dissenting:
There is probably no proposition more firmly established in the decisions of this court than that the court will consider the constitutionality of the statute only when it is essential to the disposition of the case. The majority seriously understates the unwillingness of this court to nullify enactments by the General Assembly. It is obvious from the opinion that the majority could dispose of this matter by allowing the motion to strike for the statutory reasons it offers. Hlustrations that this court will not seek out constitutional issues can probably be found in almost every volume of the reports of this court.
The following random illustrations from our cases show clearly that the majority is seriously deviating from the course normally followed by this court. We should observe that in these cases, as is normally the situation, the question of constitutionality was raised by one of the parties. It was not volunteered by the court.
“The constitutionality of a statute will never be determined when the cause in which its determination is sought may be finally disposed of without such determination.” (Emphasis added.) (Cohen v. Lerman (1951), 408 Ill. 155, 158.)
“A cardinal canon of statutory construction is that courts do not pass upon the constitutionality of parts of statutes not essential to the determination of questions before them.” (Emphasis added.) (People ex rel. Barrett v. Logan County Building Loan Association (1938), 369 Ill. 518, 528.)
“It is well settled that constitutional questions will not be decided unnecessarily.” (Haughton v. Haughton (1970), 76 Ill. 2d 439, 448.)
“While we agree that the constitutional questions arising from the procedure followed in this case are sufficient to warrant a direct appeal, we do not deem it essential to decide such questions in order to adequately dispose of the problem presented. It is the established rule of this court that a constitutional question will not be considered if the case can be decided without doing so. [Citations.]” (Emphasis added.) (In re Estate of Ersch (1963), 29 Ill. 2d 572, 576-77.)
“We will not recite the appellant’s argument challenging the constitutionality of the Act, for which we reach a conclusion without the necessity of considering that issue. This court has often said that constitutional questions will not be considered if the cause can be determined on other grounds.” (Exchange National Bank v. Lawndale National Bank (1968), 41 Ill. 2d 316, 320-21.)
“But the judicial power to determine the constitutionality of legislation is to be exercised only when it is essential to the disposition of a case. Here the purpose ascribed to the General Assembly is an unusual one, and one which raises doubts as to the statute’s validity. We are unwilling to assume that purpose unless the language of the statute clearly asserts it.” (Emphasis added.) (Donoho v. O’Connell’s, Inc. (1960), 18 Ill. 2d 432, 436.)
“We pass upon constitutional issues only where the cause cannot be decided on other grounds.” (Howard v. Lawton (1961), 22 Ill. 2d 331, 334.)
“We will not entertain constitutional questions if the cause can be determined on other grounds.” (People v. Fleming (1971), 50 Ill. 2d 141, 144.)
“[W]e will consider that question only when necessary for the determination of the case. [Citations.] We find it unnecessary to the disposition of this case to consider the constitutionality of the cited sections of the Tort Immunity Act.” Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 22.
The majority nevertheless, sua sponte, and undaunted by the court’s precedents, has raised the question of the constitutionality of the statute under which this action is brought. In support of this action it cites Welton v. Hamilton (1931), 344 Ill. 82, and Chicago & Eastern Illinois Ry. Co. v. Miller (1923), 309 Ill. 257. Even a cursory examination of these two opinions demonstrates that they are not authority for the proposition that a constitutional objection not raised by the parties, and therefore waived, should thereafter be raised by the court sua sponte. Chicago & Eastern Illinois Ry. Co. v. Miller involved the question whether payment of certain fees to the Commerce Commission waived the right to thereafter question the validity of the statute. The rationale of the decision was that the action taken was under duress and that “[cjonduct under duress always involves a choice but this court has held that the making of a choice under such circumstances does not estop the person acting under duress from later asserting his rights.” 309 Ill. 257, 260.
Welton v. Hamilton involved a matter of jurisdiction, and as the court there said, “[I]t is the principle which does not require the citation of authority that jurisdiction of the subject matter cannot be waived ***.” (344 Ill. 82, 96.) In contrast are the holdings of this court in People v. Luckey (1969), 42 Ill. 2d 115, People v. Hale (1964), 31 Ill. 2d 200, People v. Orr (1956), 10 Ill. 2d 95, People v. Cosper (1955), 5 Ill. 2d 97, People v. Brand (1953), 415 Ill. 329, and People v. Rohde (1949), 403 Ill. 41, which have consistently held that a constitutional issue not raised by the parties is waived.
The majority also defensively states: “Nor is our sua sponte consideration of the constitutional issue unprecedented, for in People ex rel. Peoria Civic Center Authority v. Vonachen (1975), 62 Ill. 2d 179, 181, this court on its own initiative considered a constitutional question not raised by the parties and held the governing statute unconstitutional.” (Slip op. at 3.) The citation of People ex rel. Peoria Civic Center Authority v. Vonachen and the majority statement regarding it are inexplicable. The court did not consider the constitutional question sua sponte. In language completely plain and clear the opinion in Vonachen states that one of the parties, the respondent, and not the court, made the contention that the portion of the involved statute violated our constitution. The court’s opinion reads:
“A number of contentions are made by the respondent in defense of his refusal to execute the bonds, and one of them, we judge, is dispositive of this action. It is that a portion of the Act (though the portion we rely on is not the one on which the respondent bases his argument) violates that part of section 8(d) of article IV of the Constitution which provides:
‘A bill expressly amending a law shall set forth completely the sections amended.’ ” (Emphasis added.) (62 Ill. 2d 179, 181.)
This court held that the statute was indeed “in violation of our constitution’s requirement (art. IV, sec. 8(d))” (62 Ill. 2d 179, 183), the section that the respondent contended was violated.
In Vonachen the action was brought shortly after the Act’s passage, and the unconstitutionality of the statute was most likely alleged so that an opinion would be handed down by this court resolving any constitutional questions. It is customary for an action to be brought shortly after a bill is passed and signed that creates an authority to sell bonds in order to build or repair public buildings. Once a statute like the one challenged in Vonachen is upheld, the marketability of the bonds is assured. It is apparent that the action was brought for the sole purpose of raising the constitutional issue.
The Vonachen opinion explains that the respondent contended that the statute was unconstitutional and that the court considered not only the section of the statute the respondent complained of but another section as well. This accounts for the excruciatingly careful statement of the majority in this opinion that “this court on its own initiative considered a constitutional question.” (93 Ill. 2d at 471.) That statement can be misleading. An examination of the briefs in the files of the clerk of this court discloses that the respondent in his brief made three separate contentions that the statute was unconstitutional. He contended that (1) the Act violated the requirement of section 8(d) of article IV of the 1970 Constitution, which provides that a bill shall be read by title on three different days in each house; (2) the Act expressly amended the law without setting forth completely the sections amended as required by section 8(d); and (3) the Act concerned multiple subjects in violation of section 8(d). The majority should have acknowledged that the contention of unconstitutionality was made by one of the parties, the respondent. This critical fact is omitted in the majority’s opinion. The citation of People ex rel. Peoria Civic Center Authority v. Vonachen simply emphasizes the majority’s breach of this court’s precedents and the accepted judicial doctrine followed from the beginnings of the Republic. See Rescue Army v. Municipal Court (1947), 331 U.S. 549, 568, 91 L. Ed. 1666, 1677-78, 67 S. Ct. 1409, 1419, where the Supreme Court of the United States said: “From Hayburn’s Case, 2 Dall. 409 [1792] to [the present], this Court has followed a policy of strict necessity in disposing of constitutional issues.” See also Nowak, Rotunda & Young, Constitutional Law 84 (1978).
It is important, we believe, to stress what the majority does acknowledge, namely, that no mention whatever was made of unconstitutionality in the lengthy briefs submitted by the parties. Constitutionality was not even obliquely referred to in the extended oral argument before the court. At no time during that oral argument did any member of the majority raise a question of constitutionality. The constitutionality of the statute was never doubted. At whatever time the majority did decide to raise the question of constitutionality, it did not decide also, in fairness and to insure a proper disposition of this case of critical importance, that the attorneys for Stevenson and Stem should be given an opportunity to brief and argue the question. Because of this infelicitous handling of a question never before presented in the history of our State the petitioners’ rights have been extinguished by the majority on a point the petitioners were not given an opportunity to brief or argue. Some will suggest that future historians of the court are likely to regard the manner of disposition with some wonder.
We would note that Thompson and Ryan are represented by four law firms. As we have noted, none of the attorneys questioned the constitutionality of the statute that the majority finds defective. It is certain that responsible, competent attorneys at the outset would consider the validity of the statute under which the petitioners were proceeding. It is certain that the attorneys here found that the statute was not vulnerable to constitutional challenge because of People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353. That case observe that the attorneys for Thompson and Ryan, with greater perceptiveness than that of the majority, deemed that it could not be plausibly contended that the General Assembly enacted the important statute in question in 1977 in complete disregard of the court’s holding in 1975 in People ex rel.Rice v. Cunningham (1975), 61 Ill. 2d 353. That case was decided September 29, 1975. Public Act 80—883, enacting the statute under which this proceeding was brought, was passed in the General Assembly July 1, 1977, and approved by Governor Thompson on September 21, 1977. We must presume that both the General Assembly and the Governor were aware of Cunningham and perceived that the validity of this statute was not affected by Cunningham.
The attorneys for Stevenson and Stem find themselves in the position of having lost their case without having had really an opportunity to argue it. Article I, section 12, of our constitution states: “Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives ***.” It seems that this constitutional assurance of a remedy affords, at the very least, an opportunity to Stevenson and Stem to be heard before a court declares they have no remedy for what they claim is a grievous injury to them and, more importantly, to the citizens of this State.
Assuming, arguendo, the propriety of the sua sponte consideration of the issue, the majority’s reliance on People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, is misplaced. The majority makes much of the fact that absent a statute the courts are without jurisdiction to consider an election contest. The statutory provision held invalid in Cunningham purported to provide the procedure for determining whether a death penalty should be imposed. This would, of course, apply in a cause of action in which the circuit court, by virtue of article VI of the Constitution, was vested with original jurisdiction. Assuming the accuracy of the majority’s contention that there is no jurisdiction absent the statutory provision, there appears to be no constitutional impediment to the General Assembly’s requiring that the jurisdiction thus granted be exercised by a three-judge panel rather than a single circuit judge. This does not create a new court, nor does it affect the judgment, which, under the statute, is a judgment of the circuit court. (Ill. Rev. Stat. 1981, ch. 46, par. 23—1.10.) It should be duly noted that a provision for a three-judge panel is no stranger to our law and that similar provisions are found in the North Shore Sanitary District Act (Ill. Rev. Stat. 1981, ch. 42, par. 276.99 et seq.) and in the Sanitary District Act of 1917 (Ill. Rev. Stat. 1981, ch. 42, par. 298.99 et seq.). These statutes provide for three judges to sit as boards of commissioners in the organization of districts under these acts (Ill. Rev. Stat. 1981, ch. 42, pars. 277, 299), and we fail to perceive any distinction between the statutory provisions containing these provisions and the statute here under consideration. The majority holds that the prior statute which these sections repealed would not be revived if we held the present statute unconstitutional because the prior statute provided for a decision by the legislature in election contests, whereas the 1970 Constitution provides that election contests shall be heard by the courts in a manner provided by law. (Ill. Const. 1970, art. V, sec. 5.) If neither statute is constitutional, it appears that Mr. Stevenson and Ms. Stem would have no means under the Constitution to contest the results of the election. This would result in a blatant denial of due process.
One of the stranger aspects of the majority opinion follows its holding that the statute is unconstitutional and thus void. That should end this case. The majority, nevertheless, then goes on to point out what it perceives to be defects in the petition and reasons why the petition does not satisfy the statutory requirements. If the statute is void, it obviously is unnecessary to talk about the statutory requirements. It is not only unnecessary but it is unfair to the petitioners. If a petition is insufficient in the mind of the court and fails to satisfy the statutory requirements for the petition, a petitioner ordinarily can move for leave to amend the petition and correct the defects perceived by the court. The petitioners here cannot do this. They cannot defend the petition they filed, and they cannot respond to the criticism by the majority of their petition; they cannot show that, in fact, it satisfied all the statutory requirements. The reason they cannot is because the majority has declared the statute unconstitutional and void. Thus, the petitioners are in the rather incredible and certainly unenviable position of having the majority critically dissect their petition and declare it invalid without the petitioners having any opportunity to show that the majority is in error.
The majority, although conceding the petition contains the allegations required by the statute, has concluded that our decisions required the petition to be held insufficient. It cites People v. Bernette (1964), 30 Ill. 2d 359, as authority for the proposition that a statute should not be construed to effect a change in the settled law of the State unless its terms clearly require such a construction. The act of the General Assembly in this instance clearly requires such a construction. Prior to the enactment of the statute in its present form section 23—13 of the Election Code governing statewide contests (Ill. Rev. Stat. 1975, ch. 46, par. 23—13) contained the provision for a notice of intention to contest the election “expressing the points on which the same will be contested.” Section 23—20 (Ill. Rev. Stat. 1975, ch. 46, par. 23—20) governing other contests, provided for the filing of a petition “in writing setting forth the points on which he will contest the election.” It is significant that section 23—20 continues to provide for “a petition, in writing, setting forth the points on which he will contest the election” whereas section 23—1.2 (Ill. Rev. Stat. 1981, ch. 46, par. 23—1.2) provides specifically the allegations which must be set forth in the petition in a statewide election contest.
In holding the petition insufficient the majority professes to place great reliance on Zahray v. Emricson (1962), 25 Ill. 2d 121. Even a cursory reading of Zahray, however, demonstrates beyond question that the portion of the opinion upon which the majority relies is dictum. The case was decided on the grounds that the plaintiffs had not made out a prima facie case entitling them to a recount, and the court having decided that, there was no reason to discuss the question of the sufficiency of the plaintiffs’ petition. We submit that the majority’s quotations from Zahray are selective, fragmentary and misleading. They fail to show the complete inadequacy of the petition the court considered there. The court, describing the complaint, said in Zahray.
“The amended petition in this case falls far short of affording a basis for the contest sought. It neither alleges that the irregularities complained of changed the result of the election, nor does it allege facts which show that the irregularities would have such a result, and which if proved would render it the duty of the court to declare a defeated candidate elected. The petition does not set out how many votes were cast in the election, how many votes were received by any of the candidates, nor allege that votes cast for one candidate were wrongfully counted for another, and for all that appears in the petition the difference in votes may have been so great that none of the irregularities alleged could have affected the outcome. Indeed, the prayer of the petition recognizes this as true, for it asks only that the candidates who appear to be elected be declared as elected by the court. Petitions with the same deficiencies were held insufficient in Conway v. Sexton, 243 Ill. 59, 63, and People ex rel. Nourie v. Peltier, 265 Ill. 630, and we think the same result obtains here. (See also: McQuagge v. Conrad, (Fla. 1953,) 65 So. 2d 851; Suttle v. Sullivan, (Colo. 1955,) 283 P.2d 636; Lammot v. Walz, (Del. 1954,) 107 A.2d 905; 29 C.J.S., Elections, sec. 268b(4).) In the absence of an allegation that the results of the election were changed by the alleged irregularities, or facts showing such a result, the petition assumes the proportions of an exploratory process to which neither our courts nor election officials should be subjected.” 25 Ill. 2d 121, 124-25.
As we shall show later in this dissent, none of the glaring deficiencies of the petition in Zahray appear in the petition here.
The majority cites McCaslin v. Moore (1966), 67 Ill. App. 2d 355, but the decision is not authority for the proposition for which it is offered. In describing the petition filed, the court said:
“The amended petition in this case falls far short of affording a basis for the contest sought. It neither alleges that the irregularities complained of would change the result of the election, nor does it allege facts which show that the irregularities would have such a result, and which, if proved, would render it the duty of the court to declare a defeated candidate elected. The petition fails to set out how many votes were cast in the election, how many votes were received by any of the candidates, and for all that appears in the petition the difference in votes may have been so great that none of the irregularities alleged could have affected the outcome.” (67 Ill. App. 2d 355, 358.)
As we will make unmistakably clear, there is no similarity between that petition and the petition filed in the matter here. Neither is Loudon v. Thompson (1971), 1 Ill. App. 3d 809, referred to by the majority, authority for the proposition cited. It is clear from the opinion that the petition failed to allege that a recount would change the results of the election. The petition before us alleges that clearly.
As we have observed above, the majority states: “It must be presumed that the legislature acted with knowledge of the requirements of these decisions when this statute was enacted.” (93 Ill. 2d at 483.) It must also be presumed that the General Assembly is sufficiently perceptive to understand that a line of appellate court “authorities” based upon dictum in an opinion of this court is hardly a reliable basis upon which to form a judgment or make a determination as to the status of the law in this jurisdiction.
An examination of the petition here shows that it does not suffer from the deficiencies of the petitions involved in Zahray and the other decisions cited by the majority. The petition alleges:
“2. The results of the election for the offices of Governor and Lieutenant Governor, held at the General Election of November 2, 1982, as certified in the official proclamation issued by the State Board of Elections on November 22, 1982, are as follows:
James R. Thompson and George H. Ryan
(Republican) 1,816,101
Adlai E. Stevenson and Grace Mary Stern
(Democrat) 1,811,027
Bea Armstrong and David L. Kelley
(Libertarian) 24,417
John Roche and Melvyn Jones
(Taxpayers) 22,001
* * *
4. Each petitioner believes that mistake or fraud has been committed in the casting, counting, return and canvass of the votes and that there was other irregularity in the conduct of the election for Governor and Lieutenant Governor at the General Election of November 2, 1982, including, without limitation, the following:
(a) Tabulating errors occurred which resulted in the certification of incorrect vote totals;
(b) Ballots were counted which should not have been counted because they did not contain the initials of an election judge in accordance with law;
(c) Ballots were counted which, under law, should not have been counted because they contained marks identifying and distinguishing them from other ballots;
(d) Persons were permitted to vote who, under law, should not have voted because they were not registered voters;
(e) Persons were permitted to vote who, under law, should not have voted because they had not submitted valid ballot applications;
(f) Persons were permitted to vote by absentee ballot who, under law, should not have been permitted to do so because they had not submitted valid absentee ballot applications or were not entitled to vote absentee under applicable law;
(g) Persons were permitted to vote on the basis of affidavits who, under law, should not have voted because such affidavits were unsigned, incomplete or unaccompanied by legally required supporting affidavits;
(h) Duplicate ballots were counted, which, under law, should not have been counted because (i) they did not conform to the original ballot or (ii) no identifiable original ballot was retained or (iii) they were not identified as duplicates;
(i) Ballots were counted which, under law, should not have been counted because secure custody of the ballots by election authorities had not been maintained prior to the counting of the ballots;
(j) Ballots were rejected as defective and not counted which, under law, should have been counted because they were not defective;
(k) Absentee ballots were rejected and not counted which, under law, should have been counted because they complied with legal requirements; and
(l) Ballots were counted which should not have been counted because they had been improperly altered by election officials.
* * *
7. As a consequence of the mistake, fraud or irregularity alleged herein, the result of the election for Governor and Lieutenant Governor held at the General Election of November 2, 1982, as officially proclaimed, was incorrect.
8. Petitioners believe that ADLAI E. STEVENSON and GRACE MARY STERN did receive the highest number of votes for the offices of Governor and Lieutenant Governor at the election for those offices held at the General Election of November 2, 1982.”
In addition to the foregoing, voluminous exhibits attached to the petition show that many ballots were not correctly counted and that a recount would show that the petitioners had won the election.
The majority says that the election-contest statute is to be construed so that if a candidate considers that he was properly elected to office, and the office is denied to him through mistake, fraud or irregularity in the election, the candidate must do, in practical terms, the impossible. He must be able within 15 days of the proclamation of the result of the election to demonstrate, through what is in effect his own recount, from the recorded election results in 102 counties that he is being wrongfully deprived of the office to which he was, in fact, elected. In other words, the petitioner has to conduct what is a recount within 15 days so that he will be able to demonstrate in a verified petition that he was in fact elected to the office. It is impossible for a candidate to conduct discovery in every jurisdiction in such a short period of time. The result of discovery is inevitably a limited sampling of precincts in various counties. If such a limited sampling produces errors and irregularities in a number sufficient to approach the total margin of the statewide election, it is illogical to prohibit a statewide contest because specific errors were not demonstrated that would changed the result. If that were the case then what would be the purpose of a recount? That obviously would defeat the purpose of the statute, which is to provide for a recount. The burden placed upon a petitioner is impossible to sustain, and the majority makes the remedy provided under the statute an illusion.
The majority states that if a petitioner is not able within 15 days to show facts sufficient to support a change of the election, no contest is permitted. Discovery is, of course, a means a petitioner may use to attempt to show mistakes, fraud or irregularity. Significantly, the last paragraph of section 22—9.1, referring to discovery in election cases, states: “Such count shall not be binding in an election contest brought about under the provisions of the Election Code, shall not be a prerequisite to bringing such an election contest, shall not prevent the bringing of such an election contest, nor shall it affect the results of the canvass previously proclaimed.” (Ill. Rev. Stat. 1981, ch. 46, par. 22—9.1.) The statute says that discovery need not be a prerequisite to initiating an election contest and, indeed, if the results of the discovery are not sufficiently favorable, the discovery effort shall not prevent the bringing of such an election contest. The majority requires the petitioner to demonstrate factually that the election result would have been different. After an extensive discussion the majority reaches the conclusion that the petition fails sufficiently to allege that the ballots contained improper identifying marks. In the course of the discussion the majority appears to make certain factual determinations which would be better made by the statutory panel after hearing evidence on the matter. The majority states: “It is true that whether a ballot contains disqualifying distinguishing marks is usually a question of fact, and it is so stated in the cases cited above.” (93 Ill. 2d at 486.) Nevertheless, the majority proceeds to examine the evidence and finds that the allegations are not specific enough to show that the petitioners are entitled to an increase in their vote because of ballots with invalidating and distinguishing marks. This question, too, is best determined following a hearing to determine the facts of the matter.
Concerning the Lake and Du Page counties’ ballots the majority makes much of the fact that certain of the allegations contained in the petition do not appear to be properly verified, but nevertheless readily accepts as unquestioned fact the explanation contained in respondents’ memorandum concerning those ballots. This is an inappropriate manner in which to determine the issue presented. It should properly be decided after the hearing of evidence. To rely on the “Thompson-Ryan” explanation and the fact that the explanation “has not been disputed by the petitioners” (93 Ill. 2d at 487) is a particularly inappropriate manner in which to decide the factual question presented at the pleading stage in this case.
The majority also finds that the allegations of the petition are insufficient because of its failure to allege how 1,645 votes should be apportioned. The majority cites no authority for the proposition that an allegation is necessary on this particular matter. This is a matter of evidence, not an allegation which is to be contained in the petition. Were it necessary for the petitioners to make the allegations as the majority implies, it would, in effect, require them to plead all their evidence in a statewide contest, in a petition filed within the 15 days of the certification. This, of course, is unreasonable and indefensible. We note, too, that the majority states concerning this matter, “We cannot accept the suggestion in the memorandum as part of the pleading which we are examining.” (93 Ill. 2d at 489.) In contrast, and without explanation, the majority accepts the explanation in respondents’ brief concerning the Lake and Du Page ballots. We fail to see why equal consideration should not be given to the explanation provided in this instance by the petitioners.
The majority gives as reasons for holding the petition insufficient that an election contest would be extremely time consuming, inconvenient and expensive. (This seems to indicate that even if the majority did not hold the statute to be unconstitutional, the petitioners would not have been permitted to amend their petition. We say this because if there were to be an amending of the petition to satisfy the majority’s criticisms, there still would be a time-consuming, inconvenient and expensive election contest.) Though unintended, the majority may be dangerously close to giving the appearance of providing comfort to those who would support only a convenient and affordable justice. These should not be the criteria for determining whether there should be a recount. (The expense would be principally the unavoidable expense of the public employees’ salaries.) Our society does not fix affordable expense as a standard for doing justice or, in particular, for insuring the integrity of the electoral process. This court has not served under such a flag. This was a close and, of course, an important election. Over 3.6 million votes were cast, and Thompson and Ryan were proclaimed to be elected by a margin of 5,074 votes. Who were the elected Governor and Lieutenant Governor of our State is obviously of high importance to the petitioners and the respondents. But of first importance is a just disposition and the insuring of the integrity of the electoral process of our State. It may be that a recount would not have changed the announced election results, but it will always be uncertain what was the will of the people in the gubernatorial election of 1982.