refusing to ascribe intent to legislature that was contrary to legal principles followed at time statute was enacted
How later courts described this case
- refusing to ascribe intent to legislature that was contrary to legal principles followed at time statute was enacted
Written by the judges who cited it.
Distinguished
Distinguished by Fogarty v. Parichy Roofing Co., 175 Ill. App. 3d 530 (1988)
Co. (1961), 22 Ill. 2d 305, 175 N.E.2d 785, is inapposite.
The opinion
Mr. Justice Hershey dissenting:
I think our decision in Kennerly v. Shell Oil Company, 13 Ill.2d 431 , was correct and should be regarded as decisive of the issue in this case. However, even if I were fully persuaded that we had reached an erroneous result in the Kennerly case, I would still be most reluctant, under the present circumstances, to overrule our previous decision. It seems to me that the reasons favoring an adherence to the doctrine of stare decisis are even more compelling in cases involving the construction of a statute than in those applying a rule of the common law. In the latter situation, there may be an occasional instance where a court, convinced that a particular rule of law should never have been enunciated or has outlived its usefulness, will overrule one of its prior decisions. In such a case, the departure from the doctrine of stare decisis is rationalized on the theory that, since the court was responsible for creating the rule of law, it may also property assume the responsibility for abandoning or changing the rule. But when a statute is being construed, the rule of law is not the creation of the court; rather, the court is seeking to discover and give effect to the intention of the legislature. A judicial construction of a statute by the highest court of the State becomes, in effect, a part of the statute itself. Therefore, any subsequent change in the law is peculiarly within the province of the legislature. Moreover, the General Assembly, meeting in 1959, had before it three different bills, each of which sought to amend the statute as construed by us in the Kennerly case. Each of these bills failed of passage. Thus, not only does the majority opinion indulge in judicial legislation, but it is legislating about a matter which the legislature itself has recently considered and upon which it refused to legislate. Judicial legislation, which, in my opinion, is rarely justified, is completely unwarranted in this case.
Mr. Chief Justice Schaefer concurs in this dissent.