People ex rel. VanDeventer v. Rose

• Decision Date: 16 June 1903
• Parties: PEOPLE ex rel. VANDEVENTER v. ROSE, Secretary of State.
• Court: Illinois Supreme Court

203 Ill. 46

67 N.E. 746

PEOPLE ex rel. VANDEVENTER

v.ROSE, Secretary of State.

Supreme Court of Illinois.

June 16, 1903.

Mandamus by the people, on relation of William L. Vandeventer, against James A. Rose, as Secretary of State, to compel respondent to receive the certificate of nomination of relator as a candidate for judge of the Supreme Court. Writ denied.

Magruder, J., dissenting.

C. E. Epler, for relator.

H. J. Hamlin, Atty. Gen., for respondent.

This is a petition for a writ of mandamus, filed in this court in the name of the people, on the relation of William L. Vandeventer, against James A. Rose, Secretary of State of the state of Illinois. The petition avers that the relator is upwards of 30 years of age, is a duly licensed attorney at law, a resident of the Fourth Supreme Court District of this state, and a citizen of the United States; that at a delegate convention representing the Democratic party of said district, held, pursuant to call, on April 17, 1903, for the purpose of nominating a candidate for the office of judge of the Supreme Court for said district, he was duly nominated as a candidate of said party for the said office; that on April 18, 1903, said Vandeventer presented to the Secretary of State a certificate of his nomination, in due form, which the Secretary refused to file-and prays that a writ of mandamus issue against James A. Rose, as Secretary of State, commanding and requiring him to receive the certificate of nomination of said William L. Vandeventer as a candidate for judge of the Supreme Court for the Fourth Supreme Court District of the state of Illinois, as created by the Constitution of 1870, and composed of the following counties, Fulton, McDonough, Hancock, Schuyler, Brown, Adams, Pike, Mason, Menard, Morgan, Cass, and Scott, and to file the same in his office, and to certify to each of the county clerks in said counties the name of William L. Vandeventer as the Democratic candidate for judge of the Supreme Court for the Fourth Supreme Court District, to be voted for at the election to be held on the first Monday in the month of June, 1903. The petition, by leave of court, having been filed, the Secretary of State, by the Attorney General, entered his appearance, and filed an answer to said petition, in which it was averred that the Fourth Supreme Court District, as now constituted, is not composed of said counties of Fulton, McDonough, Hancock, Schuyler, Brown, Adams, Pike, Mason, Menard, Morgan, Cass, and Scott, and averred that the said Fourth Supreme Court District, as now constituted, contains the following counties, Fulton, McDonough, Hancock, Schuyler, Brown, Adams, Mason, Menard, Morgan, Cass, Rock Island, Mercer, Warren, and Henderson, and no other, and charged that the boundaries of the Fourth Supreme Court District, as carved out by the Constitution of 1870, were changed by virtue of an act of the General Assembly entitled ‘An act changing the boundaries of the Fourth Supreme Court District of the state of Illinois, and thereby affecting the boundaries of other districts therein named, and providing for an election in said Fourth District,’ which was approved by the Governor on the 3d day of April, 1903, and was in force from the day of its approval, a certified copy of which act was attached to said answer, and is as follows, omitting the title:

‘Whereas, the Constitution of this state provides that the boundaries of the districts for the election therein of judges of the Supreme Court may be changed at the session of the General Assembly next preceding the election for judges therein, and at no other time; and whereas, there will be held an election for a judge of the Supreme Court in the said Fourth Supreme Court District on the first Monday of June, 1903, under the Constitution of this state; and whereas, said Fourth Supreme Court District has a less number of inhabitants by more than 100,000, according to the census of 1900, than any other one of the seven districts for the election of supreme judges in the state of Illinois. Therefore,

‘Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: That the boundaries of the said Fourth Supreme Court District are hereby changed so that after the passage of this act, said district shall be composed of the following counties, to-wit: Rock Island, Mercer, Warren, Henderson, Fulton, McDonough, Hancock, Adams, Schuyler, Brown, Mason, Menard, Morgan and Cass.

‘Sec. 2. After the passage of this act, said county of Rock Island shall cease to be a part of the Sixth Judicial District for the election of supreme judge and shall constitute a part of said Fourth District as hereinbefore provided; said counties of Mercer, Warren and Henderson shall cease to be a part of the Fifth District for the election of supreme judge and shall constitute a part of said Fourth District as hereinbefore provided; and said counties of Pike and Scott shall cease to be a part of said Fourth District and are added to and shall form a part of the Second District for the election of supreme judge.

‘Sec. 3. On the first Monday of June, A. D. 1903, and every nine years thereafter as provided by law, there shall be elected a judge of the Supreme Court in said Fourth District as composed of the counties mentioned in section 1 of this act.’

On April 22, 1903, a stipulation in writing was filed by the parties to the effect that, in the hearing of the above-entitled cause, the question for consideration and the determination of this court is the constitutionality of said act of the Legislature.

HAND, C. J. (after stating the facts).

This action was commenced with a view to test the constitutionality of the act passed by the last General Assembly, set out in full in the statement preceding this opinion, changing the boundaries of the Fourth Supreme Court District by detaching the counties of Pike and Scott therefrom, and attaching them to the Second District, and by detaching Rock Island county from the Sixth District, and Mercer, Warren, and Henderson counties from the Fifth District, and attaching them to the Fourth District. In considering the question here raised, it should not be forgotten that, in general, the Constitution is a limitation upon the power of, and not a grant of power to, the General Assembly, and that it may make any change, at any time and in any manner, in the boundaries of the Supreme Court Districts, which it may deem wise and expedient, except in so far as the right to make such change has been in express terms or by necessary implication limited by the Constitution. Cooley's Const. Lim. (2d Ed.) p. 86.

The provision of the Constitution fixing the time when changes in the Supreme Court Districts may be made is as follows: ‘The boundaries of the districts may be changed at the session of the General Assembly next preceding the election for judges therein, and at no other time.’ Article 6, § 5. The only limitation found in this provision as to the time when the boundaries of the districts may be changed is that the change must be made at the session of the General Assembly next preceding the election for judges therein. Under the Constitution, a judge of the Supreme Court for the Fourth District is to be elected on the first Monday of June, 1903, and the act changing the boundaries of said district was passed at the session of the General Assembly next preceding the election for judge in said district, and, as we view the matter, the General Assembly at that session was authorized to make such change (People v. Rose, 166 Ill. 422, 47 N. E. 64); and it seems too plain for argument that, unless we are right in so holding, the boundaries of the Fourth District can never be changed, unless the limitation tha the change must be made at the session of the General Assembly next preceding the election for judges therein is to be entirely eliminated from the Constitution.

It is, however, said that the act not only changes the boundaries of the Fourth District, wherein a judge is to be elected in 1903, but it also changes the boundaries of the Second, Fifth, and Sixth Districts, and that as no judge is to be elected in said districts, or any one of them, in 1903, the act is unconstitutional. While it seems clear that the General Assembly would have been powerless to pass an act changing the boundaries of the Second, Fifth, and Sixth Districts, or any one of them, at the last session-that session not being the session next preceding the election for judges in said districts, as no election will take place in the Second and Sixth Districts until 1906, and in the Fifth District until 1909-yet, if the General Assembly had power, as we think it did have, at its last session, to change the boundaries of the Fourth District, it had power to make such incidental changes in the Second, Fifth, and Sixth Districts as might be necessary to accomplish the change in the Fourth District, as no change could be made in the Fourth District without changing some one or more of the other districts; and the principle is well settled that where a general power is conferred upon the General Assembly by the Constitution, or a duty imposed, it also gives by implication, every particular power necessary for the exercise of the one or the performance of the other. Field v. People, 2 Scam. 79;City of Chicago v. Stratton, 162 Ill. 494, 44 N. E. 853,35 L. R. A. 84, 53 Am. St. Rep. 325; Cooley's Const. Lim. (2d Ed.) p. 63. In Field v. People, supra, on page 83, the court said: ‘That other powers than those expressly granted may be, and often are, conferred by implication, is too well settled to be doubted. Under every Constitution the doctrine of implication must be resorted to in order to carry out the general grants of power. A Constitution cannot, from its very nature, enter into a minute specification of all the minor powers naturally and obviously included in and flowing from the great and...