dissenting:
As I do not concur in the reasoning or the results reached as to all the points discussed and decided in the foregoing opinion, owing to the importance of the questions involved I have deemed it proper to state at some length my views on some of these questions.
The contention is made that the Primary act violates section 1 of article 4 of the constitution, in that it delegates legislative power vested in the General Assembly. That such power cannot be delegated has frequently been reiterated by the courts, but this is true only in a qualified sense. In the early case of People v. Reynolds, 5 Gilm. 1, in an exhaustive discussion of this subject, this court said (p. 12): “We may well admit that the legislature cannot delegate its general legislative authority; still it may authorize many things to be done by others which it might properly do itself. All power possessed by the legislature is delegated to it by the people, and yet few will be found to insist that whatever the legislature may do it shall do or else it shall go undone. To establish such a principle in a large State would be almost to destroy the government.” A marked tendency has manifested itself in the direction of assigning to boards, commissions, local authorities, and especially to voters, duties heretofore generally performed by legislative bodies. (6 Am. & Eng. Ency. of Law,—2d ed.—1022.) The highest courts of the various States have not always ruled in harmony on this question. Appellant cites Rice v. Foster, 4 Harr. (Del.) 479, Ex parte Wall, 48 Cal. 279, Maize v. State, 4 Ind. 342, Thorne v. Cramer, 15 Barb. 112, State v. Hayes, 61 N. H. 264, Parker v. Commonwealth, 6 Pa. St. 507, and Barto v. Himrod, 8 N. Y. 483, all holding substantially that a law, when passed by the legislature, must be complete, positive and absolute, and cannot depend for its ultimate operation upon any other tribunal, body or persons, even though those persons be the entire body of the electors. This is not the law in this State. In Home Ins. Co. v. Swigert, 104 Ill. 653, this court, by Justice Mullcey, stated (p. 665): “Whatever the rule may be in other States it is well settled in this * * * that it is competent for the legislature to pass a law the ultimate operation of Which may, by its own terms, be made to depend upon some contingency, as, upon an affirmative vote by the electors of a given district, or upon any other indifferent contingency the legislature in its wisdom may prescribe.” To the same effect are People v. Reynolds, supra, People v. Hoffman, 116 Ill. 587, People v. Salomon, 51 id. 37, City of Chicago v. Reeves, 220 id. 274, and many other cases.
It is held that the act delegates legislative power because sections 2 and 3 thereof grant the right to the party committees to designate and establish delegate districts. As this court stated in People v. Harper, 91 Ill. 357, the principle has been repeatedly recognized by this and other courts of last resort that the General Assembly may authorize others to do those things which it could properly, but not understanding^ or advantageously, do itself. To the same effect are Schweiker v. Husser, 146 Ill. 399, City of Chicago v. Stratton, 162 id. 494, and Spiegler v. City of Chicago, 216 id. 114. The correct statement of principles governing this question is found in Sutherland on Statutory Construction, (sec. 68, p. 70,) where that author says:’ “The true distinction is between the delegation of power to make the law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” This court has more than once approved this distinction. Spiegler v. City of Chicago, supra; Arms v. Ayer, 192 Ill. 601.
Counsel for appellant insist that the ruling of this court in People v. Election Comrs. supra, is conclusive on this question. With this I do not agree. On the contrary, the reasoning in that decision tends strongly, in my opinion, to uphold the constitutionality of this act on the point now under discussion. In the law then under discussion the legislature had plainly delegated its legislative power. It had left to the committees the decision whether the officers should be nominated by the voters or by delegates, and whether they should be nominated by a majority or plurality vote. We there held that the law must be complete in its terms and conditions, so that everyone might know, by reading, what his rights were and how it would operate. These things could not be ascertained by reading that law, for it left to the party committees a discretion as to what the law should be, not, as in the law here under discussion, merely a discretion as to a few details of its execution. If appellant’s contention be correct, then the provisions of the Election law, which have been in force for many years, giving the board of county commissioners power to form election districts and divide them, (Hurd’s Stat. 1905, par. 30, p. 860,) and giving the board of election commissioners, under the City Election law, power to establish election precincts, (Hurd’s Stat. 1905, par. 176, p. 891,) would be subject to the same criticism. The county board and the board of election commissioners must change the precincts from time to time, as the voting population requires. If appellant’s contention is sound, then the legislature must fix the primary districts, as to boundaries and in every other respect, at the time the law is enacted,—a proceeding which would not be practicable, especially in view of the frequent necessary changes in the boundaries of the election precincts and districts. We have here a very plain illustration of the wisdom of the statement in People v. Reynolds, supra, that “while the legislature may not divest itself of its proper functions or delegate its general legislative authority, it may still authorize others to do those things which it might properly, yet cannot understanding^ or advantageously, do itself. Without this power legislation would become oppressive, and yet imbecile.” In my judgment, in any law of this kind the legislature, to be practical, must leave details, such as referred to here, to be fixed and carried out through the agency of others.
The opinion of the court holds, not that the authority is improperly delegated, by this law, to designate the primary districts, but that it is delegated tO' improper persons,—that it should be delegated to public officials. Under the authorities it seems to me that if it is not unconstitutional to delegate authority by a legislative act to one class of persons, then it is not unconstitutional tO delegate to any class of persons who can be compelled by law to carry out the provisions of the act. However that may be, the opinion of the court holds that the authority to form primary districts could be properly delegated to public officials, but that the members and officers of the political committees charged with calling the primary, designating and establishing districts and calling conventions are not public officials. In the most general and comprehensive sense a public office is an agency of the State, and the person whose duty it is to perform this agency is a public officer. There are numerous criteria which are not, in themselves, conclusive, yet which aid in determining whether a person is an officer, such as taking an oath, giving a bond, being entitled to fees, etc. But no one of these is absolutely essential. (23 Am. & Eng. Ency. of Law,—2d ed.—p. 322; Mechem on Public Officers and Agents, secs. 1-10). Section 24 of article 5 of the constitution of 1870 provides that “an office is a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed,” etc. This court has held, in construing this section, that it has reference, in so far as it operates as a restriction upon the mode of appointment, to State offices only; that an office created by statute is wholly under legislative control. (People v. Loeffler, 175 Ill. 585; People v. Bollam, 182 id. 528.) Some employments of a private nature are considered public offices if connected with the public, as a bank or railroad president, secretary, treasurer or director. (People v. Ridgley, 21 Ill. 64.) An office may be only one of honor, without perquisites or profits. Dickson v. People, 17 Ill. 191.
A writ of mandamus has been defined to be a command issuing from a court of law of competent jurisdiction, in the name of the State, directing some inferior court, officer, corporation or person to do some particular thing therein specified which pertains to his office or duty. (19 Am. & Eng. Ency. of Law,—2d ed.—p. 716.) “It is a general rule that mandamus will not lie against one who does not occupy an official or quasi official position, though a few cases may be found where the writ has issued against private persons for the enforcement of purely private rights.” (19 Am. & Eng. Ency. of Law,—2d ed.—p. 744.) “Mandamus lies, as is well known, not only against public officers, but against private officers in certain cases, and against public and private corporations.” (Mechem on Public Officers and Agents, sec. 926.) Mandamus lies to enforce a public duty. (People v. Chicago and Alton Railroad Co. 55 Ill. 95; Chicago and Alton Railroad Co. v. Suffern, 129 id. 274.) This court has repeatedly held that the officials of railroad companies can be compelled to perform certain duties by mandamus, on the theory that they owe these duties to the State and are subject to its visitorial powers. (People v. St. Louis, Alton and Terre Haute Railroad Co. 176 Ill. 512; Litchfield and Madison Railway Co. v. People, 222 id. 242; People v. Chicago, Indianapolis and Louisville Railway Co. 223 id. 581.) Gas, water and telephone companies can be compelled by mandamus to discharge their duties to the public. (2 Spelling on Injunctions and other Extraordinary Remedies,—2d ed.—sec. 1592.)
If certain duties devolving upon party committees and their officers are of a public nature, then the same line of reasoning would apply to them, as to the performance of such duties, as has been applied to railroad and other officials. It is only recently that the legislature has recognized the existence of political parties and attempted to regulate the means by which partisan efforts shall be exercised. Independently of statutory enactment the courts would have no inherent power to interfere with the management of purely party affairs, but undoubtedly, by the great weight of authority, reasonable regulations as to party management, both of elections and primaries, are authorized. (15 Cyc. 332, and cases there cited.) Under the Australian Ballot law, party committees and the officers of party conventions have been charged for years with certain responsibilities in carrying out that law. If the reasons urged against the Primary law on this point would render it unconstitutional, why would they not apply with equal force to the Ballot law? But I do not believe the point is well taken as to either law. Decisions may be found where courts have held that they could not interfere with the actions of political parties or committees, but in those cases the statutes of the State did not attempt in any way to regulate the actions of such parties or committees on the point involved. In Attorney General v. Drohan, 169 Mass. 534, cited by appellant, while that court held that members of political committees were not such public officers as could be removed from their positions by quo warranto proceedings, yet at the same time it was held that the courts could enforce the provisions of the statute relating to such party committees and caucuses. The political parties of this country, and their official representatives, in recent years, under the ballot and primary laws, have become, as to certain of their functions, quasi governmental agencies. “Primary laws necessarily create new legal rights and corresponding legal duties.” (State v. Houser, 122 Wis. 534.) In Brower v. O’Brien, 2 Ind. 423, that court held that the writ of mandamus might issue, directed to the opposing candidate, when the performance of a ministerial duty was imposed upon him by law. The Supreme Court of Kentucky, in Hill v. Holdam, 87 S. W. Rep. 805, held that where, under a primary law, the committee or governing authority of a party. has power to determine and decide who shall have the nomination, a court may require the committee to act, or may restrain from acting a committee which has no jurisdiction under the law. In State v. Jones, 78 N. E. Rep. 505, the Supreme Court of Ohio held that a person who acted as secretary of two rival conventions could be compelled by mandamus to execute a certificate of nomination for each convention, in order that the candidates of both conventions could present their claims before the proper body for decision. In Spelling on Injunctions and other Extraordinary Remedies (vol. 2,—2d ed.—sec. 1570a,) the rule is laid down, where an election law provides that no person shall be entitled to vote at a primary, unless he be a qualified voter on the day of election, for the officers to be nominated thereat, and also possesses certain other qualifications, that the courts have jurisdiction to compel a political association to place on its rolls one who has complied with such regulations and usages. No court, so far as I am aware, has ever held that where the statute in plain terms placed specific duties upon political committees or other officers, the courts could not, by proper action, compel the performance of such duties. To hold otherwise would greatly weaken practical legislation as to primary and election laws. To my mind it is obvious that the members of the party committees charged with such responsibilities by law become quasi public officials. The great weight of authority since primary laws have been discussed and construed by the courts is to that effect. If it be admitted that the authority to fix primary districts can be delegated by law to boards of election commissioners or county boards, is it not simply a legislative question as to whether the law shall provide that these duties shall devolve upon this class of officials or upon the officials of party organizations, who, under this law, are made quasi public officials? Is not this solely a matter of public policy, and not one of judicial construction? As a matter of public policy, and the better practice, I might agree with the opinion of the court that the establishing of delegate districts should be left with the county boards or board of election commissioners, as the case may be, in the respective jurisdictions ; but I do not believe that the provisions of the law now under discussion are void because such duties are placed by this law upon the party committees.
The contention is made by appellant that the act is unconstitutional for the particular reason that section 33 adds to the qualifications of electors and deprives constitutionally qualified electors of their right to vote at the primary. In discussing the constitutionality of any act it is necessary to keep, in mind the principle so often announced, that the State constitution is a limitation upon and not a grant of power, and that the legislature can enact all laws not expressly limited by the constitution. In Sherman v. People, 210 Ill. 552, we said on this subject (p. 558) : “In order that legislation be held unconstitutional there must be some express provision prohibiting it. In passing upon the constitutionality of a statute all presumptions are in favor of its validity and all doubts are resolved in its favor. No statute should be held unconstitutional unless the court is convinced, beyond a reasonable doubt, that it is not constitutional.” We said in People v. Election Comrs. supra, that at the time the constitution was adopted primary elections were not within the contemplation of its framers; that up to that time such elections “had not been made a part of the election system or subject to regulation by law. At that time candidates for office were nominated by means of the caucus and convention of delegates, and such nominations were purely private affairs of the political organizations.”
There seems to have been no attempt in our statutes to regulate the holding of party caucuses or as to the nomination of candidates for office until in 1885 the City Election law was passed, (which was held constitutional in People v. Hoffman, supra,) wherein parties were recognized in the selection of the board of election commissioners and in the appointment of judges and clerks. The same year a primary law of two sections was enacted fixing penalties for improper acts in connection with the conduct of primaries. (Hurd’s Stat. 1905, p. 945.) In 1889 the first attempt in this State was made to regulate with any detail the procedure to be followed in nominating candidates for office. (Hurd’s Stat. 1905, p. 940.) This law rested entirely upon the voluntary will of the party committees as to whether or not it should be invoked. In 1891 the so-called Australian Ballot law was enacted in this State, (Hurd’s Stat. 1905, p. 926,) for the first time talcing control of many of the details of elections, and also in a general way regulating the nomination of candidates for such offices. In 1898 the first mandatory primary law was adopted, which applied at once only to Cook county, but could be adopted by a vote of the people in any county, city or incorporated town in the State, and was so adopted in several counties and in some of the cities. This law was amended in many details and passed as an entire new act amending the former act in 1901. (Hurd’s Stat. 1905, p. 948.) In 1899 another law was passed, (Hurd’s Stat. 1905, p. 945,) which applied only to counties of less than 125,000 and when adopted by a vote of the people. This was adopted in several localities. The first compulsory primary law applying to the entire State was passed May 18, 1905. This law was declared unconstitutional in People v. Election Comrs. supra, and the law now under discussion was enacted at a special session of the legislature very shortly thereafter. The growing sentiment in favor of the regulation of caucuses, primaries, nominating conventions and the nomination of candidates for office, generally, as shown by these various laws, has been duplicated during the same years in practically all of the large States of the Union, and such legislation is now agitated and advocated in all sections of the country. Experience first demonstrated that it was absolutely necessary to protect by strict laws the rights of the voter at general elections, but in recent years it has become evident that it is just as necessary to control by positive enactment the nomination of candidates as to regulate the procedure of their election.
Is it necessary, in order to keep within the letter and spirit of our Bill of Rights and constitution, that the same regulations obtain and the individual voter be entitled to exactly the same rights, exercised in the same way, in the nomination of all candidates that he has in voting on election day? The Australian ballot system has been adopted in every State of the Union. In practically all of these laws there is a provision that a party organization, in order to be recognized by the law as entitled, as such, to a place on the ballot, must have cast at some specified recent election a certain percentage, ranging from one to ten, of the total vote. In Miner v. Olin, 159 Mass. 487, the Supreme Court of that State held constitutional a law requiring the party to have cast three per cent of the entire vote for Governor. In DeWalt v. Bartley, 146 Pa. St. 529, the highest court of that State held that it was “necessary to make some regulations in regard to nominations in order to ascertain what names shall be printed on the ballot. The right to vote can only be exercised by the individual voter. The right to nominate, flowing necessarily from tile right to vote, can only, be exercised by a number of voters acting together.” Without this, “three persons may claim to be a political party, just as the three tailors of Tooley street assumed to be ‘the people of England.’ ” The Supreme Court of Minnesota, in Davidson v. Hanson, 87 Minn. 211, held that a law was constitutional which permitted parties that cast ten per cent of the vote to nominate. To the same effect is State v. Poston, 58 Ohio St. 620. All laws regulating nominations must recognize political parties. “We live in the days of party government; whether it is desirable or not, we cannot escape it if we would.” (State v. Houser, supra.) This court, in People v. Election Comrs. supra, stated that when an official ballot is used, the “nomination of candidates whose names shall appear upon the ballot must be regulated in some way, otherwise the whole scheme would be incapable of execution.” See, also, People v. Williamson, 185 Ill. 106.
In construing the provisions of the constitution, as in construing the law, the intent of the creators is the “polar star.” The intent is the law. (Sutherland on Statutory Construction,—1891 ed.—sec. 234.) In construing the constitution and Bill of Rights it is our duty to find, if possible, the meaning of the various provisions in the light of what its makers sought. The convention that adopted the Federal constitution did not attempt to draft a code. Chief Justice Marshall, in McCulloch v. State of Maryland, 4 Wheat. (17 U. S.) 316, says (p. 407): “A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code and could scarcely be embraced by the human mind. It. would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution is not only to be inferred from the nature of the instrument, but from the language.” As a result, the Federal constitution has been found sufficiently specific, and yet so comprehensive and flexible, as to meet the changing and complex needs of a people that has increased within the century since its adoption from three to more than eighty millions. What was said by Chief Justice Marshall as to the Federal constitution was in a large degree the guiding and controlling influence of the framers of the present constitution of our State. Cooley, in his Constitutional Limitations, (7th ed. p. 238,) in discussing the same subject, states: “The principles of republican government are not a set of inflexible rules, vital and active in the constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity, and it is only in those particulars in which experience has demonstrated any departure from the settled practice to work injustice or confusion, that we shall discover an incorporation of them in the constitution in such form as to make them definite rules of action under all circumstances.” With the principles of constitutional construction in mind thus laid down by these great authorities, is section 33 of the Primary law obnoxious to any constitutional provision of the State?
Does that provision of the Bill of Rights which reads, “all elections shall be free and equal,” (Const. art. 2, sec. 18, Hurd’s Stat. 1905, p. 55,) require that in order to have primary elections free and equal every citizen entitled to vote at general elections must have the right to take part in the primaries of all parties? This question answers itself. No reasonable man so contends. “That election is free and equal where all of the qualified electors of the precinct are carefully distinguished from the unqualified, and are protected in the right to desposit their ballots in safety and unprejudiced by fraud. That election is not free and equal where the true electors are not separated from the false, where the ballot is not deposited in safety or where it is supplanted by fraud. It is therefore the duty of the legislature to secure freedom and equality by such regulations as will exclude the unqualified and allow the qualified only to vote.” (Patterson v. Barlow, 60 Pa. St. 54.) A voter is “free” when he is left in the untrammeled exercise of his right or privilege. The vote of an elector is “equal,” in the sense used in our Bill of Rights, when that vote is counted at the same value as the vote of every other qualified elector exercising the privilege. When persons not legitimately qualified are permitted to vote, the legal voter is thereby denied his adequate porportionate share of influence in the election. The election as to him is unequal. (DeWalt v. Bartley, supra; Ladd v. Holmes, 40 Ore. 167; Wigmore on Ballot Reform, 23 Am. Law Rev. 719; People v. Hoffman, supra.) Did the constitution intend that a republican should vote at a democratic primary, or vice versa, or that a man who claims to be a member of no party is entitled to vote at either primary, as he may choose? No one will contend that the words “free and equal,” as applied to the Primary law of 1898 heretofore in force in Cook county, which provides for democratic primaries on one day and republican primaries on another day, require that every citizen who is entitled to vote at the republican primary is also entitled to vote at the democratic primary. If this can not be done on different days, then it logically follows that if the primaries of all the parties are required to be on the same day, a republican could not go to the voting place and demand as his right both a republican and a democratic ballot and insist upon casting both. How, then, can it be reasonably argued that a man who is a member of no party has a right to insist upon voting the party ticket of any of the recognized parties ? The conclusion irresistibly follows, that if the parties are to be recognized in the primaries there must be some test as to party affiliation and the party qualification. If this be so, then much of the argument against the constitutionality of section 33 of the Primary law falls of its own weight. If the legislature has a right to fix party qualifications of any kind, then the. question very largely resolves itself into a decision as to whether these qualifications so fixed are reasonable or unreasonable. Every member of the same party under the constitution and Bill of Rights must have a free and equal opportunity with every other member of the party to cast his ballot and have that ballot count for just as much as every other ballot cast at the same party primary.
In People v. Democratic Committee, 164 N. Y. 335, the court of last resort in that State, in holding constitutional a primary law requiring a declaration of party affiliations in order to vote, stated the abuses of old voluntary party organizations had become so common “that a demand was made for a primary election law sufficiently comprehensive in scope to assure all persons equal rights in the primary elections, conventions and political committees of the party with which they were allied.” This law provided for the enrollment of the voter according to his party affiliations, and the only test was that “he shall express that intention to support generally at the next general, State or national election the nominees of such party for State or national officers.”
In Ladd v. Holmes, supra, the Supreme Court of Oregon held that only electors of given parties were entitled to vote at their respective primaries, and that it is not a violation of the “constitution that all electors are not permitted to vote at a particular party election.”
In Commonwealth v. Rogers, 181 Mass. 184, that court held that a primary law was constitutional, and among other things stated: “It would be a strange inversion to say that no laws can be passed upon the mode of voting at a preliminary meeting held only for the purpose of getting names printed upon an official ballot when laws can be passed affecting the final vote. The legislature has a right to attach reasonable conditions to that advantage if it has a right to grant the advantage. * * * One specific objection urged is, that by section 91 no person having voted in the caucus of one political party shall be entitled to vote or take part in the caucus of another political party within the ensuing twelve months. It seems to us impossible to say, as a matter of law, that this is not a reasonable precaution against the fraudulent intrusion of members of a different party for sinister purposes.”
In State v. Jensen, 86 Minn. 19, the court, in deciding a primary law constitutional which permitted only the members of a party to vote at a given party primary, laid down this rule: “We are of the opinion that the legislature may classify political parties with reference to differences in party conditions and numerical strength and prescribe how each class shall select its candidates, but it cannot do so arbitrarily and confer upon one class important privileges and partisan advantages and deny them to another class, and hamper it with unfair and unnecessary burdens and restrictions in the selection of its candidates.”
In State v. Drexel, 105 N. W. Rep. (Neb.) 174, that court held that it was “necessary to recognize the existence of political parties and to classify them by some convenient standard.”
As far back as 1881 the Supreme Court of Pennsylvania, in Leonard v. Commonwealth, 112 Pa. St. 607, held that only members of a given party had a right to take part in its caucuses or primary. To the same effect is Hopper v. Stack, 56 Atl. Rep. (N. J.) 1.
The constitutions of the States where primary laws requiring party affiliations have been upheld are substantially the same as to the rights of suffrage as our own.
The Supreme Court of California, in Britton v. Board, 129 Cal. 337, while holding a certain primary law unconstitutional, insisted that any primary law which did not permit a party, through its organization, to advocate its political beliefs and protect such party organization would be absolutely opposed to the principle of self-government, saying (p. 346) : “A law which will destroy such party organization or permit it fraudulently to pass into the hands of its political enemies cannot be upheld;" that “self-preservation is an inherent right of political parties as well as of individuals.” The opinion condemned that primary law because it did not permit the voter to be questioned “touching his political affiliations, past, present and future.”
Section 33 of this Primary law first provides that a person must be a legally qualified voter, and then adds the constitutional provisions as to residence. No objection is made as to this. Then follows a provision that he must declare his party affiliation; then, that in places where registration is required under the so-called City Election act only registered voters shall vote. The section then provides that no person shall be allowed to vote at a given party primary if he has signed the petition of a candidate of a party with which he does not affiliate when such candidate is to be voted for at that primary election. This Primary law requires that in order for a man to be voted for at a given primary he must file a petition signed by a certain number of voters of his own party. If a man cannot vote at a primary of the party with which he does not affiliate, what reason has he to Complain if he is not permitted to assist in naming a candidate to be voted for at that primary ? If he has signed the nomination papers of a candidate of a different party from that with which he has been accustomed to affiliate, can it fairly be said that he is still a member of his former party or that he still affiliates with it?
The section then provides that no person shall be allowed to vote at the primary who has signed the petition of an independent candidate for an office for which candidates are to be voted for at the said primary election. This condition or test is most strenuously urged as being unconstitutional and not giving “free and equal” rights to all the voters. It is insisted that a man who signs the nomination paper for only one independent candidate may be deprived of voting where candidates are to be nominated for many offices. The Australian Ballot law provides that candidates can be placed on the ballot, not only by the regular party organizations but by petitions of a certain number of voters, and the present Primary law does not attempt in any way to interfere with the provisions of the Australian Ballot law in this regard. Under that law a voter can sign petitions to place on the ballot a candidate for every office to be filled at an election. Is there any hardship in forbidding him, if he has signed a petition to nominate a candidate for one office, from taking part in a primary where he can vote to nominate candidates for all offices? A majority who take part in that primary will not wish, to sign nominating petitions. If the principle contended for be upheld, then those who do sign might not only do that, but afterward take part in nominating candidates through the regular party primary. If the law permitted this, would it be “free and equal” in the sense that the constitution uses those terms? Suppose a voter first signs petitions for all places to be filled at the coming election, can he then rightfully demand the privilege of voting also at a party primary which is to nominate candidates for the same election? If not in that case, 'can he do so when he has signed for all but one place to be filled at the coming election ? Where must the line be drawn ? The section closes with the provision that a voter who has voted at a primary election of another political party within one year next preceding such primary election cannot vote the ticket of a different party within that year. Substantially this provision was upheld, as stated in Commonwealth v. Rogers, supra.
Any person who has given study to the subject, realizes that one of the most difficult provisions of a primary election law to draft and enforce is the test of party affiliation, and the method of preventing members of a different party, or of no party, voting at the primary of a given political party. As was well said in Ladd v. Holmes, supra: “Electors of one party have no desire, unless prompted by sinister or evil motives, nor have they any inherent right within or without the constitution, to vote at some other party primary or election, hence no right or privilege of which they can complain has been intrenched upon or violated. We see no objection to the legislature providing for party elections and limiting the electoral privilege to party members.”
Appellant contends that the test should be not past acts, but future intentions. How can the future be better judged than by the past? It has been frequently decided by the courts that on the question of the residence of a voter the intention largely governs, but that the intention can be. shown not only by what the voter says, but also by his acts. (Moffett v. Hill, 131 Ill. 239; Kreitz v. Behrensmeyer, 125 id. 141.) This court plainly recognized in People v. Election Comrs. supra, (p. 28,) the principle that a test as to party affiliations in a primary law would be constitutional. For these reasons I concur with the conclusion reached by the court that the law is not unconstitutional on account of its test as to party affiliations.
Section 24 of this act is by the majority opinion held void because it gives party organizations the authority to limit the nominations to less than three candidates for representative in the General Assembly, .thereby, it is claimed, denying the elector his constitutional right to vote for one, two or three candidates for representatives, as he may decide. Sections 7 and 8 of article 4 of the constitution (Hurd’s Stat. 1905, p. 56,) reads: “The house of representatives shall consist of three times the number of the members of the senate, and the term of office shall be two years. Three representatives shall be elected in each senatorial district at the general election in the year of our Lord 1872, and every two years thereafter. In all elections of representatives aforesaid, each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same, or equal parts thereof, among the candidates, as he shall see fit; and the candidates highest in votes shall be declared elected.” Under this section minority representation in the General Assembly was provided for and the right given to voters to cumulate their votes in electing said representatives, so that a party having less than a majority of the votes in a given district might secure representation from that district. Ever since the adoption of the constitution the practice in this State has been for political parties, through the nominating conventions, to fix and limit the number of candidates which the party should nominate for representative. Only in very rare instances has any party nominated three candidates, and the practice has been (except in close districts) for the party having the most votes in a given senatorial district to nominate two and the other parties each to nominate one candidate for representative. When the constitution was adopted the intention plainly was that all parties should not be compelled to nominate three candidates in each senatorial district. The heading of this provision of the constitution has always been “minority representation,” and section 12 of the schedule of the constitution applied that specific term to this provision. A mere reading shows that this constitutional provision plainly refers to the election itself, and not in any way, directly or indirectly, to the nomination of candidates for such election. In other words, while the constitution permits cumulative voting for representatives in the General Assembly at the election so as to allow representation to the minority party or group of individuals, it does not extend that system so as to cover the representation of minority factions of political parties or adherents of certain candidates at primaries or caucuses in making party nominations. When the Australian Ballot law was passed this practice as to nominating less than three candidates was recognized, and special provisions were inserted as to certificates of nomination for the office of representative in the General Assembly, as well as for counting the votes for that office. The same legislature which at a special session passed this Primary law, amended at its regular session the provisions of the law as to counting the votes for representatives in the General Assembly. Amended section 17 of that law (Hurd’s Stat. 1905, p. 931,) contains separate provisions as to the manner of counting the votes for representative when there are one, two and three candidates, respectively, of a given party, showing conclusively that the legislature did not intend to compel the nomination of three such candidates by each party in each senatorial district. If it was intended by this Primary law to deprive political parties of the power theretofore existing to determine for themselves the number of candidates they should nominate for representatives in the General Assembly, such a change of policy on so important and fundamental a question could properly only be made by express terms or by necessary implication. This Primary law does not by express terms attempt to repeal the provisions of the Ballot law on this point, and should not, in my opinion, be held to repeal it by implication, because there is not such inconsistency between the two acts that the provisions on this point in both acts cannot stand. This court held in Village of Ridgway v. Gallatin County, 181 Ill. 521, that repeals by implication were “not favored in law, and a later statute will never be held to repeal an earlier one unless they cannot be reconciled. It is the duty of the courts to construe them so as to avoid repeal, if such construction can be given, and a statute will never be held to be repealed by implication if it can be avoided by any reasonable hypothesis.” To the same effect are People v. Murphy, 202 Ill. 493, and People v. Mottinger, 215 id. 256.
From an examination of this law it is very evident that the legislature did not intend to compel political party organizations to nominate candidates for all offices to be filled at a given election, but only to provide that a political party, if it desires, as a party, to nominate a candidate for any office named in article i thereof, must nominate such candidate according to the provisions of the Primary law. In other words, this law does not compel the nomination of candidates for office by parties, but regulates such nominations if made. If a party organization cast two per cent or more of the vote at the last presidential election it must nominate in a certain way, if it nominates at all as such. A body of men which cast less than two per cent of the vote, even though organized into a party, if they wish to nominate, must nominate in a different way.
It is clear that the provisions of the law are not the same as to all candidates nominated thereunder. Section i provides: “That hereafter the nominations of all candidates for all elective State and county offices, clerks of the Appellate Courts, representatives in Congress, members of the State Board of Equalization, members of the General Assembly, sanitary district trustees, and such municipal officers as are to be elected at the November election, by all political parties, shall be made by conventions of delegates to be elected by means of a primary election under the provisions of this act. This act shall not apply to the nomination of candidates for county commissioners in counties not under township organization and township officers. The title ‘political party’ shall mean a party which at the last preceding presidential election, cast for its candidates for presidential elector receiving the highest number of votes at least two per cent of the total vote cast at said election.” It will be noted that this section provides only that nominations “shall be made by conventions of delegates,” and that nothing is said as to nominating by a direct vote. Sections 13, 14, 15, 16 and 17 provide that candidates for certain offices may have their names printed on the “official primary ballot.” These sections, in connection with others, make it plain that as to certain offices the electors may express their choice at the primary. It is evident from section 14 that candidates for trustees of the State university, and from sections 24 and 29 that candidates for trustees of the Sanitary District of Chicago and candidates for municipal officers to be elected at the November election, can not have their names placed upon the official ballot, but are to be nominated by delegates elected at the primary and acting without instructions from the voter. It is further evident that candidates for certain offices are entirely exempt from the provisions of this law.
The contention is made in the briefs that it is unconstitutional to permit certain candidates to be nominated by delegates in convention, and to require candidates for certain other offices to be nominated under the same primary law by means of a direct vote of the people. The opinion of the court,—rightly, I think,—does not so hold. This law is not to compel the nomination of candidates by parties for' any office, but to regulate the procedure in making such nominations, if the party, acting through its proper authorities, desires to make them. The legislature, therefore, can provide that candidates for certain offices shall be nominated by a convention of delegates without the voters expressing their choice as tO' such candidates, while they may provide that the voters can express their choice as to other candidates. As trustees of the State university, sanitary district trustees and certain candidates for municipal offices can be nominated by delegates without the intervention of the direct vote of the people, and at the same time county officers, members of Congress and certain State officers can be nominated by means of such direct vote, what is there unreasonable or unconstitutional in providing that the voters can instruct the delegates as to one candidate for representative in the General Assembly, and if it shall be decided to nominate two or three candidates for such representatives, that those other candidates shall be nominated by delegates in convention, without the intervention of the direct vote? Each member of the house of representatives holds a separate office. Each one of the three positions of representative in the General Assembly, in a given senatorial district, is just as much a separate office, one from the other, as is the office of representative in the General Assembly separate and distinct from the office of State senator or the office of trustee of the State university. It is not held the law is unconstitutional because it does not provide that university trustees shall be nominated by 'direct vote while candidates for other elective State offices may be. Why, then, is it not equally unobjectionable to provide that one candidate for representative in the General Assembly may be nominated . through the intervention of the direct vote, and additional candidates for that office, if it be decided to name them, may be nominated by delegates acting without instructions ? It may be more difficult to arrange practically for the nomination of candidates for representatives in the General Assembly by these two different methods than it is to provide for the nomination of certain State officers by one method and certain other State officers by the other; but that is a question of detail in carrying out the law, and not a constitutional difficulty. It is well known that it has always been found difficult to carry out, practically and satisfactorily, the nomination for candidates for representatives in the General Assembly or their election under the minority provisions of the constitution. The opinion of the court holds that under the constitution the voter is entitled to vote for one, two or three candidates for nomination for candidates for representatives in the General Assembly, as he may wish. Does it not logically and inevitably follow, from this'holding, that three candidates who have a majority of the delegates instructed for them must then be nominated by the conventions ? To hold otherwise, it seems to me, is to make the right of the voter to cast his ballot for one, two or three candidates, as he may wish, of no practical value. I do not think the minority provision of the constitution was ever intended to cover the nomination of candidates for representatives in the General Assembly, but only their election.
Considering the law as a whole, it provides that any person who desires to be a candidate for representative in the General Assembly can have his name printed on the primary ballot of his party, that the voter can only vote for one candidate for representative in the General Assembly in a given delegate district. The candidate who receives a plurality of the votes cast for that office in a delegate district is entitled to the votes of the delegates from that district for at least the first ballot, and it is evident that if any candidate has a majority of the delegates in the convention so instructed for him, he will be nominated on the first ballot, otherwise, after the first ballot the delegates will be free to vote for whom they choose. In any event, as I construe the law, after the nomination of one candidate the delegates would not be instructed as to any other candidate, but if they desire to nominate one or two additional candidates, while the majority of delegates could not be instructed for more than one candidate, yet the wishes of the voters would plainly be shown by the result as to all the candidates. This construction gives the same rights to every member of the same political party in a given senatorial district, and is in harmony with all the provisions of this law. In my judgment the provisions of this primary law with reference to the nomination of representatives in the General Assembly violate no constitutional provisions.
I concur in the decision of the court that section 33, in so far as it prevents otherwise qualified electors from voting at primary elections unless they are registered, when no opportunity is afforded them by law to register within thirty days of the election, is unconstitutional and void, but I do not believe that the void provision "should render the whole act unconstitutional. “It will sometimes be found that an act is opposed, in some of its provisions, to the constitution, while others, standing by themselves, would be unobjectionable. * * * In any such case the portion which conflicts with the constitution must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law and in what manner and to what extent the unconstitutional portion affects the remainder. * * * Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to-declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed-the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section and yet be perfectly distinct and separable, so that the first may stand though the last fall.” (Cooley’s Const. Lim.—7th ed—pp. 246, 247.) This court has frequently quoted this rule with approval. (People v. Knopf, 183 Ill. 410; Sutherland on Stat. Const. secs. 169, 170.) Striking out this provision does not in any way invalidate the rest of the law, or impair, in the slightest degree, its enforcement. It yet remains a complete and symmetrical whole.
I also concur in the opinion .of the court that section 59, unnecessarily and without any good reason, deprives the voters of all voice in the nomination of candidates to be voted for at special elections, and is unconstitutional and void, but I gravely doubt that the entire law, with this section out, is therefore void as being incomplete and impossible of execution. The Australian Ballot law provides adequate means for nominating candidates for special elections.
I concur also in the general doctrine laid down in the majority opinion as to the constitutional requirements concerning the title of legislative acts. I am of the opinion, however, that the term “primary election” has come to have such a well defined meaning that no one would be misled by its use in the present instance. The title to the act is poorly and inartificially worded, but, I think, sufficiently defipes the subject matter of the act, and that the law should not be held void because of any imperfection in the title.