dissenting:
The acts for which the plaintiff in error was convicted constituted a violation of section 82 of the general Election law. Those acts were fraudulent changes of a ballot cast at the general election so as to cause the ballot to appear and be counted as a vote for a person other than the candidate for whom it was intended. The penalty imposed by section 82 for this offense is a fine not exceeding $1000 or imprisonment in the county jail not exceeding one year, or both. The offense is therefore a misdemeanor. The penalty imposed by section 6 of the City Election law for this same offense, when committed in a city, village or incorporated town which has adopted that law, is imprisonment in the penitentiary for not less than one nor more than five years, and the crime is declared to be a felony. The election at which the crime was committed was held throughout the State, and at it were elected presidential electors, State officers, congressmen and county officers. The laws of the State required the canvass of the votes cast to be conducted in the same manner throughout the State, and the crime in question might have been committed during the canvass at any one of the election precincts in the State. If it had been committed in any rural precinct or a precinct in any city, village or incorporated town which had not adopted the City Election law the offense would have been a misdemeanor. The plaintiff in error was convicted as for a felony because his crime was committed in a city which had adopted the City Election law. If he had done the same acts, making precisely the same changes in the same ballot in the same way, on the other side of the street but in a city which had not adopted the City Election law, he could have been convicted of a misdemeanor, only, and subjected to the lighter punishment. If this conviction can be sustained then the same grand jury may return two indictments at the same time for two crimes exactly alike, committed in the same county but on opposites of a street constituting the boundary between two cities, and the court, upon conviction, must sentence one defendant to at least one year’s imprisonment in the penitentiary and cannot sentence the other to imprisonment exceeding one year in the county jail.
The fourteenth amendment to the constitution of the United States provides that no State shall deny to any person within its jurisdiction the equal protection of the laws, and the same guaranty is provided by section 2 of article 2 of the constitution of this State, which declares that no person shall be deprived of life, liberty or property without due process of law. These constitutional provisions guarantee to all citizens the right to be governed by general laws acting equally upon all persons under the same circumstances, and it has been held many times that equality of protection under the laws requires that no person shall be subjected to a greater or different punishment for a crime than that to which others are subjected for the same crime. (Pace v. Alabama, 106 U. S. 583; Barbier v. Connolly, 113 id. 27; Yick Wo v. Hopkins, 118 id. 356; Eden v. People, 161 Ill. 296; Bailey v. People, 190 id. 28; Horwich v. Walker-Gordon Laboratory Co. 205 id. 497.) The rule which prohibits the imposition of different penalties applies only to cases where the circumstances are the same and the parties are in the same situation. It does not prevent the classification of crimes according to places, conditions or persons, provided the classification is based upon some difference in places or persons or conditions constituting a real, natural or intrinsic distinction in the acts. Statutes imposing a heavier penalty for a second offense are sustained because the prior conviction is a good reason for placing the offender in a different class from first offenders and imposing a severer punishment. Wherever a substantial reason exists for dividing persons into classes and imposing different punishments the legislature may pass valid laws imposing different penalties for the same offense, provided every such law fixes the same penalty for every one in the same class. What constitutes the distinction in the present case? The alteration of a ballot by changing the name of a candidate and the change in the result of an election are neither more nor less serious offenses whether committed in a city in which the City Election law is in force or a city in which the City Election law is not in force or a rural election precinct. The imaginary line which separates the city from the country or one city from another makes no difference in the guilt of the offender or the effect or heinousness of his crime, on whichever side of the line it may be committed. The wrong done to the State is the same in either case.
The basis of classification is not population or municipal incorporation, even if either or both of those circumstances would constitute a sufficient basis. The only basis is the election by the people of a certain territory to adopt a law providing for the higher penalty. The population of two cities may be the same, they may be precisely similar municipal corporations lying side by side, and the same act which is a misdemeanor in one is a felony in the other,— not because of any difference in size, population, situation, condition or circumstances, but because the people of one city have voted to adopt a law providing the higher penalty while the people of the other city have not. If the law provided for no more than this one "change in the penalty for fraudulently altering a ballot, we presume it would hardly be contended that the legislature had power to pass a law imposing a different penalty for this crime when committed in cities, villages or incorporated towns of a certain population from that imposed when committed elsewhere, whether such law should become effective directly or only upon its adoption by a popular vote. How can it be said that either population or municipal incorporation can affect the degree of criminality of the offense?
The legislature has the power to pass laws the operation of which may be made to depend upon a vote of the electors of the State or of the district to be affected by it. It may also delegate to municipalities the exercise of the police power, and declare to be criminal acts done in violation of the prohibitions which have been established in pursuance of authority conferred by law. The carrying on of certain businesses or the doing of certain acts falling within the police power, in localities where they have been prohibited in pursuance of statutory authority, may be declared.by statute to be crimes though not criminal in other places. Such statutes will be upheld where they operate equally upon all persons within their terms and are of such a character as tend to promote the safety, health, morals or welfare of the people. They are not in violation of due process of law though the acts may be lawful in other parts of the State. Also, the guaranty of due process of law.and the equal protection of the laws does not extend to mere methods of procedure. In Missouri v. Lewis, 101 U. S. 22, it is said: “The fourteenth amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the fourteenth amendment, there is no solid reason why there may not be such diversities in different parts of the same State. A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, provided that in each and all there is no infraction of the constitutional provision. Diversities which are allowable in different States are allowable in different parts of the same State.”
Subject to the two fundamental conditions that the court which assumes to determine the rights of the parties shall have jurisdiction and that there shall be notice and opportunity for hearing given the parties, the Supreme Court of the United States has sustained all State laws regulating procedure, evidence and methods of trial and held them to be consistent with due process of law. (Twinning v. New Jersey, 211 U. S. 78.) By its decision laws have been sustained involving the denial of a jury trial both in civil and criminal cases; the substitution of an information for the indictment of a grand jury; an enactment that the possession of policy-slips raises a presumption of illegality; the admission of the deposition of an absent witness in a criminal case; the allowance of an appeal to the Supreme Court from certain counties of a State which was denied in other counties; and the allowance of a greater number of challenges of jurors in a criminal case in cities having a certain population than elsewhere. In no case, however, has it been held that it was permissible to impose upon one person a greater burden or liability or punishment than on another for the same act.
The case of Mason v. Missouri, 179 U. S. 328, is cited in the opinion of the majority to sustain the proposition that acts done in one .part of the State might be treated as crimes which were not crimes if committed in another part of the State. In that case the court had under consideration the validity of an act of the General Assembly of the State of Missouri known as the Nesbit law, providing for the registration of voters in cities having a population of over xoo,ooo. The constitution of Missouri authorized the General Assembly to provide by law for the registration of voters in cities and counties having a population exceeding 100.000 and in cities having a population exceeding 25,000 and not exceeding 100,000, but not otherwise. In 1895 a law was passed applying to all cities exceeding 100,000 inhabitants, which included the city of St. Louis. The Nesbit law, enacted in 1899, applied to cities of more than 300.000 inhabitants, and therefore withdrew the city of St. Louis from the operation of the prior law. The auditor of the city of St. Louis having refused to audit the accounts of the board of election commissioners appointed under the Nesbit law upon the ground that the act was void because repugnant both to the constitution of the State of Missouri and to the constitution of the United States, the commissioners applied for a writ of mandamus to compel him to do so. It was insisted that under the constitution of Missouri only one registration law could be enacted for all cities having a population exceeding 100,000; that the city of St. Louis, therefore, could not be classed separately from other cities having a population exceeding 100,-000 but less than 300,000, and that as the earlier law threw about the right of suffrage greater safeguards than the later law, therefore the citizens of St. Louis were denied the equal protection of the laws. The Supreme Court of Missouri held that the provision of the State constitution respecting the enactment of registration laws did not limit the power of the General Assembly to create more than one class, composed of cities exceeding 100,000 in population, and that the Nesbit law was not therefore repugnant to the constitution, and the peremptory writ was awarded. The Supreme Court of the United States held itself bound to accept the conclusion of the State court that the act was valid under the constitution of the State, and held that the power to classify cities with reference to their population having been exercised in conformity with the constitution of the State, the circumstance that the registration law in force in the city of St. Louis was made to differ in essential particulars from that which regulated the conduct of elections in other cities in the State of Missouri did not in itself deny to the citizens of St. Louis the equal protection of the laws, nor did the exercise by the legislature of the discretion vested in it by law give rise to a violation of the fourteenth amendment to the constitution of the United States. Counsel in argument stated that certain acts are crimes if committed in one locality in the State but not so when committed in another, and that the same offense was punishable in different ways in different parts of the State. It cannot be told from the report of the case whether this statement was correct or not, but the argument is not given any attention in the opinion of the court and the criminal provisions of the statute are in no way referred to. The extent of the judgment is thht the Supreme Court of Missouri having decided that the General Assembly had power, under the State constitution, to pass a registration law based upon the classification contained in the Nesbit law, the Supreme Court of the United States must accept that conclusion, and that, the election franchise being established by the laws and constitution of the State, the registration law enacted in conformity with that constitution did not deny the equal protection of the laws though its provisions differed for different classes of cities.
It is claimed on behalf of the People that the City Election law was held constitutional in the case of People v. Hoffman, 116 Ill. 587, and therefore the sections which imposed penalties for its violation are to be regarded as constitutional. In that case the City Election law, as a whole, was held constitutional, but no question arose in the case regarding the enforcement of the criminal provisions of the act. It was insisted that the law was local and special; that elections under it would not be free and equal; that the method of appointing commissioners was in violation of the article of the constitution which provides for the separation of the powers of government; that the law established a political test for office; that the regulations in regard to registration were so burdensome and unreasonable as to conflict with section 1 of article 7 of the constitution, which declares the qualification of voters. No mention of the criminal provisions of the act is made in the opinion of the court. The action was quo warranto against the election commissioners, and the question was the power of the legislature to enact the law, which provided a different system for the registration of voters and the conduct of elections in cities adopting it from that prevailing in other parts of the State. Though no question as to enforcement of the criminal provisions of the act arose, in the dissenting opinion, in which three of the justices concurred, the penalties imposed different from those of the general Election law were referred to, along with the other differences in the act, in arguing that the act was local and special and not a general law. The decision reached in that case was that the act was not local or special but was a general law and did not conflict with the constitution in the particulars which have been mentioned. But it does not follow from this conclusion that every provision in the act is constitutional. The general scheme of the statute was upheld as a legitimate exercise of legislative power, but it was not held that every part of the act and all its provisions were constitutional. The question in controversy now was not passed upon and is not affected by the decision in People v. Hoffman, supra.
Much space in the opinion of the court has been devoted to sustaining the correctness of that decision and the constitutionality of the City Election law. We do not question the constitutionality of the act or the correctness of the decision. The act is a valid registration and election law and all its sanctions within the limitations of the constitution must be sustained. It is equally important that so far as it goes beyond the constitutional limitations imposed for the protection of the individual against the enactment of unequal legislation it should be overthrown. The criminal who stands upon his rights in this case may, as an individual, be worthy of little consideration, but the principle upon which his writ is founded is at the foundation of all free and equal government.
It may be desirable that the offenses in connection with elections which result in defrauding voters in the counting of ballots differently from the way in which they were cast and in fraudulently declaring the results of elections ought to be punished as felonies everywhere throughout the State. Action for that purpose can be taken only by the legislature. The facts, if such are the facts, that they are more likely to be committed in one part of the State than in another, or that they are less easily detected, or that opportunities for the commission of such crimes are more frequent or more favorable, or that convictions are more difficult to obtain, or that persons are more willing to run the risk of punishment, are not reasons which justify the.imposition of a different penalty for the same crime upon different persons. In our judgment the classification of spch crimes as misdemeanors when committed in one part of the State and felonies when committed in another is not founded upon any proper basis.