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(160 N.E.)

28. Statutes 49-Section of Primary Act authorizing cumulative voting by minority electors in certain cities held invalid as providIng no method for limiting voting strength of committees in cities embracing only part of election precinct (Primary Act July 6, 1927, § 11 [Laws 1927, p. 465]; Cities and Villages Act, art. 4, § 6).

Primary Act July 6, 1927, § 11 (Laws 1927, p. 465), authorizing each qualified minority elector in cities adopting law as to minority representation in council under Cities and Villages Act, art. 4, § 6 (Cahill's Rev. St. 1927, c. 24, par. 56), to cast as many votes for one candidate as there are candidates to be nominated, or distribute them among candidates as he sees fit, held invalid as impracticable of operation in providing no method of limiting voting strength of municipal central committee to voting power derived from votes cast by voters living within city embracing only part of election precinct.

29. Statutes 64(2) - Invalidity of Primary Act provision for cumulative voting by minority electors in certain cities held not to invalidate entire law (Primary Act July 6, 1927, § II [Laws 1927, p. 465]; Cities and Villages Act, art. 4, § 6).

Invalidity of Primary Act July 6, 1927, § 11 (Laws 1927, p. 465), authorizing cumulative voting by minority electors in cities adopting law as to minority representation in council under Cities and Villages Act, art. 4, 6 (Cahill's Rev. St. 1927, c. 24, par. 56), does not render entire law void; effect not being to produce inequality in voters' rights and require

ments as to nomination of candidates for alderman in such cities as compared with other cities, as such nominations may be made under general provisions of Primary Act, and number of candidates determined without reference

thereto.

30. Statutes 125 (5)-Primary law held not invalid as attempt to validate nonexistent party committees without expressing purpose in title (Primary Act July 6, 1927, § 9, par. [g] [Laws 1927, p. 463]; Primary Act 1910 [Laws 1910 (Sp. Sess.) p. 46]).

Primary Act July 6, 1927 (Laws 1927, p. 459), held not invalid because of provision of section 9, par. (g), p. 463, that political party

are

committees now in existence shall exercise powers prescribed until committeemen chosen in accordance with act, as attempting to validate committees not in existence because of invalidity of Primary Act 1910 (Laws 1910 [Sp. Sess.] p. 46), without expressing such purpose in title; such provisions designating persons to act as committeemen until new committee is formed.

31. Elections 21-Primary Act held not Invalid as not requiring that convention delegates chosen by city precinct committeemen reside in city, or that delegates from outside city reside in such territory (Primary Act July 6, 1927, § 10, pars. [a], [e] [Laws 1927, pp. 463, 464]).

Primary Act July 6, 1927, § 10, par. (a), being Laws 1927, p. 463, providing for choice of delegates to state and county conventions from

city of 200,000 or more by precinct committeemen from respective wards, and of delegates outside such city by committee men of precincts outside it as a unit, on basis prescribed in paragraph (e), p. 464, held not invalid as not requiring that delegates chosen by city committeemen be residents of city, or that delegates from county outside city reside in such territory.

Farmer, Dunn, and Thompson, JJ., dissenting.

Original petition by the People, on the relation of A. W. Kell, for a writ of mandamus to Paul W. Kramer, County Clerk of Marion County. Writ awarded.

Oscar E. Carlstrom, Atty. Gen., and Montgomery S. Winning, S. S. Du Hamel, and Edward C. Fitch, all of Springfield, for petitioner.

Charles F. Dew, State's Atty., of Centralia (Wilson & Wilson, of Centralia, of counsel), for respondent.

Henry A. Berger, of Chicago, and George C. Dixon, of Dixon, amici curiæ.

STONE, J. This is an original petition for mandamus in this court filed on leave granted, praying that the respondent, as county clerk of the county of Marion, be commanded to do, at the time and in the manner prescribed by law, all things required to be done and performed by county clerks in preparation for and the holding of a primary election on the second Tuesday of April, 1928, under the provisions of an act entitled "An act to provide for the making of nominations by, and the organization of, political parties," approved July 6, 1927 (Laws 1927, p. 459). The petition recites that the county clerk has announced that on legal advice he will not comply with said Primary Law, because he is informed that the law is unconstitutional and void, and that he, as county clerk, has no right to incur bills or liabilities against the county in the preparation for or conduct of such primary election. The respondent has filed a general and special demurrer to the petition, alleging the invalidity of the Primary Law of 1927, and various grounds are set out in support of the demurrer.

[1-3] It is first contended that the act violates section 13 of article 4 of the Constitution of this state, in that the title of the act expresses more than one subject, and the body of the act contains provisions covering more than one subject. In support of this ground of demurrer it is urged that there is no proper relationship existing between the nomination of candidates of political parties and the organization of political parties. It is established that, if an act of the Legislature embraces two subjects, and both are expressed in the title, the entire act must be declared void, as the court is powerless to elect between the two subjects so as to save

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

one and reject the other. Michaels v. Hill, 328 Ill. 11, 159 N. E. 278; Sutter v. People's Gas Light Co., 284 Ill. 634, 120 N. E. 562; People v. Nelson, 133 Ill. 565, 27 N. E. 217. The rule is that all matters may properly be included in an act which are germane to the title, and those matters may be included in the title which relate to the same general subject. Michaels v. Hill, supra.

[4] It is urged by the respondent that the making of nominations by political parties and the organization of political parties are two subjects unrelated, and not germane. "Germane" means "akin" or "closely allied." Dolese v. Pierce, 124 Ill. 140, 16 N. E. 218. A political party is a voluntary association or organization made up of a group of electors united to promote certain political views or opinions, which they seek to make effective by nominating and electing to public office members of their party. A primary law does not confer upon political parties the power to nominate candidates, but recognizes such power existing in them, and prescribes the manner in which it shall be exercised. The various provisions of the act show an intention to provide for a primary election at which political parties shall nominate their candidates for office. The act prescribes certain regulations to bring about a free and equal election, as required by the Constitution. By certain of its provisions precinct committeemen are elected who are made members of the county central committee. One of their duties is to select delegates to the state convention. These delegates nominate candidates for electors and trustees of the State University, and select delegates at large to the national convention in accordance with the provisions of the act. The county central committees, which select the delegates to the state convention, must, by reason of the nature of the business of select ing such delegates, be first organized in such a manner as to enable them to discharge that function. This necessity is met by provisions of the Primary Law directing that they shall be organized into a county convention. It at once becomes clear that the nomination of certain candidates under the Primary Law involves, as a necessary preliminary step, the organization of the party machinery.

[5, 6] It is argued that political parties, when organized, discharge functions other than nominating candidates, such as writing platforms, managing and conducting general elections, and the like, and that these functions are not germane to the purpose of nominating candidates. The organization of political parties as provided in the act is for the purpose of bringing about the nomination of candidates. The Primary Law makes no provision for conducting general elections, managing campaigns, or the discharge of other functions of political parties. Nor

ganized, shall do so. These powers are inherent in political organizations, and exist regardless of statute. This is recognized by the Primary Law, which by paragraph (f) of section 9 reserves to the committees and their officers "the powers usually exercised by such committees and by the officers thereof" not inconsistent with the act, and by paragraph (d) of section 10 reserving to conventions the power to "perform all other functions inherent to such political organization," and not inconsistent with the act. The only exercise of power referred to in the act which may not be said to be an act directly in furtherance of the scheme or plan to nominate candidates is that mentioned in paragraph (b) of section 10, which is "to adopt any party platform." This provision is not a regulation or direction, but is an attempt to confer a power already inherently existing in political parties. The act in no wise attempts to limit or regulate such power. Such a provision cannot be said to render the title or act double. The only regulations in the act concerning party organization are there for the purpose of bringing about the nomination of candidates. The Constitution requires that the subject of the act be expressed in the title, and that the title contain but one subject. It seems clear that the organization of political parties is a necessary part of the scheme to accomplish the nomination of candidates, and is so closely allied with it as to be germane to the central purpose expressed in the title. These matters are germane one to the other, and the title expresses but one subject. The act is not therefore open to the objection urged. People v. Strassheim, 240 Ill. 279, 88 N. E. 821, 22 L. R. A. (N. S.) 1135; Rouse v. Thompson, 228 İll. 522, 81 N. E. 1109.

[7] It is also objected that the Primary Law violates section 18 of article 2 of the Constitution of Illinois, insuring freedom of elections, because it fails to make provision for filling vacancies in the case of the death, resignation, or removal of precinct or state central committeemen. It is conceded by the relator that there is no provision in the act for filling such vacancies on the county committees or the state central committee, but it is urged that such is a power inherent in a committee itself, representing the party, and, the Legislature not having provided otherwise, a right exists to fill these vacancies by such means as the committee may adopt. The respondent, on the other hand, contends that, while it is true that certain inherent powers ordinarily exist in political parties, yet in the instant case the Legislature has by the Primary Law taken over the control of all activities of political parties, so that none of their inherent powers remain, and so no power to fill vacancies on the county committees or state committee exists any.

(160 N.E.)

which may throw light upon the matter are as follows: Paragraph (f) of section 9 of the act provides:

"Each committee and its officers shall have the powers usually exercised by such committees and by the officers thereof, not inconsistent with the provisions of this act."

islative enactment, a political party is governed by its own usages and establishes its own rules. To the same effect are Davis v. Hambrick, 109 Ky. 276, 58 S. W. 779; Davidson v. Hanson, 87 Minn. 211, 91 N. W. 1124, 92 N. W. 93; and Morrow v. Wipf, 22 S. D. 146, 115 N. W. 1121.

[10] It is argued that to fill such a va

Paragraph (d) of section 10 of the act pro- cancy in any other way than by an election

vides:

"Each convention may perform all other functions inherent to such political organiza

tion and not inconsistent with this act."

[8, 9] Political parties were organized and in existence prior to the enactment of any statutory regulation thereof. The right of political parties to make nominations is not a right enumerated in the Constitution, but is a political privilege which may be regulated by the Legislature, and, in the absence of such regulation, is exercised in accordance with the will of members of the political party concerned, as that will is expressed through the rules, customs, conventions, or caucuses of such political organization. Constitutional provisions or inhibitions arise only where the Legislature, in attempting to regulate the nomination of candidates, violates such provisions. A committeeman is not a public officer. The position carries with it no salary, fees, or emoluments. The incumbent is not required to give a bond or subscribe to an oath, as required by section 25 of article 5 of the Constitution, nor do the committeemen represent the public at large, or exercise any of the sovereign powers of the state. They represent the members of the political parties, and are accountable to them alone. People v. Brady, 302 Ill. 576, 135 N. E. 87; Winston v. Moore, 244 Pa. 447, 91 A. 520, L. R. A. 1915A, 1190, Ann. Cas. 1915C, 498.

The question of the inherent power of committeemen to fill vacancies on committees has not previously been considered by this court, but it has received consideration in other states under constitutional and statutory provisions similar to ours. In People v. Kings County Republican Central Committee, 63 App. Div. 438, 71 N. Y. S. 528, this question was considered, and it was there held that, in the absence of statutory provisions regulating the matter, the Republican general committee of Kings county had a right to adopt rules providing for the filling of vacancies caused by death, resignation, or removal of a member thereof, and that this power of the committee is inherent in political parties. This was the one point involved in the case, and the decision of the New York Appellate Division was affirmed by the New York Court of Appeals without a written opinion. 168 N. Y. 639, 61 N. E. 1133. In Mills v. Stewart, 64 Mont. 453, 210 P. 465, it was held that, in the absence of leg160 N.E.-5

would deprive the party members in such precinct of the right to select such committeemen. It is a sufficient answer to say that it does not necessarily follow that the members of the party in such precinct may not have a voice in filling such vacancy, as this can be done in any manner conformable to the rules, usages, and practices of such party.

[11] We are unable to agree with the contention of counsel for the respondent that the Legislature has taken over entire control of all the activities of political parties by the Primary Law. The provisions of sections 9 and 10 that each committee and its officers shall have the powers usually exercised by such committees and their officers not inconsistent with the provisions of the act, and that each convention may perform all other functions inherent to such political organizations not inconsistent with the act, demonstrate that it was not the intention of the Legislature to take over and regulate all inherent rights and powers existing in political parties, but that, on the other hand, the parties are left to the exercise of those privileges not expressly regulated by the law.

[12] It is also argued by counsel for the respondent that it would be impossible to determine the voting strength of one appointed to fill a vacancy, as no record is required to be kept of the voting strength of committeemen elected. Section 57 of the act provides that the county clerk shall issue a certificate of election to each person shown by the returns to be elected a precinct committeeman. This certificate is required to state the number of ballots voted in his precinct by the primary electors of his party at the primary at which he was elected. Section 57 also requires that the canvassing board file with the proper clerk or the secretary of State, as the case may be, the result of the official canvass. As the clerk must state, in his certificate to the committeeman elected, the number of votes cast at the primary election at which such committeeman was elected, it is evident that the proclamation of the canvassing board filed with the county clerk must show the number of votes cast. That fact thereby becomes a matter of record in the office of the county clerk. One selected to fill a vacancy would, of course, have the powers, and only the powers, of the committeeman whose place he takes. The records of the county clerk's office give the necessary information as to voting strength, which is the same as shown in the certificate

issued to the originally elected committee- the committeemen of the new districts, and man for that precinct. We are of the opinion, therefore, that, in cases of a vacancy on state or county committees caused by the death, resignation, or removal of a member thereof, such vacancy for the unexpired term of the member whose death, resignation, or removal has caused the same, may be filed according to the rules and usages of the party. This objection, therefore, cannot be sustained.

[13] It is also objected that the Primary Law violates section 18 of article 2 and section 1 of article 7 of the Constitution, providing for freedom of elections in other respects. Among the provisions objected to on this ground are those defining the tenure of office and the voting strength of the precinct committeeman. Paragraph (c) of section 9 of

the act provides:

"In the organization and proceedings of the county central committee each precinct committeeman shall have one vote for each ballot voted in his precinct by the primary electors of his party at the primary at which he was elected."

the act is therefore open to the objection urged against the Primary Law (Laws 1910 [Sp. Sess.] p. 46) held invalid in McAlpine v. Dimick, 326 Ill. 240, 157 N. E. 235; and that paragraph (f) of section 10 of the act, providing that all precinct committeemen, when elected, shall serve as though elected at large, irrespective of any changes that may be made, and shall have the same voting strength through the period for which they are elected, is merely an attempt to evade the decision in the McAlpine Case.

A perusal of the act discloses that no provision is made for the election or appointment, before the next regular primary, of a committeeman in a new election district created by the act of the board of supervisors under section 30 of the Election Law, and it seems apparent, by the provisions of paragraph (f) of section 10 just referred to, that it is the purpose and intention of the Legislature that the territory in which a committeeman is elected shall not, so far as party representation and government cerned, be changed prior to the next primary election, although new election districts are

are con

Paragraph (f) of section 10 of the act pro- formed from parts of his precinct, and that,

vides:

"All precinct committeemen when elected as herein provided shall serve as though elected at large irrespective of any changes that may be made in precinct boundaries and the voting strength of each committeeman shall remain as herein provided for the entire time for which he is elected."

Section 30 of the act in regard to elections [Cahill's Stat. 1927, p. 1107, par. 31] provides that the county board of each county shall at its regular meeting in June, or an adjourned meeting in July, divide the election precincts which contain more than 800 voters into election districts, so that each district shall contain, as near as may be practicable, 500 voters, and not more, in any case, than 800. The act provides that polling places shall be fixed within these election districts, at which places all general and special elections shall be held. The respondent urges that, because of the changes made subsequent to the election of committeemen, vacancies will be created in such new voting districts, and the voting strength of the committeeman elected in the new district and of those in the remaining precincts cannot be determined; that the provisions of section 30 of the Election Law are mandatory, and that, when changes in precinct lines occur, it will frequently happen that a precinct made up of parts of two other precincts would, unless an election be provided, have no committeeman within its boundaries, and other cases would occur where the precinct newly created would have two committeemen, whereas the remainder of the two original precincts would have none; and that, in any event, there would be no method of telling the voting strength of

regardless of the creation of new polling districts by the board of supervisors, the committeeman shall act as the representative of his party for the territory in which he is elected, during the term of his incumbency. To illustrate: Assuming that precincts A and B adjoin, and from the territory of these there is created a third voting district by taking sufficient territory on either side of the boundary line between precincts A and B to create such district, so that out of the original territory of A and B three election districts are formed. Precinct committeemen were previous to such change elected in precincts A and B. While a third election district has been created out of the territory of precincts A and B, that territory and its population are the same, and it seems clear that the Legislature intended that the committeemen elected in precincts A and B should act as representatives of their party in that territory for the period for which they were elected. Their voting power was fixed at the time of their election, and the intent of the Primary Law clearly appears to be that such power should remain the same, regardless of such change. This would also be true in cases where new voting districts are created from parts of more than two precincts. To such purpose no constitutional objection is seen. The creation of new voting districts under section 30 of the Election Law is for the convenience of the voting public and for expedition in handling the returns. No reason appears why a committeeman of a political party may not represent the voters of his party in the original territory for which he is elected. Although voting districts may be increased within the territory of the orig

(160 N.E.)

inal precincts, each voter is represented in section 18 of article 2 and section 1 of article the voting strength of the committeeman as 7 of the Constitution in that it requires that, elected in such original precincts until the in cities, villages, and incorporated towns next primary election, when a committeeman having a board of election commissioners, the is to be selected from the new election dis- primary electors must be registered voters, trict. There is nothing in the Primary Law while there is no provision in the Primary requiring the doing of an act by committee- Law or any other law for intermediate or men, either separately or in convention, in other registration of voters in cities having which, or concerning which, such newly made a population of 200,000 or more. Section 43 voting district must be represented as a sep- of the Primary Law specifies certain requirearate unit. ments as to qualifications of the voters. It provides, in part, as follows:

[14, 15] It is argued that under the above plan committeemen of precincts A and B, after such change, could not be held responsible to voters of the territory taken from their respective precincts by the formation of new election districts, and that such a situation is contrary to our theory of representative government. Those committeemen were elected to represent the members of their party in the original territory of precincts A and B for a period of two years, and there is no basis for assuming that they will violate that trust. A like situation arises in cases where congressional or senatorial districts are changed. The representatives in Congress or in the state Legislature, or a state Senator, continue to represent the people of the district in which he is elected until the next congressional or senatorial election. No constitutional objection to such plan can be said to arise from this fact. Such a plan does not violate the principles of equality and freedom of elections provided by section 18 of article 2 and section 1 of article 7 of the Constitution. It is apparent that it is not intended by the Primary Law to have an intermediate election in the newly formed precincts, and there is no constitutional requirement that there be one. Such a plan is not an evasion of the rule in the McAlpine Case, supra. The Primary Law there considered provided that the voting strength of committeemen should be one vote, and one additional vote for each 50 votes, or major fraction thereof, cast in the precinct for Governor at the last general election for that office. Elections for Governor occur once in four years, while committeemen were to be elected for a term of two years. No provision was made for the equal representation of newly made precincts, and it was held that, by reason of the impossibility of determining in a new district the vote for Governor, the additional voting strength of committeemen elected in such new districts could not be determined, and such committeemen would therefore have but one vote as against many times that number in other like precincts not affected by change of boundaries. While it is evident that the changes made in the present Primary Law were for the purpose of meeting the objection to the act under consideration in the McAlpine Case, that fact is not an evidence of an attempt to evade the decision in that case.

[16] It is next urged that the law violates

"In cities having a board of election commissioners, the following additional regulations shall be applicable: In such cities only voters, registered as herein provided, shall be entitled to vote at such primary. * * In any such city having a population of 200,000 or more, and in any incorporated town, under the jurisdiction of such board of election commissioners the said registration books shall be revised three weeks preceding such primaries under the direction of said board of election commissioners in the same manner as is now provided by law for intermediate registration in cities having boards of election commissioners, provided that when an intermediate registration and revision is now provided for by law to be held within thirty days prior to such primary election then such intermediate registration and revision shall be the registration and revision for such primary election." Laws of 1927, p. 477.

The Legislature at the same session amended sections 3, 4, 5, and 17 of article 3 of the act known as the City Election Law. Laws of 1927, p. 443. By these amendments provisions for registration are made applicable only to municipalities having a population of less than 200,000.

[17-19] The General Primary Law was signed by the Governor on July 6, 1927. The amendments to the City Election Law just referred to were signed by the Governor on July 7, 1927. When an act is signed by the Governor after the 1st of July of the year in which it is passed it becomes a law, and takes effect when signed. Board of Education v. Morgan, 316 Ill. 143, 147 N. E. 34. The Primary Law therefore went into effect on the 6th day of July. It does not purport to provide a system of registration, but it was the apparent intention of the Legislature to adopt by reference the law relating to registration as it existed when this law went into effect, and to incorporate such law into the Primary Law. This is not an unusual method of drafting legislation, and has been frequently approved by this court. Hagler v. Small, 307 Ill. 460, 138 N. E. 849; Evans v. Illinois Surety Co., 298 Ill. 101, 131 N. E. 262; People v. Crossley, 261 Ill. 78, 103 N. E. 537; 2 Sutherland on Stat. Const. (2d Ed.) § 405. The eighteenth clause of section 1 of the act concerning statutes (Cahill's Stat. 1927, p. 2431) provides in relation to the construction of statutes:

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