specially concurring:
This case involves the construction and constitutionality of section n of “An act to provide for the holding of primary elections by political parties for the nomination of members of the General Assembly and the election of senatorial committeemen,” approved March 9, 1910, (Laws of 1909-10, p. 77,) which section reads as "follows:
“Sec. 11. At least thirty-three (33) days prior to the date of the April primary the senatorial committee of each political party shall meet and by resolution, fix and determine the number of candidates to be nominated by their party at the primary for representative in the General Assembly. A copy of said resolution, duly certified by the chairman and attested by the secretary of the committee, shall, within five days thereafter, be filed in the office of the Secretary of State, and in the office of the county clerk of each county in the senatorial district.
“In all primaries for the nomination of candidates for representatives in the General Assembly each qualified primary elector may cast three votes for one candidate, or may distribute the same or equal parts thereof among two candidates or three candidates, as he shall see fit. And the said candidate or candidates for nomination highest in votes shall be declared nominated for the office to be filled.”
The opinion written by Mr. Justice Parmer, and concurred in by Mr. Chief Justice Vickers and Mr. Justice Cooke, construes the first paragraph of this section of the statute to confer, in terms, absolute power upon the several senatorial committees of the several political parties of the fifty-one senatorial districts of the State to fix and determine, by resolution, the number of candidates to be nominated by their parties at the primary for representatives in the General Assembly; while the view of the opinion of Justices Cartwright, Carter and Dunn is, that the power conferred upon the senatorial committees * by that paragraph is intended to be only suggestive,- and that while the several senatorial committees of the several political parties of the State may, under said paragraph, fix and declare, by resolution, the number of candidates to be nominated for representatives in the General Assembly by their respective parties at the primary elections, such action of such committees is not binding upon the voters of such parties, and that such action does not prevent the members of the party, when voting, from voting for and nominating,as many candidates, not to exceed three in number, for representatives in the General Assembly as any one voter may determine to vote for at the primary election. The difference thus far is only in the matter of the construction of said statute. I am of the opinion that said section n was passed with a view to confer the power upon the several senatorial committees of the several political parties in the State to absolutely fix and determine the number of candidates to be nominated by such political parties at the primary to be held for the nomination of representatives in the General Assembly. ■ The language used is clear and unequivocal in its terms. It is so plain that it is not open to construction, and means one thing and only one thing,— that is, that power is conferred upon the senatorial committees of the different political parties of the State to fix and determine the number of candidates which may be nominated. So far as the first paragraph of- section n is concerned, the only question, therefore, which is open to debate is as to its constitutionality,—that is, as to the power of the legislature, under the constitution, to confer upon the several senatorial committees the power to fix for their respective parties the number of candidates for representatives in the General Assembly which should be nominated at the primary election.
Justices Farmer, Vickers and Cooke having reached the conclusion, in- their opinion, that the senatorial committees cannot be given power to fix the number of candidates which shall be nominated by their respective parties at the primary election for representatives in the General Assembly, then hold that that question is open when the voter goes to the primary election and that the voter can then .determine how he will vote,—whether for one, two or three candidates, and may cumulate his vote,—-the result of which would be that in every senatorial district in the State three candidates would in all probability be nominated by each party for representative in the General Assembly, the effect of which would be to destroy the scheme of minority representation found in the constitution, and that said section 11 is unconstitutional and void. The logical result of this course of reasoning is, that no statute can be passed authorizing the nomination of candidates for representatives in the General Assembly which would be constitutional, and that candidates for representatives in the General Assembly cannot be nominated at a primary election.
The opinion of Justices Cartwright, Carter and Dunn holds that the voter is not bound by the resolution of the senatorial committee as to the number of candidates for representative in the General Assembly which shall be nominated by his party at the primary election, and that it was not intended by the General Assembly that he should be bound, and that a statute which seeks to .foreclose him upon that question would be unconstitutional and void, and that the present statute, although its language is clear and unequivocal, should be construed so as to authorize only a suggestion by the senatorial committee to the members of their party as to the number of candidates for representative in the General Assembly for which they should vote, which suggestion the voters need not follow but may vote for as many candidates as they see fit, not exceeding three, and if there are votes cast for three candidates at the primary election for representative in the General Assembly, as was the case here, the names of those three candidates must go upon the ballot at the general election for representatives of >the General Assembly, and that although the result might be that each party would, by the action of one voter or a small number of voters in each of the political parties in each senatorial district, be forced to nominate three candidates for representative in the General Assembly, and would have three party candidates for representative in the General Assembly upon the general ticket at the fall election, such construction does not destroy minority representation, because the voter still would have the right to cumulate his vote at the general election, and, by concerted action with the other voters of his party, the majority party could elect two members of the General Assembly and the minority party could elect one member of the General Assembly from each senatorial district in the State.
This probably may be true in theory, but practically I am of the opinion if each party should, in the several senatorial districts of the State, be required to nominate three candidates for representative in the General Assembly, minority representation would be destroyed, and that any law which would require the placing of three candidates upon the ballot at the general election would for that reason be unconstitutional and void. I fully agree with the opinion of Justices Farmer, Vickers and Cooke upon that question, and I -do not accede to the argument contained in the opinion of Justices Cartwright, Carter and Dunn that such a statute is rendered constitutional by reason of the fact that the voter and his party associates may possibly agree to cumulate their votes upon some party candidate at the polls. I think the argument that the statute is thus saved from being unconstitutional is fully met by what is said by this court in People v. Election Comrs. 221 Ill. 9, where it was announced that the right of the voter to write in the name of a candidate upon the primary ballot did nbt relieve the act then under cbnsideratibn of its unconstitutional features, as the right to write in the name of a candidate furnished to the voter no practical' relief. In that case a candidate could not get his name upon the primary ballot without paying money for the privilege, and it was held that that feature of the act was void, although the voter had the right to write in the name of a candidate who had paid nothing to get his name upon the ticket. On page 22 of the opinion it was said: “That argument does not call for much attention. It is a foregone conclusion that the candidate will be chosen from those whose names are on the primary ballot, and it is no answer to the argument against an illegal and arbitrary discrimination in favor of one who is able and willing to make a cash contribution and against one who is unable or unwilling to do so, to say that the voters may write the name of a candidate on the ticket and make a square in front of it and put a cross in the square.” It is well known to all that the voters of all parties usually vote their party ticket as it is printed, and the right of an agreeing body of voters to cumulate votes would not relieve the statute of its unconstitutional feature if every political party is required to nominate three candidates for representative in the General Assembly, whose names would appear under the party appellation upon the general ballot.
I now come to the question, is said section n constitutional as it was enacted by the legislature and now exists? The provision of the constitution which. is involved reads as follows: “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 gee fit, and the candidates highest in votes shall be declared elected.” (Hurd’s Stat. 1909, p. 56.) If this provision of the constitution be analyzed it will be found, first,1 that the right of the voter to cast three votes for representatives in the General Assembly, and the right to cumulate his votes by distributing them among the three candidates as he sees fit, is secured to the voter; and secondly, that the right of minority representation involved in that method of voting is established.
I think many difficulties have arisen in construing this provision of the constitution by confusing the right of cumulative voting1 and the right of minority representation. The right to cumulate his vote on the question of the election of representatives in the General Assembly is a right secured to the individual voter while the right of minority representation is a .right secured to political parties, add if those two rights are severed I think the questions involved in this case will be greatly simplified.
It has been determined by this court that the nomination of candidates for representatives in the General Assembly falls within the purview of legislation governing the holding of primary elections, and it is a well settled rule of statutory and constitutional construction that where two provisions of a statute or a constitution are inconsistent or in apparent conflict, it is the duty of the' court, in construing such statute or constitutional provisions, to harmonize such provisions, and the courts will go a long way to do so, and thereby ascertain the view of the law.-making power and sustain the law, rather than to annul the provisions of a statute or of a constitution by holding them inoperative. I think, therefore, that this court should so construe said provision of the constitution as to hold a primary election can be held for the nomination of candidates for representatives in the General Assembly, and to determine that it may be held in such a way that no voter in the primary election or a.t the polls may be deprived of any of his constitutional rights, and so to construe said constitutional pro-' vision that minority representation will not be destroyed. Minority representation is based upon the idea that political parties will exist in this State. Since the constitution of 1870, and prior to the passage of primary election legislation in this State in recent years, the several political parties in the State have solved the question of minority representation without difficulty. The majority party in each senatorial district has usually nominated two candidates and the minority party one candidate for representatives in the General Assembly, and .the Australian Ballot law recognizes the rights of parties so to do. I take it that the determination of the question, in any particular senatorial district, of the number of candidates a party will place in the field for representatives in the General Assembly is a mere matter of party policy, and that a political party, being a voluntary association, has a right to decide that question for itself,—and such is the doctrine of this court announced in Rouse v. Thompson, 228 Ill. 522. It was clearly announced in that case that the political parties of this State have the right, through their senatorial committees, to determine how many candidates they will put in the field for representatives in the General Assembly in the several senatorial districts for which such committees act, and that so long as each voter has the right to vote for the number of candidates determined by the senatorial committee of his party to be nominated, and to cast his vote for one, two or three of such designated number of candidates or to cumulate his vote upon one or more of such candidates, he has been deprived of no constitutional right; If the party decides to nominate one candidate for representative in the General Assembly and each member of such party has the right to give one candidate thr.ee votes, or if his party decides to nominate two or- three candidates and he has the right to divide his three votes between such candidates, as I understand the Rouse case, he has not been deprived of any of his constitutional rights; and the doctrine on this subject laid down in that case has never been departed from. In that case the statute under consideration provided for the nomination of one candidate for representative in the General Assembly by a primary election and the others (if more) were to be nominated by a convention, and it was held this could not be done. In the consideration of that question, on page 545 of that opinion, it was said: “It is said, however, that to hold that the voter has the right to vote at the primary election for more than one candidate for representative in the General Assembly is to hold that each party must nominate at least two candidates for representative in the General Assembly, if not three, which would in all the senatorial districts of the State defeat minority representation, which is established by the constitution.” And it was also said, on page 544 of that opinion: “Any primary election law, to be valid, which provides for the nomination of candidates for representative in the General Assembly, must give the voter the right to participate in the selection of all the candidates of his party for representative in the General Assembly which are to be. nominated by his party.” And again, on page 546: “No law, as we view the matter, can be constitutional which prevents the individual voter from participating in the nomination of all the candidates of his party for representative in the General Assembly which are to be nominated at a primary election, if any candidate for representative in the General Assembly is to be. so nominated,”—clearly holding that if the voter is given the right, by statute, to participate in the nomination of all candidates of his party for representative in the General Assembly which are to be nominated by his party, such statute would be constitutional.
In People v. Strassheim, 240 Ill. 279, the statute there under consideration did not give the voter • the right to cumulate his vote, and the statute was held unconstitutional for that reason. The doctrine of the Rouse case was not, however, departed from. No new rule was announced, but it was said in that case the statute then under consideration was not in accord with the method pointed out in the Rouse case for the making of nominations at a primary election of representatives in the General Assembly. On page 298 this language was used: “The Rouse case contains no intimation that the voter may be deprived of his constitutional right to vote for more than one candidate at the primary election or to cumulate his vote. If, as contended by counsel for respondent, the legislature attempted to make section 11 conform to the suggestions in that case, it failed to do so.”
Section 11 of the act hereinbefore referred to is, in my judgment, a valid and constitutional law and provides a method for making nominations of candidates for representatives in the General Assembly at a primary election which secures to the voter all his constitutional rights and preserves the principle of minority representation, and as the relator was not nominated as a candidate for representative in the General Assembly he was not entitled to the relief prayed for in his petition for mandamus. While I do not agree to all of the reasoning of the opinion of Justices Farmer, Vickers and Cooke, I agree to the conclusion reached in that opinion,—that is, that the writ ought not to issue.
Separate opinion by Justices Cartwright, Carter and Dunn:
At the last term of the court a judgment denying a writ of mandamus was entered in this case, with a statement that the judgment was concurred in by four members of the court and that the reasons for their conclusion would be given thereafter. The views of Mr. Justice Farmer are expressed in his opinion and are concurred in by the chief justice and Mr. Justice Cooke. Those views are, that section n of the Primary act of igio is in conflict with the constitution and void because it gives power, to a senatorial committee of a political party to restrict, by resolution, the number of candidates for whom the-voters of the party may cast their' votes at the election at which representatives in the General Assembly are elected, to a less number than three, thereby depriving such voters of their constitutional right to cast three votes for one candidate or to distribute the same among two or three candidates, as they may see fit; and that any law which would require the names of three candidates of such party to be placed on the ballot at such election if three are voted for at the primary, would be equally unconstitutional and void as destructive of the plan of minority representation. The section in question preserves the right of cumulative voting in the primary election and in that respect is not in violation of the constitution, and the ground of the opinion that it is void is, that the names of no more candidates can be placed on the ballot at the subsequent election than the senatorial committee may determine. Mr. Justice Hand, in the opinion written by him, takes the same views as to the proper construction of the section concerning the power of the senatorial committee and of the invalidity of any act which would require the names of three candidates to be placed upon the ballot at the g-eneral election, if that number are voted for at the primary, but holds that power may be given to the senatorial committee to limit the number of candidates for whom voters of a party' may vote at the general election, and= that the section is valid.
If we regarded the construction given to the section by the other members of the court as the correct one, we would have no hesitation in saying that it is unconstitutional and void. The provision of the constitution for cumulative voting applied, when adopted, only to general elections, as primary elections were then unknown; but under the rule laid down in People v. Election Comrs. 221 Ill. 9, that constitutional right extends to primaries when such elections are created by the General Assembly. The right of cumulative voting extends to primary elections where candidates for representatives are chosen. Accordingly, we decided in Rouse v. Thompson, 228 Ill. 522, that a primary election law which permitted the voters, of a party to vote for only one candidate for representative was void, as violating the constitutional provision for cumulative voting. Again, in People v. Strassheim, 240 Ill. 279, another act was held void because it attempted to give authority to senatorial' committees to fix the number of candidates for representative for whom the voter of a party might vote at a primary election. The only reason for upholding the constitutional right of the voter in a primary election was, that he had the same right as in the general election. We could not give any satisfactory reason for now reversing our construction of the constitution and holding that while the voter cannot be deprived of his right "at the primary, he may be deprived of it by a senatorial committee at the general election.
But we do not agree with the other members of the court in the construction of section 11, nor in the conclusion that a construction which will make it valid will be destructive of the constitutional provision designed to secure representation of minorities. When this act was passed, three previous primary acts had been declared void by this court in the cases above referred to, and in two of them a material reason was that the act restricted the right of cumulative voting. It is always presumed that the General Assembly is acquainted with the existing state of the law and is informed, of previous legislation and the construction it has received, (Lewis’ Sutherland on Stat. Const, sec. 499,) and in view of the history of primary legislation in this State, the presumption becomes an absolute certainty as applied to this case. There cannot be any doubt, as it seems to us, that the General Assembly intended to obviate in the new act the objections to the previous acts and to eliminate all unconstitutional provisions. That ought to be the presumption as well on the ground of good faith as because there is always a presumption that legislative bodies do not intend to violate constitutional provisions. The act annulled by the decision in Rouse v. Thompson, supra, permitted the voter to cast his vote at the primary election for but one representative, and any additional candidate or candidates were to be nominated' by a senatorial convention. That scheme was held void, but it was said that we saw no reason why a law might not be framed permitting senatorial committees to suggest the number of candidates to be nominated by their parties and to have the suggestion placed on the ballot for the guidance of the voters. The next act, held void in People v. Strassheim, supra, provided in section 11 that the senatorial committee of each political party should, by resolution, fix and determine the number of candidates to be nominated by their party at the primary for representative, but the further provision of the same section was, that “each qualified primary elector may cast one vote for each of as many candidates as there are to be nominated by his party as above provided. And the said candidates for nomination highest in votes shall be declared nominated.” While this section apparently was intended to comply with the suggestion of the court in Rouse v. Thompson, its provisions amounted to more than mere suggestion and permitted the voters to cast their votes for only the number of candidates to be nominated, as fixed by the senatorial committee. The act was therefore held to be void. When the General Assembly had under consideration the enactment of another law for holding primary elections, it is presumed they intended the act to be valid and capable of being carried into effect. (Lewis’ Sutherland on Stat. Const, sec. 497.) .We would not be justified in assuming that it was the intention to reenact the same unconstitutional provision and thereby to do a perfectly vain and useless thing. The section was not re-enacted in the same form in the present law, but, instead of the words above quoted, the following was inserted: “Each qualified primary elector may cast three votes for one candidate, or may distribute the same or equal parts thereof among two candidates or three candidates, as he shall see fit. And the said candidate or candidates for nomination highest in votes shall be declared nominated for the office to be filled.” The candidate or candidates to be declared nominated are those for whom votes are cast at the primary, and if three candidates are voted for, then by the language of the section they are to be declared nominated for the office to be filled. In solving doubts as to the meaning and intention of the General Assembly, the fact that the previous act had been held bad, and that the language was changed, requires, in our judgment, a different interpretation. The language used in the present act is susceptible of the construction which we give to it, and so construed the provision does not conflict with the constitution. In case of doubtful meaning, a construction should be adopted, if possible, which will reconcile the act with the constitution, and courts will not adjudge an act void unless its violation of the constitution is clear and unmistakable.
Applying the rules of construction which we have stated, under which an act is to be held within the limits of legislative power if it can be done, we think the intention of the General Assembly was that the senatorial committee might adopt a resolution fixing and determining, as a question of party policy, the number of candidates to be nominated by their political party as a matter of advice or suggestion to the individual voter but which was not intended to be binding upon such voter, as this court had distinctly heldo it could not be. The section declares that each qualified primary elector may cast three votes for one candidate, or may distribute the same, or equal parts thereof, among two candidates or three candidates, as he shall see fit, and it seems to us unreasonable to say that the General Assembly intended to give to the voters that right, but that their votes should have no influence or effect beyond the -number fixed by the senatorial committee.
The construction we give to section u does not, in our judgment, interfere with or destroy the plan of the constitution for representation of minorities. Of course, it was not the view of the framers of the constitution, in securing a right to the voter to vote for three candidates or to cumulate his vote, (which was intended to secure minority representation,) that the exercise of the right, or a law securing it, would destroy such minority representation. A political party is a purely voluntary organization of individual voters having the same political beliefs, who combine for the purpose of hiaking their principles effective in the administration of the government. The individual voter cannot be hampered or restrained in the exercise and enjoyment of his rights by the organization, but if he desires the success of his party he exercises his right to effect that object in accordance with the policies of his party and in harmony with the views of the majority. If a party is in the minority in a senatorial district and can elect but one representative, the voter would throw away all benefit of minority representation if he should vote for more than one at the, general election. All arrangements governing the action of members of such a party must necessarily be determined by the party organization, and obedience to them must depend upon party loyalty and the hope for party success. The determination of a minority party to vote only for the candidate of that party which received the highest number of votes in the primary election would be observed by every loyal member of the party and accomplish the ends intended by the framers of the constitution. Voters who would disregard the plan so determined upon would not and could not be controlled by any act forbidding them to vote at the general election for a greater number of candidates than should be specified by the senatorial committee.
In our opinion section n of the act under consideration is, valid, and the peremptory writ ought to have been awarded.