Rouse v. Thompson

• Decision Date: 02 October 1907
• Citation: 228 Ill. 522,81 N.E. 1109
• Parties: ROUSE v. THOMPSON, County Treasurer.
• Court: Illinois Supreme Court

228 Ill. 522

81 N.E. 1109

ROUSE

v.THOMPSON, County Treasurer.

Supreme Court of Illinois.

Oct. 2, 1907.

Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Suit by George W. Rouse against John R. Thompson, as county treasurer of Cook county. From a decree sustaining a demurrer to the bill and dismissing it for want of equity, complainant appeals. Reversed and remanded.

Carter, J., dissenting.

Thomas Marshall and Roy D. Keehn (Francis M. Lowes, of counsel), for appellant.

Harry A. Lewis, Co. Atty., and William F. Struckmann, for appellee.

HAND, J.

This was a bill in chancery filed in the circuit court of Cook county by the appellant, George W. Rouse, a resident and taxpayer of said county, for and on behalf of himself and all other persons similarly situated who might join therein as parties complainant, against the appellee, John R. Thompson, as county treasurer of said county, to enjoin the said county treasurer from paying from the funds of said county to the judges and clerks of election and the persons furnishing supplies, the fees and expenses incurred in holding a primary election on August 4, 1906, in said county, under the provisions of an act entitled ‘An act to provide for the holding and the regulation of primary elections of delegates to nominating conventions, for the holding of such conventions, filling vacancies and fixing penalties for the violation of the provisions thereof,’ approved May 23, 1906, and in force July 1, 1906. A demurrer was interposed to said bill and sustained, and the bill was dismissed for want of equity, and an appeal has been prosecuted to this court.

The object of the bill was to test the constitutionality of said act of May 23d, and numerous grounds have been urged in this court in support of the contention that said act is unconstitutional, and that the court erred in sustaining the demurrer to said bill and in dismissing the bill, which grounds will be considered in what we deem their logical order.

It is first contended that said act violates that portion of section 13 of article 4 of the Constitution which reads as follows: ‘No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title’-on the ground that the subject of the act is not embraced in its title. The title of an act formerly was of little importance. Of recent years, however, by reason of the adoption by most of the states of constitutional provisions similar to the one above quoted, the title to an act in such states is now of very great importance. Some of the reasons which led to the adoption of such constitutional provisions are said to be: First, to prevent ‘log-rolling’ legislation; second, to prevent surprise or fraud upon the Legislature by inserting provisions into bills of which the titles give no intimation and which might by oversight be carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made of the subjects of legislation being considered, so they might be heard thereon, if they so desire, by petition or remonstrance. And while such constitutional provisions are to be liberally construed in order that a legislative enactment may be sustained, the courts cannot permit such provisions to be disregarded or overridden in the enactment of legislation. It will be observed that the title to the act in question is general in its terms and applies to all primary elections held for the election of delegates to nominating conventions, and is not confined to primary elections of delegates to nominating conventions of political parties or organizations, which is the subject-matter of the act which follows said title. If the title of the act is read, the ordinary mind would not, we think, from such reading alone, conceive that the subject of the act which was to follow the title would relate only to a primary election of delegates to nominating conventions of political parties or organizations, but might readily conceive that the Legislature was providing a method whereby the delegates to all nominating conventions which might thereafter be held, and which might include conventions held by the various civic societies, orders, etc., existing throughout the state, as well as the numerous political and semipolitical parties and organizations which exist in the state, were to be elected at a primary election held by virtue of the provisions of the act which was to follow said title. We think the title to said act, in order to be in harmony with the provisions of the act which follows it, as it was clearly the intention of the Legislature to pass an act which should only provide for the holding of primary electionsto elect delegates to nominating conventions to be held by political parties or organizations, should have contained apt words pointing out that the delegates to nominating conventions to be chosen at the primary elections which were to be held under the provisions of the act which the Legislature were about to pass were delegates to conventions to be held by political parties and organizations. The title of an act and the act should correspond, not literally, but substantially, and, while the title may be couched in general terms, to be sufficient it must fairly point out the subject-matter of the act which is to follow it.

If, however, it be conceded that the title of the act sufficiently describes the conventions to which primary delegates are to be elected and in that particular be held to be sufficient, there is one subject of the act which is not only entirely omitted from the title, but by the language used in the title is excluded from the title of the act, which, under all the authorities, is not permissible. The act contains 64 sections, and not only provides for the holding and the regulation of primary elections of delegates to nominating conventions, but provides for a primary election. which is to be held at the same time that delegates are elected to said conventions, at which the voter may express his preference for United States Senator, and may vote direct for a candidate of his party for Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, superintendent of public instruction, Attorney General, clerk of the Supreme Court, clerk of the Appellate Court, representative in Congress, member of the state board of equalization, state senator, one representative in the General Assembly, county judge, county clerk, judge of the probate court, clerk of the probate court, clerk of the circuit court, recorder of deeds, county treasurer, county superintendent of schools, county surveyor, sheriff, coroner, and state's attorney. It also provides for the printing and distribution, at public expense, of an ‘official primary ballot,’ which is to be voted by the voter at the primary election, and a method is provided by which the party candidates for the offices above enumerated, by petition or otherwise, wise, can cause their names to appear upon the ‘official primary ballot,’ and for the receipt of such ballot at the primary election, and for the canvass thereof and a certified return by the election officers of the result of the casting of said official primary ballots cast at the primary election; and it is also provided, if it appear upon the canvass of the official primary ballots cast at the primary election that any candidate of any political party for the nomination for any state, congressional, or senatorial office has received a plurality of all the votes cast in any delegate district at such primary election, such can didate shall have cast for him the votes of all the delegates from such delegate district in the convention before which he is a candidate, for at least the first ballot. In reality we have here two acts, or two parts of one act, which provide for two separate and distinct primary elections, one of which is to be had by ‘official primary ballot’ furnished at public expense, upon which the names of the official candidates appear, and the other of which is by ‘delegate ballot,’ and which is not official and is paid for otherwise than at the expense of the public; the one election being held for the purpose of selecting persons who shall be the candidates of the respective political parties in the respective conventions which are to be held by said several political parties, and who, if successful before such conventions, will be the candidates of their respective political parties at the regular election thereafter to be held, and the other of which elections is held for the purpose of selecting delegates from delegate districts to represent the respective political parties in the different political conventions which are to be held for the purpose of placing in the field candidates for the several political parties at the ensuing elections. When we examine the title of the act, however, we find only that an act is authorized which is to provide for the ‘holding and the regulation of primary elections of delegates to nominating conventions,’ and that the title of the act wholly fails to authorize the incorporation in such act of provisions providing for the holding of a primary election for the purpose of selecting persons who are to be candidates of the several political parties and organizations before the several conventions of the respective political parties which may hold conventions, some of which candidates may be named by such conventions to stand as candidates of the respective political parties and organizations at the ensuing elections. That is to say, one subject of the act is not only entirely omitted from the title of the act, but the title of the act is so framed as to exclude that subject.

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