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NOTES ON

BILL DRAFTING

IN ILLINOIS

Compiled and Published by the

LEGISLATIVE REFERENCE BUREAU

Springfield, Illinois
1920

r'l,

[Published by authority of the State of Illinois.]

' .’•V ' *, ■,

NOTES ON

ILL DRAFTING

IN ILLINOIS

Compiled and Published by the

LEGISLATIVE REFERENCE BUREAU

Springfield, Illinois
1920

ILLINOIS STATE LIBRARY

29 00609 1276

[Published by authority of the State of Illinois.]

LEGISLATIVE REFERENCE BUREAU.

Governor Frank O. Lowden, Chairman.
*Senator Edward C. Curtis, Grant Park.
Senator Richard J. Barr, Joliet.
Representative Edward J. Smejkal, Chicago.
Representative William P. Holaday, Danville.

E. J. Verlie, Secretary.

* Deceased.

PREFACE.

This study has been prepared by DeWitt Billman. It was un¬
dertaken at the suggestion of W. F. Dodd who made many valuable
suggestions.

It is hoped that this pamphlet will be of assistance to members of
the General Assembly and others who have occasion to draft legisla¬
tive measures in Illinois.

In addition to the books listed in the bibliography, two publica¬
tions of the Legislative Reference Bureau, Constitutional Conventions
in Illinois, and Constitution of the State of Illinois, Annotated, have
been consulted on questions of constitutional law.

Legislative Reference Bureau.

E. J. Verlie, Secretary.^

Springfield, Illinois,

December, 1920.

' 1 ^

TABLE OF CONTENTS.

PAGE.

The Problem of Constructing a Statute. 7

Title and Singleness of Subject. 13

Subject . 13

Title . 15

When Laws Take Effect. 21

Arangement of Subject Matter. 23

Preambles .*... 30

The Enacting Clause. 32

Construction of Sentences....’. 33

Provisos . 37

Phraseology . 40

Tense .. 40

Preciseness-ejusdem generis . 41

Indefinite and uncertain standards. ^ . 45

The use of ‘‘may” and “shall” in imposing duties and vesting
discretion . 53

Definitions, the Construction Statute and some miscellaneous
matters . 58

Punctuation . 65

Effect of General Provisions Relating to Partial Invalidity, Liberal

Interpretation and Repeals .

Partial invalidity section .

Liberal interpretation .

Repeals .

Practical Eactors affecting Draftsmanship .

Amendatory Legislation ..

Amendment by reference .

Incorporation by reference .

Acts expressly amendatory. . . . ... . .

Essential Points in Bill-drafting .

Appendix 1. Eorms. ^..

x^ppendix 11. Bibliography .

Index .

84
92

THE PROBLEM OF CONSTRUCTING A STATUTE.

The discussion in the following chapters is limited to what
has been called the “mechanics of law making.” However, in this
preliminary chapter it may be useful to consider briefly the several
steps in the construction of a bill for introduction in the General
Assembly.

In a general way, the process of constructing a statute may
be divided into three parts :

1. The conception of the legal principle to be embodied into

law;

2. The selection of machinery or legislative expedients to

apply and make effective the legal principle; and

3. The reduction of the substance to words so as' to convey

to the mind of the reader the legal principles which were

present in the mind of the legislator.

Legislation consists at the present time in remedying evils and
making improvements in the body of the law, both statutory and
common law. Thus, by the common law, the recovery of damages
for a personal injury suffered by an employe during his employ¬
ment depends on the principles of civil wrongs. The legislature de¬
termines that recovery in such cases should not depend on the law
of negligence, contributory negligence, fellow-servant' rule, risk
of‘the employment, etc., but that there should be a scheme of com¬
pensation for all injuries incurred in the course of employment,
and the change is the basis of a \\Trkmen’s Compensation Act. So
an act legal at common law may be declared an offense by statute.
The common law right of the employer to contract has been re¬
stricted by child labor laws and other statutory regulations affect¬
ing the hours and conditions of labor.

As to the conception of the evil existing or improvement to
be made, this is purely the legislative function. It may be sug¬
gested to the mind of the legislator by his own experience, or by
suggestion from the experience or investigations of others, but
from the standpoint of the making of legislation, it emanates from
the mind of the legislator.

The legislature i)Ossesses all legislative power that is not ex-
])ressly or impliedly withheld by the constitution of the state, or
by the constitution of the United States. In connection, then, with
the conception of the legal principle must be determined whether
the enactment of that principle is within the limits of the power
reposed in the legislature. The courts are, it is true, the ultimate
interpreters of the constitution, and the final arbiters as to the va-

lidity of laws enacted by the legislature. But members of the
General Assembly are sworn to uphold and defend the constitution
of the state and of the United States, and certainly are under
a duty not to enact laws plainly opposed to fundamental con¬
stitutional principles. This is not to say that the legislature
should always refuse to pass a measure deemed for the public wel¬
fare because it may be of doubtful validity or because, tested by
some decision of the Supreme Court, it may later be declared void
by that court. The history of legislation in Illinois limiting hours
of labor for women is in point. The act of 1893 which prohibited
the employment of a female for more than eight hours in any one
day in certain businesses was declared unconstitutional by the
court.^ One objection made to the act was that it made an im¬
proper classification and discriminated against employers and em¬
ployes in certain businesses. But the act is also condemned be¬
cause it is an “attempt to abridge unreasonably the right to make
contracts.” In the language of the court, “it substitutes the judg¬
ment of the legislature for the judgment of the employer and em¬
ploye in a matter about which they are competent to agree with
each other. It assumes to dictate to what extent the capacity to
labor may be exercised by the employe, and takes away the right
of private judgment as to the amount and duration of the labor
to be put forth in a specified period.” To the contention that the
act should* be sustained “as an exercise of the police power upon the
alleged ground that it is designed to protect woman on account
of her sex and physique,” the court replies that as a “citizen” and
“person”, woman “is entitled to the same rights, under the con¬
stitution, to make contracts with reference to her labor as are
secured thereby to men. . . . The police power of the State can
only be permitted to limit or abridge such a fundamental right as
the right to make contracts, when the exercise of such power is
necessary to promote the health, comfort, welfare or safety of
society or the public; and it is questionable whether it can be
exercised to prevent injury to the individual engaged in a par¬
ticular calling.”

It would seem that such language as this would preclude any
legislation limiting the hours of labor for women, but fourteen
years after this decision, the General Assembly enacted a law pro¬
hibiting the employment of females in any mechanical establishment
or factory or laundry for more than ten hours in any one day, and
this statute was declared valid by the Supreme Court. ^

Under the constitution, the cost of paving streets may be paid
by special assessments, but not the cost of sprinkling streets.^ Suppose
the General Assembly deems it advantageous to permit the oiling of
streets by special assessment. Only a judicial decision can determine
whether such a measure is valid or not. The General Assembly,
recognizing the constitutional c[uestion involved, may properly enact

1 Ritchie v. People. 155 Ill. 98 (1895).

2 Ritchie & Co. v. Wayman, 244 Ill. 509 (1910); also People v. Elerding, 254
Ill. 579 (1912).

3 City of Chicago v. Blair, 149 Ill. 310 (1894).

the law and leave to the court the final determination of its validity.
On the other hand, the legislature is clearly under a duty not to enact
laws plainly violative of the fundamental law and throw upon the
courts and litigants the burden of erasing acts from the statute book.

The second step in the construction of a bill is the selection of
the legislative expedients that carry into efifect the legal principle.
The creation of commissions and agencies to administer the law; the
fixing of criminal penalties and civil liabilities; the requirement of
oaths, bonds, etc., are statutory devices adopted to accomplish the
desired end. For example, in the Workman’s Compensation Act the
legal principle is a system of compensation for all injuries incurred
during the course of employment, without regard to proximate cause.
The questions of employment, extent of the injury, etc., might have
been referred to the courts, but since it was thought that most justi-
' ciable questions connected with such claims had been eliminated, a
board was created with examiners to determine all such matters.^
The Industrial Commission with its system of hearings and proced¬
ure constitutes the statutory expedients of this act.

Again constitutional limitations on the power of the legislature
must be observed in connection with the ways and means of making
effective the legal principle. The provision that “no person shall be
deprived of life, liberty or property without due process of law,”'^
is a procedural requirement as well as a test of the substance of legis¬
lation. Not only must the object to be attained by a statute be a
proper one for legislative enactment, but the methods of accomplish¬
ment must be within the constitutional limitations which safeguard the
rights of the individual. Thus, some method may be desirable to
compel witnesses to attend and give evidence before a notary public.
A statute, however, that attempts to authorize a court to punish in a
summary way as for contempt the refusal to obey a notary’s subpoena
violates the right to trial by jury.^ But the statute may authorize
the officer to apply for an order from the court directing the witness
to attend and testify, and failure to obey the court’s order may be
punished as contempt.”^

The first two steps in constructing a bill—the conception of the
legal principle and the adoption of means to make it effective—re¬
late to the substance of legislation. The third step—the reduction
of the substance to appropriate language to express the legislative
will—is concerned with matters of form. Let us consider the work
of the bill-drafter in connection with the several steps in making a
bill. It is clear that the actual drafting can be done with advantage
for the legislator by persons skilled in legislative expression and forms
best adapted to accomplish the desired ends. The aid rendered the

^ The submission to the courts of controversial matters arising- under a -work¬
men’s Compensation act was unsatisfactory because it involved a great deal of
administrative detail.

5 Constitution of 1870, Article II Section 2.

“Puterbaugh v. Smith, 131 Ill. 199 (1890); McIntyre v. People. 227 Ill. 26
(1907).

^People V. Rushworth. 294 Ill. 45f> (1920).

See Chapter on Forms, subhe.ading Provisions authorizing hearings, com¬
pelling obedience to subpoenas and extending immunity.

* _

legislator may, however, extend farther than the mere drafting. The

selection of legislative expedients is largely a matter of research, the
cohection of data, reference to existing legislation in this and other
jurisdictions, combined with a resourcefulness and imagination to
project a theory into different situations and contingencies “and to
foresee whether and how a ])a])er scheme will work out in practice.”®
A legal training and an acquaintance with the history of legislation are
essential. For example, in 1905 the divorce law was amended to
prohibit the remarriage of either party within one year.* *'^ The ex¬
pedients adopted to enforce the provision are two: (1) a penalty
provision for violation of the prohibition; and (2) marriage within
that period is invalidated. Ordinarily to attach a penalty of im¬
prisonment and to render ineffective the thing attempted to be done,
would be sufficient to secure compliance with the provisions and en¬
force the prohibition.

In the statute in cjuestion there is no express provision that a
marriage by a divorced person within one year performed in another
state is invalid. The general rule is that marriages valid where per¬
formed are valid everywhere unless contrary to morality and the
laws of nature. Statutes are not presumed to have extra-territorial
effect unless that intent ])lamly appears. Clearly a reasonable con¬
struction of the words themselves would be to limit their application
to marriages within the jurisdiction of the state. But to give such a
construction to the statute in question renders it utterly ineffective
since all that would be necessary for a divorced person to evade the
provisions of the act and escape the penalty would be to marry beyond
the limits of the state. The Supreme Court, appreciating this fact,
refused to recognize marriages in another state of divorced residents
of this state who left this state merely for the purpose of evading the
provisions of this act.^” “To say that the legislature intended such
a law to apply onlv while the parties are within the boundaries of
the state, and that it contemplated that by crossing the state line its
citizens could successfully nullify its terms, is to make the act es¬
sentially useless and impotent and ascribe practical imbecility to the
law-making power.” In effect, then, the court, by construction, adds
an additional expedient—invalidating a foreign marriage—in order
to make effective the legislative policy.

What is the practical operation of the statute with its extended
construction? In the first place, one unfortunate result is that two
persons may be legally regarded as married in one state and unmar¬
ried in another. Certainlv, from the standpoint of morality, there
should be no such lack of uniformity in various jurisdictions as to
the marriage status. Then it offers an opportunity for fraud and
deception, absolving the guilty party and punishing the innocent one.
Let us go one ste]:) further. The Supreme Court says that it is “in¬
tended to control the conduct of the residents of the State, whether

thev be within or outside of its boundaries.” Presumablv, the statute

* Tlbert. The Mechanics of Law Making, p. 110.

9 Hurd 1919 p. 1119.

19 Wilson V. Cook, 256 Ill. 460 (1912).

would not be construed to invalidate the remarriage within one year
in another state of a resident of Illinois who leaves this state and
in good faith takes up a residence in the other state. In other words,
whether that marriage is valid in Illinois depends not on facts and
the acts of the parties thereto, but rather on their intent. The evil
of this result is obvious.

Let us see what other method might have been adopted to ac¬
complish the desired object without the disadvantage of the present
statute. The leading principle is the prohibition of the marriage of
divorced persons within one year. Provision might easily be made
for an interlocutory decree which would become hnal at the end of
one year. Remarriage in that case is made impossible not only in
Illinois, but in every state and the legal status of two persons who
have had a ceremony of marriage performed is uniform wherever
they may be. In every state, too, the performance of a marriage
ceremony within the limit of one year would be punishable as bigamy
by the law of the particular state.

It might be difficult in the case of the provision concerning
re-marriage of divorced persons to gauge beforehand the practic¬
ability of the method adopted and to foresee all the consecpiences
and opportunities for evasion. But the difficulty here involved and
all similar statutory problems evidence the advantage of expert
aid in selecting methods to carry out the legislative policy^ Even
if it is not possible to foresee the practical operation of a legis¬
lative experiment it is at least possible when that experiment has
been tried in one state, to collect information and observations
as to its desirability and to give the legislator the benefit of such
information.

Let us return briefly to the first step in constructing a bill—
the conception of the leading principle. If legislation consists in
amending or changing the legal situation in some respect, the con¬
ception of the leading principle of a bill must be based on an ade¬
quate knowledge of the present status of the law. The legislator
cannot, of course, have a legal knowledge which embraces the com¬
plete body of law and legal assistance at this point can be rendered
to advantage. Information collected and prepared by investigating
commissions, departments of government and other b'odies who
have conducted inquiries in s])ecialized fields may also be fur¬
nished the legislator.

Mention has been made of constitutional limitations afifecting
both the main purpose of a measure and the methods by which it
is to be accomplished. The importance from a legislative stand¬
point of knowing the constitutional situation as it afiPects a measure
has already been stated. Members of the General Assembly come
from all walks of life. Many are lawyers, but the practice of the
average lawyer does not lie within the field of constitutional law.
The Governor in his capacity as a part of the law-making power,
customarily has the advice of the Attorney General as to the con¬
stitutionality of measures ])assed by the General Assembly. It
would seem that legal advice on these constitutional matters should

be at the disposal of members of the legislature. Some legislative
reference bureaus, notably the one in \\ isconsin, make no attempt
to advise as to constitutional questions. In the legislative refer¬
ence bureau in Illinois, however, it has been considered a part of
the duty of the bill-drafter to consider constitutional questions in
connection with a proposed measure and to acquaint the legislator
with possible objections. That having been done, the bill, if de¬
sired, is drafted regardless of possible invalidity.

It is apparent that, aside from the actual drafting of bills, the
aid furnished legislators by persons with special training and ex¬
perience in legislative methods may extend into every step in the
construction of a bill. The notes and suggestions here collected
are limited, however, to the discussion of statutory form. That
this is no unimportant part of legislation is evidenced by the state¬
ments of many jurists and students of the science of legislation.
In an address before the American Bar Association, Judge William
Schofield said: “To draw a statute modifying the common law in
such language as to effect exactly the result intended is one of the
most difficult achievements of legal skill.” And John Austin, the
well-known writer on Jurisprudence, and the man largely respon¬
sible for the form of modern English Statutes, said: “I will ven¬
ture to affirm that what is commonly called the technical part of legis¬
lation is infinitely more difficult than what may be called the ethical.
In other words, it is far easier to conceive justly what would be
useful law, than so to construct that same law that it may accom¬
plish the design of the law-giver.”

It is to this limited but important part of the bill-drafter’s work
that this discussion is directed. Constitutional questions have been
mentioned only as they relate to the form of statutes. Even in
this field it is not hoped to make a complete treatment of the
subject but only to call attention to the most glaring faults in
Illinois statutes. Frequent reference by way of illustration has
been made to the laws of this state but it must not be concluded
that they are uniformly poor in the matter of form. There is
much that is excellent in the work of Illinois legislators as is
instanced by this commendation of one act by the Supreme Court.

“The elements which go to make up the offense created by this
section of the statute are so plainly and concisely expressed, that
it would be useless to attempt to make any change in the language
used, with the hope of presenting them in a more concise or per¬
spicuous form. Indeed, the section, in both respects, may be re¬
garded as a specimen of model legislation.”^^

“Henderson v. People, 124 Ill. 607 at 612 (1888).

TITLE AND SINGLENESS OF SUBJECT.

Subject: Section 13 of Article IV of the constitution pro¬
vides that “No act hereafter passed shall embrace more than one
subject, and that shall be expressed in the title. But if any sub¬
ject shall be embraced in an act which shall not be expressed in the
title, such act shall be void only as to so much thereof as shall not
be so expressed.” This requirement which is one of the most im¬
portant of those relating- to the form of legislation, occurs in sub¬
stance in many of the state constitutions. Any discussion of the
titles to statutes and unity of subject is necessarily largely devoted
to the question of conformity to this provision. There are three
separate instructions; the first two are in the nature of charges
to the General Assembly (1) that each act shall be limited to a
single subject and (2) that the title shall express the subject. The
third instruction is a rule of construction for the court if the sec¬
ond charge is disregarded and the title fails to express all that the
act embraces. The first two instructions are rules for bill drafting
but the third is not.

Although the first two parts of the constitutional provision are
distinct, a provision in a statute may be objectionable to both. For
example, if a general title expresses the subject of an act, but it is
claimed that some provision in the act is so disconnected from
the subject that it should not have been included in the act, it natur¬
ally would follow that the title would not express the matter per¬
taining to another subject. As a matter of fact there are but few
cases. in which the court has considered the limitation relating
to subject apart from the provision as to title.

“Subject” as used in the prohibition against more than one
subject in a statute, has no mathematically precise meaning nor can it
be defined exactly. The provision was designed to prevent “log-roll¬
ing” legislation and the court mindful of the evil aimed at, has held
that it should not be construed to restrict the scope of an act pro¬
vided the act deals with one general subject.That is to say, an
act may be comprehensive, covering a very general subject and
that generality will not render it objectionable. “The General As¬
sembly must determine for itself how broad and comprehensive
shall be the object of the statute. . . Indeed, the court has

commended the legislative policy of incorporating in a single act
the entire body of statutory law upon a general subject rather than
to divide it into a number of separate acts. Such broad, compre-

Rouse vs. Thompson, 228 Ill. 522 (1907).

Sutter V. People’s Gas Light Co., 284 Ill. 634 (1918).

hensive acts as Township Organization, Incorporation of Cities, Vil¬
lages and Towns, the Criminal Code, the Revenue Law and the Prac¬
tice Act have been mentioned favorably by the court as illustra¬
tions of this policy/^

The prohibition against duplicit}^ of subjects is directed, rather,
against the joining into one measure of incongruous and unrelated
matters. \\ hether there is a logical connection and relation be¬
tween the matters treated is the test as to unity of subject rather
than the extent and scope of the act. “The word ‘subject’ as
used in the constitution signifies the matter or thing forming the
groundwork. It may contain many parts which grow out of it
and are germane to it, and which, if traced back, will lead the
mind to it as the generic head. Any matter or thing which may
reasonably be said to be subservient to the general subject or pur¬
pose will be germane and may be properly included in the law.”^"

The word “germane” has been freciuently employed by the
court in discussing the connection or relationship of provisions
to a subject. This term is considered at some length by the court
in condemning an act which authorized the city of Chicago to sell
surplus electricity and to fix the rates for the sale in Chicago of
gas and electricity by individuals and companies.^®

“In considering whether all the particular provisions of an
act are embraced iii a single subject the word ‘germane’ has been
a favorite one with the courts, . . . Literally, ‘germane’ means
‘akin’, ‘closely allied.’ It is only applicable to persons who are
united to each other by the common tie of blood or marriage.
W hen applied to inanimate things, it is, of course, used in a
metaphorical sense, but still the idea of a common tie is always
present. Thus, when properly applied to a legislative provision,
the common tie is found in the tendeijcy of the provision to pro^
mote the object and purpose of the act to which it belongs. Any
]3rovision not having this tendency which introduces new subject
matter into the act is clearly obnoxious to the constitutional pro¬
vision in question. It is an error to suppose that two things are,
in a legal sense, germane to each other merely because there is
a resemblance between them or because they have some character¬
istics common to them both.”

A statute combining all the law concerning a broad, general
subject will embrace matters which considered individually are un¬
related to each other but all of which are germane to the general
subject. If, for instance, two diverse matters from the criminal
code were placed in an act which covered nothing else there would
be an improper combination of two minor, specific subjects. But
the Criminal Code may collect those two and many others and unity
follows from their relationship to the one general subject, crim¬
inal jurisprudence.

To the general rule that any matter or thing may be properly
included in an act if it is germane to the subject, one exception

Sutter Y. Peoples Gas Light Co.. 284 III. 634 (1918).

People V. Sargent, ■ 2.64 Ill. .514 (1912).

Sutter V. People’s Gas Light Co.. 284 Ill. 634 (1918).

must be noted. This exception is created by Section H) (3f Article
lY of the constitution which says: “Hills makini>' ap])ropriations
for the pay of members and officers of the (jcneral Assend)ly, and
for the salaries of the officers of the government shall contain
no provision on any other subject,” By express terms these ap¬
propriations are made an independent subject of le, 2 :islation. An
act creating free employment agencies cannot contain an ap])ropria-
tion for the salaries of the superintendents of these agencies.^" An
appropriation act cannot make appropriations for both the ordinary
and contingent expenses of the goverment and the salaries of state
officers^®

The rule laid down by this section of the constitution is cpiite
clear; its application, however, is not always easy because of the
difficulty of drawing a line between officers and emi)loyes. “Office’"^
is defined in Article V, section 24 of the constitution as “a i)ublic
position, created by the constitutiou or law, continuing during the
pleasure of the appointing power, or for a fixed time, with a succes¬
sor elected or appointed,” and “employment” is defined as “an
agency for a temporary purpose, which ceases when that puri)Ose
is accomplished.” To this definition the court has added little. In
the case of Fergus v. Russel,the court discusses what consti¬
tutes creation of an office by law. “An office is created by law only as a
result of an act passed for that purpose. The mere appropriation
by the General Assembly of money for the payment of compensa¬
tion to the incumbent of a specified position does not have the
efifect of creating an office or of giving such incumbent the charac¬
ter of an officer . .

Title: Of the two provisions, one relating to the subject and
the other to the title of statutes, the second has caused the greater
difficulty. Like the subject restriction, this ]movision is not pre¬
cise and definite. There is no sharp line dividing titles which ex¬
press the subject and those which do not and since a title can not
inventory all the provisions of an act, the titles to many acts have
been attacked since this provision was incorporated in the consti¬
tution of 1870. As Justice Craig expresses it; “The objection that
a statute includes matters which are not expressed in the title of
the act is one which is frequently urged and seldom sustained.
The reason for this is that they arc usually frivolous and without
merit.In spite of the fact that this provision has been consid¬
ered in numerous decisions by the Supreme Court, it is not possible
to lay down absolute rules by which it mav be determined whether
or not a title sufficiently expresses the subject of an act. The

Mathews v. People, 202 Til. 389 (1903).

18 persus V. Russel. 270 Ill. 304 (lOl.'i).

270 Ill. 304 (1915).

For a discussion of the cases, sec Constitution of the State of Illinois,
\nnotated. nn. 99. 147.

21 People V. Stokes, 281 Ill. 159 (1917).

cases will serve to show the purpose of this provision and, in a
general way, the construction placed upon it.

“The object of the constitutional provision,” the court says,
“was not to hinder legislation or require that the title of an act
should be an index to the subject matter which followed and min¬
utely and exactly express ever 3 ^ related matter which was included
in the act, but, on the contrary, was intended to require the
title of the act to express in general terms the objects and pur¬
poses of the act, so as to prevent surprise or fraud by the inser¬
tion of provisions into the act of which the title gave no intima¬
tion, and to apprise the people, through the usual course of publi¬
cation of legislative proceedings, of the subject matters of legis¬
lation being considered.”

The court, continuing, states the two methods by which a
title ma}^ express the subject: “This may be done either by ex¬
pressing in the title in a brief, general statement the objects and
purposes of the act, or by so framing the title as to express the
principal features of the act more in detail. Either method adopted
will answer the requirements of the constitution so long as the
general subject matter of the legislation is fairly indicated.”

Of the two kinds of titles, one merely indicating in general
terms the subject of the act and the other in the nature of a
table of contents of the principal features, the first is to be pre¬
ferred.”^ The court has said that either form is a compliance with
the constitutional provision and that it is for the General Assembly
to determine with what particularity the title shall express the sub¬
ject.At the same time, the court has indicated that it favors
simple, general titles rather than complex and restrictive ones.
The Motor Vehicle Act of 1911 was entitled, “An Act defining motor
vehicles and providing for the registration of the same and of mo¬
tor bic 3 "cles, and uniform rules regulating the use and speed
thereof; prohibiting the use of motor vehicles without the con¬
sent of the owner and the offer or acceptance of any bonus or
discount or other consideration for the purchase of supplies or
parts for any such motor vehicle or for work or repairs done thereon
bv others, and defining chauffeurs and providing for the examina¬
tion and licensing thereof, and to repeal certain acts therein
named.The court held as to this title that the “mere mention¬
ing in the title of related particulars is not stating a pluralitv of
subjects,” but it remarks that “the subject is expressed, perhaps,
with unnecessary particularity^ in the title.” For a general title,
the court suggests, “An Act in relation to motor vehicles and to
repeal certain acts therein named.A revision of the motor vehi¬
cle law was enacted in 1919, which follows the court’s suggestion by
adopting substantially the brief general title.

22 People V. Stokes. 281 Ill. 159 (1917).

22 See Chapter on Forms, subheading:. Titles to independent bills.
2-* People V. XeLson. 133 Til. 565 (1890).

23 Laws, 1911. p. 487.

2® People V. Sargent. 254 Ill. 514 (1912).

27 Hurd, 1919, p. 2620.

There are several objections to the table-of-contents title which
it may be worth while to mention. In the first place, the expres-
• sion of details in the title of an act limits the subject, for when
the title is limited to one particular only of some general subject,
the body of the act must be limited to the particular or special
subject in the title and to matters properly connected therewith
and the act cannot deal with other particulars of the general
subject. A recent decision of the Supreme Court will illustrate
this rule. The Deadly Weapon Act of 1881^® was entitled “An Act
to regulate the traffic in deadly weapons and to prevent the sale
of them to minors.” This title lists two principal provisions of the
act but it does not mention any regulation or restriction as to
carrying concealed weapons. Nor is this third provision suggested
by the two which do appear in the title. “All human activities,
however diverse or concerning different subjects, are in some re-
, mote sense related to each other, but the constitutional provision
requires that there must be some reasonable relation between a pro¬
vision and the subject expressed in the title ...” The provision re¬
lating to carrying concealed weapons was held void when it might
well have been included in the act under a general title which
merely directed attention to the subject of deadly weapons.^®

Another objection to the detailed title is, that while it may
successfully list all the features of the act as originally passed, if
it is desired to add other provisions later, it is necessary to amend
the title also to include mention of the additional matter. The
inconvenience of long, unwieldy titles is a still further objection.
With a simple concise title, also, the purpose of the act stands out
more clearly.

When the purpose of a statute and the general subject are dis¬
closed by the title, the courts uniformly hold that such a title covers
all matters having any reasonable connection with that general sub¬
ject. “When a general purpose is declared, the means by which to
accomplish that purpose are presumed to be intended as necessary in¬
cidents. Any means which are reasonably adapted to secure the ob¬
ject indicated in the title may be included in the act. If by any fair
intendment the provisions in the body of the act have a necessary
or proper connection with the title it is not objectionable. T.o render
a provision in the body of an act void, as not embraced in the title,
such provision must be incongruous with the title or must have no
proper connection with or relation to the title. If all the provisions
of an act relate to one subject indicated in the title, and are parts of it
or incident to it or reasonably connected with it or in some reasonable
sense auxiliary to the object in view, then the provision of the con¬
stitution is obeyed. An act may contain many provisions and de¬
tails for the accomplishment of a legislative purpose, and if they
legitimately tend to effectuate that object the act is not contrary tc
the constitutional provision.

28 Laws, 1881, p. 73.

20 People V. Horan, 293 Ill. 314 (1920).

2* People V. Huff, 249 Ill. 164 (1911), and cases there cited.

In nearly every instance where a title has been held not to express
the subject of an act, the objection has been that it was too restricted.
Instead of expressing the general subject, it ^^ointed out only a portion,
of it. Of course, a title can be made so general as to be meaningless.
Though a title need only express the general subject, it should indi¬
cate fairly that subject and afford an intimation of the true nature of
the measure. “While it may be a general expression of the subject, it
must be specific enough to accomplish the purpose for which the
subject is required to be expressed in the title .... The title will
sufiiciently conform to the command of the constitution if it be so
framed and worded, as fairly to apprise the legislators, and the
public in general, of the subject matter of the legislation, so as to
reasonably lead to an inquiry into the body of the bill. The constitu¬
tional requirement may be interpreted to mean that the act and its
title must correspond, — not literally, but substantially; and such cor¬
respondence is to be determined in view of the subject matter to
which the legislation relates. That is to say, a title may be broader
than the act in the sense that the body of the act need not legislate
respecting all the matters which might be included under the title, but
the title must not be so general as to be misleading and, in effect,
conceal the subject of the statute rather than express it.

Since an expression in the title of the general subject and purpose
is sufficient without reciting the means by which it is to be accom¬
plished, it is unnecessary to include such phrases as “providing for
its enforcement”, and “providing penalties for violation.Nor is
it necessary to recite in the title “and to repeal a certain act therein
named” when the repeal of the act is germane to the subject of the
second act and auxiliary to the general purpose expressed.Men¬
tion of a referendum provision need not be made in the title since
this is a means connected with its execution f nor is it necessary
to refer to an emergency provision. Expressions such as “et cetera,”
“and so forth” and “for other purposes” have been held in nearly
all states not to add to the title of an act or to extend its meaning
and the use of such phrases should be condemned.

A provision appropriating money in an act as a means of ac¬
complishing the object of the measure is so clearly germane to the
general purpose that, from a constitutional standpoint, the appropria¬
tion need not be expressly mentioned in the title. However, this much
may be said for its inclusion in the title,—the expenditure of

Milne v. People, 224 Ill. 125 (1906). In this case, the court held uncon¬
stitutional an act of 1905, entitled “An act for the punishment of crimes against
children.” The act made it a felony to take indecent liberties with a child.
In the view of the court the title does not express the fact that the act creates
a new crime of a particular nature. “One reading this title would have no con¬
ception of what might be expected in the body of the act.” It is well to note
in connection with the holding in this case that the usual method of drafting
an act of this nature is in the form of an amendment to the criminal code.

If that had been done, the title would have been “An act to amend ‘An act to
revise the law in lelation to criminal jurisprudence.’ ” This title would
necessarily be held valid and yet it affords far less indication of the nature
of the act than the title held bad.

People V. Blue Mountain Joe, 129 Ill. 370 (1889); Cohn v. People, 149 Ill.
486 (1894).

33 Timm v. Harrison, 109 Ill. 593 (1884).

3^ City of Virden v. Allan. 107 111. 505 (1883).

the public money is regarded as a matter of considerable import¬
ance and it may be desirable to have the title call attention to this
feature. The act assembling the constitutional convention'^'’' is one
of the few laws carrying appropriations which do not make mention
of that provision in the title.

The preceding discussion of titles refers more particularly to
independent legislation. The constitutional ])rovision as to expressing
the subject in the title applies also to amendatory acts.^^' It has been
held that if the provisions of the amending statute are germane to
the subject expressed in the title of the act amended, the title of the
amending act sufficiently expresses its subject by referring to the act
amended and declaring the purpose to amend or supplement it.''^' The
title of an amendatory act is not expressive of the subject if the act
contains provisions which could hot properly have been inserted in
the original act under its title.

If, however, the title of the amendatory act declares a ]nirpose
to amend certain sections of an earlier act, the body of the amending
act must be limited to the subject of the sections named.This rule
is important for two reasons: First, the titles of a majority of
amendatory acts refer to the sections amended; and second, it is often
difficult to determine whether the section as amended is germane to
the subject of the original sections. In case of doubt, the title of the
amending act should be made to refer generally to the original act
rather than to particular sections.

When it is desired to amend an act by provisions which are not
within the title but which might properly have been included in the
original act under a more general title, the amendatory act must con¬
tain a provision amending the original title.The purpose of an
amendatory statute is to deal with the subject expressed in the title
of the act amended. If, therefore, that subject is expanded by
amending the title of the original act, then the title of the subse¬
quent act should afford some indication of the expanded subject.
This can be expressed by noting in the title of the second act the
fact that the original title is amended.

The court when it has been able to ascertain the legislative in¬
tent has given effect to several amendatory acts which did not cor¬
rectly name the act to be amended. Thus, an act purporting to
amend “the Criminal Code” was held to refer to “An Act to revise
the law in relation to criminal jurisprudence.”^^ Another statute
which was sustained named the prior act correctly but gave to the
particular sections amended the numbering as it appeared in Hurd’s
Revised Statutes.^^ As these cases indicate, the court will endeavor
to effect the legislative intent but such errors should not be permitted
to jeopardize the validity of meritorious legislation. The titles of acts

Laws 1919, p. 60.

See Chapter on Forms, subheadingr. amendatory bills.

3" Gag-e V. City of Chicago, 203 Ill. 26 (1903).

2* Kennedy v. Le Moyne, 188 Ill. 255 (1900).

Dolese v. Pierce, 124 Ill. 140 (1888).

^'’People V. City of Chicago, 256 Ill. 558 (1912).

People V. Van Bever. 248 Ill. 136 (1911).

« Patton V. People, 229 Ill, 512 (1907),

referred to should be correctly stated, together with the dates of
approval (or of filing, if the act was not approved) and going into
effect.If there have, been prior amendments, this fact should be
indicated by adding the words, “as amended,” after the dates.In
the case of an act, the title of which has previously been amended,
the reference should be to the act by its amended title but with the
dates of approval and in effect, of the original act. The act is the
same act and the two dates remain the same even if the law, at some
subsequent time, is given a different title. Of course, the fact that
the act has been amended should be disclosed by the words, “as
amended.”

Frequently after the first draft has been made of a bill, changes
will be made, sometimes at the suggestion of the legislator for whom
it has been prepared. In every instance the title of the bill should
be checked to see whether it is broad enough to cover the changes
made. This observation applies equally to amendments to bills after
they have been introduced in the General Assembly.^” The necessity
of care in this regard cannot be emphasized too strongly because a
serious defect in the title may easily creep in and be overlooked.

In most cases, the date of approval would be suflicient to identify the
act, but the use of both dates has been customary.

** From a constitutional standpoint, the reference to an act to be amended
is sufficient without the words “as amended” to call attention to prior amend¬
ments. But this phrase should not, for that reason, be omitted. It serves the
useful purpose of informing the reader tha.t the reference is not to the original
act but to the act in its present form.

^ See Chapter on Forms, subheading. Amendments to bills.

WHEN LAWS TAKE EFFECT.

The constitution of Illinois fixes the time when acts of the
General Assembly shall become effective. Section 13 of Article
IV reads in part as follows: “And no act of the General Assembly
shall take effect until the first day of July next after its passa.s^e,
unless, in case of emergency (which emergency shall be expressed
in the preamble or body of the act), the General Assembly shall,
by a vote of two-thirds of all the members elected to each house,
otherwise direct.” This language presents some difficulties in the
case of legislation passed by the General Assemblv less than ten
days before July 1, so that the period of time allowed for con¬
sideration of measures by the Governor, extends past July 1.^® But
this is a matter of construction which does not affect the drafting of
measures.

In the case of some measures, it is desirable to delay the
time of becoming operative until a date later than July 1. Thus, the
Public Utilities Act of 1913 and the Motor Whicle Law of 1919, by
provisions to that effect, were not in force until January 1 fol¬
lowing their passage. Many of the licensing acts read, “After
October 1, 1919, it shall be unlawful etc.” Technicalhy a measure
with a provision of this character becomes a law July 1 even though
its provisions i^ot become operative at this date. There would
seem to be no constitutional objection to suspendng the operation
of a law for a period after July .1. Glearly the purpose of the
provision in the constitution was to place certain restrictions on
laws which take effect earlier than the time fixed but not to limit
or restrict legislation which becomes effective at a later date.
Consequently to delay the actual taking- effect of an act, it is suf¬
ficient to declare that it shall go into effect at a later time.^^

For an act to become effective earlier than July I, two things
are necessary, first there must be an emergenc^^ (which is ex¬
pressed in the act) and the act must receive a two-thirds vote of
all members elected to each house. The declaration of the emerg¬
ency is commonly called the emergency clause. Probably the fram¬
ers of the constitution intended by this language to require a state¬
ment of the nature of the emergency in the acP® and a consider¬
able number of emergency clauses give a short statement of the

See discussion, Constitution of the State of Illinois, Annotated, p. 96.

See Chapter on Forms, subheading:. Take effect clause.

^*Mr. A^andeventer, the only dele.s:ate to the constitutional convention of
1870 who discusses the question, was of the opinion that the provision would
require the nature of the emergency to be clearly defined in the act. Debates,
Vplume 1, p, 540,

situation which is deemed to require immediate legislation. In
view of the fact, however, that the court has expressly declared
that the legislature is the sole judge of the existence and nature
of the emergency and that the decision of the law making body
in that regard will not be reviewed,^'’ the emergency is custo-
marity expressed by a statement to the effect that there is an
emergency.

The most common emergency clause found in the statute-
book is in a resolution form of statement; “AVhereas, an emerg¬
ency exists, therefore this act shall be in full force and effect from
and after its passage and approval.” This is somewhat awkward
in carefully drafted measures and after examining emergency
clauses in use in other states, the following is suggested as adequate
and more simple: ‘‘Because of an emergency, this act shall take
effect upon its passage.”

The court suggested in an earl}^ case, that the emergency pro¬
vision should be embodied in a separate and distinct clause.^® Usu¬
ally this clause is made a separate section. The position of the
emergency clause in the bill has been considered in the following
chapter, “Arrangement of subject matter.”

^MVheeler v. Chubbuck. 16 Ill. 361. (1855).
»MVheeler v. Chubbuck. 16 Ill. 361, (1855),

ARRANGEMENT OF SUBJECT MATTER.

It is a matter of some importance in the case of lengthy and
complex bills that the subject matter be arranged so as to present
the substance in the clearest and easiest manner to the reader. This
result will be best secured by the careful presentation of that sub¬
stance in a logical and orderly development. It must be remem¬
bered that since legislation presents a widely varying mass of pro¬
visions, no set pattern can be made to which all bills can be con¬
structed to fit. Nor can there be any set order of provisions for
every bill. The rules laid down here are more in the nature of
suggestions to be adopted, amended or discarded as convenience
may require. But it is hoped by an analysis of the skeleton or
structure of a bill to arrive at some suggestions as to the most
efifective arrangement of the material.

A statute is composed of a series of provisions or enactments.
A provision may express the leading principle of the measure or
some proposition subordinate to that leading principle; or it may
be one of a number of equal provisions all connected as to subject
matter but each independent. From the standpoint of the relative
importance of the several provisions which go to make up a statute,
there are three types of statutes.

1. Acts which have a principle provision supported by sub¬
ordinate enactments. An example of this class is the Illinois Op¬
tometry Act of 1919.^^

2. Acts which contain several related main provisions, each
one of which has subordinate provisions. The Road and Bridge
Act of 1913®^ is an example of this third type.

3. Acts which consist of a series of related and equal provi¬
sions all dealing with one subject. The Practice Act of 1907^® is
a series of regulations for the conduct of litigation and court pro¬
cedure.

It will be noticed that the examples given for the second and
third types are revisions or consolidations of earlier laws. Prac¬
tically all independent bills which do not revise or consolidate, are
concerned with a single leading principle and fall naturally into
the first class. Thus, in the Optometry Act, the “core” of the mea¬
sure is the provision that it shall be unlawful to practice optometry
without a license. The provisions for examination of applicants, for
the issuance, refusal, revocation and renewal of licenses, and for the
payment of fees are the administrative machinery to make the main

51 Hurd, 1919, p. 2062.

52 Hurd, 1919, p. 2567.
“Hurd, 1919, p. 2275.

provision effective. Not all bills, however, are pure examples of
any of these classes. Some involve combinations of any two or
all three. The Criminal Code,°^ as enacted in 1874, does not fall so
readily into any one classification.

The bill-drafter must, at the outset, visualize the elements of
the proposed bill and by weighing the relative importance of the
several provisions, determine to which class the measure belongs.
As has already been said, nearh^ all new legislation falls within
Class 1, and most of the bill-drafter’s work will have to do with
that form. The suggestions as to the arrangements for bills in
Classes 2 and 3 may l3e briefly stated.

Bills of the second type are similar to those in Class 1, except
that there are several main enactments instead of one. The prin¬
ciples, therefore, suggested for the arrangement of the provisions
of bills of the first type are applicable to those of the second’ class.
Bills of the second class should be divided into the several main
divisions, each with its leading principle. Each main division with
its subordinate provisions should be carefully separated from the
other divisions and then worked out in complete detail .as though
it alone constituted the bill.

The arrangement of a bill that is composed of equal provi¬
sions relating to a common subject must be governed by different
principles. Sometimes there is a natural sequence of steps in a
connected account and this suggests a logical order for the provi¬
sions. Thus, the Practice Act of 1907 regulates procedural mat¬
ters in their customary order in litigation, commencing with ser¬
vice in suits and ending with writs of error and appeals. But
there may not be a natural sequence in the provisions and a more
arbitrary order must be adopted. Division I of the Criminal Code
in defining and punishing crimes, takes the offenses alphabetically,
commencing with abduction and proceeding to vagabond and wit¬
nesses.

New legislation generally takes the form of bills in Class 1,
i. e. with a single leading principle. Because this is the most com¬
mon form, the arrangement of such a bill will be considered at
greater length. The most important element of a bill of this char¬
acter is the provision stating the leading principle and that pro¬
vision should be embodied in a short concise section and placed
as near the beginning of the bill as possible. The advantage to
be gained b}^ the early statement of the principle or motive of the
bill is that the reader may, by reading the first two or three sec¬
tions comprehend the drift of the act. It enables him to fix clearly
in his mind the body or “core” of the legislation. Having mastered
that from a concise statement, he is prepared to proceed with ease
to the details, exceptions and special provisions. If, on the other
hand, he is confronted with a mass of details without a clear com¬
prehension of the body of the act, he must mentally support the
superstructure until he is able to discover the foundation upon which
it is built.

Hurd, 1919, p. 970.

Frequently, a difficulty will arise as to whether the predominat¬
ing idea is expressed in a declaration of the law as it affects the
individual, or in the as^ency created for its enforcement. The
relative importance of the two provisions must be the first consid¬
eration. Thus, a board may be created for a specified purpose with
certain powers and duties. The administrative features are wholly
subordinate to the establishment of the board. Sections may be
required creating’ crimes and providing penalties but these are
merely incidental to the main purpose. The Public Utilities Act
of 1913^^ is an example of such a measure. The declaration of
the principle of law governing public utilities is section 32 of Arti¬
cle IV. This section requires that service be adequate and rates
or other charecs just and reasonable. Why is this not the im¬
portant feature? For the reason that this is merelv a continuation
of the common law principles regarding public utilities. There is
no departure from existing law in this respect. The main feature
of the act is not to lay down any new principles of law, but to
create a nejv machinery for administering the old law. The case
is quite different with the Illinois Optometry Act. The principle
of law here expressed prohibits the practice of optometry without
a state license. Vhthout such a statute anyone might practice that
profession and so this amounts to a real alteration in the govern¬
ing law. So with the Workmen’s Compensation Act.^® The old
common law liability for damages based on negligence is wiped
out and a new system of compensation for injuries substituted. In
each of these laws, the alteration of the existing principles of law
is the important feature of the act and the powers and duties
vested in the Deoartment of Registration and Education, in the
one case, and the Industrial Commission, in the other, are merely the
machinery for administering the new principles of law.

The examples given illustrate the two extremes in which
either the provision stating the law or the provision creating the
agency for its enforcement, clearly predominates in importance.
Between these extremes come many bills in which these provisions
are more equal in importance. As to such bills two suggestions
can be made. *

1. If possible, place the declaratory provision first and the
administrative feature later. Frequentlv, the statement of the law
will require a reference to the agenev for its enforcement. Refer¬
ential phrases such as “the board by this act created” may be used
to get around this difficultv. But the references may become too
complex and awkward to be easily carried in mind by the reader
and convenience and ease may then require that the order be
reversed.

2. Sometimes the provisions creating the agency are shorter
and less complicated than the declaration of the legal principle. In
that case it may be better to state first the more simple proposi¬
tion and having disposed of it shortly, pass on to the lengthier,
more complex provision.

55 Hurd, 1919, p. 2324.
5® Hurd, 1919, p. 1450.

However, there are some provisions which may precede the
statement of the leading principle. Thus, when the bill provides
a short title, that may properly be placed at the beginning. Such
a provision is short and detached from the subordinate details of
the bill. It does not tend to confuse or befog the statement of the
law, but ma}^ be dismissed from the mind of the reader as he
passes to the body of the bill. Occasionally a bill will have a
special provision which may properly precede the main provisions.
Thus, Section 1 of the Vocational Education Act of 1919^^ accepts
for the State of Illinois the benefits of a Federal Law for the pro¬
motion of* vocational instruction. This provision is distinct from
the following sections which establish a board and prescribe its
powers and duties, and its brevity and importance justify its po¬
sition in the arrangement.

Another consideration may justify such an arrangement; the
statement of the leading principle may require some explanatory
matter to precede it. Thus, where the terms employed in a bill ^
require definitions for an understanding of the provisions, the sec-'
tion containing those definitions may properly come at the first of
the bill. The advisability of the use of definitions will be consid¬
ered in a later chapter, and only their place in the arrangement dis¬
cussed here.

Sometimes it is necessary to apply a law to a variety of cases
or a variety of situations calling for similar treatment. To save
the repetition of a recurring series of words, the bill may adopt an
arbitrary term or symbol to cover artificially, matter which it could
not by natural interpretation be understood to embrace. Thus,
the phrase “noxious weeds” mav be employed as a short cut for
a number of specified plants. Obviously, the explanation of the
artificial meaning of such a term should precede its use. On the
other hand, when a word is correctly and properly employed to
convey its accustomed meaning but it is desired to limit its appli¬
cation or define it more precisely, such a definition may come after
its use. But in such a case, the definition should follow shortly and
not be placed at a distance from the language making use of the
word defined.

Frequently, a bill or a provision stating a principle of law
is not designed to be universally applicable but either affects
only specific situations or else provides exceptions from its general
operation. The -particular group of facts, conditions or circum¬
stances to which the legal principle is designed to apply is spoken
of as the legal case. If the situation to which the law is to applv
is the usual and general one, and the exception is the unusual,
the principle may be stated generally first and the exception or
exemption be permitted to follow.®^ But if the law is designed
to operate not generally and usually, but only in a precise situation
or case, good draftsmanship demands either that the legal case
be stated before the principle of law or that some intimation be

57 Hurd. 1919. p. 2834.

5^ See the Motor Vehicle Law. Secs. 8 and 20, Hurd. 1919, pp. 2621, 2626.

27 .

i^iven by reference to that ease. If the Ic^al ease is of a character
that can be expressed briefly it may be stated before the principle
and in the same section. Thus section 1 of a bill to legalize certain
school elections says:

“In all cases where a majority of the inhabitants of any compact and
contiguous territory voting on the proposition, having voted at any election
called for the purpose by the county superintendent of schools, in favor of
the organization of such territory into a community high school district,
and when at a subsequent election similarly called and held a board of edu¬
cation has been chosen for such district. . .

But if the statement of the legal case is lengthy and involved the
reader should not be burdened with the details of the case before the
principle is disclosed. Acts conditioned on a local referendum furnish
illustrations of legal cases which frequently require several sections
for statement. A bill of this kind should contain an intimation of
this case by referential language and defer the statement of the de¬
tails of the case until after the statement of the law. The first sec¬
tion of an act providing for community consolidated school districts
passed in 1919 is as follows : “Subject to the conditions of sections
84c, 84d, 84e, 84f and 84g of this Act, any compact and contiguous
territory bounded by school district lines .may be organized into a
community consolidated school district.”®®

The subordinate provisions of a bill vary so much in character
and the combinations are so many that no rules can be laid down
for their order. However, some general suggestions can be made
which in particular cases may determine or influence the arrange¬
ment.

1. Give precedence to the more important provisions, those of
normal and general application being placed first.

2. Or if the provisions of a bill, or some of them, set out suc¬
cessive steps in a proceeding, the order of the provisions should follow
the natural sequence. Thus, a provision for the issuance of a license
should precede a provision for its revocation.

When a bill does not primarily create a crime but the prohibition
of certain acts is required as a necessary provision to make effective
the purpose of the bill, it may be convenient to prohibit those acts
as they occur in the narrative and later specifically create them as
crimes and provide penalties for their commission.®^

Local, temporary or exceptional provisions, being less important,
should be placed at the end of the bill. Provisions which are not
closely connected with the narrative of the bill find a logical place at
the end. Thus an emergency clause, which makes an act effective
before July 1, or a “take effect” provision, which postpones the
going into effect after that date, is customarily placed at the end.®^

5»Hurd, 1919, p. 2719.

Hurd, 1919, p. 2707; see also chapter on Forms, subheading Referendura
provision.

**1 See an Act in relation to the sale of farm seeds, Hurd, 1919, p. 56, and
Game and Fish Code, Hurd. 1919, p. 1548.

The constitution, Article IW Section 13, says the emergency “shall be
expressed in the preamble or body of the act.” An act of 1871-2 relating to
Justices of the Peace in Chicago expresses the existence of an emergency in a
preamble (Laws 1871-2, p. 548) but instances of this kind are rare. The word
“preamble” has been omitted from this provision by the constitutional con¬
vention of 1920.

If the bill includes a provision repealing acts or parts of acts,
this provision should follow the body of the act but precede an
emergency clause or ‘hake effect” provision.

The subject* matter may suggest other arrangements equally
proper for the individual case. It cannot be hoped to do more than
suggest the principles which will most frequently be useful. In the
working out a particular bill there will often be variations and ex¬
ceptions. Sometimes the arrangement will follow a combination of
the principles suggested. The Criminal Code has the sections of Di¬
vision I arranged in the alphabetic order; the balance of the act both
as to sections and divisions follows the sequence of the successive
steps of a criminal proceeding. It has been said with a measure of
truth that the rules of good drafting are the rules of literary com¬
position. Certainly it is true that a careful outline of the subject
matter prepared in advance of the actual drafting will afford a logical
and intelligent treatment and lay the groundwork for lucid legislation.

The use of sections is important to make the separate propositions
of a bill stand out clearly by dividing the text accordingly. It is, like
paragraphing, a visual aid to the understanding. The length of sec¬
tions, ordinarily, will be governed to an extent by the treatment of the
subject but the sections should be kept short not only as an aid to
visualization but for convenience 'in amending. A constitutional pro¬
vision prohibits amendment by reference and requires that the “sec¬
tion amended shall be inserted at length in the new act.”®^ Probably
no more forceful argument could be made for short sections than to
call attention to Section 1 of Article V of the Cities and Villages Act.®^
This section recites in ninety-eight -clauses the powers of corporate
authorities of cities and villages. Few sessions of the General As¬
sembly pass without the amendment of this section and to effect the
slightest change requires the re-enacting of the whole section cover¬
ing seven or eight pages of the session laws. Section 61 of the
County Act is even longer, hut probably not so frequently amended.
In 1919 three bills amending this section were passed covering thirty-
three pages in the session laws.®^

The • County Court Act®® contains an interesting treatment in
this respect of the terms of the various county courts. In order to
facilitate amendments to the enactment, one sentence is broken up
into a number of sections so that each dependent clause is made a
section. A portion of this will illustrate the form of the whole act.

“Sec. 8. The law terms of the County Court, except as otherwise here¬
inafter provided, shall commence on the second Monday of the months
as follows, to-wit: In the Counties of—

Sec. 9. Adams, first Monday in January, May and August.

Sec. 10. Alexander on the first Monday of March, July and November.

Sec. 11. Bond, in January, June and November.

Sec. 12. Boone, in March, June and December.

Sec. 13. Brown, in January and June.”

“Constitution of 1870, Article JV, Section 13; see also Veto Messages, 1909,
Senate Journal. 1915, p. 1674.

•^Hurd, 1919, p. 327.

“Laws 1919. pp. 370, 381. 392.

“Hurd. 1919, p. 906.

In the case of the longer sections it is generally an advantage to
paragraph as frequently as the text will permit.

Another useful aid in the clear presentation of the substance of
a bill is found in some cases in the breaking up of the bill into articles
as well as sections. The purpose of grouping sections into articles is
to bring together the sections which are more closely related to each
other and less closely connected with the balance of the bill.

Ilbert, speaking of the use of articles, cautions against excessive
subdivision. It seems doubtful, however, whether there is any great
tendency to over-subdivide. Two considerations must be borne in
mind in regard to the advisability of dividing a bill into articles:

1. The continuity of the thought.

2. The length and complexity of the bill.

The first consideration must be whether the thought breaks up
logically into related but distinct parts. An arbitrary subdivision which
is uncalled for by the thought itself is confusing and worse than use¬
less. Just how distinct this break between the parts should be to
justify subdividing must depend somewhat on the length of the bill
and its clarity in other respects. There would be no advantage in
subdividing a bill of only a few short sections no matter how dis¬
tinct or unrelated the provisions might be. On the other hand, as
the length of the bill increases, the greater becomes the need for sub¬
division.

When a bill is divided into parts, each part should be numbered
and given a short heading descriptive of the subject matter con¬
tained in it. It is obvious that headings or titles assist not only in
locating particular provisions but also as a table of contents to dis¬
close the scope of the whole bill.

There has not been uniformity in the matter of numbering sec¬
tions where the sections are grouped in larger divisions. The Cities
and Villages Act begins each article with a new series of section num¬
bers. The section numbers in the Road and Bridge Act, on the other
hand, run consecutively through the act. The latter system is prefer¬
able for the reason that each section is identified by its individual num¬
ber without reference to the article, thereby eliminating the possibility
of confusing sections of difterent articles.

PREAMBLES.

It was thought necessary formerly to attach to many statutes
a prefactory statement of explanation or argument called a preamble.
The preamble is generally not given a section number and consists of
a series of connected clauses each introduced by “whereas.’’ It
concludes with “therefore” followed by the enacting clause and the
body of the act.

The Charities Code of 1912^" has a different form of preamble.
Section 1 of the act states the purpose of the act in a sentence with¬
out the “whereas—therefore” form.

Generally the preamble serves no useful purpose and could well
be omitted. It is to be presumed that the General Assembly is
influenced by the public interest when it passes a bill; consequently
a preamble to that effect adds nothing. An example of such a pre¬
amble is found in an act for the enlargement of Lincoln Park®® which

rebels: Wt^

“Whereas, the health and the best interest of the public require that
Lincoln Park in Chicago, be enlarged, therefore, . . . .”

A little more specific in its statement is this preamble:

“Whereas, the disease known as foul brood exists to a very considerable
extent in various portions of this state, which, if left to itself, will soon ex¬
terminate the honey-bees; and ....

Whereas, the work done by an individual bee-keeper or by a state
inspector is useless so long as the official is not given authority to inspect
and, if need be, to destroy the disease when found, and

Whereas, there is a great loss to the bee-keepers and fruit growers of
the state each year by the devastating ravages of foul brood; . . .

But there can be no justification for a recital such as this stating
that an evil exists and is causing damage and that the measures in
the bill are the ones which in the judgment of the General Assembly
will most effectively combat that evil. Such may be presumed from
the enactment of the measure itself. It would seem that the reasons
for the establishment of a state colony for epileptics^® are so ap¬
parent as to make their recital in a preamble superfluous.

The courts have held very generally that in case of ambiguity,
reference may be made to the, preamble to determine the intent and
scope of an act.'^ The preamble to a statute is no part of an act;
still it may assist in ascertaining the true intent and meaning of the
legislature.^- Lord Coke speaks favorably of the preamble as “a
good means to find the meaning of the statute, and a true key to open

«‘Hurd. 1919, p. 216.-

«^Hurd. 1919, p. 2101.

'9 Hurd, 1919, p. 90.

•"Hurd, 1919, p. 256.

•^ Lewis’ Sutherland Statutorj' Construction, Sec. .341.

•9 Edwards v. Pope. 3 Scammon (Ill.) 464 (1842).

the understanding thereof.” Rut the fact that ])reanibles have served
a useful purpose to aid in the construction of ])oorly drafted acts
is hardly a justification for their use. The draftsman should strive
to state clearly his law in the body of his bill rather than to rely on
what amounts' to a restatement to correct the faults.

Then too, the operation of a preamble on the language of the
act must necessarily be uncertain. A preamble does not aid in con¬
struing an act unless its language restricts or extends the scope of
the’ act and when its expressions diverge from those in the body of
the act, a contradiction results which can only be eliminated by a
judicial decision.

This criticism of preambles is limited to their use in general
statutes. There are special cases where their use is of value.

1. Some acts are based on extra-territorial happenings or facts
which are not of general knowledge, and are not reasonably apparent
from the statute itself. Thus, the preamble reciting the terms of
a treaty entered into between the United States and Great Britian
justifies and explains the act to grant the use of the canals of this
state to the inhabitants of the Dominion of Canada upon conditions
named.

2. Frecpiently in appropriation acts to individuals, a statemeni
of the facts, is incorporated in a preamble.

Even in such case, the statement of fact may sometimes be in¬
corporated conveniently in the act itself as was done in an act for the
relief of Charles Watters."^. Section I reads:

“The sum of one thousand dollars is hereby appropriated for the relief
of Charles Watters who was seriously injured v/hile engaged in the perform¬
ance of his duties as a guard at the Illinois State Penitentiary at Joliet.”

If the facts can not be handled in a subordinate clause, it is
better perhaps that they be placed in a preamble rather than to
have the law enact what is purely recital. Thus, the action of the
Court of Claims relative to the claim or the reason why the claim
was not presented could not well be stated elsewhere than in a
preamble. Care should be taken to cut out all unnecessary matter
and to limit the number of “whereas” clauses. Two appropriation
acts of 1919'^^ have ten clauses each. Preambles of this length
with the constant repetition of “whereas” are ponderous and awk¬
ward.

The most useful function of the preamble is in connection with
resolutions. These are not of a law-making character in Illinois,’^®
and the preamble can be used to contain the descriptive or argumen¬
tative matter which prefaces the legislative expression of opinion,
feeling or desire.

^3 Hurd, 1919, p. 170.

Lraws 1919, p. 128.

Laws 1919. pp. 124, 126.

‘3 Constitution of 1870. Article IV, S'ection 11; Burritt v. Commissioners of
State Contracts, 120 Ill. 322 (1887).

3 ^

THE ENACTING CLAUSE.

The enacting clause or style is the short introductory phrase
which establishes the instrument as law. The constitution of Illi¬
nois provides that “the style of the laws of this state shall be: ‘Be
it enacted by the People of the State of Illinois, represented in the
General Assembly.’ An enacting clause is an essential part
of a law, and an enactment without it is void and inoperative.'^®
Whether any variation from the form specified will invalidate
an act has not been judicially determined, although the Attorney
General has held that the insertion of the words “Forty-sixth” im¬
mediately before “General Assembly” in the enacting clause, rend¬
ered the act unconstitutional.'® It should be noted that the court
has held sufficient, a substantial compliance with the forms for
process in Article \^I, Section 33 of the constitution. However,
the question is ah academic one for draftsmen, AVhether the form
is mandatory in the sense that a slight variation ivould invalidate
the act or not it is the duty of the legislator and the bill-drafter
to see that the constitutional charge is followed exactly.

It is customary to place the enacting clause within the first
section of a bill. Formerly, the subsequent sections were each
introduced by a shorter enacting phrase such as, “Section 2. And
be it further enactedLater, these enacting phrases were dropped
leaving only the longer one in Section 1. Logically, this is not
the proper place for it. Since the omissic^n of the subsequent
enacting clauses, the one enacting clause introduces the whole act.
In fact the Supreme Court has held that although included in Sec¬
tion 1 it “is no more a part of Section 1 than it is a part of Section
49 or 50” and that the repeal of Section 1 without a saving clause
did not leave the remaining sections without an enacting clause.®®
It would have been better when the individual enacting clauses
were dispensed with, to have taken the remaining one out of Sec¬
tion 1 and placed it ahead of Section 1 in this manner;

“Pc it enacted by the People of the State of Illinois, repre¬
sented in the General Assembly:

Section 1, Whoever sends, etc.”

However, the practice of including the enacting clause in Sec¬
tion 1 is so firmh^ fixed that it might be difficult to substitute the
more logical arrangement.

^"Constitution of 1870, Article IV, Section 11.

Burritt v. Commissioners of State Contracts, 120 Ill. 322; (1887); Wenner
V. Thornton, 98 Ill. 156 (1881).

‘®'Ileport, Attorney General, 1910, p. 77.

Pearce v. Vittum, 193 Ill. 192 (1901).

CONSTRUCTION OF SENTENCES.

It may seem elementary in discussing- bill-drafting to refer
to and emphasize some general rules of composition. But the
bill-drafter deals often with involved and intricate situations and
his enunciation of the legislative will must always be exact and
unambiguous. The elementary rules of expression have for him,
therefore, a peculiar importance. IMuch of the obscurity and am¬
biguity of statutes is due to long and poorly constructed sentences.
The bill-drafter should make a conscious effort to keep the sen¬
tences short. This will make more sentences and, at times, add
somewhat to the length of a bill but if each sentence expresses a
single thought, it will be easier for the reader to grasp that thought.
St 3 de must be forgotten and particularly the desire for well-rounded
periods that roll along sonorously. It does not matter if the result
is choppy and broken; in a task involving the difficulties of com¬
plex social regulation the constant striving must be for clarity
and preciseness rather than a pleasant appeal to the ear.

There is frequentl}^ a tendency to compress a whole series of
ideas into one sentence by the use of subordinate clauses and con¬
junctions. The result even if not ambiguous, is at least obscure
and difficult. Take for example “An Act to remedy the evils con¬
sequent upon the destruction of any public records by fire or other¬
wise,” approved and in force April 9, 1872.

“In all cases under the provisions of this act, and in all proceedings or
actions now or hereafter instituted as to any estate, interest or right in, or
any lien or incumbrance upon any lots, pieces or parcels of land, when any
party to such action or proceeding, or his agent or attorney in his behalf,
shall orally in court, or by affidavit, to be filed in such action or proceeding,
testify and state under oath that the original of any deeds, conveyances,
or other written or record evidence, has been lost or destroyed, or not in the
power of the party wishing to use it on the trial to produce the same, and
the record thereof has been destroyed by fire or otherwise, the court shall
receive all such evidence as may have a bearing on the case to establish the
execution or contents of the deeds, conveyances, records, or other written
evidence, so lost or destroyed: Provided, that the testimony of the parties
themselves shall be received subject to all the qualifications in respect of
such testimony which are now provided by law: And, provided, further, that
any writings in the hands of any person or persons which may become ad¬
missible in evidence, under the provision of this section or of any other
part of this act, shall be rejected and not be admitted in evidence unless
the same appear upon its face without erasure, blemish, alteration, inter¬
lineation or interpolation in any material part, unless the same be explained
to the satisfaction of the court, and to have been fairly and honestly made in
the ordinary course of business; and that any person or persons making
any such erasure, alteration, interlineation or interpolation, in any such
writing, with the intent to change the same in any substantial matter, after
the same has been once made as aforesaid, shall be guilty of* the crime of
forgery, and be punished accordingly; and that any and all persons who

may be engaged in the business of making writings or written entries con¬
cerning or relating to lands and real estate, in any county in this state
to whi-h this act applies, and of furnishing to persons applying therefor
abstracts and copies of such writings or written entries as aforesaid, for
a fee, reward or compensation therefor and shall not make the same truly
and without alteration or interpolation in any matter of substance, with
the view and intent to alter or change the same in any material matter, or
matter of substance, shall be guilty of the crime of forgery, and punished
accordingly; and any and all such person or persons shall furnish said
abstracts or copies as aforesaid, to the person and persons from time to time
applying therefor, in the order of applications and without unnecessary de¬
lay, and for a reasonable consideration to be allowed therefor, which in no
case shall exceed the sum of one dollar and fifty cents for each and every
conveyance, or other like change of title, shown upon such abstract or copy;
and any and all persons so engaged, and whose business is hereby declared
to stand upon a like footing with that of common carriers, who shall refuse
so to do, if tender or payment be made to him or them of the amount de¬
manded for such abstract or copy, not exceeding the amount aforesaid, as
soon as such amount is made known, or ascertained, or of a sum adequate
to cover said amount, before its ascertainment, shall be guilty of the crime
of extortion, and be punished by a fine of not less than $100, and not
exceeding $1,000 therefor, upon indictment in any court having jurisdiction
thereof, and shall also be liable in an action on the case, or other proper
form of . action or suit, for any and all damages, loss or injury, which any
person or persons applying therefor may suffer or incur by reason of such
failure to furnish such abstract or copy as aforesaid.” (As amended by
act approved and in force March 30, 1874).^^

This sentence, after stating the case in which the law is de¬
signed to operate, makes admissible certain evidence to supply
missing records, qualifies the weight to be given to the testimoii}'
of parties in interest, excludes altered writings unless the alter¬
ation is explained, defines the duty of persons furnishing abstracts,
creates three separate crimes, provides penalties for violations
thereof, and adds a civil liabilit}^ in the case of one crime. These
various matters might better have been separated and placed in
several sections but even if included in one section, it would be
easier to grasp if each provision had been made a separate sentence.
Probably in this case no very serious difficulty results but the first
sentence in Section 2 of “An act concerning the levy and exten¬
sion of taxes,’’^“ is so complicated and involved that judicial con¬
struction alone can settle the meaning of some of it.

Of course, a sentence expressing a single leading principle
may include a number of coordinate phrases or clauses which ren¬
der it complex and difficult. Thus there may be a series of subjects
to which one predicate applies or a number of predicates may be
joined to a single subject. The statement of the case in which the
law is to operate may involve a variety of situations. To break up
such a sentence so as to give to each coordinate part a complete
sentence would involve much repetition. A very useful expedient
to make apparent the relative value and position in the sentence
of these parts is the detaching and numbering of these clauses as
in the following example.

SI Hurd, 1919, p, 2447.
82 Hurd, 1919, p. 2543.

“A negotiable instrument is discharged:

1. By payment in due course by or on behalf of the principal debtor.

2. By payment in due course by the party accommodated, where the
instrument is made or accepted by accommodation.

3. By the intentional cancellation thereof by the holder.

4. When the principal debtor becomes the holder of the instrument
at or after maturity in his own right.

There has been no uniformity in the matter of clesi.^natin^ de¬
tached clauses. The Sales Act*^ numbers the parap^raphs within
the sec'tions by arabic numerals enclosed in parentheses and uses
small enclosed italic letters for the clauses. The School Law®’^ in¬
dicates detached clauses by the words “First,” “Second” etc. The
Fees and Salaries Act®'’’ has a great many detached clauses without
any designation. The Uniform Partnership and Limited Partner¬
ship Acts®^ have an individual scheme of numbering which is apt
to be rather confusing. The sentences in each section arc num¬
bered with arabic figures, 1, 2, 3, etc. Detached clauses are in¬
dicated b}^ small letters and second subordinate sets of clauses by
Roman numerals. If there is only one sentence and it has de¬
tached clauses, there are no arabic figures but the clauses arc
marked with small letters. This makes it appear as though the
first markings are arabic figures in one section and then small
letters in another section. It is doubtful whether marking or
numbering the sentences in a section is ever necessary, and it has
the disadvantage of introducing an extra set of markings. If it
is desired to refer to a particular portion of a section, the refer¬
ence can be made by a few words indicating the subject matter.
The reference to the subject matter is clearer and more easily car¬
ried in the mind of the reader, as appears from the two examples
quoted. The first indicates the section by number and the par¬
ticular portion referred to, by subject matter.

“Sec. 14. Each of the following constitutes a misdemeanor punishable,
upon conviction, by a fine of not more than one hundred dollars.

(h) Violation of the reasonable sanitary regulation prescribed by the
Department of Registration and Education pursuant to the provisions of
section 12 of this act.”

The following illustrates the “blind” reference :

“(c) A partner who has caused the dissolution wrongfully shall have:

I. If the business is not continued under the provisions of paragraph
(2b) all the rights of a partner under paragraph (1) subject to clause (2a
II), of this section.”^

It is desirable that a uniform system be adopted for all l^ills
and probably as simple a method as any is the numbering of de¬
tached clauses with arabic figures without parentheses. Sometimes
a second subordinate series occurs in the midst of the first series.
Small letters may be used to designate the second set as in section
75 of the General Corporation Act.®® If a second set of independent
clauses follows in the same sentence or section, the designation

Negotiable Instruments Law. Hurd, 1919, p. 2035.

8^ Hurd, 1919. p. 2654.

85 Hurd, 1919, p. 2689.

8«Hurd, 1919, p. 1500.

87 Hurd. 1919. pp. 2218, 2229.

88 Uniform Partnership Act, section 38, Hurd, 1919, p. 2226.

8»Hurd, 1919, p. 734.

should be the arabic numerals beginning again with 1, 2, 3, etc.,,
as in the following section:

“Sec. 635. A person who,

1. Displaces, removes, injures or destroys any rail, sleeper, switch,
bridge, viaduct, culvert, embankment or structure, or any part thereof,
attached, appertaining to or connected with any railway, whether oper¬
ated by steam or by horses; or

2. Places any obstruction upon the track of any such railway; or

3. Wilfully discharges a loaded fire-arm, or projects or throws a stone,
or any other missile, at a railway train, or at a locomotive, car or vehicle
standing or moving upon a railway; or

4. Wilfully displaces, removes, cuts, injures or destroys any wire, in¬
sulator, pole, ear, dynamo, motor, locomotive or any part thereof, attached,
appertaining to or connected with any railway operated by electricity, or
wilfully interferes with, or interrupts any motive power used in running
said road, or wilfully places any such obstruction upon the track of any
such railway, or wilfully discharges a loaded fire-arm, or projects or throws
a stone, or any other missile, at such a railway train, or locomotive, car, or
vehicle standing or moving upon such railway;

Is punishable as follows:

1. If thereby the safety of any person is endangered, by imprisonment
for not more than ten years;

2. In every other case, by imprisonment for not more than three years,
or by a fine of not more than two hundred and fifty dollars, or both.”

However, more than one set of clauses in the same sentence
is apt to be somewhat confusing and should be avoided, if pos¬
sible, by the bill-drafter.

The value of detaching clauses in long sentences is obvious.
But there is no useful purpose served by breaking up a short sent¬
ence and detaching a single clause. One of the reasons for detach¬
ing clauses is to show the relation of co-ordinate parts and this
reason fails when there is only one clause. In the Fish and Game
Code®® occurs this sentence in which the detached part might well
have been continued without any break.

“Section 33 Deer). It shall be unlawful;

To hunt, kill, take or destroy, or to attempt to hunt, kill, take or destroy
any wild deer in the state until the 10th day of November, A. D. 1925.”

»»Hurd, 1919, p. 1554.

PROVISOS.

The practice of stating* a principle in general terms and then
appending- to it an additional statement designed to limit or restrict
or cpialify its generality has contributed greatly to the length and
awkwardness of legislative sentences. The qualifying provisions
are known as provisos and are generally introduced by the words,
“provided” or “provided, however.” One objectionable feature of
the use of provisos is the consequent tendency to state a proposi¬
tion inaccurately or too broadly relying on the proviso to correct
and limit the principle. Thus the provision,

“Whoever shall ride or drive faster than a walk, over any bridge in
this state, owned or controlled, either the whole or a part thereof, by any
city, village or town of this state, shall, for each offense, be fined in a sum
not exceeding ten dollars nor less than one dollar. . .

is too general a statement to create the crime in the mind of the

legislature, as- is indicated by the proviso which follows

“Provided, that a notice shall be posted on such bridge, warning against
riding, or driving on such bridge faster than a walk. ...”

The crime has to do only with bridges having two qualifica¬
tions. 1. They must be partly or wholly owned by municipalities.

2. They must have a certain notice posted upon them. The sen¬
tence, properly constructed should have so described the bridges
and have dispensed with the proviso clause.

Section 20 of Division II of the Criminal Code^^ provides that

“All offenses herein defin^jd shall be prosecuted and on conviction
punished as by this act is prescribed, and not otherwise; and all offenses
not provided for by statute law, may be punished by fine or imprisonment,
in the discretion of the court: Provided, the fine shall in no case exceed
$500, and the imprisonment one year.”

There is no excuse for so phrasing the sentence to provide an un¬
limited penalty and qualifying it by a proviso. It should state the
limits of the penalty in the first instance as “may be punished by
a fine of not more than $500 or imprisonment for not longer than
one year.” The aim should be to define precisely the limits of the
particular subject matter rather than to include too much and then
carve off a portion.

The provision, above quoted, which penalizes riding or driving
faster than a walk over municipal bridges illustrates a very real
danger in connection with the use of provisos. Commencing with
“provided,” the sentence is:

“Provided, that a notice shall be posted on such bridge, warning against
riding, or driving, on such bridge, faster than a walk, such fine to be re-

»iHurd, 1919, p. 39 6.
Hurd, 1919, p. 1059,

covered, with costs, before any justice of the peace or police magistrate
of the county where the offense is committed, upon sworn complaint in
writing, upon which a warrant for the arrest of the offender shall issue,
and it shall be the duty of every constable of the county, and every
marshal, policeman and police constable, and all other officers of such city,
village or town, owning or controlling the whole or in part such bridge,
having the power to make arrests, whenever aforesaid offense is com¬
mitted in the view of such officer or officers, to forthwith take in custody
the person or persons so committing aforesaid offense, and bring him or
them before any justice of the peace or police magistrate of the county,
to be dealt with according to law, and such officer so taking in custody such
offender, or any officer of such city, village or town, owning or controlling
the whole or a part of such bridge where such offense is committed, may
make the complaint upon which warrant shall issue against the offender,
all fines collected under this act, shall be paid into the common school
fund of the county.”

Grammatically all of this portion of the sentence is dependent
upon the “provided” and is included within the exception. But the
text quite clearly indicates that only the short provision as to notice is
intended as a limitation of the enactment preceding the proviso.
We have then the arrangement of the sentence and the subject matter
indicating different constructions—a situation which may easily in¬
volve grave difficulties. If the use of a proviso is ever justified, care
should be taken to exclude from it all independent extraneous matter.

The general rule, as stated before, should be to make the first
description accurately define the limits of the subject'matter. This
is not always possible or convenient. Frequently the rule is most
clearly put by giving it generally and then stating the qualifications
to that rule or the exceptions excluded from it. The use of provisos
in this situation is not incorrect. “The office of a proviso, generally,
is either to except something from the enacting clause, to qualify or
restrain its generality, or to exclude some possible ground of mis¬
interpretation of its extending to cases not intended to be brought
within its purview.Take for example section 10 of Division XV
of the Criminal Code

“When a prisoner has been committed to the penitentiary in pursuance
of a sentence of imprisonment therein, or has been committed to the county
jail pursuant to a sentence of confinement therein, and the judgment is
affirmed, the time of service under the sentence of such prisoner shall
commence to run from the time of such commitment, notwithstanding a
supersedeas may have been granted: Provided, if any such prisoner is ad¬
mitted to bail after such commitment, the time during v/hich he is out
upon bail shall be excluded from the computation of his time of service.”

If the attempt is made to state the principle without excepting
the situation which is defined in the proviso, the sentence becomes very
awkward. In other words, the rule must be stated positively and
then the exception negatived. But—and this is the point as to the use
of provisos in any case—the proviso may be stated as an independent
sentence and placed immediately after the rule it qualifies. If a dis¬
junctive is desired, “but” or “however” or “except” may be used.
These words are as definite in their application as “provided” and
they have the advantage of being the usual and popular forms of ex-

Huddleston v. Francis, 124 Ill. 195 (1888).
3* Hurd, 1919, p. 1078.

pression. Language which is peculiarly limited to legal diction should
be avoided in favor of ordinary and common phraseology, if the popu¬
lar words convey the meaning equally well.

If the leading principle and the qualifying statements or excep¬
tions are long, they may be given separate sentences instead of
stringing them one after the other in one long sentence. It will be
found that the wording can indicate the relationship clearly without
the’necessity for the more awkward arrangement. Section 3 of the
Parole Act^® furnishes an illustration of a sentence with a proviso of
four clauses which might well be broken up into five sections.

Attention should be called to a rather frequent misuse of the
proviso form in legislation. Most courts have recognized that while
the legitimate function of the proviso is to modify or restrain the
preceding enactment, it is sometimes used as an independent enact¬
ment without reference to the limitations of the preceding statement
and where that intent is evident, have given to it that construction.^®
The word “provided” becomes, in such cases, a mere conjunction.
Obviously, there is no excuse for an arrangement which introduces
a conflict between the form of the sentence and the subject matter and
thereby furnishes a subject for judicial determination as to which
feature is controlling.

»3Hurd, 1919, p. 1085.

Tn re Day, 181 I’l. 73 (1899) ; Hackett v. Chicago City Ry. Co., 235 Ill. 11 fi
(1908); People v. Continental Beneficial Association, 289 Ill. 40 (1919).

PHRASEOLOGY.

Tense: One of the main faults to be charged to legislative
enactments is the use of archaic and stilted language which, in
some way, seems to have become associated with the expression of
legal principles. Any change which tends to replace this with the
ordinary and popular words of current speech, so far as practicable,
is an improvement in the form. Of course, technical terms and
legal phrases with a certain definite meaning should not be dis¬
carded at the sacrifice of preciseness. It is only the useless barna¬
cles of legal phraseology which are to be condemned.

The unnecessary use of the future tense furnishes an illustra¬
tion of an awkward practice more or less general in legislation.
Every law is designed to afford a rule for a continuing present. It
should, therefore, speak in the present tense. The use of the future
tense seems to be a subconscious recognition of the fact that laws
are prospective in the sense that their enactment precedes the
acts upon which or the situation in which they are to operate. The
present tense is a more simple and natural form of expression, and
for that reason is to be preferred. This is obvious from a compari¬
son of the following enactment given first as it appears in the
statute book with the future tenses, and then with those verb

forms replaced by the present tense.

“Any person, firm or corporation who shall send, deliver or mail, or in
any manner shall cause to be sent, delivered or mailed, any paper or
document simulating or intended to simulate a summons, complaint, writ
or other court process of any kind, to any person, firm or corporation, shall
be guilty of a misdemeanor. . .

“Any person, firm or corporation who sends, delivers or mails, or in
any manner causes to be sent, delivered or mailed, ... is guilty of a
misdemeanor. ...”

The future auxilliary “shall” disappears with the substitution
of the present for the future tense. “Shall” is, however, used also
to express a command. When used in this sense, “shall” is neces¬
sary and proper.

With the discarding of the future tense, the awkward future

perfect gives way to the perfect, as in this sentence :

“In all cases where the officers who shall have canvassed the election
returns shall have found that a majority of the voters voting upon the
question shall have voted in favor . .

Using the perfect tense, the sentence reads as follows:

“In all cases where the officers who have canvassed the election re¬
turns have found that a majority of the voters voting upon the question
have voted in favor ...”

»'Hurd, 1919, p. 1011.
98 Hurd, 1919, p. 1218.

There are other objections to the use of the future and future
perfect tense which may be noted. The future auxiliary “shall”
become^ confused with the imperative “shall.” This may have
contributed to the weakening- of the imperative form by judicial
construction. In the expression, “shall Ije guilty of a misdemeanor and
punished” the “shall” does duty in both senses. “Shall be guilty” is
merely the future tense. “(Shall be) punished” is imperative.

Another objection is that there is a tendency on the part of a
bill-drafter employing the future tense, to slip back into the more cus¬
tomary form of expression. The use of both tenses sometimes

occurs in the same'sentence, as in section 46 of the Criminal Code.

“If any two or more persons conspire or agree together, or the officers
or executive committee of any society or organization or corporation, shall
issue or utter any circular or edit . .

Preciseness—ejusdem generis: The rules of literary com¬
position apply to bill-drafting as well as to other forms
of expression. Indeed the virtues of good English, brevity, sim¬
plicity, clarity and preciseness, are even more important in legis¬
lation than in other writing since by legislation must be regulated
and controlled all the various rights and duties of human relation¬
ship. However, statutory expression is a distinct study with prob¬
lems and difficulties peculiar to itself. This discussion will con¬
sider particularly some of the faults that have been associated with
statutes and make detailed suggestions limited to this subject.

It is essential to good bill-drafting that the subject matter
be first mastered completely. Prolixity and indirectness are fre¬
quently the result of a vague groping for the principle desired. Good
expression cannot follow a hazy impression. AVhen the principle
is clearly understood, state it without unnecessary verbiage. Make
each word justify its use. But in the desire for conciseness, do not
treat inadequately a complicated subject. Necessary length is not
a fault.

When a rule can be stated in general terms, that is to be
preferred to an enumeration of details. The section of the Crim¬
inal Code concerning forgery and counterfeiting is an example of
a statement, which might be condensed greatly by the use of gen¬
eral language.

“Every person who shall falsely make, alter, forge or counterfeit any
record or other authentic matter of a public nature, or any charter, letters
patent, deed, lease, indenture, writing obligatory, will, testament, codicil,
annuity, bond, covenant, post note, check, draft, bill of exchange, contract,
promissory note, due bill for the payment of money or property, receipt
for money or property, power of attorney, any auditor’s warrant for the
payment of money at the treasury, county order, or any accountable receipt,
or any order or warrant, or request for the payment of money or the deliv¬
ery of goods or chattels of any kind, or for the delivery of any instrument
of writing or acquittance, release or receipt for money or goods, or any
acquittance, release or discharge for any debt, account, action, suit, de¬
mand or other thing, real or personal, or any transfer or assurance of
money, stock, goods, chattels or other property whatever, or any letter of

«»Hurd, 1919, p. 991.

attorney or other power to receive money, or to receive or transfer stock
or annuities, or to let, lease, dispose of, alien or convey any goods or
chattels, lands or tenements, or other estate, real or personal, or any ac¬
ceptance or indorsement of any bill of exchange, promissory note, draft, or
order, or assignment of any bond, writing, obligatory, or promissory note
for money or other property, or any ticket or pass for the passage of any
person upon any railroad or other conveyance, or for the admission of any
person to any entertainment for which a consideration is required, or any
other written instrument of another, or purporting to be such, by which
any pecuniary demand or obligation, or any right in any property is, or
purports to be created, increased, conveyed, transferred, diminished or
destroyed; or shall counterfeit or forge the seal or hand-writing of another,
with intent to damage or defraud any person, body politic or corporate,
whether the said person, body politic or corporate reside in or belong to
this state or not; or shall utter, publish, pass or attempt to pass as true
and genuine, or cause to be uttered, published, passed, or attempted to be
passed as true and genuine, any of the above named false, altered, forged
or counterfeited matters, as above specified and described, knowing the
same to be false, altered, forged or counterfeited, with intent to prejudice,
damage or defraud any person, body politic or corporate, whether the said
person, body corporate or politic reside in this state or not; every person so
offending shall be deemed guilty of forgery, and shall be imprisoned in the
penitentiary not less than one year nor more than fourteen years.” ^

The daiii’er in this kind of an enumeration is in the likeli¬
hood of omitting’ matters which should be included. The omission
may be construed as a deliberate exclusion by the familiar rule of
construction, expressio unhis cst cxclusio alter ins. Thus, when the
constitution sa 3 ^s “the General Assembly may vest the corporate
authorities of cities, towns and villages with power to make local
improvements b}^ special assessments, or by special taxation of
contiguous property or otherwise,”- “by necessary implication, it
(the General Assembly) is inhibited from conferring that power
upon other municipal corporations or upon private corporations.”^
However, the rule that the expression of one thing or one mode of
action in an enactment is an exclusion of all other things or modes
is merely a presumption to aid in determining the legislative in¬
tent. In the words of the court, “the maxim . . . should never
be used to override a different purpose plainly indicated.”^ This
language was used with reference to a statute which empowered
cities to acquire land by “purchase, lease or gift” for certain pur¬
poses. If the expressio limits rule were applied, acquisition of land
by any other means would be forbidden. But the court held that
it was not the intention of the legislature to restrict the power of
municipalities to the methods expressly mentioned. This suggests
to the bill-drafter that if an enumeration is used which is not
intended to be exclusive, that intent can be made clear b}'- words
to that effect. Article IX of the Constitution, furnishes an example
of a statement to the effect that an enumeration is not to be taken
as exclusive of objects not mentioned. Section 1 of that article
gives the General Assembh" power to tax “peddlers, auctioneers,
brokers, hawkers, merchants, commission merchants, showmen.

iHurd, 1919, p. 1012.

2 Constitution of 1870, Article IX, Section 9.

3 Updike v. Wright. 81 Ill. 49 (1876).

■‘Helm V. City of Grayville, 224 Ill. 274 (1906).

jugglers, inn-keepers, grocery-keepers, liquor-dealers, toll bridges,
ferries, insurance, telegraph and express interests or business, ven¬
ders of patents and persons or corporations owning or using fran¬
chises and privileges ...” Section 2 provides that “The specifica¬
tion of the objects and subjects of taxation shall not deprive the
General Assembly of the power to require other subjects or ob¬
jects to be taxed, in such manner as may be consistent with the
principles of taxation fixed in this Constitution.”

As a general rule, on account of the difficulty of making an
enumeration complete, words descriptive of a class are to be pre¬
ferred to a list of the members of that class. On the other hand,
loose generalizations are to be avoided where complicated and
limited situations require a precise, exact definition. When a gen¬
eral rule is laid down, all possible applications should be tested
to see whether their inclusion is desirable. Senate Bill No. 71
introduced in the Fifty-first General Assembly undertook to regu¬
late the disposal of the bodies of dead animals. Section 1 provided
that

“After the first day of October, 1919, it shall be unlawful for any per¬
son, firm, association or corporation to dispose of or attempt to dispose of
the body of any dead animal by burying, burning or cooking, without a
certificate of registration issued by the Department of Agriculture.”

The intention was to require the licensing of persons engaged
in the business of disposing of dead animals, but through inadvert¬
ence the bill was worded so broadly that it included even a farmer
who desired to bury a dead horse. The bill, otherwise desirable, was .
tabled because the rule was too general.

Statutes.frequently contain an enumeration of particular persons
or things and follow this with a general term indicating a class or
group. Although the matter is not without difficulty in a great many
cases, this combination is to be avoided whenever the particular enum¬
eration can be made complete or the general class can be definitely
and exactly defined.

The bill-drafter may employ in its full sense a general term and
precede it by particular words merely as examples, only to find that
the general phrase is limited and restricted by judicial construction,
to the kind or species of the specific words. This is the doctrine of
ejiisdent generis. Thus the term “provisions” construed broadly might
be held to include tobacco but it was held that when used in a statute
authorizing municipalities “to regulate the sale of meats, poultry,
fish, butter, cheese, lard, vegetables and all other provisions” it could
extend only to provisions of the same character as those specifically
enumerated and therefore meant only articles of food.® A civil
rights statute provided that all persons should “be entitled to the full
and equal enjoyment of the accomodations, advantages, facilities and
privileges of inns, restaurants, eating-houses, barber shops, public con¬
veyances on land and water, theaters, and all other places of public
accommodation and amusement.” The general words were held not to
include a drug store.® The expression “ counterfeit or spurious coin,

° Gundling v. City of Chicago, 176 Ill. 340 (1898).

a Cecil V. Green. 161 Ill. 265 (1896).

forged bank notes or other forged instruments” was held not to in¬
clude forged labels and trade-marks."

The rule of ejitsdem generis, however, is subject to exceptions
and qualifications which increase its danger to the unwary bill-drafter.
“This is only one of many rules of construction, all of which are to
be employed for the attainment of the same end, viz,, that of ascer¬
taining the intention of the Legislature . . . where from the whole
instrument a larger intent may be gathered, the rule under considera¬
tion will not be applied in such manner as to defeat such larger in¬
tent.”®

The statute, defining burglary, used the words “any dwelling
house, kitchen, office, shop, storehouse, warehouse, malt-house, still¬
ing-house, mill, pottery, factory, wharfboat, steamboat or other water
craft, freight or passenger railroad car, church, meeting house, school
house or other building.” The general term “other building” was
held to include a chicken house. There is no opportunity for an ap¬
plication of the rule from this enumeration. “What building,” said
the court, “not a dwelling house, legally speaking, is of the same kind
as a dwelling house?” “If the particular words exhaust a whole
genus, the general words must refer to some larger class.Still
another qualification. “The ejusdem generis rule does not apply where
the specific words signify subjects greatly different from one another,
for here the general expression might very consistently add one more
variety; in such case, the general term, must receive its natural and
wide meaning.”^® So the bill-drafter,, relying on the application of
the ejusdem generis rule, may find his general term given a more in¬
clusive meaning than intended.

Unfortunately, it is not always possible to avoid the use of a
combination of specific words and a general term. It may be impossi¬
ble to make the enumeration compete; a general rule may be difficult
to express exactly and precisely. In 1903, the General Assembly
passed a law requiring mine owners and operators to provide mines
with wash-rooms.“ The Supreme Court held the act to be class
legislation and therefore unconstitutional. The court agreed that the
miner becomes “covered with grease, smoke, dust, grime and perspira¬
tion ; that without an opportunity to bathe and change his attire, he
cannot clothe himself comfortably for his journey through cold
weather to his home; that these adverse conditions inevitably lead
to colds, consumption, pneumonia and general unhealthfulness ...”
But “many men in this state are employed in the foundaries and steel
mills who work in a higher temperature than do the miners, sur¬
rounded by conditions deleterious to health and inimical to longev-

ity.”^2

As a result of this opinion an act was passed by the General As¬
sembly in 1913 which made the duty of providing wash-rooms ap-

^ White V. Wagar, 185 Ill. 195 (1900).

* Webber v. Oitv of Chicago. 148 Ill. 313 (1894).

9 Gillock V. People, 171 Ill. 307 (1898).

McReynolds v. People, 230 Ill. 623 (1907). 4

” Laws 1903, p. 252.

’^Starne v. People, 222 Ill. 189 (1906).

plicable to “every owner or operator of a coal mine, steel mill, foundry,
machine shop, or other like business in which employees become cov¬
ered with grease, smoke, dust, grime and perspiration to such extent
that to remain in such condition after leaving their work without
washing and cleansing their bodies and changing their clothing, will
endanger their health or make their condition offensive to the public.”

The dilemma of the bill drafter is obvious. No enumeration
could be made of the occupations sharing the evil this legislation was
designed to relieve; the general classihcation is uncertain and indefi¬
nite because it merely states that the act shall apply to all business
where the health and comfort of the pubic require the law. The re¬
sult,—a specific mention of the main occupations it was designed to
affect, together with a general reference, following the wording of
the court’s opinion, to other employments where the same conditions
prevail,—is not a satisfactory piece of bill-drafting.

But the court held that the ejiisdcm generis rule had no applica¬
tion since the obvious intent was to meet the constitutional objection
to the earlier statute by adding the general term to include other oc¬
cupations which needed the same sanitary regulations.^^

Where a combination of specific terms and general words is
unavoidable, the only way to avoid the possibility of a restricted con¬
struction of the general phrase, is to show by express words that
its generality is not to be limited or aff'ected by the preceding specific
enumeration. For example, in the “wash-room” act above discussed
there could have been no doubt of the proper construction to be placed
on the general phrase if the General Assembly had added: “The term
‘other like business’ is not to be confined or restricted to the specific
businesses mentioned but includes all businesses of the character
described.”

Indefinite and uncertain standards: As has already been
said, simplicity is a cardinal virtue in drafting legislation. Popular
words with well understood meanings are to be preferred to ab¬
struse terms. However in the desire for simplicity, preciseness
must not be sacrificed. Statutes must necessarily treat of technical
matters and in the various fields of human endeavor recourse must
be had to technical terms which have limited significations in their
own plane. In a statute regulating mining we may expect to find
a provision unintelligible to persons unacquainted with that in¬
dustry such as the following:

“Every mine inspector in the regular inspection of mines shall measure
with an anemometer and determine the amount of air passing in the last
cross-cut in each pair of entries in pillar and room mines, or in the last
room of each division in long-wall mines.

The Practice Act was intended not for the general public but
for the use of the members of one profession. Consequently, it
is not necessary, even if it were possible, to avoid words like

People V. Solomon, 265 Ill. 28 (1914).
i^Hurd, 1919, p. 1972.

habeas corpus, certiorari and the like, or to render intelligible to the

general public a provision like this:

“It shall not be necessary, in any pleading, to make profert of the in¬
strument alleged; but in any action or defense upon an instrument in
writing, whether under seal or not, if the same is not lost or destroyed,
the opposite party may have oyer thereof and proceed thereon in the same
manner as if profert had been properly made according to the common
law.” “

In statutes concerning the public generally the courts will, if
at all possible, give to words their usual and popular meaning.^®
Ordinary words should, therefore, be used in their most general
sense. For instance “laborer” in one sense means anyone who
works with his hands. That may be called a technical definition.
Its popular signification is an ordinary laborer or day workman.
The court has consequently held that when used in the Civil Ser¬
vice Law it did not include a skilled artisan like a carpenter.^'

Of course, this is not an invariable rule of construction. In
seeking to give effect to what is deemed to be the legislative intent,
not only may a less general meaning be given a word but the
court may recognize an incorrect use of a word and let it convey
a meaning which it does not properly bear. Thus the Appellate
Court has said; “Numerous cases indicate that there has been
a tendency in the profession to confound the two words ‘cost’
and ‘fees.’ In the ordinary sense, ‘costs are an allowance to a
party for expenses incurred in conducting his suit; fees are com¬
pensation to an officer for services rendered in the progress of the
case.’

V\diile the general rule is that words will be given their “com¬
mon and popular acceptation and import,” when technical words
arc used in a statute the court will presume that they have been
used by the legislature in their technical sense.This is particu¬
larly important in connection with the use of words which have
acquired a well-understood legal signification. Thus “actions of
account” is a technical term indicating a form of action and is not
equivalent to “actions on accounts.”^® In construing a statute
which used the expression “plead set-off to the action”, the court
says, “words of known legal import are to he considered as having
been used by the legislature in that known sense, or according to
their strict acceptation, unless there appears a manifest intention
to use them in their common or popular sense.“Crime” by
common usage is S 3 monymous with “felony,” the Supreme Court
has said but its legal signification and the one which the court will
give it in statutes is broader and comprehends all offenses against
the public."^ The word “family” when used in statutes has been

1'^ Hui’d, 1919, p. 2282.

i^Crozer v. People, 206 Ill. 464 (1904); Culver v. Waters, 248 Ill. 163 (1911);
Rufla v. Industrial Board, 283 Ill. 550 (1918); Fowler v. Johnston City Coal Co.,
292 Ill.’ 440 (1920).

People
Galpin
’9 Bedell
•-’« Bedell
S'teere

V
w

Board of Trustees, 283 Ill. 494 (1918).

City of Chicago, 159 Ill. App. 135 at 166 (1910).
Jannev, 4 Gilman (Ill.), 193 at 206 (1847).

.Tnnnev,* 4 Gilman (Ill.), 193 at 206 (1847).
Brownell. 124 Ill.‘ 27 (1888).

-2 Van Meter v. People, 60 Ill. 168 (1871).

^iven a variety of meanings but not the popular one of parents
with the children without regard to residence. Unless the context
clearly indicates a different intent, the words “heir”, “convey
“person” and “action” convey a limited meaning rather than the
popular understanding.

A great many common words are descriptive of a quality with¬
out defining its limits or fixing a precise standard. Terms like
“due,” “proper”, “dangerous,” “sufficient,” “extreme,” “excessive,”
“necessary,” “immediate,” “forthwith” do not convey an exact im¬
pression but make an appeal to the judgment. Statutes should be
precise and certain, laying down a definite rule of conduct. Words,
therefore, which express a quality which may be more or less, should,
so far as possible, be avoided in statutory language. It is not in¬
tended to suggest that this is always possible. The law relating
to private wrongs is built about such terms as “reasonable care,”
“proximate cause” and “contributory negligence” and no amount
of judicial definition or application to varying situations has served
to make them convey more than an approximate impression. Fre¬
quently municipalities have prohibited the emission of “dense
smoke.” Obviously the adjective “dense” does not clearly define
the offense nor apprize the public how much smoke may be set
at large without constituting a violation. A criminal statute which
does not inform a person whether or not his act infringes the
law is, to say the least, unfortunate. Such an ordinance of the
city of Chicago was sustained against the objection of indefinite¬
ness by the Supreme Court. The difficulty of giving a more
precise definition is well illustrated by the court’s attempt to tell
what “dense smoke” means. “The terms used will be understood
as commonly employed, and this court will understand by ‘dense
smoke,’ precisely what everybody else does that has ever seen
a volume of dark, dense smoke as it comes from the smoke-stack
or chimney where common soft or bituminous coal is used for
fuel in any considerable quantities.”

“In order to constitute a crime, the act must be one which
the party is able to know in advance whether it is criminal or not.
The criminality of an act cannot depend upon whether a jury
may think it reasonable or unreasonable. There must be some
definiteness and certainty.”"^ Two statutes of the state of Texas
both held void furnish examples of the use of indefinite and uncer¬
tain terms. One prohibited labelling certain feed stuff v/ith a per¬
centage that varied “substantially” from the actual contents. “Evi¬
dently,” the court said, “different persons might differ as to what
would be ‘substantially’ such larger percentage. The other
statute prohibited the operation of motor vehicles ‘v.diose front
lamps shall project forward a light of such glare and brilliancy as
to seriously interfere with the sight of, or temporarily blind the vision
of, the driver of a vehicle approaching from an opposite direction.”

23 See Rock v. Haas, 110 Ill. 528 (1884).

24 Harmon v. City of Chicago, 110 Ill. 400 (1884).
25Tozer V. U. S. -(C. C.) 52 Fed. 917 (1892).
20Cogdell V. State, 193 S. W. 675 (1917),

•

In the opinion the court uses this language: “AA^hat degree of in¬
terference is serious is a matter not fixed by the Legislature; the
glare and brilliancy are not described by any standard that is cer¬
tain, that may be known in advance by the citizen; nor is there by
the Legislature any rule fixed for deciding at what point they reach
the prohibited degree of brilliancy.”"^

An Indiana Statute prohibited the hauling ‘‘over an^^ turn¬
pikes or gravel roads at any time when the same is thawing
through, or is by reason of wet weather in condition to be cut up
and injured by heavy hauling, a load on a narrow-tired wagon
of more than twenty hundred pounds, or on a broad-tired wagon of
more than twenty-five hundred pounds.” The court in holding the
statute void, said:

“There must be some certain standard by which to determine
whether an act is a crime or not; otherwise, cases in all respects
similar, tried before different juries, might rightly be decided dif¬
ferently . . . because of the difference of conclusions of different
judges and juries based upon their individual views of what should
be the standard of comparison of tires, derived from their varying
experiences, or the opinions of witnesses as to what difference
of width of tires would constitute one Avagon a narrow-tired wagon
and another a broad-tired wagon. The words ‘narrow’ and ‘broad’
describe, not certain, but uncertain, comparative Avidths, and, no
standard of comparison being proAuded by the laAAg the}" render
the phrases in Avhich they occur uncertain and indefinite.”"*

Almost as properly could objection haA"e been made to the
description of another essential element of the crime—the condi¬
tion of the roads. AMiether they are “thaAving through or . . .

in condition to be cut up and injured by heaAW hauling” might AA'ell
be a matter upon Avhich indiAudual opinion AA"ould be at variance.

States regulating the use of motor A^ehicles have in a number
of instances prohibited their operation “at a speed greater than is
reasonable and proper.” This AA"as held A"oid for indefiniteness bA"
the courts of Georgia^® and Texas.**’ In Ohio*’ and Nebraska**
similar proAusions AA"ere sustained. The Illinois laAA" on this sub¬
ject makes unlaAvful the driAung of a motor vehicle,

“At a speed greater than is reasonable and proper ha">ring regard to
the traffic and the use of the way or so as to endanger the life or limb or
injure the property of any person. If the rate of speed of any motor vehicle or
motor bicycle operated upon any public highway in this State where the
same passes through the closely built-up business portions of any incor¬
porated city, town or village exceeds ten (10) miles an hour or if the rate
of speed of any motor vehicle or motor bicycle operated on any public
highway in this State where the same passes through the residence por¬
tions of any incorporated city, town or village exceeds fifteen (15) miles
an hour or if the rate of speed of any motor vehicle or motor bicycle op¬
erated on any public highway in this State outside the closely built-up
business portions and the residence portions within any incorporated city.

27 Griffin v. State, 218 S. W". 494 (1920).

2* Cook V. State. 26 Ind. Aon. 278 (1901 ).

2» S'trickland v. Whatley. 142 Ga. 802 (1914).

Solan and Billings v. Pasche. 153 S. W. 672 (1913).

31 State V. Schaeffer. 96 Ohio St. 215 (1917).

32 Schultz V. State. 89 Neb. 34 (1911).

town or village exceeds twenty (20) miles an hour or upon any public high¬
way outside of the limits of an incorporated city, town or village if the rate
of speed exceeds twenty-five (25) miles per hour, such rates of speed shall
be prima facie evidence that the person operating such motor vehicle or
motor bicycle is running at a rate of speed greater than is reasonable and
proper having regard to the traffic and use of the way or so as to endanger
the life or limb or injure the property of any person.”

The Supreme Court in sustaining this provision, says: “There
can be no question that counsel for plaintiff in error is right in
arguing that in creating an offense by a statute which was not a
crime at common law such statute must be sufficiently certain to
show what the legislature intended to prohibit and punish, other¬
wise it will be void for uncertainty.

If the law is of such doubtful construction and describes the
act denominated as a crime in terms so general and indeterminate
as to make the question of criminality dependent upon the opinions
of the individuals who may happen to constitute the court and
jury, and of such a nature that honest and intelligent men are
unable to ascertain what particular act is condemned by the State,
the law is incapable of enforcement and will be held to be null and
void. The dividing line between what is lawful and what is unlaw¬
ful can not be left to conjecture. This law, however, the constitution¬
ality of which is questioned, does not leave to conjecture when the
statute is violated. If the only provision of section 10 were its first
sentence there might be some merit in the argument of counsel that the
construction of the statute is subject to conjecture. The section further
provides the exact speed, which if exceeded in various classifica¬
tions of localities shall be prima facie evidence of a violation of
the law . .

It is obvious that the same standard of preciseness is not pos¬
sible in all statutes. As an example of the kind of thing which
can not be stated in terms mathematically exact, consider the pro¬
vision in the Criminal Code relating to self-defense.

“If a person kill another in self-defense, it must appear that the danger
was so urgent and pressing that in order to save his own life, or to prevent
his receiving great bodily harm, the killing of the other was absolutely
necessary; and it must appear also, that the person killed was the assailant,
or that the slayer had really, and in good faith, endeavored to decline any
further struggle before the mortal blow was given.”

The question then in this, as in all statutes, is not whether the
rule of conduct is stated with a certain degree of preciseness, but
rather whether the rule is stated as definitely as possible in the
particular case.

The defect of indefiniteness may render unenforecable any
type of legislative enactment but the courts have been more ready
to declare void statutes with penal provisions because of the general
rule that such statutes should be strictly construed. But from
the standpoint of careful bill-drafting, persons upon whom laws
operate are entitled to know clearly and definitely their civil rights
as well as criminal. The instances cited have all been criminal stat¬
utes which have been declared void but whether or not a law can

People v. Beak, 291 Ill. 449 (1920).
^ Hurd, 1919, p. 1024.

survive a judicial inspection is not a proper standard for the bill-
drafter. That a statute has survived the constitutional objection
of indefiniteness means merely that it has satisfied the minimum
requirement for legislative enactments. The efforts of the bill-
drafter should be toward expressing legislation so lucidly that the
objection of uncertainty cannot even be raised.

Attention should be called to one type of legislation which
may be said to form an exception to the principle of preciseness.
The extension of governmental supervision over the businesses and
activities of individuals has enormously increased the amount of
regulatory provisions. In fact, so bulky and detailed has this regu¬
lation become that a large part of it has been handed over to ad¬
ministrative officials and boards. Section I of Article IV of the
constitution vests the legislative power in the General Assembly.
This has been construed to mean that the General Assembly cannot
divest itself of this power bv conferring it elsewhere.^® But as
was said in an early decision in this state: “While the leg¬
islature may not divest itself of its proper functions, or

delegate its general legislative authority, it may still author¬
ize others to do those things which it might properly, yet

can not understandingly or advantageously do itself.”^® It is not
a delegation of legislative power, within the meaning of this pro¬
hibition, so long as the act determines the policy of the law and
prescribes a method for its application, and is final and complete
in all its terms and conditions.

People V. Board of Election Commissioners, 221 Ill. 9 (1906); Rouse v.
Thompson. 228 Ill 522 (1907).

33 People V. Reynolds. 5 Gilman (Ill.) 1 (1848).

3" There are two distinct but related constitutional questions involved in
legislation of this character.

1. Does the act attempt to delegate legislative power?

2. Does it permit a power delegated to be exercised arbitrarily by the

administrative agency?

The primary election law of 1905 authorized the county central commit¬
tee of each political party to determine whether candidates for county offices
should be nominated by a majority or plurality vote. This was held to be an at¬
tempted delegation of the legislative function. (People v. Board of Election Com¬
missioners. 221 Ill. 9.) The determination of this matter is one of the sub¬
stantial features of election to office and must be determined by the General
Assembly. On the other hand, the provisions of a gas safety appliance act
exempted from the act. buildings receiving less than a certain volume of gas
“unless the conditions under which the gas is used are such as to endanger
life or property . . . then in all such cases, at the discretion of said duly

authorized officer or officers, all such buildings may be required to be equipped
as provided for herein.” Enlike the provision in the primary law above stated,
this is the kind of a. duty which might properly be performed by a public
official. The objection is to the method by which the power is conferred. It
would be unobjectionable to permit such an official to exercise his discretion
whether in a particular instance, conditions require safety appliances when
measured hy some fixed standard. But no fixed rules laid down by the act
or required to be formulated, limit in any way the arbitrary power here at¬
tempted to be conferred, and the measure was held unconstitutional. (Sheldon
V. Hoyne, 261 Ill. 222.)

It mav be said. then, that an act to be valid must determine the sub¬
stantial features and lay down a policy as to those matters which the Gen¬
eral Assembly must determine. That having been done, the application of
that policy may be vested in agencies if the act either itself lays down regula¬
tions which govern equally its application in all cases or requires the agency
to adopt rules establishing a standard. (See. also. People v. Kane. 288 Ill. 235:
Kenyon v. Moore. 287 Ill. 2,33: Board of Administration v. Miles. 278 Ill. 174.)

It is apparent that the constitutional question is one of substance rather
than phraseology. The policy adopted as the legislative will may necessarily
be expressed in general and indefinite terms. On the other hand, an act rnay
be unconstitutional which uses very certain and explicit language in attempting
to confer a power which must be exercised by the General Assembly alone.
(See Constitution of Illinois. Annotated, pp. 28, 75.)

That is, a statute may lay down general standards or prin¬
ciples which constitute the law and delegate to an agency the
application of these principles in particular cases.

Provisions of this character necessarily are couched in flexible
and general terms. Rigid expressions do not afiford opportunity for
the exercise of discretion by those applying the law. Thus the
Public Utilities law^® which vests in a commission general super¬
vision and ratemaking power as to public utilities provides:

“All rates or other charges made, demanded or received by any public
utility or by any two or more public utilities, for any product or commod¬
ity furnished or to be furnished or for any service rendered or to be
rendered shall be just and reasonable . . .

Every public utility shall furnish, provide and maintain such service,
instrumentalities, equipment and facilities as shall promote the safety,
health, comfort and convenience of its patrons, employes, and the public,
and as shall be in all respects adequate, efficient, just and reasonable.”

It is apparent from the instances cited that some actions lend
themselves to precise definition more readily than others. As was
said by the Ohio court in sustaining the general and comprehen¬
sive terms employed in the automobile speed law; “Absolute or
mathematical certainty is not required in the framing of a statute.
Reasonable certainty of the nature and cause of the ofifense is all
that is required. Some oflfenses admit of much greater precision
and definiteness than others, but it is quite obvious that in the
case at bar the statute must be sufficiently elastic and adapted
to meet all the dangerous situations presented, in order to ade¬
quately safeguard the traveling public.”^® Take the distinction be¬
tween murder and manslaughter. No amount of statutory defini¬
tion can draw the line so clearly but that one jury might view as
murder a homicide which another jury would call manslaughter.
The abstract idea only is expressed by the definition in the Crimi¬
nal Code. By the individual jury’s conception of that abstract idea
must be measured each homicide. The statement, “In cases of
voluntary manslaughter, there must be a serious and highly pro¬
voking injury inflicted upon the person killing, sufficient to excite
an irresistible passion in a reasonable person” is most general in
character and lays down no hard and fast rule. On the other
hand, a statute relating to intoxicating liquor can easily draw a
sharp line between what liquor falls within and what without its
purview. The wartime prohibition act used only the words “no
beer, wine, or other intoxicating malt or vinous liquor” and as a
result the sale of beer containing 2.75 per cent, alcohol became a
crime in some localities but remained lawful in others. Had Fed¬
eral legislation remained the same, judicial interpretation in time
would probably have supplied the legislative omission and fixed the
per cent, of alcohol which made a liquor intoxicating. In fact,
the Volstead act which came later, defined intoxicating liquor as
containing more than one-half of one per cent. The Indiana stat¬
ute relating to hauling on roads, (stated above) illustrates the kind
of definition which can be made exact and also the kind which

38 Hurd,1919, p. 2336.

State V. Schaeffer, 96 Ohio St. 215 (1917).

can only be stated generally. The width of “narrow tires” and
“broad tires” can be fixed by inches and no uncertainty remains.
The degree of softness of a road for hauling purposes cannot be
so easily defined. It should, however, be the aim of the bill-drafter
to make mathematically precise that which can be so made and in
all cases to lay down in laws as definite a standard as possible
for the guidance of courts and of the public.

A statute is passed as a whole and not as disconnected sections
and each part must be construed with reference to every other part
or section. Consequently when a word or phrase, is used more than
once in a statute a presumption arises that it bears the same mean¬
ing throughout. This presumption will govern the construction un¬
less a contrary intention is evident. From this rule of construction
two suggestions for drafting can be drawn:

1. The same word should not be employed to convey differ¬

ent meanings;

2. Different words should not be used to convey the same

meaning.

In the Illinois statute relating to divorce the word “marriage”
occurs with two distinct meanings. Properly employed, it should
signify the entering into a legal marital relation. In the following
section it also has the meaning of a performance of an illegal
marriage ceremony.

“Sec. 3. No divorce shall, in anywise, affect the legitimacy of the
children of such marriage, except in cases where the marriage is declared
void on the grounds of a prior marriage . .

There is no ambiguity, however, nor need for judicial inter¬
pretation in this case because the intent to use “marriage” in two
senses is obvious. But in Section I of Article V of the Cities and
Villages Act relating to the powers of the City Council there is a
somewhat ambiguous use of the word “regulate.”

Four clauses make use of this word.

95th “To tax, license and regulate secondhand and junk stores.”

50th “To regulate the sale of meats . . . and to provide for place and
manner of selling the same.”

81st “To direct the location and regulate the management and con¬
struction of packing houses ...”

82nd “To direct the location and regulate the use and construction of
breweries ...”

It was contended that the word “regulate” as used in the 95th
clause conferred the power to prohibit within certain localities less
than the entire territory of the city. But the court held that in the
last three clauses cited, in as much as the power to fix the location
was conferred by additional language, the General Assembly in those
clauses did not regard the power to regulate as including the power
to fix the location and “where a word is so used in several clauses
as to have a clearly defined meaning, the same word, when used in an¬
other clause, will be given the same meaning, in the absence of any¬
thing in the context to indicate that the legislature intended it to
have a different meaning.”^^ In other words, the meaning of “regu-

4«Hurcl, 1919, p. 1119.

« People V. Busse, 240 Ill. 33S (1909).

late” is determined by the context in three clauses, and that same
meaning will be presumed to have been intended when used elsewhere.
Of course if it was intended that “regulate” should have the more
comprehensive meaning in connection with junk stores, that intent
fails by reason of a non-observance of the rule suggested.

In an Appellate court decision which construes the word “pun¬
ishment,” reference is made to the use of the same word in other
acts collected in the Criminal Code. The court says “where such word
appears several times in the same chapter of the statute and the sense
in which it is used clearly appears in some sections, that may mater¬
ially aid in determining the sense in which it is used in other section.s
of the same chapter.Apparently, then, not only should a word
be used uniformly to express the same meaning throughout a bill, but
care should be observed to make its use harmonize with other related
acts which might be looked to by the courts as affording aid in con¬
struing it.

The use of “may” and “shall” in imposing duties and vesting
discretion: The function of the predicate in a statutory sentence
is to confer rights and impose duties. Two distinct questions are in¬
volved in the predicate. 1. Does it command .or merely permit?
Statutes frequently prescribe the performance of certain acts by pub¬
lic officials or individuals without stating the consequences of non-
compliance. 2. If it is a command, then what effect will failure to
comply exactly, have on rights or proceedings based on the statute?
For convenience, a somewhat arbitrary nomenclature is adopted to
classify statutes in these regards. If a statute directs (or prohibits)
the doing of a certain thing, it is IMPERATIVE; if, however, it
imposes a discretion or grants permission, it is PERMISSIVE. If
exact performance as prescribed by a statute is essential to the validity
of proceedings thereunder, the statute is ^MANDATORY; if, on the
other hand, performance may be varied or omitted entirely, the en¬
actment is DIRECTORY.

The construction of a statute may involve one or the other of these
two questions or both. It should be remarked that the fact that there are
two distinct questions is not always recognized by courts and text
writers. Consequently, the terms employed have been used with
varying meanings. Thus, the court in construing a statute which
provided that commissioners shall return an assessment roll within
forty days of their appointment, discusses whether the provision is
“imperative or permissive or directory.The act is clear, in that it
directs the manner of a certain procedure. No discretion is vested by
it to perform or not to perform. The question is whether if per¬
formance is not had as directed, what effect will the variance have on
the legality of the assessment.

Gunning- v. People, 80 111. App. 174 (1899).
Wheeler v. City of Chicago, 24 Ill. 105 (1800).

Imperative and permissive provisions: Nearly all the Illinois
statutes in which these points have been considered by the court
have used the auxilliaries “may” or “shall'’. Frequently, however,
the courts in other jurisdictions have construed equivalent phrases
such as “is authorized and empowered,” or “is the duty,” etc.

The usual and grammatical sense of “may” is to grant per¬
mission and “shall” (except where expressing futurity) implies a
command. “i\Iay” and “shall” when used in statutes will be given
these meanings by the court unless a legislative intent appears other¬
wise. Thus “may” has been held to be permissive in a statute, one
section of which provided for criminal prosecution and another that
“the fines hereinbefore provided for may be recovered in an action
of debt.”^'* “Any person having filed a claim for lien, may bring a
suit at once (before maturity) to enforce the same” was held to
give an option as to time of filing suit.'^'^ The following provision
was held merely to vest permission in the court; “the court may, at
the request of either party, require the jury to render a special ver¬
dict upon any fact or facts at issue.

But the fact that “may” is used is not conclusive that mere per¬
mission was intended to be granted. “The language of the section is
permissive in form, but the form of expression in that respect does
not determine the question of legislative intent. That form is fre¬
quently used where it is plain that the General Assembly intended not
merely to grant permission but to establish a right. . .

No general rule can be laid down to determine the effect of the
use of “may” in all cases. It wdll be construed to further the intent
and purpose of the enactment and this intent will be gathered from a
consideration of the act as a whole and, sometimes, from extraneous
circumstances. The words of an English court aptly phrase the rule.
“The words ‘it shall be lawful’ confer a faculty or power, and the}'
do not of themselves do more than confer a faculty or power. But
there may be something in the nature of the thing empowered to be
done, something in the object for which it is to be done, something
in the conditions under which it is to be done, something in the title
of the person or persons for whose benefit the power is to be exer¬
cised, which may couple the power with a duty, and make it the
duty of the person in whom the power is reposed to exercise that
power when called on to do so.”^® Perhaps a slightly more definite
statement can be made as to the class of provisions which are liable
to be construed as imperative. Generally the power (which may be
construed to be a duty) is vested in a public official, and equities of
the public or of individuals are associated with the exercise of the
power. The court has held imperative a statute permitting highway
commissioners to reduce the width of roads on petition,^^ and to re¬
move obstructions from roads,and a statute which authorized an

^ C. W. & V. Coal Co. V. People, 114 Ill. App. 75 (1904).

Dawson v. Black. 148 Ill. 484 (1893).

““Kane v. Footh, 70 Ill. 587 (1873).

People V. Commissioners of Highways, 270 Ill. 141 (1915).

Blackwell’s case, 1 Vern. 152 (1683).

People V. Commissioners of Highways, 270 111. 141 (1915).

''O Brokaw v. Commissioners of Highways, 130 Ill. 482 (1889).

ordinance to require all owners of lots along a proposed sidewalk to
construct within thirty days/"^^ In the last case cited, the court says:
“ ‘May’ means ‘shall’ or ‘must’ whenever the rights of the public or of
third persons depend upon the exercise of the power to perform the
duty to which it refers; and such is its meaning in all cases where
the public duty is imposed upon public officers and the public or third
persons have a claim de jure that the power shall be exercised.
Whenever a statute directs the doing of a thing for the sake of justice
or the public good, the word ‘may’ will be read ‘shall.’ ”

But the two elements found in the cases cited, power vested
in an official and equities of the public, are not controlling. A stat¬
ute providing that “upon the filing of such affidavit, the court mav
continue such suit,” was held imperative.Another which said
“the court may, at the request of either party, require the jurv to
render a special verdict upon any fact or facts at issue,” was held
merely to vest a permission or discretion with the court.In each
case the power is vested in the same official and its exercise afifects
a litigant in court. All that distinguishes the two statutes is the
nature of the act to be performed. In the one case the court views
a continuance as a matter of right to parties litigant if thev
comply with the conditions laid down; in the other a special
verdict was deemed not to be a matter of right.

Another type of enactment is illustrated by the two following
provisions: “such appeal may be prayed for at any time within 20
days after the rendition of such judgment, order or decree;” “all
actions . . . against any county may be commenced and prosecuted
to final judgment and execution in the circuit court of the countv
against which the action is brought.” It is quite clear that the

permission granted is to pray an appeal or bring suit against a

countv. There is no command to exercise either of these rights.
“May” is used in its grammatical sense in that respect. But if it is
desired to exercise the power granted, then it must be exercised in
the manner prescribed. In other words, the statute i§ purelv per¬
missive, with certain limitations on the permission granted. Al¬
though these are not in fact cases of construing “may” as “shall”
the court has so discussed them.^^

“Shall” like “may” in statutory language is ordinarily
given its grammatical meaning. In a few cases, however,

it has been construed to be permissive instead of imperative.
Thus, the citv court act of 1901 provided that “appeals

shall be taken in the first instance from the judgments of justices
of the peace or police magistrates in the city to the city court.”
The act also contained a blanket repeal section. Section I of the
act provided for concurrent jurisdiction for city courts with cir¬
cuit courts in appeals from justices of the peace in the city. To
hold that “shall” was mandatory and excluded appeals from justices

Pierson v. People. 204 Ill. 4.56 (1903).

Ohicapro Pub. Stock Px. v. McClaup’hry, 148 Ill. 372 (189 4).

53 Kane v. Footh. 70 Ill. 587 (1873).

5^ .Tames v. Pexter. 112 Ill. 489 (1884); Schuyler County v. Mercer County.
4 Gilman (Ill.) 20 (1847).

of the peace in cities to the county courts and circuit courts, would,
in ef¥ect, repeal provisions regarding appeals in the County Court
Act and the Justice of the Peace and Constable Act and conflict
with section I of the statute under consideration. The situation
permitted only one construction—that “shall” was permissive and
should be read “may.”®^ Objection was made to a portion of a
drainage act on the ground that it required the jury to return a
verdict which “shall produce the total sum of the estimated cost
of the proposed work.” The validity of the section demanded that
“shall” be construed to be not imperative, but permissive. The act
is quite clear that the jur 3 "’s return is to be based on benefits and
that there was no intention to require an arbitrary finding based
on other facts.

Another statute had a provision, imperative in form, for the
removal of certain dams in the Illinois riA^er. From a consider¬
ation of the purpose of the act and the history of canal construc¬
tion by the state, the court arriA^es at the conclusion that the legis¬
lature neA^er intended to command the remoA^al of the dams but
merely to authorize it if certain conditions rendered them useless.
“Where the rights of the public or of third persons are inA^oh^ed,
AA^ords in the statute importing permission or authority may be
read as mandatory and AA’ords imposing a command may be read
as permissiye.^

Apparently there is no rule of construction suggested by these
cases other than that a court Avill disregard the form of the legal
predicate Avhen a contrarA" intent is eAudent from a consideration
of the AATole act or AAdiere it aa^ouM lead to an absurdity or AA^ork
an injustice. In the case of the statute regarding appeals from
justices of the peace, the construction adopted for the legal predi¬
cate AA'as required to ,bring the proAUsion into harmonA^ not only
.Avith other acts but AAuth- other proAusions of the same act. A
dififerent decision as to the drainage statute AA’ould mean a jur^^
Axrdict dictated b^^- principles not in accord AAuth the constitution
and our fundamental ideas of jury trial. In the third case cited,
concerning the Illinois riA^er dams, imperative language is changed
to permissiA^e because it is not to be thought that the General
Assembl 3 ^ intended to destro 3 ^ state property AATich had cost a mil¬
lion dollars unless it had become useless.

To insure that a measure aaoII be giA^en the desired construc¬
tion in this regard, it is necessary to make that intent very clear.
It is important to obserAX these precautions:

1. Emplo 3 ^ “shall” and “may” in their correct sense. NeA^er
use “shall” to grant permission or “ma 3 "” to impose a duty.

2. If it is desired to authorize but not to command and the
proAusion is of the kind AAdiere a court might think that the rights
of somebody or other are inAmh^ed and demand that the enactment
be mandatory, the Till-drafter must reenforce his intent Iia^ making
clear be3’^ond an3^ doubt b 3 ^ express AA^ords that the intent is to con-

Bover V. Onion, 108 Til. App. 612 (1902).

Spring Creek Di.st. v. E. .1. & E. Hy. Co., 249 Til. 260 (1911).

Canal Commissioners v. Sanitary Dist., 184 Til. 597 (1900).

fer a discretion or grant permission. In the expression, “the direc¬
tor may, in his discretion” the permissive “may” is strengthened
by the phrase “in his discretion.” Or a separate sentence may be
used to make the intent very clear. “The exercise of this power shall
be wholly within the discretion of the director.”

The cases reading “shall” as “may” in fact are without value
to a bill-drafter, since they represent merely a misuse of “shall”
which is corrected by judicial construction. It should not be neces¬
sary for the court to rewrite legislation to correct faulty English.

Mandatory and directory provisions: Mandatory and direc¬
tory provisions are both commands from the law-making body. In
both, a duty is imposed or the commission of an act is ordered.
The courts have sometimes discussed provisions deemed to be
directory as though they were mere grants of authority,^® whereas
they are in fact commands which by judicial construction may be
varied or even disregarded. A single instance will serve to illus¬
trate. A statute provides: “One engineer shall be annually ap¬
pointed by the mayor in the month of April subject to confirmation
by the alderman for a term ...”

It is quite clear that the legislative mandate is that the ap¬
pointment be made by the persons named during the stated period.
But “the result of holding the statute directory is that the power of
appointment given to the mayor is to be exercised by him as and
when provided by the statute but that if for any reason an appoint¬
ment is not made by him during the month of April as directed
but at some later time, it nevertheless will be a valid appointment.”®®
This is simply a recognition of the fact that statutory regu¬
lation must frequently lay down fixed rules even as to trivial and
immaterial details. Consequently, the courts have said that as to
such matters, some latitude will be permitted, not because the
legislature did not intend its directions to be followed but rather
because the greater good will result from relaxing somewhat the
rigidity of statutory regulations. The court in an early' decision
in Illinois said: “B}'^ a directory statute is not to be understood

that no duty is imposed to do the act at the time specified, in the
absence of a satisfactor}^ reason for not -then doing it, but simply
that the act is valid if done afterwards.”®®

The question whether a provision orders or permits some ac¬
tion involves a consideration of legislative intent; whether it is
mandatory or director}^ is generally a question of policy to be
applied by the court. Of course, the language employed may give
an indication as to the legislative view of the importance of a
provision and as such will be a consideration for the judicial con¬
struction.

No universal rule can be stated to distinguish directory pro¬
visions from mandatory. It is impossible to group all the various

Wheeler v. City of Chicago, 24 Ill. 105 (1860).

Rutter V. White, 90 N. E. 401 (Mass. 1910).

Webster v. French, 12 Ill. 301 (i850).

provisions on different subjects which have been held to be either
the one or the other. In each case the court must look to the sub¬
ject matter, consider the importance of the provision, its relation to
the general object to be secured by the act, and the consequence to
the rights of the public or individuals that may result from one
meaning rather than another.

This is not ordinarily a matter of importance to the bill-draft¬
er. That a court may permit some variation in the minor regula¬
tions he has laid down, is not his concern. Nor is it desirable gen-
erall}^ that the minor matters and immaterial details of statutory
enactments should be so firmly fixed as to be be^^ond judicial re¬
laxation. Occasionally if it is desired to secure exact compliance
with a provision, suitable language can be employed to effect that
result.

Mandatory provisions not only contain a command but also
include a prohibition against varying the terms of the command.
If affirmative language is used to express the provision, the prohi¬
bition exists only by implication. If that ])rohibition is expressed
by the use of negative language, the legislative intent that the
provision be mandatory is apparent beyond any doubt. The pro¬
visions “the commissioners shall return the assessment roll within
forty days of their appointment,” is affirmative and as to the time
of the return was held director}'. If the words, “and not there¬
after,” had been added, it would have been difficult for a court to
hold that a valid return could be made after the forty-day per¬
iod. In passing on this provision, the court said: “There are no
negative words used, declaring that the functions of the commis¬
sioners shall cease after the expiration of the forty days, or that
they shall not make their return after that time.”*^^

It has been pointed out that the distinction between mandatory
and directory enactments arises from the difference in the results
of non-compliance. Therefore, if the consequence or penalty of
non-compliance is prescribed, the question as to whether the act
is mandatory or directory cannot arise. Thus, in the statute cited
above, if a statement follows to the effect that “if no return is
made within forty days, the assessment shall be void,” or “if no
return is made within forty days, the mayor shall appoint other
commissioners,” it becomes quite clear that the return within
forty days is made essential and cannot be waived.

Definitions, the Construction Statute and some miscellaneous
matters: Some mention has already been made of the utility of
definitions in statutes. Frequently it is desirable either to restrict or
qualify the general meaning of a word or. to extend that meaning so as
to make it more inclusive. Or a word may have a number of different
meanings, and it may be desired to have it understood in only one
sense.- Thus, “bedding” may be used in a geological sense; it is a term
used in the construction of buildings; it also means stable-litter for

Wheeler v. City of Chicago. 24 Ill. 105 (1860).

animals to sleep upon. So when the word “bedding” is used in a
statute relating to furnishings for beds, it is desirable that it be de¬
fined to exclude other meanings.®^

Alany words in common use are not precise and definite in their
meanings. The words “knowledge” and “notice”, for example, con¬
vey only a general idea without exact limits, and as in the Uniform
Partnership Act,*^^ definitions may be used to give to these words the
precise shade of meaning desired. Frequently, however, definitions
are used in a somewhat more arbitrary manner for the purpose of
including or excluding matter from the general meaning of a word.
For instance, “bedding” properly includes sheets, spreads and ])illow
cases, but the act, above mentioned, which regulates the manufacture
and sale of bedding, is intended to apply only to bedding which is
stuffed with a filling, such as mattresses, pillows, etc. By definition,
therefore, “bedding” is made to mean only that particular kind of
bedding. On the other hand, “highway” in common parlance means
roads or streets. In the Search and Seizure Act®^ its usual meaning
is expanded to include “water course, lake, aerial way, railroad, road,
alley, path or way which is open to the use of the public.”

When Repeated reference must be made to a number of things
or persons, it is sometimes possible, after an enumeration has once
been made, to make use of a generic term in place of repeating the
list each time. Sometimes a word can be arbitrarily employed as a
substitute for a number of specified terms or a variety of cases or
situations. “Noxious weeds” is used in this manner in an act rela-ting
to farm seeds.®® Care should be observed that the relationship be¬
tween the term and the class it represents is definitely established.
This can be done by the use of a definition of the word or a statement
of the way it is employed.

A number of words in frequent use in statutes are defined in an
act relating to the construction of statutes.®® The meaning there given
these words is to be applied to them unless “inconsistent with the
manifest intent of the Legislature or repugnant to the context.” The
Construction Statute contains also rules of construction to be ob¬
served in the construction of statutes now in force or enacted in the
future, unless a contrary intent is evident. Such an act is valuable
since it saves the repetition of definitions and rules of construction
which otherwise would be incorporated in many statutes. The Con¬
struction Statute in Illinois is not as comprehensive as it might be
made. Such an act to be really servicable, must be complete and
contain all definitions of a general character in legislative enactments
and also the most general rules of construction.

Of course, the bill-drafter should be familiar with the provisions
of the Construction Statute and avoid the duplication, of its contents in
individual acts. This would seem so obvious as not to need mention
but some of the provisions of the Construction Statute are continually

«2Hurd, 1919, p. 1107.

'■'^Hurd, 1919, p. 2218.

•^Hurd, 1919, p. 1248.

«'"Hurd, 1919, p. 56.

Hurd, 1919, p, 2929,

appearing in acts enacted by the General Assembly. The act regulat¬
ing the manufacture and sale of bedding,®^ enacted in 1919 contains
the following provision:

“The word ‘person’ as used in this act shall be construed to import
the plural and the singular as the case demands and shall include corpo¬
rations, companies, societies and associations.”

This provision is contained in language practically the same in
the third and fifth clauses of Section 1 of the Construction Statute.
The General Corporation Act,^® a carefully drafted measure, provides
in Section 156 that:

“The provisions of this act, so far as they are the same as those exist¬
ing statutes, shall be construed as a continuation thereof, and not as a new
enactment ...”

Section 2 of the Construction Statute is:

“The provisions of any statute, so far as they are the same as those of
any prior statute, shall be construed as a continuation of such prior pro¬
visions, and not as a new enactment.”

A provision similar to Section 4 of the Construction Statute,
saving all rights and claims accrued and penalties incurred under a
repealed act, appears frequently in amendatory acts and revisions.
To pad statutes with such superfluous provisions is a serious mistake.
If the Construction Statute is to serve any useful purpose, the rules
laid down there should not be incorporated in each individual measure.

While the statutes quoted offend in the matter of duplicating
the rules laid down in the Construction Statute, instances are not in¬
frequent in which statutes wholly disregard these rules and use forms
which are made unnecessary. Even if it were not so provided in the
Construction Statute, it is a familiar rule of construction that words
importing the singular number may be applied to several persons
or things and words importing the plural number may include the
singular.'^® There is no excuse for the awkward combination of the
singular and plural forms of nouns and pronouns such as is found
in Section 9b of Division I of the Criminal Code ‘‘any person or
persons who shall,” . . . “marked with his, her or their name or
names,” etc.

The Construction Statute also provides that “words importing
the masculine gender may be applied to females.” The masculine
pronouns “he” and “his” should be used instead of the double form
“he or she,” “his or her.” Possibly an exception should be noted to
this rule that the masculine form comprehends the feminine. Where
a bill treats of matters which have been customarily connected with
males and it is desired to include both sexes, it is perhaps safer to
add a statement expressly providing that the masculine form is to
include the feminine. A Wisconsin statute regulating admission to
practice law was held to exclude women because of the use of the

e^iird, 1919, p. 1107.

csHiird, 1919, p. 722.

Oeneral Corporation Act, Section 156, Hurd, 1919, p. 748.

Perkin.s v. Bertrand, 192 Ill. 58 (1901); Arnold & Murdock Co. v. Industrial
Board. 277 Ill. 295 (1917).

Hurd, 1919, p. 972.

masculine pronoun Of course, if a statute applies only to

females, it should use feminine pronouns.

The act regulating the practice of nursing^^ was designed to apply
to both sexes. As a matter of actual fact, there are practically no
registered male nurses. It was felt by those instrumental in the pas¬
sage of the act that the masculine pronouns, in view of the fact that
practically all nurses were women, were undesirable. The feminine
forms could not be used because they were not construed to include
both sexes. Consequently, a combination of both genders seemed to
be the most satisfactory mode of expression. This is an exceptional
instance, and even here the correct method probably would have been
to employ the masculine forms.

The Construction Act, Section 1, Fifth Clause, says:

“The word ‘person’ as well as all words referring to or importing
persons, may extend and be applied to bodies politic and corporate as

well as individuals.”

This makes unnecessary the use of the awkward series “person,
firm, association or corporation,” which is so frequently found in
legislation.^^

Brief mention may be made of a number of minor matters of
phraseology which tend to simplify and make legislative language more
natural.

1. The connecting word “that” immediately following the enact¬
ing clause in the first section of a bill is unnecessary and should be
omitted. If the enacting clause is made to precede Section 1 instead
of being a part of it, the uselessness of an introductory “that” be¬
comes more apparent, but even if the enacting clause is kept in the
first section, the “that” should be discarded. In a few cases in Illi¬
nois, sections other than the first section commence with “that.”‘“

2. Statutes can be simplified greatly without weakening theii
effect, by omitting the grouping of synonyms and indirect expressions
which tend to make sentences rambling and disconnected. As was
said by one text-writer: “A law is usually stronger if it has few words,
chosen with care as to their meaning.”^*’’ Too often it is to be feared
authors of bills think that the multiplication of synonyms and phrases
tend to give a legal smack which adds to the impressiveness. The
continued repetition of these useless combinations of nouns, verbs,
adjectives and conjunctions finally becomes habitual. The word “will”
includes everything that is meant by “testament,” but most lawyers
join the two in writing a “last will and testament.” A legislature
cannot authorize an action without giving power, but how many
laws “authorize and empower” and “order and direct.” The statute
books abound with such redundancies as “each and every,” “any and
all,” “parts and portions,” “be and the same are,” “for and during,”
“period and term,” “do and perform,” “acts and things,” “full and

^2 In re Goodell, 39 Wis. 232 (1875).

^^Hurcl, 1919, p. 2048.

Commercial Insurance Co. v. Mehlman, 48 Ill. 313 (1868); Ochs v. People.
124 Ill. 399 (1888).

Hard road act. Hurd, 1919, p. 2642; Chicago Municipal Court Act, Hurd,
1919, p. 925.

Jones, Statute Law Making p. 123,

complete,” “by and with” and “shall have power and it shall be his
duty to.” A law does not become any stronger because it says that it
“shall be in full force and effect,” rather than simply that it “shall
be in force.” These and many other similar pairs and phrases can be
replaced by one word or a more simple term and they should not be
tolerated in careful legislation.

3. There are some words like “hereby,” “said,” “aforesaid,”
“such,” “any,” whatsoever” and “wheresoever” which appear fre¬
quently in legal expression. Generally they are unnecessary and do
not add anything by way of definiteness. It is just as effective
to say “whoever, having a former husband or wife living, marries
another person, is guilty of bigamy,” as to say “whoever, etc., shall
be deemed guilty of bigamy.” “Shall be construed to mean” is no
more convincing than the word “means.”

Commands and permissions are frequently stated in an indirect
manner: “it shall be the duty,” “is authorized,” etc., for which may
be substituted such words as “shall,” “must” or “may.”

4. Ordinarily, where the creation of a simple crime is not a
subordinate part of a broader act, there is no necessity for reciting
that the thing prohibited is unlawful and that a person violating that
prohibition is subject to a penalty. It is sufficient to provide that a
person committing such an act is guilty of an offense and fix the pen¬
alty.

Thus, an act forbidding the portrayal of hangings, lynchings
and burnings of human beings, reads:

“It shall be unlawful for any person, firm or corporation to manufac¬
ture, sell or offer for sale, or advertise or present or exhibit in any public
place in the State, any publication or representation by lithograph, mov¬
ing picture, play, drama or sketch representing or purporting to represent
any hanging, lynching or burning of any human being. Any person, firm
or corporation violating any of the provisions of this section shall be guilty
of a misdemeanor, and upon conviction thereof shall be punished by a fine
of not less than fifty dollars nor more than two hundred dollars.” ”

This can be more simply stated by providing that “whoever manu¬
factures, ... is guilty of a misdemeanor and shall be punished
. . .” The Criminal Code comprises a miscellaneous collection of
offenses and criminal provisions which are being changed and added
to continuall}^ and anything which tends to harmonize and unify its
pages is desirable.

When the creation of offenses is incidental to the main purposes
of a bill, it may be convenient to prohibit specific acts or require that
certain regulations be complied with, and group the penalty provisions
in a later section. Section 43 of the Motor Vehicle Act is an example
of the grouping of penalty provision in one section.

“Any person wilfully violating the provisions of this Act shall, except
as otherwise provided herein, upon conviction, be fined in a sum not to
exceed the amount hereinafter set forth.

For the violation of sections 8, 14, 16, 17, 18,' 19, 20, 21, 27, 28 and 40, or
any of them, twenty-five dollars.

For a violation of section 22, two hundred dollars.

” Hurd, 1919, p. 1041,

For the violation of any section or provision for which no specific
penalty is provided, one hundred dollars.”

Where a prohibition is expressed apart from the penalty pro¬
vision, it is generally better to say “no [lerson shall” rather than “it
shall be (is) unlawful to.”

There is a general penalty provision for misdemeanors in the
Criminal Code which reads as follows :

“Where the performance of any act is prohibited by any statute, and
no penalty for the violation of such statute is imposed, the doing of such
act is a misdemeanor, and may be punished by fine not exceeding $100,
or imprisonment in the county jail not exceeding six months, or both, in
the discretion of the court.”’®

A misdemeanor for which no penalty is specifically provided may
be punished under this provision, ddiis plan is followed in the Crimi¬
nal Code of New York. In this state, however, it has been customary
to attach the penalty clause to each offense, and it might not be wise
to omit the penalty provision in statutes creating misdemeanors. But
the New York method should be considered when’a revision of the
Criminal Code is made, because the use of a general penalty provision
undoubtedly tends to standardize penalties.

5. There is some tendency to avoid pronouns in statutory
language. This is commendable when a lack of clearness might
otherwise result, but there is no objection to their use so long
as their position indicates definitely their antecedents.

6. The conjunctions “and” and “or” arc used inaccurately

in popular language frequently, and also, in a less degree, in
statutory expression. The courts recognizing this inaccuracy, have
been obliged frequently to adopt a loose construction in order to
effectuate what appeared to be the legislative intent. “While they
are not treated as interchangeable, and should be followed when
their accurate reading does not render the sense dubious, their
strict meaning is more readily departed from than that of other
words, and one read in place of the other in deference to the mean¬
ing of the context.”®*’ The court, though, in another case, refused

to read “and” as “or” when that construction was urged. “It is

no doubt true, that where the sense and purpose of a statute de¬
mand it, the conjunction “and” may be construed as though it
were written “orbut in the absence of some such necessity, the
words of a statute are not to be so changed.”®^

As in the case of “may” and “shall,” a readiness on the part

of the courts to depart from the general meaning of words, is a

source of danger to the bill-drafter, since he, even when he has
used such terms accurately, must guard against the possibility
of a different construction than that intended. In the first place,
there should be no careless use of conjunctions. As was men¬
tioned in a discussion of provisos, “provided” is sometimes inaccur¬
ately used to join a simple independent provision. If there remains

^»Hurd, 1919, p. 2634.

•»Hurcl, 1919, p. 1057.

Sutherland, Statutory Construction, Sec. 252; People v. VanCleave, 187
Ill. 125 (1900); Boyles v. McMurphy, 55 Ill. 236 (1870).

81 People v. Lee. 112 Ill. 113 (1884).

a possibility of a conflict of ideas between the conjunctions used
and the context, the conjunction may be strengthened by other
words to avoid the possibility of the context overriding the con¬
junction. Thus “either . . . or” may be employed if the idea
is disjunctive, and if conjunctive “both . . . and” or “and also.”

7. The Illinois statute book abounds with sample forms for
bonds, ballots, reports, affidavits, etc., given for the most part for
the guidance of governmental officials. In some cases, this is an
unnecessary detail which may be left to the discretion of the office
administering the law. A bounty act of 1877 provides:

“. . . whereupon the clerk of said board, shall administer to said
person, the following oath or affirmation, to-wit:

You do solemnly swear (or affirm as the case may be), that the scalp
or scalps here produced by you was taken from a wolf or wolves killed and
first captured by yourself within the limits of this county and within the
sixty days last past.

This could have been simplified greatly (as was done with later
bounty acts) by merely requiring an affidavit and stating its sub¬
stance.

Section 5 of an act providing for visitation of children placed
in family homes contains a lengthy form of report to be made to
the Board of Public Charities by its visitors.®^ The Search and
Seizure Law®^ which in a great many respects illustrates the things
a bill drafter should avoid, contains six forms. It has forms for
carrier’s records, statement by consignees to carrier, application for
purchase from druggist, complaint for search warrant, search war¬
rant and permit issued by the Attorney General. Generally, when
an action or proceeding is entrusted to one officer or department
of the state, it is sufficient to give that officer or department general
instructions as to forms. When, however, the duty is imposed up¬
on a number of officials, throughout the state, if uniformity is de¬
sired, it is necessary to set out in detail the forms to be used.

8. Occasionally in statutes the enumeration of several per¬
sons or things is followed by a dependent clause. Section 4 of the
Workmen’s Compensation Act of 1911^^ has the words, “If the
employe leaves any widow, child or children, or parents or other
lineal heirs to whose support he had contributed within five years
previous to the time of his death . . .” Such an expression is
capable of two interpretations;—the dependent clause may be held
to qualify each member of the list preceding or it may be limited
to the last one. In the instance cited the Appellate court adopted
the first construction and held that the clause modified the word
“parents.”®® By care in the matter of phrasing, an ambiguity of
this kind can be avoided.

Hurd, 1919, p. 161.

8»Hurd, 1919, p. 279.

8^ Hurd, 1919, p. 1248.

8^ Laws, 1911, p. 315.

8® Erickson v. American W^ell Works, 196 Ill. App. 346 (1915).

PUNCTUATION.

The matter of punctuation in statutes formerly was unimport¬
ant since the early rule of construction was that statutes should be
read without breaks or stops and that whether words belong' to any
particular branch of a sentence is to be determined from the con¬
sideration of the entire act.^^ But inasmuch as bills very generally
are printed with full punctuation before legislative action, the
courts have modified to some extent the old rule which wholly
disregarded punctuation marks. The Supreme Court of Illinois has
said: “Section 13 of Article IV of the constitution of 1870 provides:
‘Every bill shall be read at large on three different days, in each
house; and the bill and all amendments thereto shall be printed
before the vote is taken on final passage.’ The punctuation of a
bill so adopted cannot be said to be the mere work of the engrosser
or the public printer. The punctuation is rather a part of the act
as adopted by the General Assembly, and while it remains sub¬
ordinate to the text it may be of material assistance in determining
the legislative intent. Certainly it should not be disregarded un¬
less upon an inspection of the whole act or section involved it is
apparent the punctuation operates to vary the true sense and
meaning of the enactment.”®®

In a later case, the court in construing the words “Board of
County Commissioners” in Section 17 of Article VI of the consti¬
tution, relies largely on the fact that these words are enclosed
in quotation marks. “The quotation marks add to the preciseness
of expression and indicate an exact transfer of the words from
some other place.”®®

As compared with the text, punctuation still remains rela¬
tively unimportant. But good draftsmanship will observe gram¬
matical rules in this regard not only to avoid introducing an
ambiguity but also because correct punctuation is a valuable aid
to fortify and make clear the legislative intent.

s^Perteet v. People, 65 III. 230 (1872).

Commissioners of Highways, v. Ellwood, 193 Ill, 304 (1901).

People V. McCormick, 261 Ill. 413 (1914).

EFFECT OF GENERAL PROVISIONS RELATING TO
PARTIAL INVALIDITY, LIBERAL INTERPRE¬
TATION AND REPEALS.

Partial invalidity section: It is quite common to incorpor¬
ate in bills a section providing that if any part of the act is de¬
clared unconstitutional, that shall not affect the validity of the re¬
mainder if it can be given effect without the invalid portion. This
is merely an expression of a rule of construction which is recog¬
nized by the courts. In People v. KnopP® the court said: “The
fact that a part of the act is unconstitutional does not require that
the remainder shall be held void, unless all the provisions are so
connected as to depend upon each other. The constitutional and
unconstitutional provisions may even be contained in the same
section and yet be perfectly distinct and separable, so that the
first may stand though the last fall. ... If, when the unconstitu¬
tional portion is stricken out, that which remains is complete in
itself and capable of being executed wholly independent of that
which was rejected, it must be sustained.”

The valid part, to be given effect, must constitute a complete
act and be in accord with the legislative purpose as determined
from the whole act and be such that the court can say that the legis¬
lature would have passed it with the invalid parts eliminated.®^ It
is often extremely difficult for a court to say that, if the invalid
portions are eliminated, the balance of the act standing alone ac¬
complishes the' legislative purpose. In such a case, it might be
thought that a statement to the effect that the invalid portion
shall not defeat the remainder, would aid the court by indicating
the legislative desire. It is doubtful, however, whether such is the'
result.

The Public Utilities Act of 1913 provided for the regulation of
public utilities except those owned by municipalities. A companion
bill which was passed at the same session of the General Assembly
regulated the public utilities exempted from the general act. It was
contended that the exception in the Public Utilities Act in favor of
municipally owned public utilities was unconstitutional but that the
act could be given effect with the exception stricken* out. Section 83
provided that “if any section, subdivision, sentence or clause of this

People V. Knopf, 183 Ill. 410 (1900); see also Cooley, Constitutional Limi¬
tations 178.

C. B. & Q. R. R. Co. V. Jones 149 Ill. 361 (1894) ; Springfield Gas Co. v.
Springfield, 292 Ill. 236 (1920): People v. City of Rock Island, 271 Ill. 412
(i916); Joel v. Bennett, 276 Ill. 537 (1917).

act is for any reason held invalid or to be unconstitutional, such de¬
cision shall not affect the validity of the remaining portion of this
act.” Notwithstanding this saving clause the court held that the plan
of the General Assembly was for one scheme of regulation for pri¬
vately owned public utilities and another for those owned by munici¬
pal corporations and that the Public Utilities Act with the exception
stricken out was not an expression of the legislative will and would
have not received the approval of the General Assembly. “Section
83,” the court says, “was not intended to nullify any rule of statutory
construction and must receive a construction consistent with the rules
of constitutional law. While this section may be some indication of
legislative intention, yet in construing it, we must give due considera¬
tion to the rules heretofore laid down by this court in the interpreta¬
tion of statutes.” (Inasmuch as the majority opinion held the ex¬
ception as to municipally owned public utilities valid, the decision on
this point is obiter dictum.) A dissenting opinion takes the view
that the legislative plan was to create a commission to regulate pub¬
lic utilities and that the inclusion of those owned by municipalities
did not destroy that scheme although it modified it in that detail.®^
In a recent case in which the court held unconstitutional the primary
election law of 1919 it was contended that the clause repealing
the prior primary act was valid and effective regardless of the in¬
validity of all other portions of the act. Section 80 of the act con¬
tained a partial invalidity clause which provided that the invalidity
of any portion should not affect the validity of any other portion which
could be given effect without the invalid part. The court says: “The
provision of Section 80 is without any effect in aid of the plaintiff in
error’s contention for the reason that it merely states the uniform
rule of the courts, which upholds every valid portion of an act which
can be operative and effective without the portion which is declared
invalid.” The court then considers whether it was the legislative in¬
tent that the repealing clause should in all events be valid and de¬
cides that this provision was merely intended to clear the way for the
new act and consequently was dependent upon it.®^ About all that
can be said for a “partial invalidity” provision is that it furnishes
a basis for a decision if the court thinks that the valid portion should
be sustained and if not, it can be disregarded.

The difficulty as to a partial invalidity clause is that its generality
affords no real light on the legislative intent as to particular portions of
an act. If, however, a contemplated measure should contain sep¬
arable parts of recognized doubtful constitutionality, and a statement
in the act to the effect that the invalidity of a specified portion should
not affect the remainder, the court would probably attach consider¬
able weight to this expression of legislative desire. However no in¬
stance of such a particular reference in a partial invalidity clause is
known.

Spring-field Gas Co. vs. Springfield, 292 Ill. 236 (1920).

S'* People V. Fox. 294 Ill. 263 (1920).

Liberal interpretation: Another provision of a general na¬
ture relating to construction is the statement to the effect that the
act shall receive a liberal interpretation to carry out the purpose ex¬
pressed therein. To effectuate the intention of the legislature and se¬
cure the most beneficial operation is a familiar rule of construction;
one, however, which is not supreme but which must be applied along
with many others which may govern in particular instances. In the
case of certain kinds of statutes such as penal measures and acts
in derogation of the common law or property rights, other principles
control and require a strict construction.

The provision for liberal interpretation is, therefore, of doubt¬
ful value. As in the case of partial invalidity clauses, it may be
referred to by the court in support of a decision which would
have been the same without such a provision, but in a case where
other principles of construction must control, it is disregarded.
Thus, an act incorporating a theological seminary granted an ex¬
emption from taxation as to all property “belonging to or apper¬
taining to said seminary.” The section following provided that the
act “shall be construed liberally in all courts for the purpose therein
expressed.” But this provision was not permitted to override the
general rule that laws exempting property from taxation are to be
strictly construed and all doubts resolved in favor of the public.
The court said: “We do not think this language was intended to
or could be held to change or qualify the general rules of construc¬
tion applicable to the section under consideration ... In deter¬
mining what purpose is expressed in the section, resort must
necessarily be had to the general rules for considering such laws.®^

But if the courts are not disposed to give much weight to a
general provision for liberal construction, such a provision directed
toward a particular action or proceeding would doubtless be given
effect. There are a number of such provisions in the laws of Illi¬
nois. Section 18 of the Illinois Securities Law®° provides with re¬
gard to the filing of statements or documents by the Secretary
of State and suit to compel such act, that “merely technical irregu¬
larities in the procedure of the Secretar)'^ of State shall be disre¬
garded. ...” The Public Utilities Act, Section 83®'’ has a similar
provision. “A substantial compliance with the requirements of this
act shall be sufficient to give effect to all the acts, orders, deci¬
sions, rules and regulations of the commission, and they shall not
be declared inoperative, illegal or void for any omission of a tech¬
nical nature in respect thereto.”

Repeals: Statutes frequently provide that “all acts and parts
of acts in conflict herewith are repealed,” without specifying par¬
ticularly the statutes which are to be affected. Inasmuch as the
Supreme Court has repeatedly said that where a subsequent statute

People V. Chicago Theological Seminary, 174 Ill. 177 (1898).

9>Hiird, 1919, p. 2672.

»5Hurd. 1919, p. 2357.

is repugnant to a former statute, or inconsistent with it, a repeal
of the earlier statute by the subsequent one will be implied,^^ it is
difficult to understand how such a provision can add anything to
the general rule. This is the view of the Supreme Court. “While
the insertion of a general provision in a statute declaring a re¬
peal of all inconsistent acts or parts of acts (without naming
any particular act) implies that the new statute is to some extent
repugnant to certain laws theretofore enacted, the insertion of
such a general repealing clause is generally held to add nothing
to the repealing effect of the act. Logically, such a general re¬
pealing section adds nothing to the language or meaning of the
act and takes nothing from it. All prior conflicting laws and parts
of laws are impliedly repealed by conflicting provisions of the law
enacted.”^®

In view of such a pronouncement by the Supreme Court, the
use of a general repealing clause is not advisable. The great diffi¬
culty in connection with repeals by implication is the determination
whether an irreconcilable conflict exists between a subsequent act
and a prior act or a part of the prior act. A general repealing clause
fails to disclose the legislative purpose as to an earlier statute
and thereby adds to the burden of construction a question which
should properly be settled by the law-making body. Whether a
proposed measure necessitates or makes desirable the repeal of an
earlier act should be determined by the bill-drafter. And if the repeal
of an act is necessary or desirable, it should be accomplished by a
specific repeal provision which names the act repealed. The blanket
repeal clause is a slip-shod and inefficient substitute which.should not
be tolerated in careful legislation.

Lang V. Friesenecker, 213 Ill. 598 (1905); Merlo v. Johnston City and
Big Muddy Coal Co., 258 Ill. 328 (1913); People v. Wabash Railroad Co., 276
Ill. 92 (1916).

Hoyne v. Danisch, 264 Ill. 467 (1914); People v. City of Rock Island, 271
Ill. 412 (1916).

PRACTICAL FACTORS AFFECTING DRAFTSMANSHIP.

In the construction of statutes courts look primarily to the
language employed. But the whole purpose of judicial construc¬
tion—the fundamental rule—is to ascertain and give effect to the
legislative intent, however expressed. Consequently courts may
look beyond the words of a particular section or act to other con¬
siderations which may disclose the desire and purpose of the law¬
making body. The result may be to extend @r restrict the effect
of the statutory language, or even to nullify its literal purport
and substitute therefor a meaning in harmony with what is deemed
the purpose of the measure. It is true that the courts have held
that, “The meaning and intent of the legislature must be ascer¬
tained from the words employed, and where there is no ambiguity
there is not room for construction. Tt is not allowable to inter¬
pret what has no need of interpretation, and, when the words
have a definite and precise meaning, to go elsewhere in search
of conjecture in order to restrict or extend the meaning.’ Or as
the United States Supreme Court has tersely phrased it,—“the
province of construction lies wholly within fhe domain of am¬
biguity.”^ But because the mind of the legislator cannot foresee
and provide for every conceivable situation and because complex
trains of thought must be conveyed by the imperfect and approxi¬
mate symbols of words, every statute in some aspects presents the
necessity for construction. As a matter of fact, resort is had to
considerations other than the particular language even when that
language has a well-defined meaning. This appears from the state¬
ment of the court in the case above cited. “In the interpretation
of statutes, words are to be taken in their ordinary meaning in
general or popular use, unless . . . it is apparent from the whole
law and other laws in pari materia that a different meaning was in¬
tended.”^ Therefore, it is not enough for the bill-drafter to seek
merely a clear mode of expression, but he must take into account
such other matters as may weigh with the court in considering
his language.

It is a familiar principle of construction that statutes are to
be construed as a whole. The import of a word, a sentence or a
section may be changed when it is considered not independently
but as a subordinate part of an act, all of which refers to a single

Chudnovski v. Eckels, 232 Ill. 312 (1908).
^Hamilton v. Rathbone, 175 U. S. 414 (1899).
2 Chudnosvki v. Eckels, 232 Ill. 312 (1908).

subject and seeks to effect only‘one purpose.The Supreme Court
in one instance uses the following language: “But, as already ob¬
served, to construe and enforce this section according to its literal
terms would, in all cases of the kind supposed, defeat that class
of attachment liens which the act taken as a whole manifestly in¬
tended to protect.”^ And in construing a section of the Road and
Bridge Act, the court said : “The impression upon the reading of
the section certainly is that the extension of the tax is to be upon
the assessment of the previous year. Such seems to be the literal
reading. But for the ascertaining of the real meaning, we are not
to be confined to the words employed, but may look to the former
law, and to other statutory provisions.”^ There are many other
decisions in Illinois to the effect that “the several provisions of a
statute should be construed together in the light of the general
objects and purposes of the enactment, and so as to give effect
to the main intent, although particular provisions are thus con¬
strued not according to their literal meaning.”®

In the search for the legislative purpose in enacting a measure,
the court will consider what the law was at the time of its enact¬
ment. Whether the law at that time was statutory or the common
law, it furnishes a guide as to the reason for the enactment since
the effect of the enactment must necessarily be to change or amend
the legal situation as it existed before. That this is regarded as an
important aid to construction is evidenced by this statement from
the Supreme Court. “It is universally conceded that one of the
most efficient means in ascertaining the legislative intent in the
adoption of a new statute is to consider it with reference to the
state of the law before its adoption, and particularly with reference
to the previous legislation on the same subject. A passing notice,
therefore, of some of the previous legislation with respect to the
granting of licenses for the sale of intoxicating liquors, may aid
us somewhat in our present inquiries.”^

The “state of the law” is one fact of several which may be
considered as affording an indication of the motive in the passage
of an act. Other circumstances which are connected with an act,
the mischief which it recognizes and the remedy sought, all may
be looked to as indicative of the legislative will. “In determining
the meaning of a statute, a court will have regard to existing cir¬
cumstances, or contemporaneous conditions, and also to the object
sought to be obtained by the statute, and the necessity or want

® An act of 1919 (Hurd, 1919, p. 853) authorizing county memorials for sol¬
diers and sailors contains an example of poor coordination in the provisions
relating to the referendum feature. Section 1 has these provisions. “No ballot
which has not a cross opposite the word “yes” or “no” shall be counted either
for or against the proposition.

If a ma.iority of the votes cast at such election are in favor thereof . . .”
The second expression has been held to mean a majority of the highest total
votes cast for the candidates for anv office. In other words a ballot not
marked is, in effect, counted against the proposition. The two statements pin
view of the court’s construction of the second one) are contradictory and in¬
harmonious.

*Hill V. Harding, 93 Ill. 77 (1879).

“Wabash. St. Louis & Pacific Ry. Co. v. Binkert, 106 Ill. 298 (1883).

® People V. City of Chicago, 152 Ill. 546 (1894).

’Wright V. People, 101 Ill. 126 (1881).

of necessity for its adoption.”* “In order to ascertain the true
spirit and import of an act, the courts may also consider the mis¬
chiefs such act was desii^ned to remedy. “In construino' statutes
we must look to the intention of the law-maker, and one of the
means of ascertaining^ the intention is to look to the mischief that
existed under the old law, as well as to the provisions adopted to
remedy the evil.”^°

To what extent the court will consider conditions and facts re¬
lating to a measure is evidenced by the opinion of the court in con¬
struing the language of an act creating sanitary districts. Section
23 of that act reads in part: “The district constructing a channel to
carry water from Lake Michigan of any amount authorized by this
act . . . shall remove the dams at Henry and Copperas Creek in the
Illinois river, before any water shall be turned into the said chan¬
nel.” The court reviews the building of the dams by the state at an
expense of a quarter of a million dollars, various measures for their
repair and preservation, their beneficial effect on navigation on the
Illinois river and decides from these outside facts that the legislature
did not intend what the language plainly expresses, i. e. the removal
of the dams, but intended merely to permit their destruction if it
became necessary.^^

The effect of the prior status of the law upon a subsequent
statute is expressed by two rules of construction, both of which em¬
body the same principle. (1) If the prior existing state of the law
was determined by the common law, a statute in derogation thereof
will be strictly construed so as not to alter the common law farther
than the statutory terms expressly declare.^^ (2) A statute must be

construed with reference to the whole system of which it is a part.
Statutes relating to the same subject should be construed in pari
materia as though forming one body of law and seeming inconsist¬
encies should be so construed, if ]:)ossible, as to give to each its ap-
])ropriate effect and operation.^* The second rule, in other words, is
that the law does not favor repeals of statutes by implication but
will adopt a construction which will reconcile the provisions of each.
This principle, then, is apparent in the construction of a statute,
whether it supersedes another act or the common law, that unless
it necessarily by its terms alters or displaces the prior law, that prior
law will influence and modify the construction of the subsequent act so
as to permit both to stand.

In some instances, the construction of an act itself is not in¬
fluenced by other laws, but the situation to which it relates is af¬
fected or controlled by other statutes so that the ultimate result is not

* Hawes v. City of Chicago, 158 Ill. 653 (1895); People v. Kipley, 171 Ill. 44
(1898): People v. Harrison, 191 Ill. 257 (1901).

»Soby V. People. 134 Ill. 66 (1890); Bobel v. People, 173 Ill. 19 (1898).

I'^Ball V. Chadwick. 46 Ill. 28 (1867); People v. Wabash, St. Louis & Pacific
Ry. Co., 104 Ill. 476 (1882).

Canal Commissioners v. Sanitary District. 184 Ill. 597 (1900).

Mackin v. Haven, 187 Ill. 480 (1900); Canadian Bank of Commerce v.
McCrea, 106 Ill. 281 (1882); Turnes v. Brenckle, 249 Ill. 394 (1911).

L. S. & M. S. Ry. Co. v. Chicago, 148 Ill. 509 (1893); Devous v. Gallatin
County, 244 Ill. 40 (1910); South Park Commissioners v. First National Bank.
177 Ill 234 (1898).

according to the statutory language. An illustration will make this
clear. In 1919, the General Assembly amended Section 189 of the
School Law to give relief to school districts hy permitting them to
levy a higher per cent tax rate. The law now reads that by a refer¬
endum vote 2% may be levied for educational purposes. But in some
districts, notably Chicago, the scaling of this tax levy under the Juul
law^^ nullified this increase and prevented the desired relief. Any
tax levy not expressly exempted from the provisions of the Juul law
may be affected in counties where the aggregate of tax rates is high.
The Civil Administrative Code, Indeterminate Sentence Act, and a
large number of other statutes all operate generally in such manner as
to affect other particular measures.

Sometimes statutes are enacted which have already received a
judicial construction. This may be done by the legislature re-enact-
in'g an earlier act or by adopting a statute of another state which has
been considered by the courts of that state. In either case, the judi¬
cial decisions are generally to be taken as a part of it. In the case of
re-enactments which substantially follow the language of an earlier
act, it is presumed that the legislature had in view the construction
which the court placed on the earlier act and adopted such construc¬
tion as the true and intended construction to be placed on the subse¬
quent one.^® “The court will not, however, follow this rule blindly
where the language of the new act, when construed in the light of the
context, indicates a different legislative intention.”^'’

A somewhat similar principle obtains in the case of statutes
adopted from other states. “In adopting the statute of another state
it is presumed that our General Assembly intended that it should re¬
ceive the construction given it by the courts of the state from which
it was adopted, previous to its adoption, unless such construction is
in conflict with the spirit and policy of our laws.”^'

There is no such thing, then, as a wholly independent statute, un¬
related to other acts and speaking hy its words alone. Other laws,
circumstances, judicial decisions all form the background which gives
form and meaning to a measure. Even the words themselves fake
their import from these outside considerations. In a decision cited
above^® the court said: “In determining what is meant by the ex¬
pression ‘corporate authorities of any town,’ reference may be made
to acts of the legislature, passed from time to time upon the subject
of parks and park commissioners.” In the first place, a bill should
be constructed as a whole, each part harmonizing with the others and
the whole act working single-mindedly toward a definite purpose. Not
only that but it should be co-ordinated to take its proper place in the
whole system relating to the general subject of which it forms a part.
Only painstaking study and investigation in the field of legislation in

An Act. concerning’ the levy and extension of ta,xes. Hurd, 1919, p, 2543.

McGann v. People, 194 Ill. 526 (1902); Kelley v. Northern Trust Co., 190
Ill. 401 (1901).

i^Atton V. S’outh Chicago City Ry. Co., 236 Ill. 507 (1908).

Rhoads v. C. & A. R. R. Co., 227 Ill. 328 (1907); Re Qua v. Graham, 187
Ill. 67 (1900); People v. Griffith, 245 Ill. 532 (1910).

1® South Park Commissioners v. First National Bank, 177 Ill. 234 (1898).

which it is designed to operate can equip the bill-drafter to accom¬
plish this even moderately well. And to succeed perfectly is beyond
the limits of human skill. Legislation from other jurisdictions should'
always be considered in connection with the construction placed on
it by the courts of those jurisdictions since that meaning generally
attaches to it when adopted in this state.

AMENDATORY LEGISLATION.

In drafting a bill it must be determined whether the desired
result can be attained by an amendment to an existing statute or
whether the enactment shall take the form of an independent act.
The bulk of present-day legislation is directed toward the removal
of defects and the making of improvements in existing statutory law.
Only occasionally is a new field opened for legislation, and a measure
enacted which is unrelated to other statutes. It is important not
only that a provision be well constructed to accomplish the immed¬
iate ends desired but also that it take its appropriate place in the
system of which it is a part, and that it leave the whole legislation
relating to the particular subject in the best possible form. Statutes
which are amendatory either in form or substance present some
distinct problems both constitutionally and from the standpoint
of draftsmanship.

Amendment by reference: The constitution provides that
“no law shall be revived or amended by reference to its title only,
but the law revived, or the section amended, shall be inserted
at length in the new act.”^® The early construction, placed upon
this provision by the Supreme Court limited its application to acts
expressly purporting to amend earlier laws, i. e., statutes amenda¬
tory in form.“° Later the construction was extended to apply to
acts amendatory in substance.

As applied to statutes which expressly purport to amend prior
laws, this provision entails no difficulties for the bill-drafter. But

^9 The reference is to Article IV Section 13 of the constitution of 1870. The
Constitutional Convention now in session has adopted a proposal which would
replace this language with the following provision.

“No Act shall be revived by reference to its title only. Any act expressly
purporting to amend a section or sections of an earlier law, shall set forth
at length the section or sections as amended.”

The purpose of this change in the language is to limit the constitutional
provision to express amendatorv acts and to exclude statutes which are
merelv amendments in effect.

20 People V. Wright, 70 Ill. 388 (1873) ; Timm v. Harrison, 109 Ill. 593 (1884) ;

School Directors v. School Directors, 135 Ill. 464 (1891) ; People v. Loeffler,

175 Ill. 585 (1898).

21 People V. Knopf, 183 Ill. 410 (1900); People v. Election Commissioners,

221 Ill. 9 (1906) ; Badenoch v. City of Chicago, 222 Ill. 71 (1906) ; People V.
Crossley. 261 Ill. 78 (1913) ; People v. Stevenson, 272 111. 325 (1916) ; Board of
Education v. Haworth, 274 Ill. 538 (1916).

An amendatory statute might comply with the constitutional provision
as to one section bv setting it out as amended and yet in effect by its sub¬
stance amount to an amendment of some other section or act which was not
set out at length. This would make the amendatory act ob.jectionable from
a constitutional standpoint. See Galpin v. City of Chicago, 269 Ill. 27 (1915).

by its extended construction it imperils much leg’islation and leaves
many statutes in doubt until the Supreme Court has passed upon
their constitutionality. The court has of necessity recognized that
“it cannot be held that this clause of the constitution embraces
every enactment which, in anv degree, however remotely it may
be, affects a prior law on a given subject for, to so hold, would
be to bring about an evil far greater than the one sought to be
obviated by this clause.”"^ And quoting the Supreme Court of
Michigan in People v. Mahoney, 13 Mich. 484, the court continues:
“If, whenever a new statute is passed, it is necessary that all prior
statutes modified by it, by implication, should be re-enacted and
published at length as modified, then a large portion of the whole
code of laws of the state would require to be republished at every
session, and parts of it several times over, until, from mere im¬
mensity of material, it would be impossible to tell what the law
was.” Quite obviously this construction must be limited to stat¬
utes which materially affect prior acts. The difficulty, however, is
that no rule can be formulated, no standard fixed bv which it is
possible to know whether a particular measure falls within or
without the limits of this construction. The proposition as stated
by the Supreme Court, only needs to be quoted to show how in¬
definite and vague these limits are.

“(1) An act which is complete within itself and does not
purport, either in its title or in the body thereof, to amend or re¬
vive any other act, is valid even though it may by implication
modify or repeal prior existing statutes.

(2) An act, though otherwise complete within itself, which
purports to amend or revive a prior statute by reference to its
title onlv, and does not set out at length the statute amended
or revived, is invalid, regardless of all other questions.

(3) An act which is incomplete in itself and in which new
provisions are commingled with old ones,’ so that it is necessary
to read the two acts together in order to determine what the law
is, is an amendatory act and invalid under the constitution, and it
is unimportant, in such case, that the act does not purport to
amend or revive any other statute.

There being no means of determining beyond question whether
a particular act offends in this regard, prudence demands that the
bill-drafter steer as wide a course as possible from this danger
zone. He will not, of course, frame as an independent act a mea¬
sure which has no purpose whatever except to correct some fault
or make a change in a prior law. A Washington statute provided
that there should be exempt from execution and attachment in
favor of every householder, personal property to the amount of
81,000, in addition to the nronertv exempt under section 486 of
the code. This is clearly objectionable'^ and can easily be avoided.

22 -Tii-nTTi V. Hf'rris'^n. lOO nr 500

"s Per pip V Ovosplev Til. 7S (191 . Por a review of the decisions of

tPrt c:iir>vnrr.r Ooin’t and a di=!c\ission of this snbT^ct see Constitutional Converi'
tions in TUinois and r'on=titntidn of the Sti^te of Illinois, Annotated,

Copland v. Pirie, 26 Wash. 481 (1 901).

On the other hand, when an act apparently attempts a complete
treatment of a subject, its effect on other statutes becomes of less
sigi'nificance and the danger of unconstitutionality is more remote.
Thus, if the only purpose of an act should be the abolition of the
State Public Utilities Commission and the vesting- its powers and ^
duties in another board or department without complying with
this constitutional provision, possibly it would be objectionable.

But when that amendment is incidentally effected by an act which
has for its purpose the complete reorganization of the state govern¬
ment, such as is done by the Civil Administrative Code, doubtless
this act would not be held to be within the rule.

The Civil Administrative Code suggests another point of inter¬
est in drafting acts which affect to some extent prior laws. If the
measure in question operates to amend several acts rather than
only one, apparently the court will be less inclined to hold it within
the constitutional provision. Whether the fact that an act affects
a number of law indicates a purpose separate and distinct from
amending any one of them or whether the court sirnply relaxes
the rule in the face of the “far greater evil” of requiring the re¬
enactment of a large number of laws, in several cases the court
has refused to apply the rule to acts of this character.^®

Incorporation by reference : Although the contention has
been made that the adoption of certain provisions of one act into
another act by a mere reference amounted to an amendment of
the prior act, the court has repeatedly held otherwise and declared
that incorporation by reference did not violate the provision in
Article IV, Section 13 of the Constitution.^®

The effect of such reference is the same as though the statute
or provisions adopted had been incorporated bodily into the adopt¬
ing statute. The reference may be to a particular statute by its title
or it may be to the law generally which governs a particular subject.
Both references accomplish the incorporation of the provisions
of the prior act but with different results as to subseciuent amend¬
ments to the adopted statute. “An act which adopts by reference

23 People V C. & W. I. R. R. Co.. 2.5(1 Ill. 3S8 (1912): People v. Van Bever,
248 Ill. 136 (1911).

2® Culvor V. People. 161 111. 89 (1 896) : Citv of Charleston v. .Tohnston. 170
Ill. 336 (1897) : Peoplo v. Crosslev, 261 Ill. 78 (1913) ; People v. Stitt, 280 Ill.
553( 1917): Zeman v. Dolan, 279 Ill. 295 (1917).

Inasmuch as this constitutional provision forbids the revival of a law
by reference, it would seem clear that a statute could not adopt by ref^i^enoe
statutory provisions which had been repealed before the adoption, or, if pro¬
visions were amended before the enactment of the adoptine- statute, the pro¬
visions as thev were before amendment. And yet in People v. Glassco. 203
Ill. 353 (1903): such an adoption was sustained bv the Supreme Court. Sec¬
tions 24 and 25 of the Parm Drainapre Act of 1885 were amended by act an-
proved May 10. 1901. One da.y later. May 11. 1901 an act was approved whioh
incorporated these sections 24 and 25 by reference. It is quite apparent from
the lang'uag’e that the leg-islature in passing- the adopting- act inteoried the
reference to the origrinal sections and not to the sections as amended. The court
sustains the reference to the orig-inal sections but the opinion is devote^t to
ascertaining the legislative intent and apparently the power of the les-isla-
ture in this respect is not considered. This case. has. however been cited for
the proposition that the “the provisions of a repealed act may be adopted, (bv
reference) with the sa,me effect as if it was in force.” See Section 405. Lewis’
Sutherland Statutory Construction.

the whole or a portion of another statute, means the law as existing
at the time of adoption and does not include subsequent additions
or modifications of the statute so adopted, unless it does so by
express or strongly implied intent. This rule seems to be strictly
adhered to, where the prior act is particularly referred to in the
adopting statute by its title. Where, however, the adopting stat¬
ute makes no reference to any particular act by its title or other¬
wise, but refers to the general law regulating the subject in hand,
the reference will be regarded as including, not only the law in
force at the date of the adopting act, but also the law in force
when action is taken, or proceedings are resorted to.”“'

If it is desired to include future amendments to the adopted
statute, the reference must be general or some words must be
added to the particular reference to disclose that intent. Although
there is no Illinois decision on this point, it has been held generally
elsewhere that the repeal of a statute adopted by a particular refer¬
ence would not affect the operation of that statute as a part of the
adopting statute.Since a general reference includes all additions
and modifications and refers to the law at the time when the rule
is invoked, it should follow logically that a repeal of the statutory
provisions adopted would repeal them as a part of the adopting
statute, but this precise point does not seem to have been passed
upon. In the case of adoption by a particular reference with words
indicating an intent to include subsequent amendments, it is diffi¬
cult to say what effect a repeal of the adopted provisions would
have. Probably it would not withdraw those provisions from the
adopting statute since, the reference being to a particular act the
additional language would seem to go only to the extent of includ¬
ing subsequent changes but not a repeal.

Legislation by reference has been the subject of some criticism.
For one thing, two or more acts dealing with different subjects
must be consulted in order to ascertain a legal situation. More
than that, frequently the adopted provisions are not wholly applic¬
able to the adopting statute. This may be easily overlooked in
drafting the adopting act and then a judicial question is presented
as to what extent the provisions are incorporated. If, however,
the bill-drafter makes the necessary modifications, the reader must
apply the modifications to the adopted provisions and then apply
both to the adopting act. There is still another difficulty. If the
reference is general, amendments may be made to the adopted pro¬
visions without regard to their effect on the adopting statute. If
the reference is particular, and amendments are made to the pro¬
visions adopted, the result is that the provisions are left in two
forms; one, in the original for the purposes of the adopting act;
and two, as amended, for the purposes of the statute from which
they were adopted. If it should be desired to keep these provisions
uniform both in the statute where they occurred and in other

- , 1

27 Culver V. People, 161 Ill. 89 (1896).

2s Lewis’ Sutherland Statutory Construction Sec. 405,

statutes which had adopted them by particular reference, it would
be difficult to locate and amend the adopting acts.

On the other hand, there are a number of advantages in legis¬
lation by reference. It tends to reduce the bulk of legislation. If
every detail concerning elections had to be repeated in connection
with every vote, if every act providing a tax levy had to contain
the revenue act, the statute book would run to inordinate length.
More than that, each act would introduce varying details and
minor modifications as to similar provisions that would render
the law almost impossible of administration. Within certain
bounds, legislation by reference is proper and useful; carried be¬
yond those limits, it can justify all the criticism it has had. The
diflerent efifects of general and particular references has been sug¬
gested together with the advantages and disadvantages of each.
Probably less difficulty will be occasioned and fewer unforeseen
situations result if the reference is made to the law generally on a
particular subject.

Acts expressly amendatory:-®. .The constitutional provision re^
quires that an amended section or act be set out at length, but it does
not require the section or act to be also set forth in its original form be¬
fore amendment.It is therefore sufficient to provide that “Section
10 of (naming the act) is amended to read as follows,” and this
form is generally used. In repealing a statute or section of a statute
it is not necessary to set out at length the statute or section repealed.

A difficulty presents itself in the case of amendments to acts
previously amended and also in the case of amendments to void and
repealed statutes. Technically when a section is amended and re¬
enacted “so as to read as follows,” the original section is repealed and
its existence ended.If the original section is no longer in exist¬
ence can effect be given to an act purporting to amend the original
section rather than the section which has replaced it? The view
originally held in Illinois was that such an amendatory act was in¬
valid.®’^

See Chapter on Forms, subheading- Amendatory bills.

3" People V. Wright. 70 Ill. 388 (1873) ; City of Marion v. Campbell, 266 Ill.
256 (1915) ; Manchester v. People. 178 Ill. 285 (1899).

Freitag v. Union Stock Yards, 262 Ill. 551 (1914). See chapter on Forms,
subheading Repeal.

22 “The amendatory act declared that the statute should be amended to read
as therein proyided, and this operated to repeal the original section and to sub¬
stitute the amendatory section.” Palmer v. City of Danville, 166 Ill. 42 (1897) :
see also People v. Young. 38 Ill. 490 (1865) ; L. & N. R. R. Co. v. City of East
St. Louis. 134 Ill. 656 (1890).

22 L. & N. R. R. Co. V. City of East St. Louis, 134 Ill. 656 (1890); Kepley
V. People. 123 Ill. 367 (1888).

However, in an early case. School Directors v. School Directors. 73 Ill.
249 (1874); the court sustained an amendatory act of 1865 which purported
to amend an act of 1861. The act sought to be amended was an earlier statute,
several sections of which were amended in 1861. The court says: “Here we
have a, law possessing all the requisites of a valid statute, passed by the Gen¬
eral Assembly, containing clear requirements capable of being carried into
effect in connection with the general school law. and we have no right, simply
because there is a mistaken reference to a previous statute to defeat that
will.” This reasoning of the court shows an inclination to waive technicalities
in order to effectuate the legislative intention.

In a later case, however, the court squarely abrogates the former
rule and announces the rule to be that “where the amendment is con¬
sidered as a continuance of so much of the law as is left unchanged
in form or substance, or as having taken the place of the original
enactment and so incorporated therein, for all purposes, including
amendment, a subsequent statute purporting further to amend the
original act is to be construed in accordance with the intent of the
legislature, as operating on the prior amendment, and effect will be
given to it.”®'^ This is now the customary form of an amendatory act,
i. e. to amend the original sections without regard to prior amend¬
ments. The reference should be to the original act, naming it, “as
amended,” as a recognition of prior amendments, although it will be
noticed that reference in the amendatory act in the case last mentioned
did not contain these words. It is unnecessary and cumbersome,
however, to name all of the amendatory acts as is sometimes done.
Section 1 of an act to amend section 12 of the Fees and Salaries Act,
is as follows :

“Section I. Be it enacted, etc.: That section 12 of an Act entitled,
‘An Act concerning fees and salaries and to classify the several counties in
this state with reference thereto,’ approved March 29, 1872, in force July 1,
1872, title as amended by an Act approved March 26, 1874, in force July 1,
1874, as amended by an act approved April 8, 1875, in force July 1, 1875, as
amended by an Act approved May 21, 1877, in force July 1, 1877; be, and
the same is hereby amended so as to read as follows:”'*®

The courts of the different states have not been in accord in
passing upon acts which amended repealed or void statutes. The
early view and the one held in Illinois was that laws which were not
in existence could not be amended; therefore a repealed act, which
had ceased to exist as law, and a void act which legally never existed,
were not subject to amendment.”® The more recent view in many
jurisdictions ignores the technical objection to such acts and gives
effect, when possible, to the wish of the legislature. There have been
but few recent cases in Illinois touching on this question.

The court, quite evidently, does not approve of amendments to
repealed or void laws but is willing to go to some length to accomplish
the legislative intent. In an early case the court said emphatically,
“It is, of course, true that a void law cannot be amended.”®^ But
in that case the court was able to sustain the amendatory act in ques¬
tion on the ground that the principal act was not void but merely
inoperative by reason of the failure of the electors of any county to
adopt its provisions within the period designated by the act. How¬
ever, in a later case the court says, “The rule is . . . that even though
an amendatory act purports to amend a repealed statute, if the in¬
tent of the legislature is clear and unmistakable this intent must gov¬
ern, and the statute will be held to be enacted notwithstanding the
mistake of reference to a statute theretofore repealed.”®® The rule

Villag’e of Melrose Park v. Dunnebecke, 210 Ill. 422 (1904).

Laws 1919, p. 560.

See Lewis, Sutherland, Statutory Construction, Sec. 23.3.

People V. Onahan, 170 Ill. 449 (1897).

38 People V. Morrell, 234 Ill. 47 (1908); see also Patton v. People, 229 Ill. 512
(1907).

laid down is ap])lied to sustain an amendatory act of ;1907 to section
15a of the farm drainage law, that section having been repealed by
an act of 1901.

By the same reasoning, it would seem that an unconstitutional
law might be amended but apparently this (piestion has not been
presented to the court. . In one of the cases which consider amend¬
ments to repealed laws the court quotes a])})rovingly the following
statement: “The decided weight of authority and the better opinion
is, that an amendatory act is not invalid, though it purport to amend
a statute which had ])reviously been amended or for any reason been
held invalid.”''’^ Probably the only occasion for amending an uncon¬
stitutional law would be the removal of the constitutional defect.

Although acts amending void or rej^ealed law\s might he given
effect by the court, such legislation is to be condemned. Indeed the
court has said that they can be sustained only because “the rule for
the guidance of the court is to ascertain the intention of the legisla¬
ture and not their mistakes, either as to law or fact.”^^ Amendments
to original sections rather than to prior amendments are sustained on
a different ground viz. that the prior amendments have merged into
and become part of the original act and therefore the subsequent
amendment should properly refer to the original act.

Attention should be called to a number of other matters con-
cerning amendatory bills. An amendment of a section “to read as
follows” operates as a repeal of the portions of the original section
omitted. As to the portion unchanged, in form or substance, the
amendatory act is a mere continuation of the original actd^ Thus
the Illinois corporation act of 1872 permitted the consolidation of
corporations with certain restrictions, one of which was that “no
more than two corporations nozv existing shall be consolidated into
one under the provisions hereof.” The section containing this pro¬
vision was amended and re-enacted in 1889 but the words quoted
were not changed. It was held that the words “now existing”
in the amended section related to 1872 and not to 1889.^^ The
amended portion or new matter is effective from the date of the
passage of the amendment. An amended statute, however, is con¬
strued as regards any action subsequent to the amendment, just
as though it had been enacted originally in its amended form.^^

The General Assembly not infrequently passes two or more
bills amending the same section or sections of a prior act. In
1917 two bills were passed amending sections of the Workmen’s
Compensation Act.^^ The next General Assembly passed three acts
amending section G1 of the County Act.^^ Of course, the measure
last enacted has the effect of repealing all prior amendments of the

Patton V. People. 229 Ill. 512 (1907).

Pewis’ STutherlanct. Statutory Construction, Sec. 233, quoted in Patton v.
People, 229 Ill. 512 (1907).

People V. Zito. 237 Ill. 434 (1909).

•‘2 Barrows v. People’s Gas, Light & Coke Co., 75 Fed. 794 (1895).

Holbrook V. Nichol, 36 Ill. 161 (1864).

■‘'‘Laws 1917, pp. 490, 505.

45 Laws 1919, pp. 370, 381, 392.

same section or sections whether enacted at the same session or
by an earlier General Assemblyd®

Under the Senate and House rules “it is made the duty of
any member introducing a bill proposing an amendment to any
statute law of this State to underscore the word or words, compris¬
ing the proposed amendment, and no bill^ shall be printed until
such word or words are underscored. All parts of bills which are
underscored shall be printed in italics”. The evident purpose is
to acquaint the reader with the changes in the section as proposed.
The difficulty is that this expedient goes only half way. Fre¬
quently amendments to legislation are accomplished by omission
rather than by adding new parts. And if a substitution of new
matter for old is made, it is impossible to know exactl}^ the extent
of the alteration. Some law-making bodies adopt the further ex¬
pedient of printing omitted portions with-a line drawn through
or enclosed in brackets. Substitutions can be shown by printing
old matter crossed with a line above the substituted portion which
would be italicized. However, the objection can be made that a bill
printed in this, manner is somewhat more difficult to read.

The passage of two or more bills at one session amending the same act
is apt to cause some difficulties. The later act repeals the earlier only as

to the sections which are set out and re-enacted in the second measure. If the

first amending act amends sections not contained in the subsequent measure or
adds new sections, these sections are not expressly repealed. Thus the House
bill amending the workmen’s compensation act adds a new section numbered
3^/2. The senate bill, approved later, makes no mention of section It.

therefore, was not repealed by the Senate bill but became effective July 1

following its passage. But an inspection of section 3^^ shows that it is not
in harmony with the Senate bill that became law. In its first sentence it says,
“If the plaintiff in any action mentioned in section 3 shall . . . allege that

the employer has filed notice of his election not to provide and pay compensa¬
tion according to the workmen’s compensation act . . But section 3 as

last amended applies the provisions of the act automatically and without elec¬
tion to the employers named in that section. Is section 3i/4 repealed by im¬
plication or can it be given effect as a procedural provision applying to causes
of action accrued before section 3, as last amended, became effective?

ESSENTIAL POINTS IN BILL DRAFTING.

Each proposed measure has its own problems and special fea¬
tures. But there are general considerations applicable to bill-drafting
which must constantly be borne in mind by the draftsman. The im¬
portance of these points warrants a brief mention. If the draftsman,
in constructing a legislative measure, has worked with the following
points in mind, his bill at least can become an effective law even
though imperfect in form.

Is the object of the proposed measure within the power of the
General Assembly to enact ?

Do the methods by which the object is sought to be accomplished
conform to constitutional requirements?

What is the present state of the law on that subject?

Can the desired result be effected by an amendment to some exist¬
ing act ?

What existing laws will be affected by the proposed legislation?

Is the proposed measure limited to one subject and purpose?

Does the title adequately express that subject?

If the bill is amendatory in form, does it correctly refer to the
act amended?

Do the sections amended in an amendatory bill work an amend¬
ment in effect in other sections not set forth?

Do the amendments made by an amendatory bill, necessitate an
amendment to the title of the original act?

Is the enacting clause in proper form?

Does the measure accomplish the legislative purpose?

If the act is amendatory is the new matter in the amended sections
underscored as required by the rules of both Houses of the General
Assembly ?

APPENDIX I. FORMS.

A number of forms for titles and various provisions have been col¬
lected in this chapter for reference purposes. It is not intended to
suggest that the examples given are perfect or incapable of improve¬
ment. Some have been taken without change from Illinois statutes.
In other cases, the form given is thought to be an improvement.

Reforms in statutory form are necessarily gradual. The bill-drafter
is not always free to use the phraseology he thinks best adapted to the
purpose. Always he must reckon with the power of custom firmly
established. This seems particularly true in the case of amendatory •
bills. There is an established phraseology for the titles and enacting
parts of such bills which seems unne.cessarily cumbersome. For ex¬
ample, the usual title for a bill which adds sections to a prior act has
been: ‘‘A Bill for an Act to amend an Act entitled, ‘An Act to revise
the law in relation to counties,’ approved and in force March 31, 1874,
as subsequently amended, by adding two new sections, to be known as
Sections 162 and 163.” It may be worth while to point out in detail
some possible changes which simplify this language without weakening
its effect.

1. Omit* “newsections added to a statute are necessarily new.

2. Omit “subsequently”; any amendments must have been subse¬
quent to its passage.

3. In place of the words, “by adding two sections, to be known
as Sections 162 and 163” insert, “by adding Sections 162 and 163.”
The last expression means exactly the same as the first.

4. Since the addition of sections necessarily amends an act, in¬
stead of the words “An act to amend an Act entitled ‘an Act etc.,’
by adding etc.,” say “An Act to add Sections 162 and 163 to an Act en¬
titled, ‘An Act etc.’ ”

5. Omit the words “an Act entitled.” Refer to the act amended
directly by its title in place of making the reference to an act “en¬
titled ‘An Act etc.’ ” The title with this phrase omitted becomes:
“A bill for an xA.ct to add Sections 162 and 163 to ‘An Act to revise the
law in relation to counties,’ approved and in force March 31, 1874, as
amended.”

Some of the suggested changes may seem radical departures from
the usual phraseology and for that reason in the forms for amendatory
bills, alternative forms are occasionally given to accomplish the same
result. The examples are, after all, merely suggestive, to be im¬
proved rather than to be followed. Uniformity is undoubtedly desir¬
able but it should not be a uniformity of useless and awkward phrase¬
ology.

Titles to Independent Bills.

A BILL

For an Act to establish the Illinois State Police.

A BILL

For an Act to regulate the exhibition of motion pictures.

A BILL

For an Act in relation to corporations for pecuniary profit.

A BILL

For an Act to revise the law in relation to deadly weapons.

Amendatory Bills.

1. Bill to amend sections,—two forms.

A BILL

For an Act to amend Sections 160 and 161 of “An Act to revise
the law in relation to counties,” approved and in force March 31, 1874,
as amended.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: Sections 160 and 161 of “An
Act to revise the law in relation to counties,” approved and in force
’March 31, 1874, as amended, are amended to read as follows:

Sec. 160. No territory transferred ...

Sec. 161. The county board . . .

A BILL

For an Act to amend Sections 160 and 161 of an Act entitled^'
“An Act to revise the law in relation to counties,” approved and in
force March 31, 1874, as amended.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: Sections 160 and 161 of an Act
entitled “An Act to revise the law in relation to counties,” approved
and in force March 31, 1874, as amended, are amended to read as fol-
. lows:

Sec. 160. No territory transferred . . .

(

Sec. 161. The county board . . .

The second form retains the phrase “An Act Entitled.” These words
have been omitted in the other forms for amendatory bills.

2. Bill to add sections,—tzvo forms.

A BILL

For an Act to add Sections 7 and 8 to the Game and Fish Code
of Illinois^* approved June 24, 1919, in force July 1, 1919.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: Sections 7 and 8 are added to
the Game and Fish Code of Illinois, approved June 24, 1919, in force
July 1, 1919, these sections to read as follows:

Sec. 7. It shall be the duty . . .

Sec. 8. Whoever, hunts, takes or destroys . . .

A BILL

For an Act to amend the Game and Fish Code of Illinois, ap¬
proved June 24, 1919, in force July 1, 1919 by adding Sections 7 and
8 thereto.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assemby: The Game and Fish Code of
Illinois, approved June 24, 1919, in force July 1, 1919, is amended by
adding thereto Sections 7 and 8, to read as follows:

Sec. 7. It shall be the duty . . .

Sec. 8. Whoever hunts, takes or destroys . . .

3. Bill to repeal sections.

A BILL

For an Act to repeal Sections 168, 169 and 170 of “An Act to
revise the law in relation to roads and bridges,” approved June 27,
1913, in force July 1, 1913, as amended.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: Sections 168, 169 and 170 of
“An Act to revise the law in relation to roads and bridges,” approved
June 27, 1913, in force July 1, 1913, as amended, are repealed.

4. Bill to amend sections and add sections.

A BILL

For an Act to am.end Sections 161 and 162 of “An Act to revise
the law in relation to roads and bridges,” approved June 27, 1913, in
force July 1, 1913, as amended, and to add Section 183 thereto.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: Sections 161 and 162 of “An
Act to revise the law in relation to roads and bridges,” approved June
27, 1913, in force July 1, 1913, as amended, are amended, and Section
182 is added thereto, the amended and additional sections to read as
follows:

Sec. 161. The commissioner of highways . . .

Sec. 162. In all counties . . .

Sec. 183. No contract so made ....

In this instance, the act amended provides a short title by which it may
be cited and this short title is used for the reference.

5. Bill to amend some seetions and repeal others.

A BILL

For an Act to amend Sections Hil and 162, and to repeal Section
183 of “An Act to revise the law in relation to roads and bridges,”
approved June 27, 1913, in force July 1, 1913, as amended.

Sec. 161. The Commissioner of highways . . .

Sec. 162. In all counties . . .

Section 2. Section 1*83 of said Act is repealed.

6. Bill to amend sections and title.^^'^

A BILL

For an Act to amend Sections 2 and 3 and the title of “An Act
to revise the law in relation to roads and bridges, approved June 27,
1913, in force July 1, 1913, as amended.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: Sections 2 and 3 of “An Act
to revise the law in relation to roads and bridges,” approved June 27,
1913 in force July 1, 1913, as amended, are amended to read as fol¬
lows :

Sec. 2. When any part . . .

Sec. 3. If it shall appear . . .

Section 2. The title of said Act is amended to read as follows:

“An Act in relation to roads and bridges.”

7. Bill to amend sections and title and add and repeal sections.

A BILL

For an Act to amend Sections 6 and 7 and the title of “An Act to
revise the law in relation to roads and bridges,” approved June 27,
1913, in force July 1, 1913, as amended, to add Sections 8 and 9
thereto, and to repeal Sections 3 and 4 thereof.

Section 1. Be it enacted by the People of the State of Illinois,
represented in the General Assembly: Sections 6 and 7 of “An Act
to revise the law in relation to roads and bridges,” approved June 27,
1913, in force July 1, 1913, as amended, are amended and Sections S

When an amendatory act amends the title of the original act, it prob¬
ably would be preferable to refer to the original act by its title rather than
a short title.

and 0, are added thereto, the amended and additional sections to read
as follows:

Sec. G. The terms of the . . .

Sec. 7. On the first Monday. . . .

Sec. 8. The nomination . . .

Sec. 9. The additional judges . . .

Section 2. The title of said Act is amended to read as follows:
“An Act in relation to roads and bridges.”

Section 3. Sections 3 and 4 of said Act are repealed.

Amendments to bill after introduction.

1. AMENDMENT TO PRINTED SENATE BILL NO. 351.

Amendment No. 1. Amend printed Senate Bill No. 351,®® on
page 3, section 2, line 51, by striking the words “twenty cents,” and
inserting in lieu thereof the words “seventy-five cents.”

2. AMENDMENTS TO PRINTED SENATE BILL NO. 117 IN HOUSE.
Amendment No. 1. Amend the title of printed Senate Bill No.

117 in House to read as follows:

“A bill for an y\ct for the relief of Fred H. Gillett and Thomas
J. Sheridan, and making appropriations therefor.”®^

Amendment No. 2. Amend printed Senate Bill No. 117 in
House by adding thereto Sections 3 and 4, to read as follows:

“Sec. 3. The sum of $2,000 is appropriated . . .

Sec. 4. The Auditor of Public Accounts ...”

Conference Report.

REPORT OF COMMITTEE OF CONFERENCE ON HOUSE BILL NO. 754.

JUNE 19, 1919.

To the Honorable:

The President of the Senate, and

The Speaker of the House of Representatives.

We, the undersigned committee of conference, appointed to con¬
sider the differences between the two Blouses in relation to the
Senate Amendments to Plouse Bill No. 754, “A bill for an Act, etc,”

It is customary for each amendment to name the bill amended even though
the amendments are given a general title which indicates the bill amended.
When there are many amendments to one bill, this repitition becomes tire¬
some. A more desirable form of amendment would be :

“On page 3, section 2. line 51, strike the words ‘twenty cents,’ and
insert in lieu thereof the words ‘seventy-five cents.’ ’’

The amendments recommended in the conference report are in this second
form.

If the change made in the title is small, the amendment may strike, insert
or add woixls in place of setting out in full the amended title. 'The same
thing is true of amendments to the body of a bill. If there are a number of
amendments in a comparatively short section, the most convenient form of
amendment may be to set out the amended section in full. Several amend¬
ments can sometimes be handled together by striking a line or several lines and
inserting new matter. In each instance the form of amendment selected must
be determined from a consideration of the particular case. The bill-drafter
should keep the amendments as short and simple as possible and at the same
time make it easy for a person comparing the bill and its amendments to dis¬
cover the changes that have been made.

beg leave to report that we recommend the following as the action to
be taken by the Senate and the House of Representatives, respec¬
tively :

We recommend that the Senate recede from Senate Amendments
Nos. 1, 5, etc.

We further recommend that the House of Representatives con¬
cur with the Senate in Senate Amendments Nos. 2, 3, 4, etc.

We further recommend that printed House Bill No. 754 in Senate
be amended as follows :

First: On page 2, section 1, paragraph 4, line 2, strike out
“twenty cents” and insert in lieu thereof “fifty cents.”

All of which is respectfully submitted.

Dated this 19th day of June, 1919.

Committee on the part of the Senate. Committee on the part of the House

of Representatives.

Provisions authorizing hearings, compelling obedience to subpoenas

and extending immunity.

Sec. — The Department may conduct investigations and hearings,
subpoena witnesses, issue subpoenas to require the production of books,
papers, records and documents which may be needed as evidence of
any matter under inquiry, and may administer oaths and affirmations.
In the conduct of any investigation or hearing, the Department shall
not be bound by the technical rules of evidence, and no informality
in the proceeding or in the manner of taking testimony shall invalidate
the decision or order of the Department. Service of subpoenas shall
be by any sheriff, constable or other person of full age.

Sec. — If any person who has been properly served, refuses or
neglects to appear and testify or to produce relevant books, papers,
records or documents, the Department may petition the circuit court
of the county in which the hearing is being held for an order re¬
quiring the witness to attend and testify or produce the documentary
evidence. The circuit court shall hear the petition and, if it appears
to the court that the witness should testify or should produce the
documentary evidence may enter an order requiring the witness to
obey the subpoena. The court may compel obedience to its order by
attachment proceedings, as for contempt of court.

Sec. — No person shall be excused from giving evidence in any
investigation or hearing ordered by the Department, upon the ground
that the evidence may tend to incriminate him or subject him to a
penalty. But no person shall be prosecuted or subjected to a penalty
for any transaction or matter concerning which he has given evidence

before the Department. This immunity however, shall extend only
to a natural person, who in obedience to a subpoena, gives testimony
under oath or produces documentary evidence under oath.

Sec. — Whoever wilfully testifies falsely to any material fact at
any hearing or investigation is guilty of perjury and shall be pun¬
ished accordingly.

Referendum provision.

Sec. — Subject to the provisions of Sections — of this act, any
town may levy an annual tax of not to exceed three mills on the dol¬
lar for the purpose of etc. This tax shall be levied and collected
in the same manner as other general taxes.

Sec. — Upon the filing with the town clerk of any town of a
petition containing the names of not less than fifty legal voters of
the town praying that the question of levying this tax be submitted
to the voters, the question shall be submitted at the next regular
town election, if there is one more than twenty but less than ninety
days after the filing of the petition. If there is no regular town
election within that period, a special election shall be called not less
than thirty nor more than sixty days after the petition has been
filed.

Sec. — The ballots for use in this election shall be in sub¬
stantially the following form.

For a tax levy of not more than three mills on the
dollar for the purpose of etc.

Against a tax levy of not more than three mills on
the dollar for the purpose of etc.

If a majority of those voting on the question of levying a tax for
the purpose of etc., vote in favor thereof, an annual tax of not to ex¬
ceed three mills on the dollar shall be levied and collected for that
purpose.

Penal provision.

Sec. — Whoever steals any motor vehicle of a value greater than
fifteen dollars, or buys, receives or conceals any such motor vehicle
knowing that it has been stolen and with the intent to defraud the
owner, is guilty of a felony and shall be fined in any sum not ex¬
ceeding five hundred dollars and imprisoned not less than two years
nor more than fifteen years.

Provisions containing prohibitions or imposing duties with penal¬
ties grouped in a later section.

Sec. — Every owner of a vehicle of the first division shall, within
ten days after acquiring it, file in the office, . . .

Sec. — No motor vehicle or motor bicycle shall be operated . . .

Sec. — No person shall drive a motor vehicle or motor bicycle
upon a public highway in a race.

Sec.—-Whoever violates the provisions of this act is guilty of
a misdemeanor and shall be fined in a sum not to exceed the amounts
set forth:

For a violation of Sections 4, 6, 7 or 8, one hundred dollars.

For a violation of Section 5, twenty-five dollars.

Sec. — In case of a continuing violation of any of the provisions
of this act, each day’s continuance thereof is a separate ofifense.

Appropriation provisions.

Sec. — The sum of $50,000.00 is appropriated to the Depart¬
ment of Public Works and Buildings to carry out the provisions of
this act.

Sec. — This appropriation is subject to the provisions of “An
Act in relation to State Finance,” approved June 10, 1919, in force
July 1, 1919.

Take effect clause.

This Act shall take effect on the first day of*January, 1922.

Emergency clause.

Because of an emergency, this Act shall take effect upon its
passage.

Repeal.

“An Act to secure the enforcement of the law for the prevention
of cruelty to animals,” approved May 25, 1877, in force July 1,
1877, as amended, is repealed.

APPENDIX II. BIBLIOGRAPHY.

A Legislative Handbook, Ashton R. Williard; the most useful
discussion of American legislative practice, now unfortunately out of
print.

Statute Lazu Making, Chester Lloyd Jones; largely a restatement
of Williard and Coode.

Legislative Methods and Forms and Mechanics of Lava Making,
Sir Courtenay Ilbert; two works which constitute the most author¬
itative statement of modern English legislative methods. Of distinct
value in this country on many points.

Practical Legislation, Lord Henry Thring, Parliamentary Coun¬
sel preceding Ilbert: discussion of composition and language of acts
of Parliament,

Theory of Legislation, Jeremy Bentham; of interest chiefly as
the first effort along scientific lines to formulate principles for legis¬
lative drafting.

On Legislative Expression, George Coode; early exposition on
the phraseolog}^ of English statutes.

Statute Lava, William Eeilden Craies; largely a discussion on
the interpretation of statutes with some remarks about statute making.

Statutory Construction, J. G. Sutherland, second edition by John
Lewis; the standard work on construction of statutes.

Constitutional Limitations, Thomas M. Cooley; the standard work
on the extent of the power of American legislatures.

Reports of the Special Committee on Legislative Drafting. This
committee of the American Bar Association has been engaged for a
number of years in the collection of data concerning style, language,
arrangement, operation, methods of regulation, remedial and en¬
forcing provisions and administration. A topical plan for a manual
for legislative drafting was prepared some time ago and recently re¬
vised. This plan was an outline with chapter headings. Several of
these chapters were written, the subjects being, “Administrative Regu¬
lations”, “Penalties”, and “Provisions for Licensing and Certifica¬
tion”. The committee has discontinued the collection of data and is
preparing a final report on the material already collected.

Statute Lazv Making in lozva. This is the most comprehensive of
a number of State publications, a list of which follows. These are
mainly of value in the particular State where compiled.

California,

Legislative Manual and Form Book.

Hints on Dravaing Legislative Bills,

Indiana,

iS Legislative Bill Drafting.

Hints on Bill Drafting.

Scientific Lazv-inaking.

Maryland,

Scientific Assistance in Lazv Making.

North Dakota,

Statute Lazo Making zvitli Suggestions to Draftsmen.

South Dakota,

Titles of Laws.

INDEX.

AMENDATORY LEGISLATION, 75
acts expressly amendatory, 79, 85
amendment by reference 75
incorporation by reference, 77
titles, 19, 85

AMENDMENT BY REFERENCE. 75

AMENDMENT OF BILLS, 88

APPROPRIATION
form, 91

mention of, in title, 18

ARTICLES

division of bill into, 29
headings for, 29

BIBLIOGRAPHY, 92

BILL-DRAFTING
essential points, 83
general scope, 7

CONFERENCE REPORT, FORM, 88

CONSTITUTIONAL PROVISIONS
affecting bill-drafting, 7, 9, 11
amendatory legislation, 75
emergency, 21
enacting clause, 32
laws effective July 1, 21
salary of State officer, 14
sidxject, 13
title, 15

CONSTRUCTION STATUTE, 58

DEFINITIONS, 58

DETACHED CLAUSES, 34

DIRECTORY PROVISIONS, 53, 57

EJUSDEM GENERIS RULE, 41

EMERGENCY CLAUSE, 21, 27, 91

ENACTING CLAUSE, 32
constitutional provision, 32
location, 32

ESSENTIAL POINTS IN BILL-DRAFTING, 83

EXPEDIENTS, SELECTION, 7, 9

EXPRESSIO UNIUS RULE, 42

FORMS, 84
amendatory bills, 85

amendments to bills in General Assembly, 88
conference report, 88
provisions
appropriation, 91
authorizing hearings, etc., 89
emergency, 91
penal, 90, 91
referendum, 90
repeal, 91
take effect, 91
titles

amendatory, 85
independent, 85

IMPERATIVE PROVISIONS, 53, 54

INCORPORATION BY REFERENCE, 77

INDEFI-NITE AND UNCERTAIN STANDARDS,
45

LEGAL PRINCIPLE, CONCEPTION, 7
LEGISLATIVE POWER, LIMITATIONS, 7, 9
LIBERAL INTERPRETATION PROVISION, 68
MANDATORY PROVISIONS, 53, 57
“MAY” AND “SHALL”, 53
PARTIAL INVALIDITY SECTION, 66

PENALTIES, 18, 27, 62, 90, 91
PERMISSIVE PROVISIONS, 53, 54

PHRASEOLOGY,'40
construction statute, 58
definitions, 58
expressio imius rule, 42
indefinite and uncertain standards, 45
“may”, “shall”, 53
penal provisions, 18, 27, 62, 90, 91
preciseness-ejusdem generis, 41
tense, 40
use of

“and”, and “or”, 63

indirect expressions, 62

masculine and feminine, 60

“said”, “such”,* “whatsoever”, etc., 62

sample forms, 64

singular and plural, 60

synonyms, 61

“that” at beginning of section, 61

INDEX—Concluded.

PRACTICAL FACTORS IN BILL-DRAFTING,
70

act construed as whole, 70
influence of other acts, 71, 72
influence of common law, 72
influence of judicial decisions, 73
influence of extraneous facts, 71

PREAMBLES, 30
form of, 30
in resolutions, 31
when proper, 31

PRECISENESS, 41
PROVISOS, 37
PUNCTUATION, 65
REFERENDUM, 90
REPEALS

form, 91 .

general, 68
position in hill, 28

SALARIES OF STATE OFFICERS
constitutional provision, 14

SECTIONS

division of hill into, 28
length, 28
' numbering, 29

SENTENCES
construction, 33
detached clauses, 34

“SHALL” AND “MAY”, 53

SHORT TITLE, 26

STATUTES

problem of constructing, 7

SUBJECT MATTER, ARRANGEMENT, 23
definitions, 26
emergency clause, 27
equal provisions, 24
leading provisions, 24
natural sequence, 24, 27
repeals, 28
short title, 26

statement of legal case, 26

. subordinate provisions, 27
take effect provision, 27

SUB.JECT, 13

salaries of state officers, 14
singleness, 13

TAKE EFFECT PROVISION, 21, 27, 91

TENSE, 40

TITLE, 13, 15, 85
amendatory,’ 19, 85
amendment of 19, 87
mention in
appropriation, 18
penalties, 18
referendum, 18
rejieal, 18
short, 26

WHEN LAM’S TAKE EFFECT, 21
after July 1, 21
emergency, 21

Pressboard
Pamphlet
Binder

Gaylord Bros.Inc.

Makers

Syracuse, N. Y.
PAT )AN. 21. 1908

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