Fergus v. Marks

• Decision Date: 16 June 1926
• Docket Number: No. 17153.,17153.
• Citation: 152 N.E. 557,321 Ill. 510
• Parties: FERGUS v. MARKS et al.
• Court: Illinois Supreme Court

321 Ill. 510

152 N.E. 557

FERGUS

v.MARKS et al.

No. 17153.

Supreme Court of Illinois.

June 16, 1926.

Petition by John B. Fergus for a writ of mandamus to compel Adolph Marks and others, as members of the General Assembly, to meet and apportion the state into senatorial districts.

Writ denied.John A. Watson, of Chicago, for petitioner.

James J. O'Toole, Ralph E. Church, Elmer J. Schnackenberg, and David I. Swanson, all of Chicago, for respondents Griffen and others.

M. P. Rice, of Lewiston, Truman A. Snell, of Carlinville, Ben L. Smith, of Pekin, Thomas L. Fekete, Jr., of East St. Louis, and Jesse L. Deck, of Decatur, for respondents Bohrer and others.

West & Eckhart, of Chicago (Roy O. West, of Chicago, of counsel), for respondent MacMurray.

Robert H. Farrell, of Chicago, for respondent Haenisch.

Maxwell Landis, of Chicago, for respondent Marinier.

HEARD, J.

Section 6 of article 4 of the Illinois Constitution of 1870 provides:

‘The General Assembly shall apportion the state every ten years, beginning with the year 1871, by dividing the population of the state, as ascertained by the federal census, by the number fifty-one, and the quotient shall be the ratio of representation is the senate. The state shall be divided into fifty-one senatorial districts, each of which shall elect one senator, whose term of office shall be four years. The senators elected in the year of our Lord 1872, in districts bearing odd numbers, shall vacate their offices at the end of two years, and those elected in districts bearing even numbers, at the end of four years; and vacanciesoccurring by the expiration of term shall be filled by the election of senators for the full term. Senatorial districts shall be formed of contiguous and compact territory, bounded by county lines, and contain as nearly as practicable an equal number of inhabitants; but no district shall contain less than four-fifths of the senatorial ratio. Counties containing not less than the ratio and three-fourths, may be divided into separate districts, and shall be entitled to two senators, and to one additional senator for each number of inhabitants equal to the ratio contained by such counties in excess of twice the number of said ratio.’

In accordance with this provision, the General Assembly in 1901 passed an apportionment act dividing the state into 51 senatorial districts, since which time it has failed or neglected to comply with this constitutional provision to pass an apportionment bill, and its members are still elected and function under the act of 1901. The petitioner, by leave of this court, has filed his petition herein asking this court to issue the people's writ of mandamus to compel the respondents, who comprise the membership of the General Assembly, to meet and apportion the state in accordance with this constitutional provision. Several of the respondents have filed answers, saying that they have fully performed their constitutional duties imposed upon them with respect to the reapportionment of the state of Illinois, and that they have, as members of the Fifty-Fourth General Assembly, taken all steps possible to urge and bring about obedience to the provisions of the Constitution; that they are in accord with the spirit and prayer of the petition and are willing and anxious to proceed further under such proper, lawful, and constitutional means as may bring about reapportionment of the state of Illinois as provided by section 6 of article 4 of the Constitution. Other of the respondents have filed their motion to dismiss the petition and quash the writ issued thereon, and for grounds of the motion say that this court has no jurisdiction of the subject-matter of the cause, that it is without jurisdiction to issue the writ of mandamus prayed for in the petition, and that the court is without power to grant the relief, or any part thereof, prayed for in the petition.

Petitioner contends that the duty imposed by the people upon the General Assembly to apportion the state after each federal census is clear and unmistakable, and the provisions of the Constitution are mandatory in this respect. The right which the petitioner sets up as the basis for the relief sought is the right of representation, which by the Declaration of Independence is said to be a right estimable to the people and formidable only to tyrants.

The writ of mandamus is a summary writ issuing from a court of competent jurisdiction, commanding the officer or body to whom it is addressed to perform some specific duty which the relator is entitled, of right, to have performed and which the party owing the duty has failed to perform. The writ of mandamus issues to compel the performance of a public duty by a public functionary in a case in which the public has a right to complain of the failure to perform that particular duty. School Inspectors v. People, 20 Ill. 526. In Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 601 (a leading case in this country on the subject of the right of mandamus against the executive branch of the government), it is said:

‘Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal principles, such writ may be directed.’

From an inspection of the pleadings in this case, it is apparent that the duty the performance of which is sought to be compelled is clear and unmistakable, so the only question to be determined is whether or not, on legal principle, the writ of mandamus can be issued directed to respondents in their official capacity.

By article 3 of the Illinois Constitution of 1870, the powers of the government of this state are divided into three distinct departments-the legislative, executive, and judicial-and no person or collection of persons. being one of these departments, may exercise any power properly belonging to either of the others, except as expressly directed or permitted by the Constitution. Neither of these three departments is subordinate to or may exercise any control over another except as is provided by the Constitution. Their status is that of equality; each acting within its own sphere independent of each of the others, so long as its action does not exceed the powers confided to it, unless particular exceptions are made to this general rule by the Constitution itself. People v. Bissell, 19 Ill. 229, 68 Am. Dec. 591. The legislative department determines what the law shall be, the executive department executes or administers the law, and the judicial department construes and applies the law. Neither one of these departments can arrogate to itself any control over either one of the other departments in matters which have been solely confided by the Constitution to such other department. The power to enact statutes is clearly solely a legislative power confided by the Constitution to the Legislature. The power to construe statutes is confided to the judiciary. In Rockhold v. Canton Masonic Mutual Benevolent Society, 129 Ill. 440, 21 N. E. 794,2 L. R. A. 420, it is said:

‘The Leg...