People ex rel. Mooney v. Hutchinson

• Decision Date: 30 April 1898
• Citation: 50 N.E. 599,172 Ill. 486
• Parties: PEOPLE ex rel. MOONEY v. HUTCHINSON.
• Court: Illinois Supreme Court

172 Ill. 486

50 N.E. 599

PEOPLE ex rel. MOONEY

v.HUTCHINSON.

Supreme Court of Illinois.

April 30, 1898.

Petition by William Mooney for writ of mandamus against William F. Hutchinson, county clerk of Will county. Writ awarded.

Wilkin, J., dissenting.

Moloney & Scofield, for petitioner.

Joseph W. Fifer (John M. Palmer, of counsel), for respondent.

CARTWRIGHT, J.

The relator, William Mooney, of Joliet, in Will county, in pursuance of leave of the court granted for that purpose, has filed his petition for a writ of mandamus, directed to the defendant, William Hutchinson, county clerk of said Will county, commanding him to receive and file a certificate of nomination of the relator for the office of state senator from the Twenty-Fifth senatorial district. The petition alleges that relator has been duly nominated by a convention held at Joliet, in said county, March 12, 1898, as the candidate of the Democratic party for senator from said senatorial district, consisting of said county of Will, as created by the act of the legislature approved June 15, 1893, in force July 1, 1893, apportioning the state into senatorial districts; that a certificate of said nomination has been duly made and presented to said defendant, and that defendant refuses to receive and file the same, for the reason that said senatorial district has been changed by the addition of Dupage county, by an act of the legislature approved January 11, 1898, entitled ‘An act to amend sections 1 and 2 of an act entitled ‘An act to apportion the state of Illinois into senatorial districts and to repeal certain acts therein named,’ approved June 15, 1893, in force July 1, 1893,' and that defendant claims that by virtue of said act of January 11, 1898, said Twenty-Fifth senatorial district now consists of Will and Dupage counties. The defendant has entered his appearance, waiving service of process, and the parties have each waived all formalities, and submit the cause for decision upon a stipulation that the facts stated in the petition are true. The question thus raised is whether the election for senators and representatives to be held in November, 1898, is to be held in the districts as created by the law approved June 15, 1893, in force July 1, 1893, or in the districts as fixed by said amendatory act approved January 11, 1898, and which, if valid, will go into effect July 1, 1898. The latter act was passed with all the formalities required by law, and was duly approved, and the decision depends upon the question whether its enactment was within the power of the legislature. It is agreed that we shall make a final order dismissing the petition or granting a peremptory writ of mandamus, according as we shall find the one or the other of these acts in force.

The duty of passing upon the constitutionality of an act of the legislature has always been regarded as a delicate one, to be entered upon with hesitation and caution, and to call for most deliberate and careful attention. The legislative and executive branches of the government have necessarily construed the constitution, and determined that they may rightfully exercise the power assumed by the passage of the act, and their decision is entitled to the highest respect. In the consideration of the question involved, the presumption is in favor of the constitutionality of the act, and it will only be set aside in case of a clear infringement of the constitution. It is to be assumed that the legislature has not only considered the question of power, but has also acted from patriotic motives, and that in this case the amendatory act was prompted by a sense of duty and justice towards the people in an attempt to secure for them a nearer approach to equality of representation in making the laws by which they are governed. It so happens that this Twenty-Fifth district selected for the settlement of the controversy was one of those used in the case of People v. Thompson, 155 Ill. 451, 40 N. E. 307, to illustrate the difference of population of different districts, and the want of equality under the act of June 15, 1893. This district was made to consist of Will county alone, with a population 24,376 less than the adjoining Twenty-Ninth district, composed of the four counties of Lee, Dekalb, Kendall, and Grundy. The presumption is that is was for the purpose of a better adjustment of rights of representation that Dupage county was added, and that the amendatory act was passed with a view to make the legislative branch of the government more nearly representative of the people in their sovereign capacity. This, however, cannot influence the determination of the case if there was a want of power to make the change, for it has always been held, as it was in People v. Thompson, supra, that the court cannot declare a statute unconstitutional and void on the ground of unjust differences not prohibited by the constitution, and within the legislative discretion, and neither can the court sustain a law where there is a want of power to enact it, merely because it is wise in policy or just in its provisions. The parties have properly raised and presented the question of the validity of the act of 1898, and, however grave we may regard the responsibility, we cannot decline the duty imposed upon us; and, if the act is found to be in conflict with the provisions of the constitution, we cannot hesitate to so declare.

The constitution divides the powers of the government into three distinct departments, and for the exercise of legislative power creates a legislative department, to be elected by the people in senatorial districts. The provision authorizing the apportionment of the state into such senatorial districts is section 6 of article 4, which provides as follows: ‘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 51, and the quotient shall be the ratio of representation in the senate. The state shall be divided into fifty-one senatorial districts,’ etc. Acting under the provisions of said section, the legislature, by the act of June 15, 1893, divided the state, according to the last federal census, into fifty-one senatorial districts, and by that act the county of Will was made the Twenty-Fifth district. The act of January 11, 1898, was in form an amendment, which remodeled and changed 43 of these senatorial districts, and in the case of the Twenty-Fifth district added to Will county the county of Dupage. Section 1 of the same article of the constitution is as follows: ‘The legislative power shall be vested in a general assembly, which shall consist of a senate and house of representatives, both to be elected by the people,’ and there are further provisions of the constitution that three representatives and one senator shall be elected in each district, and they constitute the two houses.

The passage of an apportionment act is the exercise of a legislative power (State v. Wrightson, 56 N. J. Law, 126, 28 Atl. 56;State v. Cunningham, 81 Wis. 440, 51 N. W. 724), and, if there were no other provisions relating to apportionment than the general legislative authority conferred by section 1, the legislature might apportion the state at its pleasure, at any time. There is no express denial in the constitution of the right to exercise this power whenever the legislature may see fit, and it is therefore argued for the defendant that it may be exercised at any time, and that the legislature may make an apportionment whenever they choose. This does not follow, however, and it is not essential, in order that the constitution may operate as a prohibition, that it shall contain a specific provision that apportionments shall not be made otherwise than according to its provisions. The general principles governing the construction of constitutions are the same as those that apply to statutes. Potter, Dwar. St. 654; 6 Am. & Eng. Enc. Law (2d Ed.) 921. The use of negative words would be conclusive of an intent to impose a limitation, and they are used in some instances in the constitution, but their absence is not conclusive of the opposite. Where there are provisions inserted by the people as to the time when a power shall be exercised, there is at least a strong presumption that they design it should be exercised at that time, and in the designated mode only; and such provisions must be regarded as limitations upon the power. Cooley, Const. Lim. (6th Ed.) 94. If legislative power is given in general terms, and is not regulated, it may be exercised in any manner chosen by the legislature; but where the constitution fixes the time and mode of exercising a particular power it contains a necessary implication against anything contrary to it, and by setting a particular time for its exercise it also sets a boundary to the legislative power. If a power is given, and the mode of its exercise is prescribed, all other modes are excluded. Sedg. St. & Const. Law, 31. The legislature must keep within the legislative powers granted to it, and observe the directions of the constitution. Suth. St. Const. § 26. This doctrine was applied in State v. Wrightson, supra, where an apportionment of assembly districts in New Jersey was in question, and it was said: ‘In the construction of statutes it is a cardinal rule, which applies as well to constitutional provisions, that when the law is in the affirmative that a thing shall be done by certain persons or in a certain manner, this affirmative matter contains a negative that it shall not be done by other persons or in another manner, upon the maxim, ‘Expressio unius est exclusio alterius.”

In Page v. Allen, 58 Pa. St. 338, which involved the constitutionality of the registry law of that state, it was held that the inhibitions of the constitution as to legislation are to be regarded as well when they arise by implication as by expression, and that...