Opinion of the Court.

before a train could, at ordinary speed, reach the crossing. And we think his calculation was correct had the train only been run at the usual rate of speed. His horses had passed the track, and a few seconds more would, in all probability, have relieved him from all danger; or, had his horses not become unmanageable on the track, he would have escaped. And there is no evidence that he had the slightest reason to suppose they would have so acted. The unusual speed of the train, then, may have, and no doubt did, contribute directly to the injury.

It is, however, said that it was negligence in defendant in error not to look along the track as he was driving across the track. This may have been negligence; but when we see that he could not see along the track until within a few feet of it, and that his horses required his immediate attention in crossing, we think the jury were warranted in finding his negligence slight when compared with that of the servants of the company.:

It is also insisted that the court erred in giving the eighth instruction asked by defendant in error without a modifica tion. The part objected to informed the jury that they might take into consideration pain and anguish of mind consequent on such injury. The instruction, is sustained by the case of The Peoria Bridge Association v. Loomis, 20 Ill. 235. But we are referred to the case of Ill. Cent, R. R. Co. v. Sutton, 53 Ill. 397, where it is said it is error to so instruct the jury unless the injury is willful, and 2 Greenleaf's Evidence, Sec. 267, is referred to in support of the rule. And that author bases the rule on the case of Canning v. Williamston, 1 Cush. 451, which, so far from supporting the doctrine, announces the reverse of the proposition. And a reference to adjudged cases shows the current of authority is the other way. In fact, we can not readily understand how there can be pain without mental suffering. It is a mental emotion arising from a physical injury. It is the mind that either feels or takes coguizance of physical pain, and hence there is mental anguish or suffering inseparable from bodily injury, unless the mind is overpow

Opinion of the Court. Syllabus.

ered and consciousness is destroyed. The mental anguish which would not be proper to be considered is where it is not connected with the bodily injury, but was caused by some mental conception not arising from the physical injury.

But in the Ill. Cent. R. R. Co. v. Sutton, supra, the error was not considered of sufficient gravity to require a reversal; and we feel required to modify the rule there announced.

We do not regard the damages excessive, in view of the character and extent of the injuries received by defendant in error. After a careful examination of the record we fail to find any error requiring a reversal of the judgment, and it must be affirmed.

Judgment affirmed.

HENRY SCHALL et al.

v.

JOHN BOWMAN et al.

1. CONSTITUTION OF 1870--municipal subscriptions. The separate articles of the constitution of 1870 of this State having been submitted to a vote of the people separately from the main body of the constitution, and adopted, became a part of the organic law of the State from and after the second day of July, 1870, and a constituent part of the same eo instanti.

J. J. Scorr and SHELDON dissenting.

APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH GILLESPIE, Judge, presiding.

Mr. M. MILLARD and Mr. CHARLES C. WHITTELSEY, for the appellants.

Mr. L. H. HITE, for the appellecs.

21-62D ILL.

Opinion of the Court.

Mr. JUSTICE BREESE delivered the opinion of the Court:

There are three questions presented by agreement on this record for our consideration, and they are these:

1st. Did the section of the new constitution (submitted separately) in relation to municipal subscriptions to railroads or private corporations take effect before the third day of August, 1870, and thereby annul the right of the city of East St. Louis to vote the subscription?

2d. Is "The American Bottom Lime, Marble, and Coal Company" a railroad company within the meaning of the law authorizing municipal subscriptions to the capital stock of railroad companies?

3d. Is the act incorporating said company, or the act amending and reviving the same, of which exhibits C and D to the bill are copies, in conflict with that part of section 23, article 8, of the constitution of 1848, which is as follows, viz: "And no private or local law which may be passed by the general assembly shall embrace more than one subject, and that shall be expressed in the title."

We have confined our attention to the first question, as an affirmative answer to that settles the controversy.

We have examined the constitution with care, aided by the able arguments of counsel, and can come to no other conclusion than this: That the separate articles of the constitution of 1870, by the vote of the people taken on the second day of July of that year, became a part of the organic law of the State from and after that day, and a constituent part of the same eo instanti.

The schedule of the constitution of 1870, section 8, provides as follows: This constitution shall be submitted to the people of the State of Illinois, for adoption or rejection at an election to be held on the first Saturday in July, A. D. 1870, and there shall be separately submitted at the same time for adoption or rejection (among other sections) the following: The section relating to municipal subscriptions to railroads or private corporations. That section is in these words:

Opinion of the Court.

"No county, city, town, township, or other municipality, shall ever become subscriber to the capital stock of any railroad, or private corporation, or make donation to, or loan its credit in aid of such corporation; provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized under existing laws, by a vote of the people of such municipalities prior to such adoption."

Section 10 of the schedule, provides a form of the ticket to be voted, containing the general and special propositions, one of which is, "For the section relating to municipal subscription to railroads or private corporations."

Section 11 provides, that "the returns of the whole vote cast, and of the votes for the adoption or rejection of this constitution, and for or against the articles and sections respectively submitted, shall be made by the several county clerks" to the secretary of State, etc.

Section 12 provides, "if it shall appear that a majority of the votes polled are 'for the new constitution,' then so much of this constitution as was not separately submitted to be voted on by articles and sections, shall be the supreme law of the State of Illinois, on and after Monday, the 8th day of August, 1870; but if it shall appear that a majority of the votes polled were 'against the new constitution,' then so much thereof as was not separately submitted to be voted on by articles and sections, shall be null and void."

And it further provides, if a majority of the votes polled, are for either of the sections separately submitted, relating respectively to the " Illinois Central Railroad," "Minority Representation," "Municipal Subscriptions to Railroads or Private Corporations," and "The Canal," then such of said sections as shall receive such majority, shall be a part of the constitution of this State.

The election was held on the second day of July, 1870; the returns were made within twenty days thereafter, in pursuance of section 11, and on the 26th of that month the official can

Opinion of the Court.

vass was made, and on the 27th the governor issued his proclamation declaring the result.

The election in the city of East St. Louis, authorizing the subscription in question, took place on the 3d day of August, 1870. Collating the provisions of the constitution bearing on this question, as we have done, it seems difficult to reach any other conclusion than this, that whatever might be the fate of the new constitution as a whole, the separate articles voted, in receiving a majority of the votes cast, became ipso facto, and eo instanti a part of the organic law of the State. To this conclusion the mind must be led in considering the language used in connection with the object to be attained, and this involves a consideration of the evils of the old system, to remedy which a weighty obligation rested upon the convention.

The provision in question was so framed that it could, appropriately and effectually, become a part of the organic law, without the disturbance of any of its elements, and was a declaration of the people on the 2d day of July, 1870, that from and after that day, no matter what may become of the new constitution, no county, city, town, township, or other municipality, shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to, or loan its credit in aid of such corporation.

The passion for subscriptions by the municipalities, to every conceivable project presenting itself in a corporate form, was so violent, and prevailed so extensively throughout our State as to demand a speedy, prompt, and efficient remedy.

Under the constitution of 1848, these subscriptions were authorized for corporate purposes, and the taxing power was legally exercised to meet their exigencies. To such an extent had it progressed prior to July 2, 1870, that counties, towns, and cities in this State had become involved to the extent of millions of dollars for which the property and labor of their people were forever pledged. Article 9, section 5, constitution of 1848.

We are unable to find any thing in the constitution itself, or in the schedule thereto, militating against the view we have taken, that this separate article of the constitution of 1870