People ex rel. Herdman v. Rose

• Decision Date: 07 May 1897
• Citation: 47 N.E. 64,166 Ill. 422
• Parties: PEOPLE ex rel. HERDMAN et al. v. ROSE, Secretary of State.
• Court: Illinois Supreme Court

166 Ill. 422

47 N.E. 64

PEOPLE ex rel. HERDMAN et al.

v.ROSE, Secretary of State.

Supreme Court of Illinois.

May 7, 1897.

Application by the people on the relation of George W. Herdman and others for a writ of mandamus to James A. Rose, secretary of state. Denied.

Maloney & Scofield, for relators.

E. C. Aiken, Atty. Gen. (D. C. Hagle and C. A. Hill, of counsel), for respondent.

CARTWRIGHT, J.

The relators, George W. Herdman, Owen P. Thompson, and Timothy Beach, presented to this court their petition for a writ of mandamus, directed to the defendant, James A. Rose, secretary of state of this state, commanding him forthwith to receive and file a certificate of nomination of the relators as candidates for the offices of judges of the Seventh judicial circuit of this state, as created by the judicial apportionment act of 1877, and to certify to the county clerks composing said circuit under said act the names of the relators as candidates for said office. Leave having been given to file the petition, the defendantentered his appearance, waiving service of process, and the cause is submitted for final determination upon the stipulation of the parties filed in the cause.

The petition alleges that the relators, who are residents of the Seventh judicial circuit as constituted by the act of 1877, were duly nominated at a regular convention of delegates representing the Democratic party of said judicial circuit, and that they presented to the defendant, the secretary of state, a certificate of such nomination, with the request to file the same, which the defendant refused to do. The defendant admits the averments of the petition, and by the stipulation referred to it is agreed that the general assembly which convened in January, 1897, duly passed an act entitled ‘An act to divide the state of Illinois, exclusive of the county of Cook, into judicial circuits,’ a copy whereof is attached to the stipulation, making a new apportionment, and that on April 23, 1897, the governor approved and signed the same. The question submitted is whether the approaching judicial election to be held on June 7, 1897, shall be held in the new circuits as formed by said act of 1897, or in the old circuits, as constituted in the act of 1877. The act passed by the general assembly and approved by the governor April 23, 1897, did not recite that any emergency existed, as provided in section 13 of article 4 of the constitution, and the claims of the relators are that it would therefore not go into effect until July 1, 1897, under the provisions of that section; that, not being in force at the time of the election, on June 7, 1897, it is unconstitutional; and that, even if not in violation of the constitution, such election cannot be held under it before the time when it will go into effect. By section 14 of article 6 of the constitution, the time for the election of judges of the circuit courts is fixed on the first Monday in June, 1873, and every six years thereafter, and the provision under which the general assembly may form new circuits and change the boundariesof circuits are contained in sections 13 and 15 of the same article. They are as follows:

‘Sec. 13. The state, exclusive of the county of Cook and other counties having a population of 100,000, shall be divided into judicial circuits, prior to the expiration of the terms of office of the present judges of the circuit courts. Such circuits shall be formed of contiguous counties, in as nearly compact form and as nearly equal as circumstances will permit, having due regard to business, territory and population, and shall not exceed in number one circuit for every 100,000 of population in the state. One judge shall be elected for each of said circuits by the electors thereof. New circuits may be formed and the boundaries of circuits changed by the general assembly, at its session next preceding the election for circuit judges, but at no other time; provided that the circuits may be equalized or changed at the first session of the general assembly after the adoption of this constitution. The creation, alteration, or change of any circuit shall not affect the tenure of office of any judge. Whenever the business of the circuit court of any one or two, or more, contiguous counties, containing a population exceeding 50,000, shall occupy nine months of the year, the general assembly may make of such county or counties a separate circuit. Whenever additional circuits are created, the foregoing limitations shall be observed.’

‘Sec. 15. The general assembly may divide the state into judicial circuits of greater population and territory, in lieu of the circuits provided in section 13 of this article, and provide for the election therein, severally, by the electors thereof, by general ticket, of not exceeding four judges, who shall hold the circuit courts in the circuits for which they shall be elected, in such manner as may be provided by law.’

In the case of People v. Wall, 88 Ill. 75, it was held that the general assembly might exercise its discretionary powers to adopt the system for judicial circuits provided for in section 15 in lieu of the prior circuits at any time, but with reference to the change of circuits after such system should be adopted it was said: ‘Although not involved in this decision, we may express the opinion we entertain that the clause referred to in section 13 might well be regarded as a restriction to the time when the legislature might change the boundaries of circuits formed under the fifteenth section after they shall have been once established in lieu of the former system, but not before.’ We are still of the same opinion there expressed, and, the system provided by section 15 having been established, the provision that new circuits may be formed, and the boundaries may be changed by the general assembly at its session next preceding the election of the circuit judges, but at no other time, both declares the power to make the changes named in the act of 1897, and restricts the exercise of such power to the session of the general assembly next preceding the election for circuit judges. Counsel are also agreed upon this question, and the first subject of discussion is what session of the general assembly is thereby designated. Counsel for the relators insist that the general assembly which convened in January, 1895, could have made a reapportionment under this section, and that such session was the one intended by the constitution. In support of this argument the case of People v. Auditor of Public Accounts, 64 Ill. 82, where the definition of the word ‘session’ given by Bouvier in his Law Dictionary is quoted and approved, is relied upon. The definition is as follows: ‘The time during which the legislative body, and court, or other assembly, sits for the transaction of business,-as the session of congress, which commences on the day appointed by the constitution, and ends when congress finally adjourns, before the commencement of the next session; the session of a court, which commences at the day appointed by law, and ends when the court finally rises.’ Under this definition it is urged that the session next preceding the election of circuit judges is a finished and completed session, and, inasmuch as the court cannot say when the present session will end, and the general assembly may not finally adjourn before the election on June 7th for circuit judges, it is not to be regarded as the session next preceding such election. It is expressly admitted, however, that in case...