People ex rel. Espey v. Deneen

Mr. Justice Farmer delivered the following opinion: At our October term leave was granted, at the relation of Charles W. Espey, to file an original petition in this court for a writ of mandamus against the Governor, Secretary bf State and State Treasurer, composing the State primary canvassing board, directing said board to certify the name of relator as one of the democratic nominees to the Secretary of State, .to be placed upon the official ballot as a candidate at the election to be held November 8, 1910, for representative in the General' Assembly for the first senatorial district. The petition alleges that the relator complied with the requirements of the Primary Election law for the nomination of candidates for the General Assembly, and that his name was duly and lawfully placed on the primary ballot as one of three democratic candidates in the first senatorial district for nomination for representative in the General Assembly to be voted for at the primary election held on the 15th "day of September, 1910; that John Griffin and Lawrence Byrne were the other two candidates on the .same ticket with relator for nomination by the democratic party for the office of representative in the General Assembly for the first senatorial district. The petition alleges that Griffin received 6078 votes, Byrne 1567 and relator 545; that, the relator being one of the three highest candidates in votes, it became the duty of the State primary canvassing board to certify his name as one of the democratic candidates to be placed on the official ballot to be voted for at the election November 8, 1910. The petition alleges that on the 5th day of October, 1910, at a meeting of the State primary canvassing "board duly called and held in the city of Springfield, said board issued a proclamation declaring that John Griffin was the only democratic nominee for representative in the General Assembly for the first senatorial district, and that it was the intention of said board, after the expiration of ten days, to file their certificate in writing with the Secretary of State certifying said John Griffin as the only democratic nominee for representative for the first senatorial district. The petition alleges that said board refused to certify the relator’s name as one of the democratic nominees for the reason that on August i, 1910, a resolution was adopted by the democratic senatorial committee for the first senatorial district determining that only one candidate for representative in the General Assembly in that district should be nominated by the democratic party at the primary election. A similar petition, except in one unimportant particular not necessary to be referred to, was also filed by leave of the court at the October term at the relation of Joseph A. Mclnerny. The Attorney General entered the appearance, of the defendants and demurred to each of said petitions. Printed briefs and arguments were filed, and as the canvassing board was required to file its certificate of tire nominations made within ten days after the completion of the canvass, the cause was set down for oral argument at the October term and was argued orally by counsel on both sides. The cases were considered at once by the court and the conclusion reached that the writs should be deniedv The decision was announced orally by the chief justice during the October term, with the statement that the reasons for the denial of the writ would be stated in an opinion to be subsequently filed. As the decision of one case is conclusive of the other, but one opinion will be filed. The cases involve the validity of an act entitled “An act to provide for the holding of primary elections by political parties for the nomination' of members of the General Assembly and the election of senatorial committeemen.” (Laws of 1909-10, p. 77.) The act was approved March 9, 1910, and went into effect July 1, 1910. It is a separate act for the nomination of candidates for the General Assembly by a primary election. Another act for the nomination of other officers by primary election was passed, approved and went into effect at the same time. Section ii of the act under consideration provides that “the nomination of all candidates for members of the General Assembly by all political parties, and the election of senatorial committeemen, as defined in section 2 of this act, shall be made in the manner provided in this act and not otherwise.” Said section further provides that the' name of no person should be placed upon the official ballot to be voted for at the election in November, 19x0, unless such person had been nominated under the provisions of the act. By section 4, September 15, 1910, was fixed as the date for holding the first primary election after the adoption of the act, and after that time the second Tuesday in April was fixed as the date for holding such primary elections. Section 5 provides that there shall be a senatorial committee for each senatorial district and provides for the election of said committee at the primary election. Subsequent sections prescribe the requirements to be complied with by a candidate in order to get his name placed upon the official primary ballot to be voted at the primary election. Section 10 requires the Secretary of State to certify to' the county clerk the names of the candidates for senatorial offices entitled to be printed on the primary ballot and the position such names shall occupy on such ballot. Said section also requires the Secretary of State to certify to the county clerk the names of the candidates for senatorial committeemen, and their names shall also be printed' on the official primary ballot. The provision of the said Primary Election law upon the construction of which the decision of these cases depends is section n. Said section reads as follows: ' “Sec. ii. At least thirty-three (33) days prior to the date of the April primary the senatorial committee of each political party shall meet and by resolution fix and determine the number of candidates to be nominated by their party at the primary for representative in the General Assembly. A copy of said resolution, duly certified by the chairman and attested by the secretary of the committee, shall, within five days thereafter, be filed in the office of the Secretary of State, and in the office of the county clerk of each county in the senatorial district. In all primaries for the nomination of candidates for representatives in the General Assembly each qualified primary elector may cast three votes for one candidate, or may distribute the same or equal parts thereof among two candidates or three candidates, as he shall see fit. And the said candidate or candidates for nomination highest in votes shall be declared nominated for the office to be filled.” Counsel for relators contend that this court having heretofore decided, in passing upon the validity of primary election acts, that a primary election law requiring all nominations of candidates for representative in the General Assembly to be made at a primary election is governed by sections 7 and 8 of article 4 of the constitution, each legal voter has the right to vote for three candidates at such primary election or to cumulate his vote upon one or two candidates, and that this right of the voter cannot be abridged or restricted by the legislature. It is also contended that the provision of section 11 authorizing a senatorial committee of a political party to fix and determine the number of candidates for representative to be nominated by that party at a primary election was not intended to authorize the committee to limit the number of' candidates the party should nominate, or to prohibit the nomination of three candidates if the electors of the district voted for the nomination of that number of candidates. It is argued that the authority of the senatorial committee to fix and determine the number of candidates to be nominated is a mere declaration of party policy, which the voters are at liberty to follow or disregard, as they see fit. If this construction is the proper one to be given to said provision of section u, it would result in the nomination of three candidates by each political party in every district where three candidates were voted for, and the canvassing board would be required to certify the names of the three candidates of each political party receiving the highest number of votes, as nominees of said party for the office of representative. It is insisted that was the legislative intent, and that by giving section n that construction the law would be subject to no constitutional objections and would be a valid law, whereas if it were construed to mean that the legislature intended conferring power upon a senatorial committee of a political party to fix the number of candidates that party should nominate, said section 11 would be unconstitutional and void. The position taken by the Attorney General is, that section xi will admit of no other construction than that the legislature intended to. confer power upon the senatorial committee to fix and determine the number of candidates to be nominated by a political party, but he contends that sections 7 and 8 of article 4 of the constitution do not apply to nominations of candidates for representative in the General Assembly, and the delegation of power, therefore, to the senatorial committee to determine the number of candidates to be nominated is not invalid. The Attorney General further contends that if this construction is incorrect the result would be that the names of three nominees for each political party would have to be placed upon the official election ballot in each district where three candidates were voted for for the nomination by the voters, and that this would nullify the constitutional provision for minority representation. It will thus be seen that each party insists that the construction contended for by the other would render section n unconstitutional and void. In our opinion the provision of section n authorizing the senatorial committee to fix and determine the number of candidates to be nominated by a political party is not susceptible of the construction contended for by relators. It seems plain from the language used that it was unquestionably the intention of the legislature to give the senatorial committee authority to fix the number of candidates that should be nominated. It was decided in Rouse v. Thompson, 228 Ill. 522, and People v. Strassheim, 240 id. 279, that the constitutional provisions with reference to cumulative voting at the election for representative in the General Assembly applied also to a primary election for the nomination of candidates for representative, and that the voter at a primary election could not be deprived of the right to vote for one, two or three candidates or„ to cumulate his vote upon one or two candidates. The act under consideration in the Rouse case authorized the voter to vote for only one candidate at the primary election for nomination for representative in the General Assembly, and if more than one candidate for that office was to be nominated by the political party the additional candidate or candidates were required to be nominated by a senatorial convention, and in making such additional nominations the senatorial convention acted without reference to the vote at the primary election. The court held that this denied the voter his constitutional right to vote for one, two or three candidates or to cumulate his vote, and was therefore invalid. The provisions of section 11 of the Primary Election law considered by this court in the Strassheim case, relating to the powers of the senatorial committee to fix and determine the number of candidates to be nominated, were identical with the provisions of section 11 of the act now under consideration, but the act before the court in the Strassheim case did not restrict the right of the elector to vote for but- one candidate for nomination, but authorized him to cast one vote for each of as many candidates as the senatorial committee had decided should be nominated. This, it was held, following the Rouse case, violated the constitutional right of the elector to vote for three candidates or to cumulate his vote, and rendered the section invalid. That section and others of the act being unconstitutional, it was held' rendered the whole act invalid, and it was not necessary to construe or .pass upon the validity of the provision relating to the power of the senatorial committee. The only difference between section n of the act considered in the Strassheim case and the present act is, that the present act authorizes the elector to cast three votes for one candidate or to distribute the same, or equal parts thereof, among two or three candidates, if he sees fit so to do, “and the said candidate or candidates for nomination highest in votes shall be declared nominated for the office to be filled.” The voter is not restricted in the number of candidates he may vote for or in his right to cumulate his vote, but the plain meaning of the section is, that the number of candidates to be nominated is to be limited to the number fixed and determined by the senatorial committee. Any number of candidates may procure their names to- be placed on the primary election ballot, and each elector may vote for three or cumulate his vote on one or two candidates, but if the senatorial committee has determined that only one candidate shall be nominated, the candidate receiving the highest number of votes at the primary election is to be the nominee, and his name, only, is to go upon the official ballot to be voted for for said office at the election. If the committee of each political party determines to nominate more than one candidate, the candidates highest in votes, to the number fixed and determined by the committee, shall be the nominees of the political party. There is not the slightest warrant in the language used to justify the construction that the legislature intended the resolution of the senatorial committee should mean nothing more than that the committee had decided it would be the best party-policy to nominate the number of candidates fixed in the resolution, but that this was to be in no sense binding upon the electors and might be disregarded by them. Section x I says, in explicit language, that the senatorial committee of each party shall meet at least thirty-three days prior to the date of the primary election, “and by resolution fix and determine the number of candidates to be nominated by either party at the primary for representative in the General Assembly.” There is no more reason for holding that the legislature did not mean what it said but meant something else, than there would be for saying that the legislature did not mean what it said when it said in section i that all candidates for members of the General Assembly should be nominated at a primary, election but meant that they should be nominated at a delegate convention. It never was the intention of the legislature to pass a law the effect of which would be to require in any district that each political party should nominate three candidates. This could only be avoided by giving the senatorial committee power to fix or limit the number of candidates to be nominated, and this the legislature intended to do by section n. If, then, sections 7 and 8 of article 4 of the constitution apply to primary elections for the nomination of candidates for representative ip the General Assembly, section 11 must be held invalid. We had supposed this question settled by previous decisions, but it is contended by counsel for respondents that it has not been so settled. The validity of the Primary Election law of 1905 was considered by this court in People v. Election Comrs. 221 Ill. 9, and it was there said (p. 18) : “The right to choose candidates for public offices whose names will be placed on the official ballot is as valuable as the right to vote for them after they are chosen and is of precisely the same nature. There is scarcely a possibility that any person will or can be elected to office under this system unless he shall be chosen at a primary election, and this statute, which provides the methods by which that shall be done and prescribes and limits the rights of voters and of parties, must be regarded as an integral part of the process of choosing public officers, and as an election law. * * * The legitimate purpose of such a law, however, must be to sustain and enforce the provisions of the constitution and the rights of voters, and not to curtail or subvert them or injuriously restrict such rights.” • In Rouse v. Thompson, supra, it was held that a primary election is an election within the purview of the constitution and is controlled by the provisions of the constitution; that the constitutional provisions apply to primary elections with the same force as they do to general elections. It was said the right to nominate candidates for representative is of precisely the same nature as the right to vote for them after they are nominated, and a primary election law for such nominations is governed by the constitution and cannot'deprive the voter of any right given him by the constitution. In People v. Strassheim, supra, we considered the validity of a provision of the act of 1908 which authorized the elector to vote at a primary election one vote each for as many candidates as the senatorial committee had determined should be nominated, and, following the previous decisions, we held said provision was an attempted abridgment or restriction of the elector’s constitutional right to vote for three candidates or cumulate his vote upon a less number, if he so desired. We know of no valid distinction or reasonable basis upon which we would be justified in holding that a primary election law is an election law within the meaning of the constitution, and that the rights of electors cannot be abridged or restricted by a primary election law for the nomination of candidates to any office except that of representative in the General Assembly, but as to that office the constitutional right guaranteed by sections 7 and 8 of article 4 does not apply. We are therefore forced to the conclusion that the provision of section 11 referred to is invalid, on the ground that it is an attempt by the legislature to confer upon a senatorial committee power to fix and determine the number of candidates for representative that shall be nominated by a political party in a senatorial district. We are also of opinion that if section ix were construed to mean that the senatorial committee is not given the power to fix and determine the number of candidates that shall be nominated but that the resolution adopted by it is a mere declaration of party policy, and that, notwithstanding the decision of the committee in fixing and determining that a less number than three candidates should be nominated, the. electors were at liberty to nominate a greater number of candidates than had been determined by the committee, and that in all districts where three candidates were voted for by the qualified electors of each political party the names of three candidates were required to be placed upon the official ballot to be voted for at the election, it would render the act unconstitutional and void, in that it would nullify the constitutional guaranty of minority representation in the General Assembly. This is conceded to be so by the Attorney General. This question was referred to in the Strassheim case, where we said: “If each political party were required to nominate three candidates it would render nugatory the constitutional provision for minority representation, for if each party nominated three candidates it would frequently, if not generally, happen that the dominant party in a senatorial district would elect three candidates and the minority party would be without representation.” Counsel for relators say this language wx mere obiter, as that question was not of controlliriaW portance in the decision of the case. Howey be, it was the deliberate expression of the/^,, entertained of the validity of any. law under the operation of which each political party mig'ht be required to nominate three candidates for representative in the General Assembly, and, whether necessary to a decision of the case or not, it was considered important, as an expression of the court’s view, for the benefit of th'e legislature, if that. body should afterwards deal with the subject of nomination of candidates for representative in the General Assembly by the adoption of another primary election law. In the report of the committee on electoral and representative reform of the constitutional convention of 1870, signed by Joseph Medill, chairman, (1 Debates of the Const. Convention, p. 561,) will be found an exhaustive discussion of the subject of minority representation in the General Assembly. It was stated in said report: “Since 1854 one of the political parties has secured, with few exceptions, all the senators and representatives at every election in' the north half of Illinois, and the other party, with equally few exceptions, has elected all the legislators from the south half of the State. Speaking in round numbers, 100,000 republicans living south of the State capital have been practically disfranchised in the legislature for sixteen years, and almost as many democrats have been excluded from all voice in making laws through agents of their own selection for an equally long period of time. For half a generation the State has been thus represented by sections instead of districts. If the alternate districts were democratic or republican there would be some amelioration of the evil. But such is not the case, and so long as the existing system of exclusive majority representation is continued there is little hope for improvement.” The proceedings of the convention show that petitions memorials were presented to it at different times ask-adoption of a constitutional provision for minority When the convention took up consideradle committee on electoral and representative reform Mr. Medill offered a substitute for the provisions embraced in the report relating to minority representation. The substitute-was adopted and became sections 7 and 8 of article 4 of the constitution. Mr. Medill addressed the convention at considerable length, as did also other members of the convention, advocating the adoption of the proposed provision and giving their reasons for supporting the plan of minority representation. (2 Debates of the Const. Convention, p. 1726.) In his address Mr. Me-dill said, in part: "There are thousands of young men and advanced minds in this State who think more highly of this proposition than of anything else we will have to offer them. Everything else will seem to them dry and unimportant in comparison with this great idea of equal representation of the whole people against exclusive representation of a part. The disfranchised and down-trodden minorities will everywhere rally to its support and secure to the new constitution, for its salce, a triumphant ratification. This great measure of reform will carry out pure democratic equality and equal rights for all men in the legislative halls; secure the equal representation of every citizen, the minor-, ity with the majority, man for man; allay partisan strife, reform legislative corruption, purify the elective system, inspire good and quiet citizens to attend the polls, enable virtuous citizens to elect pure and able representatives and to defeat bad aspirants. It will give contentment to all classes of voters, secure representation for our long-enduring republican friends in democratic Egypt, and give the swallowed-up and buried-under democrats of northern Illinois a chance, also, of being heard in our legislative halls by men of their own .selection. This plan will ‘work no harm or prejudice to either of the great parties, but will put in the legislature democrats from northern Illinois, republicans, in equal numbers, from southern Illinois, and secure to both parties representation from all parts of the State. Is not this right, just, politic and advisable?” Whatever may be thoug'ht of the wisdom of the plan of minority representation, its adoption was highly creditable to the convention, for in adopting it the members of the convention acted entirely independently of partisan feeling and bias, and were controlled only by the desire that the people of the State should, as far as possible, be represented in the legislature, in some measure, by members of their own choice. But it is immaterial whether or not we agree with the convention as to the wisdom of minority representation. It became a part of the organic law of the State, and so long as it remains a part of that law the .legislature cannot by any act repeal or nullify the constitutional provision. This State and many others have constitutional provisions authorizing cumulative voting by stockholders in the election of directors or manag-ers of corporations, and these provisions were designed to enable minority stockholders to have representation in the boards of directors or managers of corporations. In California, where cumulative voting by stockholders of a corporation is authorized, it was attempted to defeat this right by providing by by-laws that but one director of a corporation should be elected at a time. The legality of this by-law came before the Supreme Court of that State in Wright v. Central California Water Co. 67 Cal. 532. The court said: “We think the power thus conferred upon a corporate elector can only be exercised, according to the constitutional provision, by allowing him to cast his ballot singly, cumulatively or distributively, at one time, for the election of directors, for if but one director at a time be balloted for, a majority of the stockholders could, by combining, cumulate their votes each time upon a single candidate and elect him, and by thus shaping and controlling the manner of election it would be in the power of the majority of the stockholders to virtually cancel the votes of the minority and deprive them of their rights to representation on the board of directors.” This is unquestionably sound, for there can be no cumulative voting where there is but one. officer to elect. The guaranty of minority representation by the constitution is a prohibition against the legislature passing a law that expressly denies that constitutional right,- or any law which, though not expressly denying the constitutional right, authorizes its defeat. What it is not competent for the legislature to do directly it cannot do indirectly, and any attempt to authorize or afford a plan for the defeat of a constitutional provision by legislative enactment is as void as an act which attempts in express terms to nullify the constitution. It is no answer- to this position to say that requir-; ing the nomination of three candidates- by each political party where three are voted for at the primary election does) not necessarily defeat minority representation, because, not-withstanding the nomination of three candidates by the; minority party, the voters could elect one member of the! house of representatives by cumulating their votes upon one! of the nominees. Unless we know less as judges than we do as men, (and this court has decided that we do not,) we know that effective cumulative voting under such circumstances is practically an impossibility. The constitution guarantees the right of minority representation, and the legislature has no power to pass any law the direct purpose or practical operation of which defeats, abridges or restricts that right. Counsel for relators argue that the public good would be best conserved by sustaining' the validity of section n and construing it to require the nomination of three candidates by each political party in all districts where that number of candidates are "voted for by the voters of said parties. If the law be so construed and sustained, it is said, it will have the beneficent effect of taking the control of primary elections and the nomination of candidates out of the hands of party bosses and managers. Counsel say in their brief: “The independent voter does not usually take the trouble to attend party primaries but usually indicates his choice of nominees at the election. A comparison of the total vote cast at primary elections with the total vote cast at important general elections in the city of Chicago during the recent elections shows that less than twenty per cent of the persons who vote at the general elections cast their vote at the primary.” From this it is argued that the party managers and bosses control the primary elections and select the senatorial committeemen. If this is true, it is not the fault of the law but the fault of the voters themselves. The law authorizes every qualified elector to cast his vote for the nomination of candidates of his choice at the primary election, and the vote of the humblest and most obscure citizen counts as much as that of the party boss or manager. If voters, as counsel say, will not “take the trouble” to attend primary elections and vote for the nomination of candidates after the legislature has afforded them the. opportunity to do so, they are in no position to say that they are not satisfied with the nominations made according to law, and ought to have a larger number of candidates to select from on the day of the election than have been legally nominated by the voters who “took the trouble” to go to the polls on primary election day. And what assurance is there that if such opportunity is afforded them on election day they would “take the trouble” to avail themselves of it any more than they would td avail themselves of the right to assist in making the nominations on primary election day? Moreover, the independent voter is not prohibited from securing the nomination, by petition, of a candidate that will meet his approval. At all events, the beneficent results that it is thought would follow from the construction of the law contended for by the relators would not justify a court in sustaining the validity of such a law, if, as we think clearly is the case with the law under consideration, it is in violation of the constitution. •Section ii being unconstitutional it invalidates the entire act, and the demurrers are sustained and the writ in each case is denied. TJ7 .. , • , Writs denied.