People v. Fox

• Decision Date: 23 October 1920
• Docket Number: No. 13441.,13441.
• Citation: 294 Ill. 263,128 N.E. 505
• Parties: PEOPLE v. FOX.
• Court: Illinois Supreme Court

294 Ill. 263

128 N.E. 505

PEOPLE

v.FOX.

No. 13441.

Supreme Court of Illinois.

Oct. 23, 1920.

Error to Municipal Court of Chicago; Howard Hayes, Judge.

William Fox was convicted of violating the Primary Law, and he brings error.

Reversed.

Farmer, Duncan, and Thompson, JJ., dissenting.Thomas Marshall and Claude F. Smith, both of Chicago, for plaintiff in error.

Edward J. Brundage, Atty. Gen., and Maclay Hoyne, State's Atty., and Edward C. Fitch, both of Chicago, for the People.

George B. Gillespie, of Springfield, amicus curiae.

STONE, C. J.

This writ of error has been brought to reverse the judgment of conviction and fine entered against plaintiff in error in the municipal court of Chicago for violation of an act entitled ‘An act in relation to the nomination of candidates for public offices by political parties,’ in force July 1, 1919 (Laws 1919, p. 476), the information filed against him having charged that he illegally voted in the name of W. P. Booth at a primary election held in the sixty-ninth precinct of the third ward of the city of Chicago on April 13, 1920. Plaintiff in error moved in the trial court to quash the information on the ground that the act is unconstitutional and void, and the election held thereunder an illegal election, and the sole question arising in this case is the constitutionality of said act. The decision of this court reversing the judgment was announced orally at the June term, with the statement that a written opinion would be filed later.

Two sections of the Primary Law are attacked by the plaintiff in error. It is contended by him that clause 2 of section 9 of said act in unconstitutional, in that it is an unauthorized delegation of legislative authority, and that section 10 of the act is unconstitutional, in that it violates section 18 of the Bill of Rights, which provides that all elections shall be free and equal. Clause 2 of section 9 of the act provides, in part, as follows:

‘Provided, that in counties having within their limits an incorporated city or village having five hundred thousand or more inhabitants the county central committee of each political party of such county at its regular meeting in the month of December, or at an adjourned meeting, in the year 1919, and at such regular meeting every four years thereafter, shall divide the territory in such county lying outside of such city or cities into not less than six and not more than nine districts of contiguous territory, to be known as county committeeman's districts and designated as such by number.’

It will be seen from a reading of this clause that no limitation is placed upon the county central committee in the matter of division of the territory outside of the city or cities in the counties affected by it, further than to say that there shall be not less than six and not more than nine districts. There is no requirement of uniformity in the number of voters in the several districts and no restriction upon the exercise of arbitrary power in the creation of such districts. Under it the county central committee may, from whim, caprice, favoritism or other motive, create districts with such inequalities as to destory the constitutional provision for the freedom and equality of elections, which requires that the vote of every qualified elector shall be practically equal in its influence with that of any other elector. While the Legislature may delegate to the county central committee power to divide the county into voting districts, yet that body must establish such rules for the exercise of the power as to protect the citizen and voter in the rights guaranteed to him by the Constitution, and any delegation of arbitrary power, with no direction or regulation concerning size, population or the number of voters and with no rule for the exercise of the power delegated, renders such clause void. As was said by this court in Sheldon v. Hoyne, 261 Ill. 222, 103 N. E. 1021:

‘The power to make the laws for a state is vested in the Legislature and is a sovereign power, requiring the exercise of judgment and discretion. On common-law principles, as well as by settled constitutional law, it is a power which cannot be delegated. ‘This is a general rule or maxim, but, like all other rules of the common law, it is flexible, extending as far as the reason and principles on which it is founded go and ceasing when the reason ceases.’ Sutherland on Stat. Const. § 67. While the Legislature cannot divest itself of the power to determine what the law shall be, it may authorize others to do those things which practically it cannot do itself. * * * ‘The true distinction is between a delegation of power to make the law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made.’ * * * Unlimited power, to be exercised in accordance with the whim or caprice of public officials, is inconsistent with our system of government. * * * Such arbitrary power is, under the settled rules of law in this and other jurisdictions, a delegation by the Legislature of its legislative functions to the officials in question and is therefore invalid.'

The contention of plaintiff in error as to clause 2 of section 9 must be sustained.

It is further contended by plaintiff in error that section 10 is invalid in that it discriminates in the voting power of the different wards and districts in counties having a population of over 500,000, and between the power of certain committeemen in such counties and committeemen elected from the balance of the state. Section 10 provides:

‘In the organization and proceedings of the county convention, each precinct committeeman shall have one vote and one additional vote for each fifty votes or major fraction thereof of his party cast in the precinct for Governor at the general election then next preceding, and each ward or district committeeman shall have...