People ex rel. Cason v. Ring

• Decision Date: 22 November 1968
• Docket Number: No. 41719,41719
• Citation: 41 Ill.2d 305,242 N.E.2d 267
• Parties: The PEOPLE ex rel. Raymond CASON et al., Petitioners, v. Daniel RING, County Clerk, Respondent.
• Court: Illinois Supreme Court

Page 267

242 N.E.2d 267

41 Ill.2d 305

The PEOPLE ex rel. Raymond CASON et al., Petitioners, v. Daniel RING, County Clerk, Respondent.

No. 41719.

Supreme Court of Illinois.

Nov. 22, 1968.

James W. McRoberts, Jr., East St. Louis, and Robert S. Kaucher, Belleville, for petitioners.

John M. Karns, Jr., State's Atty., and Eugene H. Widman, Asst. State's Atty., Belleville, for respondent.

UNDERWOOD, Justice.

This is an original Mandamus proceeding brought by petitioners who are residents of Centreville Township and Stites Township in St. Clair County seeking to compel respondent Daniel Ring, county clerk of St. Clair County, to conduct hearings pursuant to the provisions of sections 4--12 and 4--13 of the Election Code upon numerous applications to erase from the register of voters the names of allegedly unqualified voters. Because of the imminence of the November 5 election we issued the writ of Mandamus on October 28, indicating that an opinion setting forth the reasons for issuance would be filed later. This is that opinion.

Under the Election Code the county clerk is the county officer in charge of the registration of voters within each county outside the jurisdiction of cites having election commissions. (Ill.Rev.Stat.1967, chap. 46, par. 4--4.) It is his statutory duty to examine the records of deaths in the county each month and to cancel the registration of any voter who has died during the preceding month. (Ill.Rev.Stat.1967, chap. 46, par. 4--14.1); to record, after notification, changes of address and names of voters in the county and to erase from the register of voters the names of those no longer qualified to vote. Ill.Rev.Stat.1967, chap. 46, par. 4--16.

Since the adoption in 1943 of sections 4--12 and 4--13 of the Election Code there has been a statutorily prescribed method by which voters may apply to the county clerk for the erasure of names of unqualified voters from the register. Prior to the 1967 amendments to those sections applications to erase had to be made between the hours of 9:00 A.M. and 5:00 P.M. on the Monday and Tuesday of the second week prior to the week in which 'any' election was to be held. Upon receipt of such application it was the duty of the clerk to give the prescribed notice to the challenged voters that a hearing was to be held thereon, demanding that they appear before him to show cause why their names should not be erased from the register. Section 4--13 provided that the clerk should sit to hear applications for erasure on Thursday, Friday and Saturday of that same week, and that he should announce his decision at once after the hearing. The applicant for erasure or the challenged voter has the right to appeal an adverse decision to the judge of the circuit court, who might, at his discretion, hear the appeals on the same days as the hearings which occur before the county clerk. Although the petitioners filed applications for the erasure of many allegedly unqualified voters from the register in St. Clair County, the respondent clerk has refused to conduct hearings thereon. His refusal is predicated on the theory that the 1967 amendments to sections 4--12 and 4--13 of the Election Code do not require him to conduct such hearings for the 1968 election year but only for the election year of 1970 and years thereafter. The issue before us is one of statutory construction to determine whether the 1967 amendments to sections 4--12 and 4--13 of the Election Code were intended to deprive the citizenry in 1968 of their right prior to election day to challenge unqualified voters in any precinct in the 'township, city, village or unincorporated town' in which the challengers reside.

As originally adopted in 1943, the pertinent sentence of section 4--12 read as follows: 'Any voter or voters in the township, city, village or incorporated town containing such precinct may, between the hours of nine o'clock a.m. and five o'clock p.m. of Monday and Tuesday of the second week prior to the week in which any election is to be held, make application in writing, to the county clerk, to have any name upon the register of any precinct erased.' After the 1967 amendments, which were contained in House Bill No. 473, this sentence of section 4--12 read as follows: 'Any voter or voters in the township, city, village or incorporated town containing such precinct may, between the hours of 9:00 a.m. and 5:00 p.m. of Monday and Tuesday of the second week prior to the week in which The 1970 primary election for the nomination of candidates for State and county offices or any election thereafter is to be held, make application in writing, to the county clerk, to have any name upon the register of any precinct erased.' (Italics added.) House Bill No. 473 made similar changes in section 4--13 of the Election Code, that is, whereas the county clerk was formerly required to hear applications for erasure during the second week prior to the week in which 'any' election was to be held, now the language of section 4--13, as amended by House Bill No. 473, requires him to conduct such hearings during the second week prior to the week in which 'the 1970 primary election for the nomination of candidates for State and county officers or any election thereafter is to be held.' No provision expressly repealing the former statutes was included in the amendatory legislation, although that legislation did repeat the language of the prior statute with the changes and additions above noted. The respondent suggests that these changes in the wording of sections 4--12 and 4--13 eliminated the pre-election 'application to erase' procedure as to the 1968 elections, and that he is under no duty to conduct hearings upon the filed applications.

There are a number of cases, such as People ex rel. Martin v. Village of Oak Park, 372 Ill. 488, at p. 490, 24 N.E.2d 571 at p. 572, where we stated: 'A general rule of construction is that if an act or section of an act be amended, and the amendment does not entirely repeat the original act or section, such portions not repeated are repealed without any specific expression for that purpose. The omitted portion cannot be legislated into existence by judicial construction.' See, also, People v. Chatman, 38 Ill.2d 265, 269, 230 N.E.2d 879; Krimmel v. Eielson, 406 Ill. 202, 205, 92 N.E.2d 767; People ex rel. Hines v. Baltimore and Ohio Southwestern Railroad Co., 366 Ill. 318, 322, 8 N.E.2d 655; Miner v. Stafford, 326 Ill. 204, 208, 157 N.E. 164.

This general rule of construction cannot prevail, however, in cases where a contrary legislative intent is clearly evidenced, for 'being merely a rule for determining the intent of the legislature, it is not absolute and must yield when the intent of the legislature is otherwise indicated to be to the contrary--that the provisions of the original act or section which were omitted are not repealed. Such an intent of the legislature may be indicated by a consideration of the amendatory act in its entirety, or by a consideration of the amendatory act and the unamended sections of the original act or code as a whole, or by contemporaneous legislation on the same subject Or by other circumstances surrounding the enactment of the amendment.' (Emphasis added.) Sutherland, Statutory Construction, § 1932 (3d ed. 1943); Roth v. Northern Assurance Co., 32 Ill.2d 40, 50, 203 N.E.2d 415; Scribner v. Sachs, 18 Ill.2d 400, 411, 164 N.E.2d 481; People ex rel. Stahly v. Brady, 273 Ill. 178, 183, 112 N.E. 657; accord, Winter v. Hindin, 3 W.W.Harr. 294, 33 Del. 294, 136 A. 280.

The primary purpose of statutory construction is ascertainment of the legislative purpose and intent. To that end, consideration of the history and course of the legislation is always proper. (People v. Boreman, 401 Ill. 566, 571, 82 N.E.2d 459; Scofield v. Board of Education, 411 Ill. 11, 16, 103 N.E.2d 640.) Also apropos is consideration of the occasion and necessity for the law, the previous condition of the law on the subject, and the defects, if any, in the former law which were intended to be remedied. (Livingston v. Meyers, 6 Ill.2d 325, 332, 129 N.E.2d 12; Anderson v. City of Park Ridge, 396 Ill. 235, 72 N.E.2d 210.) Furthermore, 'It is a universally adopted rule of statutory construction that the intention of the legislature is to be gathered Not only from the language used but also from the reasons for the enactment and the purposes to be thereby attained.' (Italics supplied.) In re Estate of Curtis, 28 Ill.2d 172, 179, 190 N.E.2d 723, 727; Mid-South Chemical Corp. v. Carpentier, 14 Ill.2d 514, 517, 153 N.E.2d 72; People ex rel. Roan v. Wilson, 405 Ill. 122, 127, 90 N.E.2d 224.

A review of the legislative path leading to the adoption of House Bill No. 473, clearly indicates the absence of any intent to eliminate the erasure procedure and that a literal reading of the present language of sections 4--12 and 4--13 does not correctly reflect the legislature's general over-riding intention to continue that procedure in force for the purpose of removing from the register of voters the names of unqualified persons. The importance of the continued viability of this remedy in 1968 is emphasized by the fact that this is a presidential election year. In the legislative circumstances present here an election safeguard existing for 25 years prior to 1968 and expressly continued in 1970 and thereafter can scarcely be thought repealed, in the absence of an express repealer, as to 1968. We have concluded that this supposed gap in the applicability of this procedure to the year 1968 was due solely to an oversight by the General Assembly caused by confusion engendered by certain amendments to House Bill No. 473. That Bill amended fourteen sections and added two new sections to article 4 of the Election Code. As originally introduced in the House of Representatives, House Bill No. 473 provided a comprehensive scheme for mandatory re-registration of voters in each precinct, which...