People ex rel. Breckton v. Bd. of Election Com'rs of Chicago

• Decision Date: 05 April 1906
• Citation: 221 Ill. 9,77 N.E. 321
• Parties: PEOPLE ex rel. BRECKTON v. BOARD OF ELECTION COM'RS OF CHICAGO.
• Court: Illinois Supreme Court

221 Ill. 9

77 N.E. 321

PEOPLE ex rel. BRECKTON

v.BOARD OF ELECTION COM'RS OF CHICAGO.

Supreme Court of Illinois.

April 5, 1906.

Original petition for mandamus by the people, on the relation of Charles L. Breckton, against the board of election commissioners of Chicago. Writ allowed.

Carl Strover, for relator.

W. W. Wheelock and John H. Batten, for respondent.

CARTWRIGHT, C. J.

The relator, a citizen of the United States and of the state of Illinois, a legal resident and voter of the city of Chicago, and a member of the socialist party of said city, filed in this court, in pursuance of leave granted for that purpose, his petition for a writ of mandamus, directed to the defendants, the board of election commissioners of the city of Chicago, commanding them to allow the said party to hold a primary election, under the act of May 11, 1901 (Laws 1901, p. 172). The petition alleges that the socialist party of Cook county is, and for five years last past has been, a political party within said city and the county of Cook; that in 1885 said city adopted the act of that year regulating the holding of elections in cities, villages, and incorporated towns, and said act, with its amendments, is in full force in said city; that defendants constitute the board of election commissioners under the provisions of said act; that at the last preceding general election for Governor the socialist party polled over 10 per cent. of the entire votes cast in said city; that the central committee of said party, at a regular meeting held December 10, 1905, determined to hold a primary election in said city in 1906, and afterwards filed with the defendants a call or application therefor in accordance with said act of 1901; that defendants denied such application, and adopted a resolution, which was spread upon the records of the proceedings of said board, reciting that the application was in all respects in conformity with the provisions of said act, but declining to issue the call on the ground that said act was repealed by an act entitled ‘An act to provide for the holding and regulation of primary elections,’ approved May 18, 1905, in force July 1, 1905 (Laws 1905, p. 211); and that the defendants for that reason, and no other, have persisted, and still persist, in refusing to allow said party to hold a primary election in pursuance of said application. The relator by his petition contends that the act of 1905, mentioned in the resolution of the board, is in contravention of various provisions of the Constitution of this state and of the Constitution of the United States set forth in said petition, and for the reson is null and void; that the act of 1901 is still in full force and effect; and that it is the duty of the defendants to allow the socialist party to hold primary elections under said act of 1901, and to take the necessary steps for that purpose. The defendants have demurred to the petition, and the relator has been argued orally and by The cause has been argued orally and by printed briefs and arguments, and has been submitted for final decision on the demurrer.

The purpose of this proceeding is to test the validity of the act entitled ‘An act to provide for the holding and regulation of primary elections,’ approved May 18, 1905. The subject-matter of the act is of a legislative nature and under legislative control, subject only to the limitations and prohibitions of the Constitution. Under our political system the sovereignty is and remains in the people, and by the Constitution which they have adopted the powers of Government are divided into three distinct and separate departments-the legislative, executive, and judicial-to be exercised by each department in the manner and under the limitations prescribed by the Constitution. The people, however, reserved to themselves the ultimate sovereignty, to be exercised by means of the ballot at elections held for the purpose of choosing the persons who shall fill the several departments, or to decide any question that may properly be submitted to them, or even to modify or change the fundamental law. To protect and preserve that sovereignty the people registered their will that its exercise shall be absolutely free, and that the vote of every qualified elector shall be equal in its influence with that of every other one, by section 18 of the Bill of Rights, providing that all elections shall be free and equal. The Legislature may and ought to provide all such reasonable regulations as will make the provision of the Constitution effectual, and guard against fraud, undue influence, or oppression, and preserve the equal rights of all from interference or encroachment. In Sherman v. People, 210 Ill. 552, 71 N. E. 618, the court gave expression to the law on that subject as follows: ‘The proper and honest conduct of elections is one of the most important functions of government, and the Legislature certainly is charged with the duty of enacting such laws as will accomplish this end.’

It is undoubtedly true that, at the time the Constitution was adopted, primary elections, as such, were not within the contemplation of the convention or the people, for the reason that up to that time they had not been made part of the election system or subject to regulation by law. At that time candidates for office were nominated by means of the caucus and convention of delegates, and such nominations were purely private affairs of the political organizations. Since that time there has been a considerable extension of the election system. The election laws had already been extended by providing for registration in advance of the election, so that all electors might know beforehand who claimed the right to vote, and to make necessary investigations to determinewhether the right existed, but the voter was allowed to deposit his ballot on certain conditions, even if he had not been registered. After the adoption of the Constitution the act of 1885, before mentioned, was passed, regulating the holding of elections and declaring the result thereof in cities, villages, and incorporated towns which might adopt the act. That act creates a board of election commissioners, provides for the registration of voters in advance of the election, and prohibits an elector from voting, although otherwise qualified, if his name does not appear upon the register. While that act regulates the manner of holding elections, the provisions for registration before the election are a regulation of the election to the same extent as the provisions for depositing the ballot in the box. Other new and previously unknown provisions were contained in the act of 1891, providing for the printing and distribution of ballots at public expense, and for the nomination of candidates for public offices, to regulate the manner of holding elections, and to enforce the secrecy of the ballot (Laws 1891, p. 93), and commonly known as the ‘Australian Ballot Law.’ That act provides for an official ballot, and in connection with it regulates the nomination of candidates whose names shall be placed on the ballot, the filing of nomination papers and certificates of nomination, and for the printing and distribution of ballots at public expense. No other ballot can be used, and the provisions and restrictions of the act as to what parties and names and other matters shall appear upon it are regulations of elections equally with those provisions which relate to the actual conduct of the election on election day. It is manifest that, if an official ballot must be used, nominations of candidates whose names shall appear upon the ballot must be regulated in some way, otherwise the whole scheme would become incapable of execution. The right of the Legislature to provide for an official ballot is not questioned, and it follows that the Legislature may prescribe reasonable requirements concerning it which will not subvert or injuriously restrict the right of suffrage or conflict with the provisions of the Constitution. The act of 1905, which is now under consideration, makes further extensions and regulations for choosing candidates whose names shall be printed on the official ballot, and the legislation is of the same character as the ballot law. All these acts relate to the same subject, and in combination are designed to constitute a single and harmonious system under which the people may exercise the elective franchise and make their choice between the candidates for public offices. They all relate to elections, and are within the meaning of that word as used in the Constitution.

It seems clear that the elections protected by the Constitution are all such elections as are held under authority of law, at which qualified electors may vote; and when statutes are enacted which regulate the form of the ballot to be used, what shall appear upon the ballot, and how the candidates whose names shall so appear shall be chosen, the provision of the Bill of Rights applies to the new condition. 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 right of voters and of parties, must be regarded as an integral part of the process of choosing public officers, and as an election law. It is undoubtedly true, as urged by counsel for defendants, that it has become not only proper, but necessary, to provide additional safeguards and protection to the voters at primary elections, to the end that their will may be fully expressed and faithfully and honestly carried out, and any law having that object in view would naturally commend itself to the lawmaking...