People ex rel. Phillips v. Strassheim

• Decision Date: 16 June 1909
• Parties: PEOPLE ex rel. PHILLIPS v. STRASSHEIM, Sheriff.
• Court: Illinois Supreme Court

240 Ill. 279

88 N.E. 821

PEOPLE ex rel. PHILLIPS

v.STRASSHEIM, Sheriff.

Supreme Court of Illinois.

June 16, 1909.

Original petition by the People, on the relation of Joseph Phillips, against Christopher Strassheim, as sheriff of Cook county, for habeas corpus to discharge relator from custody. Order of discharge entered.

Darrow, Masters & Wilson, for relator.

Frank J. Loesch, Special State's Atty. for Cook County, for respondent.

FARMER, C. J.

This is an original proceeding in this court upon a writ of habeas corpus issued out of this court, directed to the sheriff of Cook county, upon the petition of Joseph Phillips. The relator was indicted by a special grand jury for Cook county for alleged offenses claimed to have been committed by him in violation of the pri mary election law at the primary election held in the city of Chicago August 8, 1908. The relator was taken and held in custody by respondent, the sheriff of Cook county, by virtue of a capias issued upon said indictment. The petition charges that said indictment and capias are void, on the ground that the primary election law of 1908 is unconstitutional and void, and that the detention of the relator is without authority and invalid. It is not questioned by respondent that, under previous decisions of this court, the validity of the law under which the indictment was found and returned may be determined in a proceeding of this character. The sole question discussed in the briefs of respondent is the validity of the primary election law of 1908 (Laws 1908, p. 48). It is contended by relator that the said act is unconstitutional because it deprives electors possessing the constitutional qualifications of the right to vote at the primary and because it adds to the constitutional qualifications of electors.

Section 1 of article 7 of the Constitution reads as follows: ‘Every person having resided in this state one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this state on the first day of April, in the year of our Lord 1848, or obtained a certificate of naturalization before any court of record in this state prior to the first day of January, in the year of our Lord 1870, or who shall be a male citizen of the United States, above the age of twenty-one years, shall be entitled to vote at such election.’ Section 44 of the primary election law in part reads as follows: ‘No person shall vote at a primary unless he shall be a legally qualified voter, under the general election laws of this state, and unless he declares his party affiliation, as required by this act, and in all cases where registration is required as a condition precedent to voting at regular elections only registered voters shall be entitled to vote at such primary: Provided, however, that at such primary any legal voter of a precinct, who has not registered, shall be entitled to vote in case he shall file with the primary judges an affidavit, stating the time when he removed into such precinct, and the length of his legal residence in such precinct, county, and state, and that he has removed into that precinct since the last registration of electors at the last election and that he is a legal voter of such precinct, supported by an affidavit of a registered voter and householder of such precinct, that he knows such voter and that his statements as to the time of his residence, as aforesaid, are correct, and that such person is a legal voter in such precinct.’ The act of 1885 (Laws 1885, p. 142), entitled ‘An act regulating the holding of elections and declaring the result thereof in cities, villages, and incorporated towns in this state,’ which will hereafter for convenience be called the city elections act, has been adopted by the city of Chicago and other cities in this state. In all cities where said act applies no one is entitled to vote at an election unless his name appears upon the registry as a qualified voter. Section 3 of article 3 of the said act provides for registration preceding the first general city, village, or town election, or the first general state or county election, which may occur after the adoption of the act and the first appointment of a board of election commissioners. Thereafter a general registration is required to be made in every year in which a congressional election occurs. The first day of such registration is on the Saturday immediately preceding the Tuesday four weeks before such election, and the second day of such registration is Tuesday, three weeks before the election. Section 17 of article 3 of the act provides for an intermediate registration preceding every city, village, or incorporated town election that takes place between the general registrations. So much of said section 17 as is important for this discussion reads as follows: ‘At every election held in each city, village or incorporated town between the general registration above referred to (except in case of a special election in and for such city, village or town, or in some part of such city, village or town, and except at any judicial election held between such general registrations, at which election no other officers than judicial officers are to be voted for) the last general registration shall be used, but the same shall be revised by the board of registry of each precinct where such election is to be held, and for that purpose the board of registry shall meet on Tuesday, three weeks preceding such election, and shall hold a session from eight o'clock a. m. to nine o'clock p. m. on that day, and names may be added to the registers in the same way, upon sworn application, as in the case of a general registration, and all the other forms and requirements are to be observed.’ Section 1 of the primary election law of 1908 designates the offices for which candidates are required to be nominated at a primary election held under the provisions of the act. Section 6 fixes the times of holding primary elections for the nomination of candidates for the various offices. Said section 6 reads as follows: ‘A primary shall be held on the second Tuesday in April in every year except the year A. D. 1908, in which year a primary shall be held on the 8th day of August, A. D. 1908, in which officers are to be voted for on the first Tuesday after the first Monday in November of such year, for the nomination of candidates for such offices as are to be voted for at such November election, and shall be known as the April primary:Provided, however, that wherever in this act the term ‘April primary’ or equivalent words shall appear, such term or such words shall be construed as to the primary held in August, A. D. 1908, to refer to and govern such primary so held in August, A. D. 1908. A primary shall be held on the second Tuesday in April in any year in which judges of the Supreme Court, judges of the circuit court and judges of the superior court of Cook county, or any of them, are to be elected, at an election to be held on the first Monday in June of each year, for the nomination of candidates for such offices, respectively. A primary shall be held on the last Tuesday in February in each year for the nomination of such officers as are to be voted for on the first Tuesday in April of such year. A primary for the nomination for all other officers, nominations for which are required to be made under the provisions of this act, shall be held three weeks preceding the date of the general election for such offices respectively. The polls shall be open from six o'clock a. m. to five o'clock p. m.'

It will be seen that the first primary held for the nomination of candidates to be voted for at the November election was required by the law to be held August 8, 1908, but all subsequent primaries for the nomination of candidates to be voted for at the November election are required to be held on the second Tuesday in April. In all cities where the city elections act has been adopted registration is a condition precedent to the right to vote at the election, and section 44 of the primary election law provides that only registered voters shall be entitled to vote at the primary election ‘in all cases where registration is required as a condition precedent to voting at regular elections.’ This court has held that a law providing for the nomination of candidates for public office by a primary election is an electionlaw, and that all primaries held under it are elections within the meaning of the Constitution, and that such a law, to be valid, must sustain the constitutional rights of voters, and not curtail, subvert, or injuriously restrict such rights. ‘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 it is of precisely the same nature.’ People v. Board of Election Com'rs, 221 Ill. 9, 77 N. E. 321;Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109.

The primary election law makes no provision for registration. The law governing that subject in cities that have adopted the city elections act is found in that act, and it is contended that numbers of persons possessing the constitutional qualifications of electors were denied the right to vote at the primary election August 8, 1908, because no provision was made by the law to enable them to register within 30 days before the primary election. The last general registration before said primary election was on October 16, 1906, and the last intermediate registration was in March, 1908, more than four months prior to the primary election. Persons not possessing the constitutional qualifications of voters at the April election next succeeding the March registration could not be registered as qualfied voters. No other opportunity was afforded such persons by law to register as qualified voters until the general registration in October, which was after...