John M. (John McAuley) Palmer.

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His ancestors on both sides lived in Connecticut in the colonial times. He
was fitted for college at Kinderhook Academy, New York, and in 1853 was
graduated with honor at Amherst College, Massachusetts. He was principal
of Hopkins Academy at Hadley, Massachusetts, 1853-4, a student in Harvard
Law School 1854-5, and a tutor in Amherst College 1855-6. In April, 1856,
he came to Bloomington, Illinois, and in the following September, upon the
examination certificate of Abraham Lincoln, was licensed to practice law.

Shortly after his admission to the bar he became a partner with General
,A. Gridley and Colonel J. H. Wickizer, and remained with them as long as
they continued to practice law. In 1863 he formed a partnership with Thomas
F. Tipton, afterward circuit judge and member of congress; and since then,
at different times, he has been associated as partner with Jonathan H. Rowell,
member of congress for several terms, Lawrence Weldon, one of the judges
of the United States court of claims, and John J. Morrissey. In 1869 ne was
elected a delegate to the convention that framed the state constitution of 1870,



728 THE BENCH AND BAR OF ILLINOIS.

and served on the important committees on bill of rights, municipal corpora-
tions, state institutions and schedule. The bill of rights (Article u), as drafted
by him, was adopted by the full committee and the convention with but a
single change. He introduced and caused to be incorporated into that article
the far-reaching provision that "no law making any irrevocable grant of special
privileges or immunities shall be passed." In his speech on the railroad article
he took the position, never before held in court, that the power to limit the
rates of charges of common carriers as the public good may require is a gov-
ernmental power which no legislature can irrevocably abandon or bargain
.away to any individual or corporation.

In 1872 he was one of the counsel for the people in the celebrated Lexing-
ton case (Chicago & Alton Railroad Company versus the People, Illinois Re-
ports, volume 67, page n), which led to the legislation of 1873 prohibiting ex-
tortion and unjust discrimination in railroad charges. He was subsequently
employed as special counsel for the State Board of Railroad and Warehouse
Commissioners, and assisted the attorney general in the prosecution of the
warehouse case (Munn versus People, Illinois Reports, volume 69, page 80),
which was taken to the supreme court of the United States, and being there
affirmed (Munn versus Illinois, United States Reports, volume 94, page 113),
became the leading case in the series familiarly known in 1876 as the "Granger
cases." These cases established the constitutional power of the legislature to
regulate railroad and warehouse charges, and thereby protect the public
against imposition. In the later case (Ruggles versus the People, Illinois Re-
ports, volume 91, page 256), decided in 1878, the supreme court of this state
declared broadly that the legislature has the power to pass laws establishing
reasonable maximum rates of charges by common carriers or others exercising
a calling or business public in its character, or in which the public have an
interest to be protected against extortion or oppression. In commenting on
this case the Western Jurist says: "It is probable that the people of the state
are indebted for the results of this agitation as given in the above decision to
Hon. R. M. Benjamin, of Bloomington, in a greater degree than to any other
single individual. As a member of the constitutional convention he made the
clearest and most convincing argument in favor of the rights of the people
which, was delivered in that body, and as special counsel for the people in the
cases of the Chicago & Alton Railroad Company versus the People and Munn
versus the People has very materially contributed to the establishment of the
principle contended for by him before the convention and established in the
above cases."

The "Granger cases" have been repeatedly followed by the supreme court
of the United States: Budd versus New York (1891), United States Reports,
volume 143, page 517; Brass versus North Dakota (1893), United States Re-
ports, volume 153, page 391.

In 1873 Mr. Benjamin was elected without opposition to the office of
county judge of McLean county, and he was re-elected in 1877, and also in
1882. His judicial aptitude, the soundness of his decisions and the quiet ease



THE BENCH AND BAR OF ILLINOIS. 729

with which he dispatched business won and held the respect and confidence
of the bar and of the people. He preferred not to be a candidate again for the
office and accordingly retired from the bench at the close of his third term, in
December, 1886.

Upon the organization of the law department of the Illinois Wesleyan
University (known as the Bloomington Law School), in 1874, Judge Benjamin
was appointed dean of the law faculty. He is 'Still connected with the law
school, having charge of the subjects of real and personal property and consti-
tutional law. He has published the following works: Students' Guide to Ele-
mentary Law, Principles of the Law of Contracts, and Principles of the Law
of Sales, which are used in several of the leading law schools of the country.

In 1880 the degree of LL. D. was conferred on him by the Illinois Wes-
leyan University.

He was married at Chatham, New York, September 15, 1856, to Miss
Laura, daughter of David G. Woodin, who for many years was county super-
intendent of schools of Columbia county, New York.

Probably the part that Judge Benjamin took in the constitutional con-
vention had a more directly beneficial effect upon the citizens of Illinois than
any other of his acts; and the arguments he brought to bear before that, body
in behalf of the people to prevent railroad corporations from unjustly discrim-
inating against any section of the state or against any citizen displayed such a
deep knowledge of corporation law-, and have had such an important bearing
upon the construction of law affecting corporations throughout the nation,
that we herewith reproduce in full the speech to which reference has previously
been made (Debates of Constitutional Convention, volume 2, page 1641):

Mr. Chairman: Corporations, and especially railroad corporations, have within the
last few years assumed and exercised powers incompatible with the public welfare; and,
perhaps, there is no danger so much to be apprehended, and, if possible, guarded against
by the people of this state as that which has its source in the construction placed by
the courts upon what are called legislative, or charter, contracts. In theory railroad cor-
porations are created for the public good. In practice they became oppressive by being
allowed, under the claim of charter contracts, to fix their rates of toll for the transporta-
tion of persons and property.

Whenever the public interests demand the construction of a railroad the legisla-
ture, without any hesitancy, authorizes the corporation to take private property the very
homestead- for that purpose. Whenever the same public interests require a limitation
of the rates of railroad charges, the plea is set up that the legislature has no power
whatever to act upon the matter. The principle of public benefit, when invoked in aid
of a railroad, is all-powerful. The same principle, when appealed to for the protection
of the people against imposition and extortion, has hitherto been held to be utterly
powerless. The interest of individuals must yield to that of the public. The interest
of the public has been declared to be subordinate to that of railroad corporations. And
when we ask for the reason of this distinction between individual rights and corporate
rights when we ask why it is that public interests, although paramount to individual
interests, must succumb to corporate interests we are told that the legislature has made
contracts whereby it has abdicated in favor of corporations the governmental powers
intrusted to it by the sovereign people. I say governmental powers because in the absence



730 THE BENCH AND BAR OF ILLINOIS.

of a charter contract the power of the legislature to regulate and limit the tolls which
the owners of a railroad may lawfully take is unquestionable.

The statutes of the several states afford numberless instances of legislative limitation
of the tolls of ferry, bridge, plank-road and turnpike companies. The ordinances of the
larger cities of this country limit the charges of hack, omnibus and dray lines. The
statutes of our own state not only provide for the condemnation of private, property for
ihe sites of gristmills, but also limit the amount of tolls to be taken for grinding at
these mills. In some of the states the charges of inn-keepers and the fees of professional
men, and in nearly all the states the rates of interest which money-lenders and bank
corporations may lawfully take are regulated and limited by legislative enactment. The
power to 'make these laws, and a multitude of others of like character, rests on the right
and duty of the legislature to protect the people by statutory regulations against imposi-
tion and extortion.

Upon authority and principle it may be safely asserted that, in the absence of charter
contracts to the contrary, the legislature may from time to time regulate and limit the
tolls which railroad companies may lawfully take in the same manner as the legislature
may limit the tolls to be taken by ferry, bridge, plank-road and turnpike companies; in
the same manner as municipal authorities may regulate and limit the charges of hack,
omnibus and dray lines; in the same manner as the tolls at gristmills, the charges of
innkeepers, the fees of professional men, and interest on loaned money may be regu-
lated and limited. These are governmental powers; and by the term "governmental"
I here mean not judicial, but legislative powers. To declare what the law is, or has
been, is a judicial power; to declare what the law shall be, is legislative. The law is
applied by the judicial department, and made by the legislative. It is both the right
and the duty of the legislature not to await the action of the judiciary where the common
law has furnished no adequate remedies for existing evils, but to take the initiative and
place limitations upon tolls and charges, and fees and interest, whenever such limita-
tions are essential to the public good; provided, always, that the legislature has not
bartered away, absolutely beyond recall, to extortioners, the governmental powers where-
by it might otherwise protect the people against their impositions. And this brings us
directly to the question whether or not the governmental powers entrusted to the legis-
lature, to be exercised for the. public good as occasion may require, are the subject-matter
of contract, of mere bargain and sale.

The following provision was incorporated in the constitution of 1818 and retained
in that of 1848:

The powers of the government of the state of Illinois shall be divided into three
distinct departments, and each of them be confided to a separate body of magistracy,
to-wit: those which are legislative to one; those which are executive to another; and
those which are judicial to another. Constitution of 1848, article 2, section I.

I maintain that under this constitutional provision, which has been in force ever
since this state was organized, the legislature has had no power as a party to make a
contract the effect of which would be to control or embarrass its governmental powers
and duties. To hold otherwise is to affirm that the legislature may abdicate the authority
and relieve itself of the responsibility conferred and imposed upon this government by
the sovereign people of the state.

"The people of the state of Illinois, grateful to Almighty God for civil, political
and religious liberty confided" that is the word "confided to the general assembly those
powers of the government of the state which are legislative" for what purpose? "In
order to promote the general welfare and secure the blessings of liberty to themselves
and their posterity." At the same time they declared in the bill of rights that "all power
is inherent in the people, and all free governments are founded on their authority and
instituted for their peace, safety and happiness." The legislature of a state is in no just
sense the sovereign of the state, for sovereignty is the parent, not the offspring, of the
government.' The sovereignty belongs to the people of the state in their original char-



THE BENCH AND BAR OF ILLINOIS. 731

acter as an independent community. All political power is inherent remains in the
people. In the language of Chief-Justice Taney: "The powers of sovereignty confided
to the legislative body of a state are undoubtedly a trust committed to them, to be exe-
cuted to the best of their judgment for the public good; and no one legislature can,
by its own act, disarm their successors of any of the powers or rights of sovereignty
confided by the people to the legislative body unless they are authorized to do so by
the constitution under which they are elected. And in every controversy on this sub-
ject the question must depend on the constitution of the state, and the extent of the
power thereby conferred on the legislative body." Ohio Life Insurance and Trust Com-
pany vs. Debolt (Howard's Reports, Volume 16, page 431).

The power to regulate the reciprocal rights and duties of common carriers and
private citizens who may desire to travel upon highways constructed for the public use
is, as we have seen, a governmental power one of the attributes of sovereignty con-
fided to the legislature to be exercised for the public good. And where is the provision
of our state constitution which authorizes one legislature to disarm a succeeding legisla-
ture of this power, the proper exercise of which we have been taught by sad experience
is so essential to the protection of the traveling public? In another case Justice Wood-
bury says: "One of the highest attributes and duties of a legislature is to regulate public
matters with all public bodies, no less than the community, from time to time, in the
manner which the public welfare may appear to demand. It can neither devolve these
duties permanently on other public bodies nor permanently suspend or abandon them
itself, without being usually regarded as unfaithful, and, indeed, attempting what is wholly
beyond its constitutional competency." East Hartford vs. Hartford Bridge Company
(Howard's Reports, Volume 10, page 534).

Now, whether railroad corporations are to be regarded as quasi-public bodies, or as
private bodies, forming a portion of the community, I maintain that the regulation of
rates of toll for the conveyance of persons and property upon railroads the public high-
ways as the public welfare may demand, is a legislative duty, the permanent suspension
or abandonment of which is wholly beyond the constitutional competency of the legis-
lature. Moreover, a grant by a public agent bound in the most solemn manner not to
throw away the governmental interest confided to it, is different from a grant by an
individual who is master of the subject. The corporation which accepts from the legisla-
ture exemption from governmental control, knowing that it is dealing with an agent
bound by duty not to impair a public right, does so at its peril. Nay, more: the cor-
poration which accepts from the legislature a grant of any essential attribute of sover-
eignty should be treated both in morals and in law as a party to a fraud upon the
inherent rights of the people.

The same constitutional provision confides legislative powers to one body, execu-
tive powers to another, and judicial powers to another. If legislative powers may be
disposed of by contract, why may not executive and judicial powers be sold? We all
recognize the principle that executive and judicial powers are entrusted to the governor
and the judges, to be exercised by -them while in office and then turned over unimpaired
to their successors I believe that the day is not far distant when the courts of this
country will settle down on the firm fundamental principle that no department of gov-
ernment, be it legislative, executive or judicial, can abandon, diminish or bargain away,
for any consideration or upon any pretense whatever, the governmental powers entrusted
to it by the sovereign people, to be exercised for the promotion of the general welfare.
When the people of this state, in 1818, and again in 1848, confided to the general
assembly the legislative powers of this state, was it contemplated that the agents entrusted
with these governmental powers should sell any portion of them to other organizations,
or parcel them out by contract to private corporations? It is a well settled principle
that where a trust is confided to any class of persons, the trustees cannot transfer that
trust to others. "What trust, what confidence is more sacred, more responsible than
the power to make the laws of a free people? The power is not only delegated to the



732 THE BENCH AND BAR OF ILLINOIS.

two branches of the legislature, but there is an obligation, a duty, imposed upon them
to make all such laws as are necessary and proper for the interests of the people and
good order of the body politic."

The language of our state constitution, reason and sound policy, all concur in bring-
ing us to the conclusion that the law-making power, being entrusted to the legislature by
the constitution to be exercised as occasion may require for the promotion of the gen-
eral welfare, cannot be permanently transferred to any other body. If the courts will
fall back upon this principle, we need not feel alarmed at the growth and power of
corporations. They are dangerous to the people only as they are allowed, under the
pretense of a bargain, to appropriate to their own purposes the governmental powers con-
fided to the legislature. "The great object of an incorporation," says Chief Justice Mar-
shall, "is to bestow the character and properties of individuality on a collective and chang-
ing body of men." Providence Bank vs. Billings (Peters' Reports, Volume 4, page 562).
The creation of private corporations, the bestowal of the attributes of individuality upon
these ideal creatures, the placing them, as to legal rights, on the same footing with natural
persons, are proper subjects of legislative action. And we readily concede that these
ideal creatures private corporations cannot be arbitrarily destroyed by the legislature,
and that the rights which they may possess by virtue of their individuality or existence
are protected by the same constitution which is the Magna Charta of the whole people.
But in the language of Justice Daniel: "The opinion seems to have obtained that the
right of property in a chartered corporation was more sacred and intangible than the
same right could possibly be in the person of the citizen an opinion which must be
without any grounds to rest upon until it can be demonstrated either that the ideal
creature is more than a person, or the corporeal being is less." West River Bridge Com-
pany vs. Dix (Howard's Reports, Volume 6, page 533).

The legislature may irrevocably dispose of the lands and public buildings and other
property of the state. These are the proper subjects of contract and sale. But a legis-
lative contract to surrender forever to a private corporation any portion of the govern-
mental powers of this state is, in my opinion, unconstitutional and void. It is unconsti-
tutional because the constitutional provision, which has been in force here ever since
we have had a state organization, confides intrusts these powers to the legislature to
be exercised for the promotion of the general welfare, not to be bartered away. It is
void, because it is a contract in violation of public duty, and without a competent subject-
matter. The legislature cannot deal cannot traffic with a sovereign right as private
property. Says Justice Daniel: "I never can believe in that, to my mind, suicidal doc-
trine which confers upon one legislature, the creatures and limited agents of the sover-
eign people, the power, by a breach of duty and by transcending the commission with
which they are clothed, to bind forever and irrevocably their creator, for whose benefit
and by whose authority alone they are delegated to act, to consequences however mis-
chievous or destructive." Ohio Life Insurance and Trust Company vs. Debolt (Howard's
Reports, Volume 16, page 443).

And right here let me ask, From what one source have the people of this state
suffered more mischievous consequences than from the free exercise of the assumed right,
on the part of the legislature, to sell out to railroad corporations the power of fixing
and exacting from the community rates of toll without limitation? In resisting the usurpa-
tions of these wealthy and powerful corporations, we have turned our attention too much
to that clause of the constitution of the United States, which provides that no state shall
pass any law impairing the obligation of contracts, and have not paid sufficient attention
to that section of our state constitution which confides, and only confides, the legislative
powers of the government to the general assembly, and to that section of the bill of
rights which declares that "all power is inherent in the people." We must not forget
that a legislative act or charter may contain unconstitutional provisions. The real ques-
tion is not one of vested "rights under a contract, but one of constitutional power to
make the contract. The legislature cannot change the constitution or make a new con-



THE BENCH AND BAR OF ILLINOIS. 733

stitution, and yet it would be doing just this if it could limit the governmental powers
of a future legislature; and therefore I maintain that corporations are subject to govern-
mental powers the same as individuals, that the charges of railway corporations can be
regulated and limited by legislative enactment, the same as the tolls of ferry, bridge,
plank-road and turnpike companies; the same as the charge of hack, omnibus and dray
lines; the same as the tolls of millers, the charges of innkeepers, the fees of professional
men and interest on loaned money. The powers to make these regulations and limita-
tions are, unquestionably, legislative, governmental powers, and neither these nor any
other legislative powers of a governmental nature can be irrevocably disposed of by
contract to any individual or corporation. There are and can be no vested rights of
governmental power in any individual or corporation except those conferred by the
constitution.

Will any gentleman take the position that the legislature can endow any individual
or corporation with a vested right to commit crime, or perpetrate fraud, or practice
imposition upon the public? I think not. One legislature cannot, by contract or other-
wise, prohibit succeeding legislatures from enacting laws for the prevention and punish-
ment of crime, fraud and imposition. But railroad corporations declare that they have
bought from the legislature the power to establish and exact the exorbitant charges they
are now every day extorting from the people. Under the claim of vested rights they bid
defiance to I was about to say the government; but according to the conceit of these cor-
porations there is no government that can control and regulate and limit their demands.
Each claims to be, in this respect, a government unto itself a sovereignty within a
sovereignty.

The people sooner or later will break away from the theory that a railroad, or
any private corporation, can have a vested right in any governmental power. Let the
next legislature enact substantially the railway laws of England, regulating and limiting
the rates of freight and passenger tariffs, and I firmly believe that the courts would hold
that such reassertion of a governmental control over railroad rates is not an interference
with vested rights.

The time was when city and other municipal corporations claimed that, by virtue
of their charters, they held vested rights in governmental powers. Even now the legis-
lature cannot confiscate the private property of a municipal corporation or change the
uses of its private funds acquired under the public faith. But the courts have long since
held that the legislature cannot transfer to a municipal corporation irrevocable vested
rights in governmental powers; and for one I am ready to take the broad position that
it is not, and never has been, in the power of the legislature of this state to bind its



Online LibraryJohn M. (John McAuley) PalmerThe bench and the bar of Illinois : Historical and reminiscent (Volume v.2) → online text (page 19 of 83)