McLean County, Illinois
Reuben Moore Benjamin
REUBEN MOORE BENJAMIN, the youngest son of Darius and Martha (Rogers) Benjamin, was born at Chatham Centre, Columbia county, New York, June 29, 1833. His father was a soldier in the war of 1812, and his grandfather, Ebenezer Benjamin, was a captain in the Revolutionary army.
His father and his maternal grandfather, Timothy Rogers, were of English, while his maternal grandmother, Sarah (Moore) Rogers, was of Welsh extraction. His ancestors on both sides lived in Connecticut in the colonial times. He was fitted for college at Kinderhook Academy, New York, and in 1853 was graduated with honor at Amherst College, Massachusetts.
He was principal of Hopkins Academy at Hadley, Massachusetts, 1853-54; a student in Harvard Law School, 1854-55; and tutor in Amherst College, 1855-56. In April, 1856, he came to Bloomington, Illinois, and in the following September, upon the examination certificate of Abraham Lincoln, was licensed to practice law. Shortly after his admission to the bar he became a partner with General A. Gridley and Colonel J. H. Wickizer, and remained with them as long as they continued to practice law.
In 1863 he formed a partnership with Thomas F. Tipton, afterward circuit judge and member of congress; and since then, at different times, he has been associated as partner with Jonathan H. Rowell, member of congress for several terms, Lawrence Weldon, one of the judges of the United States court of claims, and John J. Morrissey.
In 1869 he was elected a delegate to the convention that framed the state constitution of 1870, and served on the important committees of bill of rights, municipal corporations, state institutions, and schedule. The bill of rights (Article 11), as drafted by him, was adopted by the full committee and the convention with but a single change. He introduced and caused to be incorporated into that article the far-reaching provision that "no law making any irrevocable grant of special privileges or immunities shall be passed."
In his speech on the railroad article he took the position, never before held in court, that the power to limit the rates of charges of common carriers as the public good may require, is a governmental power which no legislature can irrevocably abandon or bargain away to any individual or corporation. In 1872 he was one of the counsel for the people in the celebrated Lexington case (Chicago & Alton Railroad Company v. People, 67 Ill. II). which led to the legislation of 1873 prohibiting extortion and unjust discrimination in railroad charges. He was subsequently employed as special counsel for the State Board of Railroad and Warehouse Commissioners, and assisted the attorney-general in the prosecution of the warehouse case (Munn v. People, 69 Ill. 80), which was taken to the supreme court of the United States, and being there affirmed (Munn V. Illinois, 94 U. S. 113), became the leading case in the series familiarly known in 1876 as the "Granger cases."
These cases established the constitutional power of the legislature to regulate railroad and warehouse charges, and thereby protect the public against imposition. In the later case (Ruggles v. People, 91 Ill. 256), decided in 1878, the supreme court of this state declared broadly that the legislature has the power to pass laws establishing reasonable maximum rates of charges by common carriers or others exercising a calling or business public in its character, or in which the public have an interest to be protected against extortion or oppression. In commenting on this case, the Western Jurist says: "It is probable that the people of the state are indebted for the results of this agitation as given in the above decision to Hon. R. M. Benjamin, of Bloomington, in a greater degree than to any other single individual. As a member of the constitutional convention, he made the clearest and most convincing argument in favor of the rights of the people which was delivered in that body, and as special counsel for the people in the cases of the Chicago & Alton Railroad Company v. People, and Munn v. People, have very materially contributed in establishing the principle contended for by him before the convention and established in the above cases." The Granger cases have been repeatedly followed by the supreme court of the United States: Budd v. New York (1891), 143 U. S. 517; Brass v. North Dakota (1893), 153 U. S. 391.
In 1873 Mr. Benjamin was elected without opposition to the office of county judge of McLean county. He was re-elected in 1877, and also in 1882. His judicial aptitude, the soundness of his decisions and the quiet ease with which he dispatched business won and held the respect and confidence of the bar and of the people. He preferred not to be a candidate again for the office and accordingly retired from the bench at the close of his third term, in December, 1886.
Upon the organization of the law department of the Illinois Wesleyan University (known as the Bloomington Law School), in 1874, Judge Benjamin was appointed dean of the law faculty. He is still connected with the law school, having charge of the subjects of real and personal property and constitutional law. He has published the following works: "Students' Guide to Elementary Law," "Principles of the Law of Contracts," and "Principles of the Law of Sales," which are used in several of the leading law schools of the country. In 1880 the degree of LL. D. was conferred on him by Illinois Wesleyan University.
Judge Benjamin was married at Chatham, New York, September 15, 1856, to Miss Laura, daughter of Mr. David G. Woodin, who for many years was county superintendent of schools, of Columbia county. New York.
Probably the part that Judge Benjamin took in the constitutional convention had a more directly beneficial effect upon the citizens of Illinois than any other of his acts; and the arguments he brought to bear before that body, in behalf of the people, to prevent railroad corporations from unjustly discriminating against any section of the state or against any citizen, displayed such a deep knowledge of corporation law and have had such an important bearing upon the construction of law affecting corporations throughout the nation, that we herewith reproduce in full the speech to which reference has previously been made (Debates of Constitutional Convention, Vol. 2, p. 1641):
Mr. Chairman: Corporations, and especially railroad corporations, have within the last few years assumed and exercised powers incompatible with the public welfare; and perhaps there is no danger so much to be apprehended, and if possible guarded against by people of this state as that which has its source in the construction placed by the courts upon what are called legislative, or charter, contracts. In theory, railroad corporations are created for the public good. In practice, they become oppressive by being allowed, under the claim of charter contracts, to fix the rate of toll for the transportation of persons and property. Whenever the public interests demand the construction of a railroad, the legislature, without any hesitancy, authorizes the corporation to take private property the very homestead for that purpose. Whenever the same public interests require a limitation of rates of railroad charges the plea is set up that the legislature has no power, whatever, to act upon the matter. The principle of public benefit, when invoked in aid of a railroad, is all-powerful. The same principle, when appealed to for the protection of the people against imposition and extortion, has hitherto been held to be utterly powerless. The interest of individuals must yield to that of the public. The interest of the public has been declared to be subordinate to that of railroad corporations. And when we ask for the reason of this distinction between individual rights and corporation rights when we ask why it is that public interests, although paramount to individual interests, must succumb to corporate interests we are told that the legislature has made contracts whereby it has abdicated in favor of corporations the governmental powers intrusted to it by the sovereign people. I say governmental powers, because in the absence of a charter contract, the power of the legislature to regulate and limit the tolls which the owners of railroads may lawfully take, is unquestionable.
The statutes of the several states afford numberless instances of legislative limitation of the tolls of ferry, bridge, plank-road, and turnpike companies. The ordinances of the larger cities of this country limit the charges of hack, omnibus and dray lines. The statutes of our own state not only provide for the condemnation of private property for the sites of grist-mills but also limit the amount of tolls to be taken for grinding at these mills. In some of the states the charges of innkeepers and the fees of professional men, and in nearly all the states the rates of interest which money-lenders and bank corporations may lawfully take, are regulated and limited by legislative enactment. The power to make these laws, and a multitude of others of like character, rests on the right and duty of the legislature to protect the people by statutory regulations against imposition and extortions. Upon authority and principle it may be safely asserted that, in the absence of charter contracts to the contrary, the legislature may from time to time regulate and limit the tolls which railroad companies may lawfully take, in the same manner as the legislature may limit the tolls to be taken by ferry, bridge, plank-road and turnpike companies; in the same manner as municipal authorities may regulate and limit the charges of hack, omnibus and dray lines; in the same manner as the tolls at gristmills, the charges of innkeepers, the fees of professional men, and interest on loaned money may be regulated and limited. These are governmental powers; and by the term "governmental" I here mean not judicial but legislative powers. To declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislative. The law is applied by the judicial department and made by the legislative. It is both the right and the duty of the legislature not to await the action of the judiciary, where the common law has furnished no adequate remedies for existing evils, but to take the initiative and place limitations upon tolls and charges, and fees and interest, whenever such limitations are essential to the public good; provided, always, that the legislature has not bartered away, absolutely beyond recall, to extortioners, the governmental powers whereby it might otherwise protect the people against their impositions. And this brings us directly to the question, whether or not the governmental powers entrusted to the legislature, to be exercised for the public good, as occasion may require, are the subject matter of contract, of mere bargain and sale.
The following provision was incorporated in the constitution of 1818, and retained in that of 1848:
The powers of the government of the state of Illinois shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to-wit: Those which are legislative to one; those which are executive to another; and those which are judicial to another. Constitution of 1848, Article 2, Section I.
I maintain that under this constitutional provision, which has been in force ever since this state was organized, the legislature has had no power as a party to make a contract the effect of which would be to control or embarrass its governmental powers and duties. To hold otherwise is to affirm that the legislature may abdicate the authority and relieve itself of the responsibility conferred and imposed upon this department of the government by the sovereign people of the state.
"The people of the state of Illinois, grateful to Almighty God for civil, political and religious liberty confided" that is the word confided to the general assembly those powers of the government of the state, which are legislative for what purpose. "In order to promote the general welfare and secure the blessings of liberty to themselves and their posterity." At the same time they declared in the bill of rights that "all power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness." The legislature of a state is in no just sense the sovereign of the state, for sovereignty is the parent, not the offspring of government. The sovereignty belongs to the people of the state in their original character as an independent community. All political power is inherent remains in the people.
In the language of Chief Justice Taney: "The powers of sovereignty confided to the legislative body of a state are undoubtedly a trust committed to them, to be executed to the best of their judgment for the public good; and no legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body unless they are authorized to do so by the constitution under which they are elected. * * * And in every controversy on this subject, the question must depend upon the constitution of the state and extent of power thereby conferred in the legislative body." Ohio Life Insurance and Trust Company v. Debolt, 16 Howard, 431.
The power to regulate the reciprocal rights and duties of common carriers and private citizens who may desire to travel upon highways constructed for the public use is, as we have seen, a governmental power one of the attributes of sovereignty confided to the legislature to be exercised for the public good. And where is the provision of our state constitution which authorizes one legislature to disarm a succeeding legislature of this power, the proper exercise of which we have been taught by sad experience is so essential to the traveling public?
In another case Justice Woodbury says: "One of the highest attributes and duties of a legislature is to regulate public matters with all public bodies, no less than the community, from time to time, in the manner which the public welfare may appear to demand. It can neither devolve these duties permanently on other public bodies, not permanently suspend or abandon them itself, without being usually regarded as unfaithful, and indeed, attempting what is wholly beyond its constitutional competency." East Hartford v. Hartford Bridge Company, 10 Howard, 534.
Now, whether railroad corporations are to be regarded as quasi-public bodies, or as private bodies, forming a portion of the community, I maintain that the regulation of rates of toll for the conveyance of persons and property upon railroads the public highways as the public welfare may demand, is a legislative duty, the permanent suspension or abandonment of which is wholly beyond the constitutional competency of the legislature. Moreover, a grant by a public agent bound in the most solemn manner not to throw away the governmental interest confided to it, is different from a grant by an individual who is master of the subject. The corporation which accepts from the legislature exemption from governmental control, knowing that it is dealing with an agent bound by duty not to impair a public right, does so at its peril. Nay, more; the corporation which accepts from the legislature a grant of any essential attribute of sovereignty, would be treated both in morals and in law as a party to a fraud upon the inherent rights of the people.
The same constitutional provision confides legislative powers to one body, executive powers to another, and judicial powers to another. If legislative powers may be disposed of by contract, why may not executive and judicial powers be sold? We all recognize the principle that executive and judicial powers are entrusted to the governor and the judges to be exercised by them while in office, and then turned over unimpaired to their successors. I believe that the day is not far distant when the courts of this country will settle down on the firm fundamental principle that no department of the government, be it legislative, executive, or judicial, can abandon, diminish or bargain away, for any consideration, or upon any pretense whatever, the governmental powers entrusted to it by the sovereign people, to be exercised for the promotion of the general welfare.
When the people in this state, in 1818, and again in 1848, confided to the general assembly the legislative power of this state, was it contemplated that the agents entrusted with these governmental powers would sell any portion of them to other organizations, or parcel them out by contract to private corporations? It is a well-settled principle that where a trust is confided to any class of persons, the trustees cannot transfer that trust to others. "What trust, what confidence is more sacred, more responsible, than the power to make the laws of a free people? The power is not only delegated to the two branches of the legislature, but there is an obligation a duty imposed upon them to make all such laws as are necessary and proper for the interests of the people, and good order of the body politic."
The language of our State constitution, reason, and sound policy, all concur in bringing us to the conclusion that the lawmaking power being entrusted to the legislature by the constitution, to be exercised as occasion may require, for the promotion of the general welfare, cannot be permanently transferred to any other body. If the courts will fall back upon this principle, we need not feel alarmed at the growth and power of corporations. They are dangerous to the people only as they are allowed, under the pretense of a bargain, to appropriate to their own purposes the governmental powers confided to the legislature.
"The great object of any incorporation," says Chief Justice Marshall, "is to bestow the character and properties of individuality on a collective and changing body of men." Providence v. Billings, 4 Peters, 562.
The creation of private corporations the bestowal of the attributes of individuality upon these ideal creatures placing them, as to legal rights, on the same footing with natural persons are proper subjects of legislative action. And we readily concede that these' ideal creatures private corporations cannot be arbitrarily destroyed by the legislature, and that the rights which they may possess by virtue of their individuality or existence are protected by the same constitution, which is the Magna Charta of the whole people.
But in the language of Justice Daniel: "The opinion seems to have obtained that the right of property in a chartered corporation was more sacred and intangible than the same right could possibly be in the person of a citizen; an opinion which must be without any grounds to rest upon until it can be demonstrated that the ideal creature is more than a person, or the corporeal being is less." West River Bridge Company v. Dix, 6 Howard, 533.
The legislature may irrevocably dispose of the lands and public buildings and other property of the state. These are the proper subjects of contract and sale. But a legislative contract to surrender forever to a private corporation any portion of the governmental powers of this State is, in my opinion, unconstitutional and void. It is unconstitutional, because the constitutional provision, which has been in force here ever since we had a state organization, confides intrusts these powers to the legislature to be exercised for the promotion of the general welfare, not to be bartered away. It is void, because it is a contract in violation of public duty, and without a competent subject matter. The legislature cannot deal cannot traffic with a sovereign right as private property.
Says Justice Daniel: ''I never can believe in that, to my mind, suicidal, doctrine, which confers upon one legislature, the creatures and limited agents of the sovereign people, the power, by a breach of duty and transcending the commission with which they are clothed, to bind forever and irrevocably their creator, for whose benefit and by whose authority alone they are delegated to act, to consequences however mischievous or destructive." Ohio Life Insurance and Trust Company v. Debolt, 16 Howard, 443.
And, right here let me ask, From what one source have the people of this state suffered more mischievous consequences than from the free exercise of the assumed right, on the part of the legislature, to sell out to railroad corporations the power of fixing and exacting from the community rates of toll without limitations? In resisting the usurpations of these wealthy and powerful corporations, we have turned our attention too much to that clause of the constitution of the United States which provides that no state shall pass any law impairing the obligation of contracts, and have not paid sufficient attention to that section of our state constitution which confides, and only confides, the legislative power of the government to the general assembly, and to that section of the bill of rights which declares that "all power is inherent in the people." We must not forget that a legislative act or charter may contain unconstitutional provisions. The real question is not one of vested rights under a contract, but one of constitutional power to make the contract. The legislature cannot change the constitution, or make a new constitution, and yet it would be doing just this if it could limit the governmental powers of a future legislature. And, therefore, I maintain that corporations are subject to governmental powers the same as individuals that the charges of railway corporations can be regulated and limited by legislative enactment, the same as the tolls of ferry, bridge, plank-road and turnpike companies; the same as the charges of hack, omnibus and dray lines; the same as the tolls of millers, the charges of innkeepers, the fees of, professional men and interest on loaned money. The powers to make these regulations and limitations are, unquestionably, legislative, governmental powers, and neither these nor any other legislative powers of a governmental nature can be irrevocably disposed of by contract to any individual or corporation. There are and can be no vested rights of governmental power in any individual or corporation except those conferred by the constitution. Will any gentleman take the position that the legislature can endow an individual or corporation with the vested right to commit a crime, or perpetrate fraud, or practice imposition upon the public? I think not. One legislature cannot, by contract or otherwise, prohibit succeeding legislatures from enacting laws for the prevention and punishment of crime, fraud and imposition. But railroad corporations declare that they have bought from the legislature the power to establish and exact the exorbitant charges they are now every day extorting from the people. Under the claim of vested rights they bid defiance to I was about to say the government; but according to the conceit of these corporations, there is no government that can control and regulate and limit their demands. Each claims to be, in this respect, a government unto itself a sovereignty within a sovereignty.
The people sooner or later will break away from the theory that a railroad, or any private corporation, can have a vested right in any governmental power. Let the next legislature enact substantially the railway laws of England, regulating and limiting the rates of freight and passenger tariffs, and I firmly believe that the courts would hold that such a re-assertion of governmental control over railroad rates is not an interference with vested rights.
The time was when city or other municipal corporations claimed that, by virtue of their charters, they held vested rights in governmental powers. Even now the legislature cannot confiscate the private property of a municipal corporation, or change the uses of its private funds acquired under the public faith. But the courts have long since held that the legislature cannot transfer to a municipal corporation irrevocable, vested rights in governmental powers. And, for one, I am ready to take the broad position that it is not, and never has been, in the power of the legislature of this state to bind its governmental capacities, by any arrangements or stipulations, with either public or private corporations, so as to disable itself from enacting laws that may be deemed essential for the public good. The sovereign people, and the sovereign people alone, by the adoption of constitutional provisions, can restrict and bind the governmental capacities of the legislature.
After Judge Benjamin ceased speaking it was apparent that his argument pleased the majority of his colleagues, several of whom rose to their feet and sanctioned what he said in no uncertain terms.
The following endorsements are copied from the reports:
(Mr. Ross) Mr. Chairman: I cheerfully subscribe to the views of the gentleman from McLean (Mr. Benjamin). I think that the convention and the people of the state owe him a debt of gratitude. It has the true ring of the doctrine that should be inculcated by all our statesmen.
(Mr. Bromwell) Mr. Chairman: I am very much gratified to see the manner in which this discussion starts in this convention. There have been doubts expressed whether this convention, upon coming to this subject, would take the proper stand to secure the rights of the people which have been so long trifled with and trampled under foot by the interpretation of the law in this state; and I agree with the gentleman from Fulton (Mr. Ross) that the community at large owes the gentleman from McLean (Mr. Benjamin) thanks for the masterly manner in which he has demonstrated the right and the power of the people, inhering in, ever living, and ever present, to command in the name of and for the people, the creatures which they have put on foot, the corporations which they have organized, in respect to the terms upon which they shall enjoy those invaluable franchises which they are lawfully permitted to enjoy.
[The Biographical record of McLean County, Illinois - S.J. Clarke Publishing Company - (1899)]
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