USA > Illinois > Cook County > History of Cook County, Illinois : being a general survey of Cook County history, including a condensed history of Chicago and special account of districts outside the city limits : from the earliest settlement to the present time, volume II > Part 20
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This charter also gave to the city councils very great legislative power respecting matters of local concern. The Supreme court of Illinois has decided that the provision of the Constitution of 1870 prohibiting local and special legislation did not apply to the city councils of cities, but only to the General Assembly. The city councils, therefore, are not affected by this restriction; and, indeed, very much of their legislation must, from the necessities of the case, be special as well as local.
As, the act of Congress of 1845 was an act passed to extend the admiralty jurisdiction over the Great Lakes, it was found in prac- tice that it was a limitation of the admiralty jurisdiction instead of an extension of it over the Great Lakes, so that in the year 1851 a case came before the Supreme court of the United States, known as the case of "The Genesee Chief" (reported in the 12th of How- ard, at page 441), in which the Supreme court of the United States decided that the act of Congress passed on the 20th of February, 1845, was consistent with the Constitution of the United States. Itdid not rest, however, upon the power granted to Congress to regulate commerce among the several states, but was put upon the ground that the lakes and navigable waters connecting them were within the scope of admiralty and maritime jurisdiction, as known and understood in the United States when the Constitution was adopted, that the admiralty and maritime jurisdiction granted to the Fed- eral government by the Constitution of the United States is not limited to tide waters, but extends to all public navigable lakes and rivers, where commerce is carried on between different states or with foreign nations. The opinion was delivered by Chief Justice Taney. This decision is a valuable state paper, construing the Constitution of the United States in two of its most important national provisions-the power to regulate commerce among the several states and with foreign nations; and that clause of the Con- stitution which gives exclusive admiralty jurisdiction to the Federal government.
For several years the admiralty courts bordering on the lakes confined the jurisdiction, however, as limited by the act of Con-
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gress in 1845, and in the case of Allen et al. vs. Newberry (21st Howard, 244) the Supreme court decided that admiralty courts had not jurisdiction on the lakes of a contract of affreightment of goods between ports of the same State.
The first case reported in which the jurisdiction of the admiralty over the Great Lakes occurred in 1853 in the District court at Chicago, known as the case of "The Flora" (1st Bissell, 29), and was decided by the Hon. Thomas Drummond, who had been ap- pointed, in 1853, district judge of the United States for the district of Illinois. That learned judge, with a true prophetic vision, pointed out that the act of 1845, instead of being an extension of the admiralty jurisdiction of the United States over the Great Lakes in its plenary sense, was but a limitation upon it, and that the Dis- trict courts, as Admiralty courts, had an inherent jurisdiction proprio vigore over cases of admiralty jurisdiction independent of and without the aid of the act of Congress of 1845, and was regu- lated by the Judiciary act of 1789.
The office of corporation attorney from 1849 down to February, 1896, was filled by the following named lawyers : O. R. W. Lull, 1849; Henry H. Clark, 1850; Arno Voss, 1852; Patrick Ballingall, 1854 ; J. A. Thompson, 1855; J. L. Marsh, 1856; John C. Miller, 1857; Elliott Anthony, 1858; George F. Crocker, 1859; John Lyle King, 1860; Ira W. Buel, 1861; George A. Meech, 1862; Francis Adams, 1863; Daniel J. Driscoll, 1865; Hasbrouck Davis, 1867; Israel N. Stiles, December, 1869; Egbert Jamieson, 1873; Noel B. Boyden (prosecuting attorney), 1875; Richard S. Tuthill, 1876; Julius S. Grinnell, 1879 to 1885; Hempstead Washburne, 1886; George F. Sugg, 1889; Jacob J. Kern, 1891, resigned November 21, 1892; George A. Trude, November, 1892, and Roy O. West, 1895.
The office of corporation counsel was created under authority of Section 80, Article VI, of the act to provide for the incorpora- tion of cities and villages, approved April 10, 1872, and adopted by Chicago in 1875. This department was created and rules for its government prescribed in Chapter VI, Article I, of the ordinances passed and approved April 18, 1881. It is a branch of the depart- ment of law which embraces the corporation counsel, the city at- torney and the prosecuting attorney, with the first named as head of the department. The duties of the counsel include the superin- tendence of all law proceedings in which the city is interested, the drafting of ordinances, contracts, leases, deeds, etc., etc., and the giving of written opinions on municipal questions to the mayor, Council, and chiefs of departments. The first corporation counsel was Francis Adams, appointed in 1881. F. S. Winston, Jr. (act- ing, 1883; George M. Haynes, 1886; John W. Green, 1887; Jonas Hutchinson, 1889; John S. Miller, 1891; Adolph Kraus, 1893; Harry Rubens, 1894; John M. Palmer, 1894, and G. W. Beale,
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1895, afterward filled the office, each of them taking a very active part in guarding the interests of the city against the encroachments of corporations.
The office of prosecuting attorney was created at the same time as that of corporation counsel, the mayor nominating the first in- cumbent in May, 1881. His duties were to prosecute all actions for violations of the ordinances before justice of the peace (and, on appeal, before the Criminal court) when so requested by the Coun- cil or by the chief officer of any of the departments or by a citizen, when in his judgment the complaint of the citizen is just. The first incumbents of this office were as follows: Charles S. Cam- eron, 1881; M. R. M. Wallace, 1883; George M. Rodgers, 1886; Benjamin F. Richolson, 1887; John E. May, 1889; Stephen A. Douglas, 1891; C. A. Dibble, 1892; William C. Asay, 1893, and W. H. Tatge, 1895.
The South, West, and North Park commissioners were practically three great taxing powers, armed with vast authority. The act of February 24, 1869, and subsequent acts gave the South Park com- mission very extraordinary powers; that of February 27 of the same year conferred equal privileges on the West Side Park com- missioners, while the first in the series, that of February 8, 1869, gave powers to the Lincoln Park commissioners so contrary to public interest that it was declared invalid and the act of June 16, 1871, substituted. Special taxation and special assessment were the main reliance of these quasi municipal corporations, but the general park tax was not inconsiderable.
The Board of Education, working under the act of May 21, 1889, have power to appropriate for school purposes a sum equal to 2 per centum of the assessed value of real and personal property and 3 per centum for building purposes, plus moneys receivable from the State school fund, rents and other sources. Expenditures exceed- ing the total of the legal revenue are made at the risk of the board, as the city is not responsible for a dollar over the 2 per centum al- lowed for educational purposes, plus the rentals and other ascer- tained revenue. In 1894 the levy for school purposes amounted to 2.29 per centum, for general city purposes 2 per centum, and for interest on bonded debt .47 per centum, or $4.76 on each $100 of valuation. In 1895 the school tax amounted to $3.12 and the city tax for general and interest purposes to $2.53, or a total of $5.65 on every $100 of assessed value. This of course did not include the special assessments for improvements, water rents, and other direct revenues of the city, amounting to millions annually. The Supreme court decided that the 2 per centum limit for gen- eral city and the same limit for educational purposes cannot be exceeded; but, notwithstanding this, through the several agencies for taxation, the limit is unobserved, and, for all the practical pur- poses of aldermen, may not be until more stringent laws are adopted for municipalities.
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To recount the names of the exponents of municipal law in Chicago would be to give a list of 75 per centum of the attorneys who selected this city for a home between 1833 and 1909. The in- cumbents of the office from 1833 to the spring of 1849 wcre: John Dean Caton, appointed in 1833; came to Chicago the same year, established the first law office; died in 1895. Edward W. Casey, 1834; came in 1833, returned to the East in 1838, and in recent years was a citizen of New Hampshire. N. B. Judd, 1837; came in 1836; was minister to Berlin, member of Congress, and Federal officeholder in later years. Samuel L. Smith, 1839; came in 1838; died of cholera in 1854. Mark Skinner, 1840; came in 1836; was elected judge of Common Pleas in 1851. George Manierrc, 1841; resigned July, 1843; came in 1835; elected circuit judge in 1855; died in 1863. Henry Brown, 1843; came in 1836; died in 1849. Henry W. Clarke, 1844; came early in the '40s. Charles H. Lar- rabee, 1846; located here in 1845. Patrick Ballingall, 1847; grad-/ uated from the bar to the bench in 1843; and Giles Spring, in 1848; came to Chicago in 1833, was elected judge of County court 'in 1849, and died in 1851.
The liability of the municipality for defects in the construction of sidewalks, bridges, streets, sewers, ditches, etc., is very clearly defined. In the celebrated case of Chicago vs. Keefe (114 Ill., 225) a number of apothegms are given, from all of which it may be de- duced that an action lies against a municipality for damages re- sulting from its negligence in keeping the streets and sidewalks in repair and in a reasonably safe condition.
The powers of the public under municipal law are sometimes car- ried into the smallest affairs. The trees which Brown, Jones, and Robinson planted a few years ago between the sidewalk and thc curbstone and on which they lavished water, fertilizers, care, and' labor do not belong to them. These street shades and ornaments are the property of the city as much as the street lamp, and may not be removed by the abutting property owner without the consent of the municipality. This little question was carried into court some years ago by a stubborn baker and is reported in 81 Ill., 108.
The sidewalk and half the strcet, paid for directly by the im- provers of the street, are also public property, to which they have access and on which they must conduct themselves as modestly as the immigrant who arrived last week.
In 1883, when the question of the relation of street railroads to the city was discussed, the old ordinances of 1858, granting rights for a term of twenty-five years, played an important part in the discussion. It may be stated that the contracts of 1858 provided that the city could become owner of the tracks, rolling stock, etc., at an appraised price. The legislative acts and city charters werc all examined closely for an authority upon which the city could end the street railroad monopoly, but the opinion of Attorney Adams
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was not favorable to the city's claims under the contract and hence the companies' privileges were extended for twenty years, or until 1903, a condition of the extension being the payment of an annual license fee of $50 a car by the companies. Richard S. Tuthill, who was city attorney in 1876 and subsequent years, was employed to defend the city's privilege of imposing this license before the Su- preme court.
The act of 1861 amending the city charter countenanced the Board of Public Works, which was organized May 6, that year. The charter of 1863 introduced other novelties, the special assess- ment plan being given full license. The Superior court of Chicago ruled against this feature in 1864, and little could be done in the way of improvement until the opinion of the Supreme court would be rendered. The opinion came in 1865, reversing the judgment of the Superior court and making it possible for the Council to carry out improvements which 'contractors or lot owners might suggest. The Nicholson pavement and hundreds of seemingly good things followed thick and fast, until the great fire came to hide the mistakes of the authorities, the tricks of the contractors, and the duplicity of the property owners.
The ordinances for the elevation of the railways are the sequel of that issued in the spring of 1895. It is one of the results of the entente cordiale between the city administration and the rail- road companies, and, altogether, a most beneficial one for both par- ties to the transaction. The companies saw the handwriting on the wall demanding the elevation of tracks and the city saw that it was a duty to make the expensive alternative as light a burden as possible for the railroad companies.
The unconstitutionality of the annual city subscription to the Washingtonian home, discovered only in 1895, after Chicago had paid over to that concern large sums of money, is an evidence that once in awhile the city officers learn their duty and follow it. On October 11, 1895, the Illinois Supreme court decided that it was a private corporation and that the sums paid toward its support by the city should never have been paid.
Chicago had experienced the effect of municipal law for two years before her pioneers understood what such a law implied. In April, 1831, the commissioners of Cook county laid down rules for conducting taverns, granted licenses, and exercised all the pow- ers of a village council. The excesses and tyranny of the com- missioners were tolerated by the precocious villagers until August 5, 1833, when they asked for village or town government. How they did push the subject forward is shown in the fact that on Au- gust 10 the twenty-eight voters assembled to elect officers. In December following John Dean Caton was appointed corporation counsel. He was followed by Edward W. Casey in 1834, and thus the Board of Trustees had the advice of two pioneer attorneys in
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directing village affairs. The borrowing of $60 in October, 1834, and of $50,000 in July, 1836, form an index to the work of the first . corporation attorneys and to the rapid advance of the village. The city charter of 1837, the appointment of N. B. Judd city attorney, and the issue of $5,000 in scrip speak of the growing municipal idea, but not until 1846, when George Manierre, a former city attorney, proposed raising moneys for public improvements by special assess- ment, did the villagers stop to think of the powers loaned to their councilman by the State. All precedents were not yet laid down. The railroad interests presented work for aldermanic brains in 1848, and in 1849 the gas company appeared, asking to contract with the city for lighting the streets. In 1851 the demands of the Michigan Southern Railroad company for right of way and of the citizens for extending every aid to that and other companies seek- ing terminals here, increased the work of the alderman, while the calls of the Chicago City Hydraulic company for the privilege of supplying the citizens with water added to the complications of the time.
The year is a memorable one in the story of Chicago's council; for great favors were asked of the city which the city could not easily refuse to grant. Then the battle in the Council to increase the liquor license from $50 to $100 annually and and the partnership of the city in the construction of the county building occasioned trials of patience and diplomacy foreign to all former experiences. The issue of bonds to cover a loan of $250,000 for improving and extending the system of water supply marked the spring of 1852, proving beyond doubt that the aldermen understood the wants of the city and were determined to supply them. The city became a dealer in fuel in February, 1855, when it offered firewood at cost to citizens, no one family being permitted to purchase more than one cord. In April following the Knownothings filled the Council and city offices. The liquor license, increased in March to $300 an- nually, they surrounded with conditions which made life very un- comfortable for the German element, Sabbath laws were revived, and many acts of persecution sanctioned, until the fatal riot of April 21, 1855, brought the two sets of malcontents to an under- standing.
The laws relating to taxation in Chicago under the old Constitu- tion were subject to so many interpretations that they were open to abuse and in many cases abused. The Constitution of 1870 provided means for improving the old conditions, but the Chicago Council pretended that legislation was necessary to give strength to the article on city taxes, and went on under the old form levying and collecting taxes. The Superior court sustained the aldermen, but on January 22, 1872, the Supreme court, in the case Webster vs. City of Chicago and similar cases, set aside the decision of the Superior court, annulled tax sales exceeding $500,000, and declared
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the article of the Constitution of 1870 to have full force in the matter. In 1873 the Legislature passed a special act in opposition to the Constitution, under which city taxes were assessed, but owing to a defect in the details of the act an amendment was made, under which the taxes of 1874 were levied. The law was of course uncon- stitutional and was held by Judge Wallace of the County court. The city appealed, but in vain, for the Supreme court held, in the case of City of Chicago vs. Cooper, that the tax law and the special charter of 1875 were altogether opposed to the law of Illinois. From 1870 to 1875 Chicago expended $12,500,000 more than its revenue for that period and was determined to follow that insane rule, did not Edward Robey et al. oppose the plans of the council- men in the highest courts.
In 1875 a pamphlet was signed by the comptroller, corporation counsel, and fifteen lawyers of standing, showing the right of the city to issue scrip. The argument was used to float $4,500,000 worth of scrip. In March, 1877, an effort was made to enjoin the city from issuing the scrip, but before the Supreme court decided the case the scrip had performed its mission and was redeemed.
The powers of the City Council, the validity of the ordinances, the acts of city officials, and even the laws under which councilmen and officers acted have nearly all been tested in the higher courts, with the result that where the city authorities kept within the limits laid down in the Constitution, or acted in the spirit of laws passed in accordance with the Constitution, their transactions were legal in every particular.
The County court of Cook county, Illinois, was established in 1848 by an act of Legislature under the new Constitution adopted that year. Previous to that date from the organization of the county in 1831, such legal matters as now come under the jurisdiction of the County court, excepting probate matters, came before what was called the Court of County Commissioners. This was simply a body of three men having certain judicial powers which they exer- cised in connection with their duties as county commissioners.
The year 1848 was the beginning of a new era, not only for the city of Chicago, but for Cook county and for the State of Illinois. The possibilities of the city were rapidly becoming apparent, and though, as yet, there was no evidence that she was destined to grow into the mighty giant of to-day, it could be seen that she was fast gaining power, and that she would surely, in the near future, reflect her glory upon both her county and State.
Thus to the growth of Chicago was due the growth and impor- tance of Cook county, and this growth and importance made it nec- essary for the establishment of a court having a wider and more extensive judicial authority than the Court of County Commis- sioners. And thus was the County court of Cook county established under the new Constitution of 1848.
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The probate matters of Cook county were, under an act of Jan- uary 2, 1829, in the hands of probate judges chosen by the General Assembly, who held office during "good behavior" or until they should resign. The first probate judge thus appointed by the Gen- eral Assembly was Richard J. Hamilton. He served from February, 1831, to the latter part of 1835, when he was succeeded by Isaac Harmon. In 1837 a new order of things was inaugurated and the probate judges were elected by the people. Charles V. Dyer was the first judge to occupy the bench under the new conditions. He was elected in January, 1837, and was followed by Walter Kimball, Mahlon D. Ogden, and Thomas Hoyne, whose term expired in 1849.
With the establishment of the County court that organization was invested with all probate authority and the judges were elected for a term of four years. This continued until 1877, when, under the new Constitution of 1870, it was provided that county courts should be courts of record and have original jurisdiction in all matters of probate. This Constitution also made provision for the establish- ment of a Probate court, which was done, and Joshua C. Knicker- bocker was its first judge.
It will thus be seen that the Probate court and the County court of Cook county were practically the same until the divorcement, in 1877, under the new Constitution. But, besides these matters of es- tates and wills, the new County court established under the Con- stitution of 1848 had jurisdiction over all matters relating to taxes and revenue; the transaction of county business; insanity and in- solvent cases; the appointment of conservators for lunatics, idiots, drunkards, and spendthrifts. At different times, subsequently, some important changes have been made in the province of this court, which will be referred to in their proper order. As it was, however, in the early day of its establishment, the matters over which it had jurisdiction show it was an organization of vast importance, and one which has played a prominent part in the judicial history of Cook county and of the great metropolis of the West.
The first judge of the County court proper was Henry L. Rucker. He was elected to office in 1849 and served two terms. Judge Rucker had been before the people for a number of years. He had held the office of justice of the peace, and he achieved no little prom- inence from cases arising from the famous beer riots in the spring of 1855. The saloon faction interested in this fight contended that as the cases were criminal an indictment was necessary, and that they were out of the jurisdiction of a Police court. Justice Rucker claimed that he had the right to try the cases, and, while this matter was being settled, feeling ran so high that a riot was precipitated, with more or less serious results.
Judge Rucker's firmness during those exciting days was warmly commended and his reputation as a sound and able judge was in-
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REV. FRANCIS GORDON, C. R.
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creased. He was undoubtedly one of the best probate lawyers in Cook county at that time, and this being so strong a factor in the business of the County court is no doubt one primary reason for his selection as county judge. There was one custom prevailing at that time, followed by both Judge Rucker and his successor, which has been rather severely criticised. The custom was that of making out certain classes of papers upon which the county judge must pass and the collection of a fee for doing it. In the light of these later days it does certainly look absurd for a man in the capacity of a lawyer to draw up certain instruments for which, if they are passed upon by the county judge, he is to receive a fee, and have the county judge and the lawyer be one and the same individual. But that custom, as well as some others which laid this court open to severe censure, has long ago been abolished.
The insolvent debtor law, as it stood at that time, afforded the best opportunities for the practice of abuses. There was not, previ- ous to 1877, any statute providing for voluntary assignments. It was an easy matter then to have a man arrested for debt, and have him thrown into prison. Advantage was taken of this, and it was no uncommon thing to have a small army of debtors arrested on Saturday afternoon, the hope of the creditor being that, in order not to be locked up in jail over Sunday, some extra effort would be made to settle matters. Great injustice was often done, and the fact that the law has practically become inoperative through disuse is per- haps the best and strongest argument against it as a just and wise measure. At least, the liberal Constitution in favor of personal liberty has had much to do with the dying out of the earlier form of the insolvent debtor law.
William T. Barron was the successor of Judge Rucker. He was elected in November, 1857, and served until 1861. Judge Barron was not only a popular member of the bar on account of his social qualities, but he was an able lawyer, and filled the position of county judge with the greatest credit to himself and to the entire satis- faction of all with whom he had to deal. Nothing of any great importance occurred during his term of office. The business of the court increased in volume, particularly in connection with probate matters.
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