People ex rel. Mooney v. Hutchinson , 172 Ill. 486 ( 1898 )

Mr. Justice Cartwright

delivered the opinion of the court:

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 F. 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 g*o 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 fits 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 toward 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, 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 it 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, can not 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 forty-three of these Senatorial districts, and in the case of the twenty-fifth district added to Will county the county of DuPag’e. 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. L. 126; State v. Cunningham, 81 Wis. 440;) 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 it chooses. 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’s Dwarris on Statutes and Constitutions, 654; 6 Am. & Eng. Ency. of 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 designed 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’s 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. (Sedgwick on Construe, of Stat. and Constitutions, 31.) The legislature must keep within the legislative powers granted to it, and observe the directions of the constitution. (Sutherland on Stat. Const, sec. 26.) This doctrine was applied in State v. Wrightson, supra, where an apportionment of assembly districts inNew 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 cst exelusio alterius.”

In Page v. Allen, 68 Pa. 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 the expression of one thing in the constitution is the exclusion of things not expressed. It is here admitted, as it necessarily must be, that the provisions for apportionment are all exclusive except the particular one as to time. It is not denied that the basis for apportionment must be the population of the State as ascertained by the last Federal census; that the population can only be divided by the number 51, and that the quotient must be the ratio of representation in the Senate. The only claim is, that the provision as to time is not exclusive, and we cannot see any substantial ground for establishing a different rule respecting the time than the mode of doing the act. In Wisconsin the constitution provided for an apportionment and organization of assembly districts once in five years, but contained no express prohibition against their alteration between the 'periods fixed for apportionment, and in Slausen v. City of Racine, 13 Wis. 398, it was said, that whatever limitation existed upon the power of the legislature in that respect was to be derived from the general scope and object of the provisions of the constitution concerning the apportionment of Senators and Representatives, but that it might well be said that this furnished such limitation, and it was held that the provision implied that apportionments should not be made at any other time than that fixed by the constitution. The constitution of Indiana fixes the time once in six years when an enumeration of the voters of the State shall be taken and an apportionment shall be made by law. In Denney v. State, 144 Ind. 503, an apportionment act passed in 1895 was in question, and the main dispute was whether, under the constitution, any apportionment act could be passed at that time. It was insisted in support of the act, that the constitution committed to the legislative department, by a general grant of legislative power, the authority to make apportionments, and that the provision requiring the enactment of an apportionment law at the beginning of each period of six years was not intended as a prohibition upon the legislature from making- other apportionments whenever that body might think best. This question was determined against the claim made, and it was held that if there were no particular provisions in regard to the subject of legislative apportionment, the legislature might, under the full and unrestricted vesting of legislative power, enact apportionment laws at their pleasure, but that the fixing by the constitution of a time and mode for the doing of such act was by necessary implication a forbidding of any other time or mode and a prohibition of the exercise of the power in any other way.

The eminent counsel who have argued this case for the defendant with great learning and ability, have failed to find any decisions contrary to the foregoing- or any authorities conflicting with those given, but insist that there is a difference between the constitutions of Indiana and this State, which makes the decision in Denney v. State, supra, inapplicable here. The distinction attempted to be shown we are compelled to regard as unsubstantial, and cannot consider it a ground of difference that the enumeration which was made the basis of the apportionment in Indiana is taken b;r the State once in six years," while the census which is made a like basis in this State is taken by the United States and once in ten years. The Federal constitution, which was adopted in 1787, provides in section 2 of article 1 for an enumeration within three years after the first meeting of Congress, and within every subsequent term of ten years, as a basis for the apportionment of Representatives and direct taxes. Under that constitution a census has been taken in every period of ten years, commencing with 1790, and under it there will be, at every period of ten years provided for by the constitution of this’State, a census taken as a basis for division of the State into Senatorial districts.

The decisions are also criticised by counsel for defendant under the rule that what is expressed is exclusive only where it is creative, and that the maxim applies only to a provision which grants originally a power but does not limit or destroy a pre-existing right. It is contended that the power to apportion does not originate with the provision of the constitution, but is a pre-existing right independent of the provision, and that therefore the rule is not to be applied. To this we qannot assent. The legislature is the creature of the constitution, and the provisions in respect to the two houses, the division of the State into Senatorial districts by a particular plan and the membership of each of the houses, are creative in their nature. They relate to the framework, the membership and the organization of the legislative department of the government created by the constitution for the exercise of legislative powers. They prescribe the manner in which districts shall be created, that a Senator and three Representatives shall be elected in each district, and provide for the constitution and organization of the department which shall exercise legislative power. The conditions for the exercise of this power of apportionment are particularly prescribed, and we think that those acting under it cannot vary the conditions. (Endlich on Int. of Statutes, 533.) Another rule is, that where there is a general provision which would include a particular subject and there is a special provision relating to that subject, the special provision controls and the particular subject is not governed by the general provision. In this rule we found, as we conceived, a substantial ground for holding the Judicial Apportionment act of 1897 in force from its passage, and not included in the general provision as to when laws shall take effect. (People v. Rose, 166 Ill. 422.) Here there is a general delegation of legislative power, with subsequent provisions giving specific and precise directions to make the apportionment at a particular time and in a designated way, and these, we think, manifest an intention to impose a negative upon the exercise of the power at any other time.

We have already said that if there were no further provision than the general grant of legislative power the legislature might apportion the State at its will,— and this was the situation under the constitution of 1818, which contained no restriction except the single one in section 8 of the schedule to that instrument, fixing" the apportionment until the first enumeration directed to be taken in 1820 and every five years thereafter. The apportionment after the first census was not made to depend upon any subsequent enumeration or event, and after the first enumeration the legislature not only apportioned the State every five years, but made changes during intervals. A change in the practice commenced with the adoption of the constitution in force April 1, 1848. In that constitution was first introduced a provision for re-apportionment at particular times, according to the number of white inhabitants at the first regular session after returns were made. Under that constitution the legislature made its first re-apportionment in 1854, based on the census of 1850. This apportionment continued in force until the Federal census was taken in 1860, and then a new apportionment was made in 1861. The present constitution was adopted in 1870, containing a similar provision, now under consideration. After that time the legislature apportioned the State in the years 1872, 1882 and 1893. Prom the time of the adoption of the constitution of 1848 for a period of fifty years, up to the act of January 11, 1898, apportionments were made at the intervals stated, based upon the census taken by the United States, and there was no change made between such periods. This practical construction of the constitution re-enforces the conclusion at which we have arrived . Such a legislative interpretation, long established and acquiesced in, is regarded as of great force in determining the true construction, and raises a strong présumption that it is correct. Bruce v. Schuyler, 4 Gilm. 221; Matthews v. Shores, 24 Ill. 28; People v. Morgan, 90 id. 558; Cooley’s Const. Lim. (6th ed.) 82; Sedgwick on Construe, of Stat. and Const. Law, 412.

Attention has been called by counsel to the fact that the legislature of 1893 passed an apportionment act which was approved May 16, 1893, and also passed the subsequent act of June 15, 1893, repealing the same and apportioning the State. This act of May 16, 1893, is conceded to have been an unconstitutional and void act, which never became a law for the reason that it omitted the town of Riverside, a populous town in Cook county, which was not included in any of the Senatorial districts and was deprived of representation. The validity of the act of June 15, 1893, was therefore not affected ‘by it, since the power to apportion the State was not thereby exercised. The validity of the act of June 15 passed beyond the field of controversy by the decision in People v. Thompson, supra, and is now conceded. The act of May 16, 1893, has no force, as affecting the question of construction by the legislative body of the legislative power, because it was incomplete and void. Its passage and repeal do not in any manner weaken the force of the construction of the constitution given by the legislature and acquiesced in for a period of about fifty years.

It is also argued that a fair construction of the provision in question is, that it was to secure to the people a re-apportionment at least once in ten years, rather than to fix the time for the exercise of the power or to operate as an exclusion of apportionments at other times. The same argument was insisted upon in Denney v. State, supra, but did not prevail, and it was held that the apportionment could only be made after the taking of an enumeration, and that when a valid apportionment was once made it must stand until after the making of the next enumeration. If the purpose had been as contended, it is probable that the constitution would have expressed that intent which is lacking. Furthermore, it does not seem, from the history of legislative apportionments prior to the adoption of the provision, that there was any occasion to provide for securing apportionments as often as such periods, or that a neglect to apportion was regarded as an evil to be provided against. The legislatures during' the thirty years under the constitution of 1818 had been in the habit of making frequent apportionments. The courts may always look to ascertain the evil intended to be remedied; but this provision could not have been aimed at an evil which did not exist, and it would rather seem that the object was to establish definite periods for re-apportionments. When the legislature of 1893 made the apportionment of that year the conditions existed which authorized the exercise of the power, and the legislative discretion was exercised based upon the Federal census of 1890,—a division of the population by 51 and the resulting quotient as the ratio of representation. That power and discretion, when fully exercised, were exhausted, and the power will not again arise until the conditions provided for in the constitution shall again exist. The power and discretion are to be exercised at stated intervals and in certain modes, and that legislature, upon a consideration of the facts, exercised the power and the discretion. A subsequent reapportionment based upon the same census, the same division and the same quotient, which it is admitted must be used, would be nothing but reversing the judgment and discretion of that legislature, exercised upon the same facts at the time expressly authorized by the constitution; and we cannot think that it was in the contemplation of those who adopted the constitution that succeeding legislatures should set aside the action of the first by changing and remodeling districts, where no new condition contemplated by the constitution exists. The power to make apportionments has not always been exercised at exact periods of ten years, but the power conferred by the constitution is a continuing one from the time it is constitutionally devolved upon the legislature until it is performed. (People v. Thompson, supra; State v. Cunningham, supra.) Twelve States, having a general plan of apportionment similar to our own, have by their constitutions forbidden a change between the periods fixed in such constitutions. These prohibitions are conclusive of that which, in our case, must be the subject of construction, and which has been practically construed by the legislature for a long period of time, as we have already seen. The absence of such an express prohibition in our constitution is not, as before stated, at all conclusive that the prohibition was not intended.

Plausible reasons may be given for sustaining the power,-—and especially in this particular instance,— which would naturally appeal with force to those who believe that the apportionment of 1893 was prompted by some other motive than the public good or a desire to secure to the people, as nearly as possible, equality of representation; but this consideration cannot have force as against the provisions of the constitution, and it is to be remembered that the same rule which would permit a correction of inequality would also permit the setting aside of a just and fair apportionment made at the time fixed by the constitution, and the substitution of unjust and oppressive conditions within the latitude allowed by the constitution to the legislature.

We are convinced that the construction we have given to the constitution is the correct one, and we feel ourselves under the necessity of declaring the apportionment act of 1898 unconstitutional and invalid. A peremptory writ of mandamus is awarded, according to the prayer of the petition. Wrii aivarded.