dissenting:
In the limited time at my disposal I can only state in a general way why I think the foregoing opinion and .conclusion unsound.
The proposition, “the provision authorizing the apportionment of the State into such Senatorial districts is section 6 of article 4,” is, in my opinion, a misconception, and forms the basis of the wrong conclusion reached. That section does not empower the General Assembly to make apportionment laws, nor does its language purport to do so. It only declares how the power already existing in the legislature shall be exercised. Nor can I see how the fact that the legislative body of the State is provided for in the constitution,—“is the creature of the constitution,” —in any way gives support to the assertion that section 6 is creative of the power in that body to apportion the State. It is admitted that the power to pass such laws is a legislative power. It is inherent in the General Assembly, and can be exercised by it at such times and in such manner as it may deem wise and proper, except in so far as it is limited by the constitution. It has often been said by this court: “No proposition is better settled than that a State constitution is a limitation upon the power of the legislature, and that the legislature possesses every power not delegated to some other department or expressly denied to it by the constitution.” The rule is nowhere more clearly stated than by Judge Cooley in his work on Constitutional Limitations, quoted with approval in People v. Thompson, 155 Ill. 451, as follows: “Whatever the people might do the courts cannot prevent their representatives from doing, unless the people have positively and expressly forbidden it. Such restrictions and limitations ought to be clear and explicit. Where the power which is exercised is legislative in its character the courts can enforce only those limitations which the constitution imposes, and not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives.”
The question here is, does the language, “the General Assembly shall apportion the State every ten years, be? ginning with the year 1871, by dividing the population,” etc., prohibit the passage of such statutes oftener than once in each period of ten years. The language as to when an apportionment shall be made, it will be seen, is very general and indefinite, and does not warrant the assumption throughout the majority opinion that it fixes the time when it shall be done. It does not require the first apportionment to be made in the year 1871, or at the first session after the Federal census of 1870, and every ten years thereafter, and in this respect is peculiar. It is unlike our constitution of 1848, or that of the States of Indiana and Wisconsin, reférred to in the cases cited from those States. They expressly provide for apportionments at fixed intervals, but no such requirement is found in our present constitution. It does no more than fix decennial periods, beginning with the year 1871, and requires an apportionment to be made within each of those periods. Any session of the legislature during the period can lawfully dividé the State into Senatorial districts, if it has not been done at a prior session in the period, —and this, not because it was the duty of a prior session to do so and the duty a continuing one, but because the duty devolves upon one session as much as another. It could not be claimed that the act in question is unconstitutional because passed in the year 1898. The contention must be that power is only given to make one apportionment in the period beginning" with the year 1891 and ending with the year 1901, and that the legislature of 1893, by the passage of the act at that session, had exhausted that power.
Is it true that the authority of the General Assembly is by this indefinite language limited to the passage of a single act during each ten years ? That there is no express language to that effect is admitted, but the theory of the foregoing opinion is that the prohibition arises by necessary implication. I do not so understand the language. The power to apportion the State every ten years is not, in my opinion, so incompatible or inconsistent with the right to do so oftener as to amount to an implied prohibition. The assertion that there is no substantial ground for establishing a different rule respecting the time when apportionments may be made than that which applies to the mode of doing the act is certainly unwarranted. It is conceded by the respondent that an apportionment must be made every ten years; but the insistence is that, consistently with that duty, it may be done oftener,-—and this raises the question of construction. It is impossible, however, that a mode other than that prescribed could be followed consistently with the provision in question,—that is, the population must be divided by 51, the quotient to be the ratio of representation. Certainly the ratio cannot be obtained, consistently with that express requirement, by using any other number as a divisor, and hence there is no room whatever for construction in that regard. And so as to the other requirements in the mode prescribed. The holding here is, that because the constitution says the General Assembly shall apportion the State every ten years it cannot do so more than once in any period of ten years, no matter what may be the emergency therefor. It seems to me no such conclusion can be reasonably drawn, much less arise by necessary implication. It is the duty of courts to so construe constitutional provisions and acts of the -legislature as to harmonize the two, and sustain the law if it is possible to do so. The rule is: “Language restricting the legislative power of the General Assembly must be construed strictly, (People ex rel. v. Wilson, 15 Ill. 388,) and unless it shall then clearly appear that the legislation in question is within the terms of the restriction it must be sustained. If it only be doubtful whether it is or not, the doubt must be in favor of the validity of the action of the General Assembly.” (Wilson v. Board of Trustees, 133 Ill. 443.) “If doubt exists as to the constitutionality of the statute, the benefit of the doubt is to be given to the law. The doubt upon which the court is to act may arise either from an endeavor to arrive at a true interpretation of the constitution, or from a consideration of the law after the meaning of the constitution has been judicially determined.” 23 Am. & Eng. Ency. of Law, 351, and cases cited in note.
The constitution, considered as a whole, shows that its framers did not intend the effect given to the language of section 6 by this decision. If the purpose had been to prohibit apportionments oftener than once every ten years, it is reasonable to suppose that language would have been used clearly expressing that intention, as is done in section 9 of article 4, fixing the sessions of the General Assembly at the time named “and at no other time;" and in section 5 of article 6, providing for the division of the State into districts for the election of Supreme judges, wherein it is said “the boundaries of the districts may be changed at the sessions of the General Assembly next preceding the election for judges therein, and at no other time;” and ag'ain in section 13 of the same article, authorizing the apportionment of the State into judicial circuits, the language being", “new circuits may be formed and the boundaries of the circuits changed by the General Assembly at its session next preceding the election for circuit judges, but at no other time” It is also a significant fact that no less than twelve other States of the Union, in the frame of their constitutions, have deemed it necessary, by the use of different terms of expression, to provide that apportionments should be made at fixed periods and at no other time.
There is to my mind no force in the argument attempted to be drawn from what is said to be the construction placed upon the constitution by the legislature in making apportionments of the State every ten years, and not oftener. In dividing the State into Senatorial districts once in each period of ten years the legislature did so not under a construction of the constitution thereby placed upon it, but by simply following its plain requirement. That it did not do so oftener cannot be said to amount to a construction by it that no power existed to do so. It cannot be assumed that it refrained from exercising the power because it understood it did not possess it, rather than because it found no occasion for its exercise. The only necessity for a re-apportionment more than once in a decennial period, which is here shown, arose at the session of 1893, as stated in the foregoing majority opinion, and that legislature did not hesitate to make it. The attempt to weaken the force of that action as indicating the construction placed upon the constitution by the legislature, upon the ground that the first act was unconstitutional, is, I think, futile. Without reference to the question as to the power of the legislature to pass upon the constitutionality of statutes enacted by it, it is illogical to say that the legislature could review its own acts by repealing the former statute at the same session, or, as I suppose would be admitted, at the next session of the legislature, on the ground that it was unconstitutional because some small part of the territory was attached to no district, but would have no power to do so upon a discovery that the apportionment was grossly unjust to the people of one or many portions of the State by reason of a disregard of the requirement that the districts shall be formed of compact and contiguous territory, etc., and as nearly as practicable containing an equal number of inhabitants.
No good purpose will be served by a review of the authorities cited in the majority opinion. Unless it must be held that the power of the General Assembly to apportion the State is derived from section 6, supra, of the constitution, or, rather, unless there is no reasonable ground for holding otherwise, none of them, properly understood, support the conclusion announced. The Wisconsin case does not decide the question here involved nor purport to do so, and the Indiana decision does so only incidentally, the question not being of controlling importance in that case. But as already said, the constitutional provisions of these States and those of our own are materially different, and the decisions for that reason should not be given the force of authority here. The fact that counsel for the defendant have been able to cite no decisions in conflict with them signifies nothing. As already said, the language of our constitution is peculiar, and, so far as I have been able to discover, is found in no other State constitution. It is before this court for the first time to be construed, and it is not strange that decided cases are not to be found bearing on the issue here. It is not for the defendant to show that the act in question is constitutional, but for those who challenge its validity to point out and make clear its invalidity.
For the reason already stated, that the power to make apportionments is inherent in the legislature and not created by the constitution, the maxim “expressio unius est exclusio alterius” is not properly applicable in the construction of section 6. It is a rule only to be applied where-the intention of the law-maker is not otherwise manifest, and as said by Mr. Sutherland in his work on Statutory Construction, (sec. 325,) “under these conditions it leads to sufficient and satisfactory conclusions, but otherwise the expression of one or more things is not a negation or exclusion of other things;” and he adds: “What is expressed is exclusive only when it is creative, or in derogation of some existing law or of some provision in the particular act.”
In my opinion the Apportionment act of January 11, 1898, entitled “An act to amend sections 1 and 2 of an act to apportion the State of Illinois into Senatorial districts, and to repeal certain acts therein named, approved June 15, 1893,” is a valid and constitutional enactment, and that the writ in this case should be denied.