Moran v. Bowley , 347 Ill. 148 ( 1932 )

I am unable to concur in the view of the majority of the court. I am of the opinion the case at bar is outside the jurisdiction of a court of equity as that jurisdiction is defined in this State. It has long been the rule in this State that a court of equity will not interpose in a case affecting only the enjoyment of political rights or assist in the acquisition of such rights. Political rights, though sacred, are properly within the jurisdiction of courts of law. (Fletcher v. Tuttle, 151 Ill. 41; People v. Thompson, 155 id. 451; Harris v. Schryock, 82 id. 119;Darst v. People, 62 id. 306; Walton v. Develing, 61 id. 201;Payne v. Emmerson, 290 id. 490; Davis v.Whitehead, 86 Okla. 273, 208 P. 216; Shoemaker v. DesMoines,129 Iowa, 244, 105 N.W. 220.) It is only where civil rights are involved that a court of equity will exercise jurisdiction. In Fletcher v. Tuttle, supra, this principle is fully presented. In that case combined attacks against the Senatorial Apportionment act of 1893 were attempted in equity. It was there sought to show that civil rights were involved and that the complainant was entitled to an injunction to prevent the expenditure of public moneys to hold an election under that Re-apportionment act. This court there very clearly drew the distinction between judicial power of courts of law and courts of equity as it is recognized in this State. The elementary principle that jurisdiction of a court of chancery in such a case is founded on civil property rights was again announced. In that case the expenditures which the complainant sought, as a tax-payer, to enjoin, were those which it was claimed would arise from certifying and printing on the ballots the names of senatorial candidates. In this case, as in the Fletcher case; no attempt is made to restrain the holding of a primary election, and it is, of course, well known that the election will not be confined to the nomination of candidates for Congress but will be a primary for the nomination of many other State, district and county officers. It is not perceived how it is possible to incur additional expense of any moment on this account. The ballots will be printed and the certificates will be made, served and filed whether this act be declared valid or invalid. There can be involved no expenditure of public moneys which a court of equity could restrain, and it is not even contended that equity can take jurisdiction to enjoin the holding of an election. The power to hold an election is political and not judicial, and a court of equity has no jurisdiction to restrain officers from exercising such power. Harris v. Schryock, supra; People v.City of Galesburg, 48 Ill. 485.

The majority opinion is grounded on McAlpine v. Dimick,326 Ill. 240. The situations in that case and here do not even approach analogy. The bill there sought to enjoin the county treasurer from paying out money to meet the expense of holding an election under a primary act on the ground that such act was invalid. It was clear that if the act was invalid the election would be invalid and to pay the cost thereof would be to expend money for an unlawful purpose. In that case equity intervened to protect the rights of the tax-payers in the funds about to be expended for such invalid election. No such situation exists here. There is no charge that any expenditure other than that incurred in holding the lawful primary would arise unless it be the cost of certifying the names of congressional candidates and printing such names on the ballots. Such an expense is so trifling as to defy computation. Pomeroy, in his Equity Jurisprudence, (secs. 1753, 1755,) cited with approval by this court in Payne v. Emmerson,supra, declares the rule, generally sustained, that equity will not issue an injunction at the relation of a tax-payer to prevent trifling expenditures arising out of an election, for the reason that the injury occasioned thereby is too trifling.

But the argument is made that if this act be declared, in an action at law, to be invalid, or the national House of Representatives refuse to recognize the apportionment made by this act and decline to receive as members of the House of Representatives those elected in accordance therewith, there would then be caused the expense of a special election, and that for this reason equity has jurisdiction. Quite apart from the point developed in the dissenting opinion of my associate, Mr. Justice DeYoung, in which I concur, (that Congress has chosen to remove, by the repealing clause of the act of June 18, 1929, the limitation as to size, compactness and contiguity of congressional districts,) the bill here contains no such ground for relief or averment that such action by the national House of Representatives is threatened. Such a possibility of expenditure of money is too fanciful, chimerical and remote to afford basis for the interposition of a court of equity. To invoke the aid of equity to enjoin payment of the expense of an election it must appear that the officers sought to be enjoined are threatening to wrongfully expend money and that they will do so but for the intervention of equity. The questions here raised do not involve civil property rights but are purely political, and in my opinion a court of equity does not have jurisdiction.