issued, and an adjudication against the bonds in a suit brought by the bondholders, in that the latter adjudication rendered the particular bonds invalid beyond the power of the legislature to validate them.)

It must follow from that distinction that a validating act which operates to render certain proceedings effective to accomplish a result not accomplished by them under the law as it stood prior to the passage of the validating act, does not include in that operation any situations already particularly passed upon by the courts, and that means the last court in the particular case, since if there is an appeal and the validating act is enacted before decision on appeal it will operate on that case. (People v. Ryan 281 Ill. 232; People v. Gumm 281 I11. 245.) But not if a review is sought by writ of error, for a writ of error is a new suit and does not have the effect of postponing the binding effect of the judgment below. (People v. Wiley 289 III. 175, but see contra, People v. Wright 284 Ill. 342.) Or, as it is otherwise stated, the legislature may do by a validating act, whatever it could have done in the first instance. (People v. Matthison 280 III. 90; People v. Howell 280 III. 476; People v. Fifer 280 III. 508, 510; Fisher v. Fay 288 Ill. 115.)

Validating acts, it seems, are strictly construed. An act validating school districts invalidly organized or attempted to be organized under an invalid law, did not validate a tax levied by such district before the validation of the district. (People v. N. Y.C.R. Co. 283 Ill. 334, 335), whereas a law that validates certain proceedings before invalid, would cure the objection that their invalidity might present to a tax levy. (People v. C. C. & St. L. R. Co. 284 I11. 88, 89.) Again, while an act cannot render valid a law already declared invalid by the courts, it can render valid municipal corporations attempted to be formed under the invalid law. (People v. Edwards 290 III. 466.) And because of this power of the legislature to create a district lawfully such which was otherwise invalid because of the illegality of its attempted organization, the distinction was made between an act having the effect of creating a district anew, which would be valid, and one attempting to validate an election, which would be invalid as special legislation. (People v. Opie 301 Ill. 13, 14, 21.) And yet again, a validating act validating tax levies of a district illegally organized, does not validate taxes of a legally organized district that were illegally levied (People v. N. Y. C. R. Co. 301 Ill. 56) or that were excessive (id. p. 59); or taxes whether of legal or illegal districts, where the levies were not returned on time (People v. Rich 301 Ill. 82, 83); though the legislature could have validated such by proper act (People v. I. C. R. R. Co. 301 Ill. 297). It should be noted, however, that the total want of power to levy a tax cannot be cured by a subsequent act attempting to give such power (People v. I. C. R. Co. 301 Ill. 298), evidently because that would amount to a legislative tax levy, which, of course, is not permissible under the constitution, the people being entitled to have local taxes levied by the local corporate authorities.

In Roberts v. Eyman 304 Ill. 413, 136 N. E. 736, the validating act was as follows:

"That in all cases where any question or proposition has been submitted by the board of education of any high school district and has received a majority of the votes cast thereon at an election held in such district, said election is hereby in all respects validated and confirmed, where the notice of such election had not been posted in ten public places in such district."

The purpose of this act was to save situations where the required notice by posting in ten places had not been given. Regardless of whether the legislature had the power to effect that which the election was sought to accomplish, the evident object of this validating act was to force upon the people as their election, one held without proper notice, and this the legislature could no more accomplish than it could bind one to a judgment of court by validating a mode of service not valid when service was made, and so the court in that case very properly, it seems, held.

E. M. L.

STREETS AND HIGHWAYS-VACATION.-The case of Wolbach v. Rubens 307 111. 186, 138 N. E. 521, would seem to justify the comment that appeared in this Review (XVI 537) to the effect that it is only where the vacation of a public street is solely for private use or benefit that the ordinance of vacation can be assailed, and upon that it was seen that every presumption is in favor of the validity of the ordinance, even to the extent of holding that a crooked but wider alley instead of a straight and narrower one must be presumed for the best interests of the public.

In the principal case, in an effort to prove that the vacation there was solely for private use and benefit, evidence was introduced to the effect that the appellant employed an attorney to procure the passage of the ordinance with the purpose of making his property more valuable; that the ordinance was designated as for the benefit of appellant; and that the street and alley committee in recommending its passage, stipulated that it be passed subject to fixing compensation and that the sale value of land embraced within the confines of the strip to be vacated, determined this amount of compensation. This, however, was not persuasive of a conclusion that the vacation was solely of private benefit in view of the fact that the strip was part of an alley which had been closed up at the east end by the Michigan Avenue improvement embankment, and of which the unvacated portion had been widened to serve as a turning place for vehicles. In other words, it was perfectly consistent with the public interests to assume that the city had widened as much of it as was needed for a turning place for vehicles and that it did not wish to be burdened with the care and upkeep of the remaining portion.

It would seem thus, that the only desideratum to make the law in this state on the question of vacation of streets complete, would be a decision presenting a state of facts where the vacation of a street was held to be solely for private benefit. Because vacation of a street relieves the city of a substantial burden of care and upkeep, it is conceived such a case will be hard to find, for the street must be of such importance that its vacation would actually incommode public travel in order to overcome the presumption of benefit from not having longer to maintain it. Possibly if it were attempted to take a block out the middle of a street somewhere and vacate that, one would have such a case.

E. M. L.


CONSTITUTIONAL LAW-DUE PROCESS OF LAW AND THE EQUAL PROTECTION OF THE LAWS-ELECTIONS_VALIDITY OF A STATUTE REQUIRING EMPLOYERS TO PAY THEIR EMPLOYEES FOR THE TIME CONSUMED IN EXERCISING THE RIGHT TO VOTE.—The case of People v. Chicago, Milwaukee & St. Paul Railway Company 306 Ill. 486, 138 Northeastern 155, is one of many Illinois decisions which apply the rule of reason in the exercise of the so-called police powers; which announce the doctrine that the right to make and to enforce contracts is a property right; and which construe the terms due process of law and the equal protection of the laws as guaranteeing not only a day in court and an orderly procedure but fundamental property rights.

The decision holds that the Act of June 22, 1891, Sec. 25, as amended (Hurd's Revised Statutes 1917 c. 46 Sec. 312), so far as it gives employees the right to be absent for two hours on election day for the purpose of voting, is valid and binding, but, so far as it provides that the employer shall make no deduction from the employee's wages because of the absence, and penalizes violations of such provision, it abridges the right to contract under Art. 2, Sec. 1, of the Illinois constitution, and deprives employers of their money and property, without due process of law, and denies them the equal protection of the laws, in violation of the state and federal constitutions.

The case is no doubt correctly decided and few thoughtful persons will dissent from the suggestion therein made, that

“The right to vote is simply one of the privileges guaranteed to every citizen of this country who possesses the requisite qualifications. It is not a right, but should be regarded as a duty of the citizen where he is reasonably able physically to perform that duty. It is not the constitutional right of any citizen to be paid for the exercise of his right to vote, and the holding of the provision of the statute void does not violate the right of any citizen, including those who are employed to labor."

Few thoughtful persons will dissent from the court's suggestion that we have gone to the limit in sustaining so-called labor legislation and in making the business (which after all always means the consuming public, for the business always passes on its costs, adding them to the purchasing price) pay the cost, and that there can hardly be any justification for subsidizing the patriotism of the laboring man at the expense of the employer or even of the general public.

How indeed any sane legislature happened to pass and any sane governor happened to sign such a law it is difficult to see. Both the members of the legislature who voted for the bill and the governor who signed it must have been lamentably ignorant of the law of the land or must have forgotten the fact that they, as well as the members of the Supreme Court, had sworn to support the constitutions, both state and national. Was not the act, indeed, but another illustration of the too prevalent custom of playing for votes and of passing the buck? Was it not the familiar attempt to gain the favor of the labor vote, knowing that no harm would be done, as the courts would be sure to declare the provision invalid, and realizing and hoping that in such an event the courts and not they would suffer the unpopularity which always follows such a decision?

We would indeed almost wish (and yet we have no right to do this) that in some instances the courts would waive the constitutional objections and let the legislators bear the responsibility. A few similar statutes, indeed, would do much to bring men to their senses and take much criticism from those of our American judges who adhere to their oaths of office and who have the courage to declare invalid that which they know to be invalid, and this even at the risk of losing re-election.

Why not, and in order to gain the Irish vote, make St. Patrick's day a holiday without deduction of pay? Why not, and in order to gain the Jewish vote, make every Saturday a holiday without deduction and accord a similar privilege to the Scotchmen on St. Andrew's day and the Welshmen on St. David's? Why not pay the orthodox Christians for observing their Sabbath and going to their churches? Why not gain the favor of the playwrights by subsidizing the heathen who go to the movies ?

The so-called police power, which after all is not a power at all, but merely the inherent right of the community to restrain individual liberty and the use of property where the full exercise of that liberty or the full use of that property become detrimental to the real welfare of the community, has never been construed as conferring the right to disregard the constitutional guarantees against larceny and confiscation. The fundamental American theory must be, and always has been, that one may do with his property and with his liberty as he pleases as long as the community is not injured; and the right to liberty must involve the right to contract. Voting, it is true, is a public function and there can be no doubt of the validity of the clause of the statute which requires employers to give their employees the necessary time in which to exercise that right, but to require employers to pay their employees for exercising this right and to subsidize those who are not patriotic enough to exercise it without the subsidy, is certainly taking property for a public use without compensation. Is it not time that we ceased playing with government?

A. A. B.

A DISCOURTEOUS APPELLANT.-The following document, which was published in the legal periodical literature of 1878 or 1879, is said to have been filed in the case of United States v. Smith 2 Montana 487 :

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