dissenting:
Upon a re-consideration of the questions involved in this case I am convinced that our former conclusion was wrong, and while the modified opinion holds the act of 1901 invalid only in so far as it provides for the election of the additional judges for the short terms, the reasoning, as I understand it, must finally lead to holding the whole act unconstitutional and void.
The constitution of 1870, by sections 12 and 14 of article 6, provides for uniform terms of six years for all judges of circuit courts, and fixes the time for their election on the first Monday in June, 1873, and every six years thereafter. Those provisions were intended to apply to all circuit judges elected under the provision of that instrument at the time of its adoption. It was, however, realized that additional circuit judges would be necessary in the future, and hence, by section 15 of the same article, the General Assembly was authorized to divide the State into judicial circuits of greater population and territory than those fixed by section 13, “and provide for the election therein * * * of not exceeding four judges,” the additional judges to hold the circuit courts in the circuits for which they were elected, in the manner provided by law. There was no limitation as to the time when such an act might be passed. It also, by section 23, provided that the General Assembly might increase the number of judges of the circuit and superior courts of Cook county “by adding one to either of said courts for every additional 50,000 inhabitants in said county, over and above a population of 400,000.” No time was limited within which such change might be made.
Under section 15 the act of 1877 was passed creating larger circuits and providing that the judges of the circuit courts then in office should be judges for the respective circuits in which they resided, and that on the first Monday in August of the year 1877 there should be elected in each of said enlarged circuits one additional circuit judge. It was also further provided that the terms of office of the judges elected under the act on the first Monday in August, 1877, should expire on the first Monday of August, 1879, thus fixing their terms of office at two years; also, that on the first Monday of June, 1879, there should be elected in each of said circuits three judges whose terms of office should be six years, and that every six years thereafter there should be elected three judges of the circuit court whose terms of office should be six years.
In 1887, under the provision of section 23, the school census for the year 1886 having shown the inhabitants of Cook county to be of the requisite number to entitle the county to six additional judges, it was enacted that an election should be held on the first Monday of June next after the act should take effect, (that is, in June, 1887,) for six additional judges of the circuit court, whose terms of office should expire upon the first Monday in June, 1881, upon the election and qualification of their successors; and by section 2 of that act it was provided that upon the first Monday in June, 1881, and every six years thereafter, there should be elected at the same time and in the same manner as the other judges of said circuit court, six judges, successors in office of the judges by the act authorized to be elected.
Again, in 1893, the school census of 1892 showing the population of the county to be over 1,500,000, entitling" the county to additional judges, it was provided that the number of circuit judges be increased to fourteen and the judges of the superior court to twelve, thus adding three judges to each of. said courts. By section 2 of the same act it was provided that on Tuesday after the first Monday in November, 1893, these additional judges should be elected, and by section 3 that the additional superior judges should hold their offices for six years and until their successors were elected. By section 4 the terms of office of the three additional circuit judges were to expire on the first Monday of June, 1897, (a period of something over three years,) upon the election and qualification of their successors in office, and upon said first Monday in June, 1897, and every six years thereafter, there should be elected, at the same time and in the same manner as the other judges of the circuit courts, three successors in office of the circuit judges by the act authorized to be elected. Judges were elected in pursuance of and in conformity with the provisions of both of said last mentioned acts, and they and their successors have held office and transacted business in said court ever since, the constitutionality of the acts being unchallenged.
After the passage of the act of 1877 and the election of the additional judges as therein provided, the question arose among the objections to the validity of the law whether the legislature had the power to provide for terms of office of the additional judges for a term of less than six years, it being insisted that the act was violative of section 12 of article 6 of the constitution in that regard. The question came before this court in the case of People v. Wall, 88 Ill. 75, and it was held that the twelfth section did not affect the tenure of office of the additional judges. In the opinion the following language is used (p. 80): “The general election for all judges of the circuit courts is fixed by the constitution to take place on a certain day, and they are to be elected for the same length of time; but in projecting a new system, that is not practicable, nor is there anything in the constitution that makes it imperative to observe that clause of section 12. * * * The power to create and establish such courts would seem to carry with it, by necessary implication, authority to do that which would be necessary to render them effectual for the purposes for which they were to be created, otherwise it would be abortive to attempt to create such courts; * * * .and where power is granted'to the General Assembly for any specific.purpose it must be everything necessary to make it effectual or requisite to attain the end is implied.” That decision was followed in People v. Board of Supervisors, 100 Ill. 495, holding an act of the legislature of 1881 valid which extended the terms of office of certain county officers one year, as was claimed, in violation of section 28 of article 4 of the constitution, and in that case it was said (p. 506): “In the case of Peoples v. Wall, 88 Ill. 75, where the constitutionality of a statute was called in question upon the ground that it provided for the election of certain j udges of circuit courts in 1877 for a term of two years while the constitution declared that the terms of office of judges of circuit courts shall be six years, it was held by this court that this general provision for terms of six years had no application to 'legislation enacted to accomplish a change in the circuit system, which change was provided for in the constitution, but as to the mode of accomplishing the change the constitution was silent. So the amendment of 1880 having provided for a change in the times for the election of certain county officers and for a change of the terms of certain of them, being silent as to what shall be done in bringing about such change prior to November, 1882, and the change being such that it cannot practically be brought about except by doing, prior to'the time of which the amendment speaks expressly, one of two abnormal things, and which thing's are each in contravention of other general provisions of former parts of the constitution, we think that such general provisions plainly can have no application to such legislation as may be had in the necessary attainment of the object and end authorized by the amendment itself.”
In Knickerbocker v. People, 102 Ill. 218, in which the constitutionality of the act creating probate courts in counties of 70,000 or more population was in question, we find this language (p. 224): “The constitution having authorized the legislature to establish one of these courts in each county of the State, subject to the limitation with respect to population, and having fixed no time for the exercise of such authority, the clear and necessary implication is that the framers of the constitution intended the legislature should determine for itself when and under what circumstances it would exercise the authority conferred. It is conceded by counsel on both sides that this as well as all other provisions of the constitution must be read and construed, if it can be done without involving an inconsistency or absurdity, in the popular and ordinary sense in which the people understood it when voting for it. Applying this test to the provision in question, we have no doubt of the correctness of the construction we have given it.” And again: “Holding, then, as we do, it was the intention of the framers of the constitution that the legislature, in giving effect to the section under consideration, should be guided entirely by the wants and necessities of the people with respect to such courts in the several counties in the State having the requisite population, it follows the other provisions of that instrument must be so construed as to give effect to that intention,” etc.
The acts of 1887 and 1893 were passed after the foregoing decisions were rendered, both of which are unconstitutional and void if the act of 1901 must be so held. It is true that the facts in the Wall case differ from those involved here; but I am unable to see wherein the principle there decided and subsequently followed is not conclusive as to the validity of the foregoing several acts, including that of 1901. Section 23 confers the power upon the legislature, in its discretion, at any time, (the population being sufficient,) to increase the number of judges of Cook county “by adding one to either of said courts,” and to give practical <*ffect to the exercise of that power, — i. e,, to increase the number of judges at such time as the legislature deems necessary for the dispatch of the business of the courts, — the general limitations in sections 12 and 14 cannot be applied. It may' be that by eliminating the words “by adding one to either of said courts,” and substituting therefor “by adding one to the superior court,” the necessities of the county might be provided for; but the power is given, by the express language of the section, to add to the judges of the circuit court, and I know of no rule of construction which will justify changing the language of the section in order to hold the act invalid. On the contrary, every provision of the constitution and every act of the legislature must be so construed as to uphold the law, if it can reasonably be done. I might concede that by the strictest construction the act could be held void, but I contend that to do so would defeat the clear intention of the framers of the constitution and the people who adopted it.
Importance is attached to the last sentence of the twenty-third section, which is: “The terms of office of the judges of said courts hereafter elected, shall be six years.” That limitation does not necessarily apply to the additional judges provided for, but was intended to fix the general terms of office for all the judges thereafter elected for said courts, and except as to the superior judges it adds nothing whatever to the force of section 12. It is, in other words, a provision applying to the regular terms.of office of the judges of the superior and circuit courts, and, as was said in the Wall case, in no manner affects the tenure of office of the additional judges authorized in the body of that section. The act of 1901, as well as the acts of 1887 and 1893, by the provision for short terms, simply intended to bring the new order of things in Cook county into harmony with the general judicial policy of the State as to the time of electing circuit judges and their uniform terms of office,' and whether the question should be treated as purely a political one or not, within the rule announced in People v. Board of Supervisors, supra, certainly no private rights can be injuriously affected by sustaining their validity.
I have already extended this opinion beyond its intended limits, and in support of the views announced and as in harmony with the previous decisions of this court will simply cite, without comment, State v. Askew, 48 Ark. 82, and cases there cited; Haggerty v. Arnold, 13 Kan. 367; Wilson v. Clark, 63 id. 505; State v. Andrews, 67 Pac. Rep. 870; State v. Emerson, 39 Mo. 80.
As to the superior judges, whether it was necessary, or even wise, to provide for a short term is immaterial. I think the legislature had the power to do so.
Mr. Chief Justice Magruder concurs in the dissenting views of Mr. Justice Wilkin.