dissenting:
It is a well-established principle, as the majority opinion itself points out, that “[t]he ordinary meaning of the language employed by the drafters in the questioned constitutional or statutory clause provides the best evidence of the drafters’ intent. (People v. Brown (1982), 92 Ill. 2d 248, 255; People v. Robinson (1982), 89 Ill. 2d 469, 475-76; People v. Haron (1981), 85 Ill. 2d 261, 266.)” 99 Ill. 2d at 125.
In Salmons v. Dutz (1958), 16 Ill. App. 2d 356, the court held:
“In considering the question raised on this appeal, recognition must be accorded the well established principle that a statute is not open to construction where the language thereof is clear and unambiguous and conveys a clear and definite meaning. [Citation.] If the legislative intention be plain from the language used the courts are not permitted to give the Act any other meaning than that therein expressed.
In Sup v. Cervenka, 331 Ill. 459, the rule to which we refer is thus stated:
‘It is an elementary rule in the construction of a statute that the intention of the legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When that language is plain and unambiguous and conveys a clear and definite meaning there is neither necessity nor authority for resorting to statutory construction. If the words of a statute are plain and the legislative purpose manifest, that purpose must be given effect. The courts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the legislature. They cannot read into a statute something that is not within the manifest intention of the law-making body as gathered from the statute itself. To depart from the meaning expressed by the words is to alter a statute — it is to legislate and not to interpret. If the obvious meaning of a statute should be followed by harsh consequences, such a result cannot influence the courts in administering the law.’ ” 16 Ill. App. 2d 356, 361.
The transportation clause provides:
“No person shall be transported out of the State for an offense committed within the State.” (Ill. Const. 1970, art. I, sec. 11.)
The transportation clause clearly does not state, as the majority suggests, that a person shall not be transported out of the State for an offense committed within the State only if it constitutes cruel and unusual punishment. The majority concludes “that the transportation clause is violated only if and when the transportation of prisoners constitutes cruel and unusual punishment.” (99 Ill. 2d at 128.) I do not agree.
The clear language of the transportation clause should not be ignored. Since the language is clear and unambiguous, it is not necessary to go outside the language of the transportation clause to determine the intention of the constitutional convention.
The majority discusses the fact that several proposals were made during the 1970 constitutional convention to abolish the transportation clause and adopt instead a clause prohibiting cruel and unusual punishment. It further notes the remarks of one of the delegates to the convention regarding the alleged obsolescence of the transportation clause. The majority reasons that these proposals and the remarks of the delegate are indicative of the constitutional convention’s intent. However, the fact remains that the transportation clause was not abolished nor was it altered. It still remains in our constitution. Therefore, it is reasonable to conclude that it was the intention of the constitutional convention that it remain in effect as written.
Prison overcrowding should not affect our interpretation of the Blinois Constitution. The transportation clause of our constitution has not changed significantly since 1818 (cf. Ill. Const. 1818, art. VII, sec. 17; Ill. Const. 1848, art. XIII, sec. 18; Ill. Const. 1870, art. II, sec. 11; Ill. Const. 1970, art. I, sec. 11), and I disagree with the majority’s belief that the exigencies of a temporary crisis should be used to justify a strained interpretation of a clear constitutional mandate. The same argument was rejected by this court in Lane v. Sklodowski (1983), 97 Ill. 2d 311, 318, where we noted:
“Amicus curiae, John Howard Association, argues in its brief that, unless this court holds that the Director has unlimited authority to grant early release to prisoners beyond a total of 90 days per incarceration, dangerous and unconstitutional overcrowding of Illinois prisons will occur: The Director made similar arguments in a motion to stay our order of July 12, but as we stated in our order of July 15, 1983, quoted above, these are principally concerns for the General Assembly.”
Lane does indicate that prison overcrowding could become a matter for the judiciary if Illinois prisons become so overcrowded that there was a violation of the eighth amendment’s prohibition against infliction of cruel and unusual punishment (U.S. Const., amend VIII), but I do not think that the majority opinion has established that such a situation currently exists in Illinois. The only support for this proposition is a quotation from plaintiff’s brief. The prisoners that have been sent to Nevada have been dispatched as the Illinois prison population became larger than 14,000. If the prison situation in Illinois before Lane already constituted cruel and unusual punishment, the prison transfer program, as it has been implemented to this date, will not improve the living conditions of the 14,000 prisoners already incarcerated in Illinois. It merely postpones the day when the legislature will have to effectively deal with the problem of prison overcrowding in this State.
As our appellate court has noted:
“ ‘Such considerations cannot be utilized to sustain a construction at variance with the plain meaning of the statutory language. They are arguments appropriately addressed to the legislature. The function of this court is to construe the statute in accordance with the normal import of the words used, whatever its opinion may be regarding the desirability of results produced by the operation of the statute.’ ” Mason v. Cutkomp (1957), 15 Ill. App. 2d 378, 384.
I am also troubled by the majority’s endorsement of the statute’s authorization to transfer prisoners when “necessary or desirable.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 4—4, art. IV.) Such a wide range of discretion could have extremely serious consequences. If this opinion is adopted, we could abolish the prison system in Illinois and send all of our prisoners to other States with lower wages and construction costs. Although such a draconian development is unlikely, I can foresee other abuses that such discretion encourages. If we endorse the statute in question, future administrators may find it necessary or desirable to banish prisoners to distant States if they show a talent for assisting other prisoners in learning about the laws that imprisoned them, or assisting others in the preparation of habeas corpus petitions. Prison administrators could effectively punish prisoners without troublesome judicial supervision.
I do not understand the majority’s reliance on the common law development of prisoner banishment. Exile to Australia or the new colonies was conceived as a particularly odious form of punishment. The distance from relatives and loved ones produced a tremendous strain on the early convicts banished to Australia or the new colonies, although the living conditions, climate, space, and food were often better than in England. Nevada is certainly not as far as Australia, but impoverished relatives of Blinois inmates may find the financial burden of transportation too great to bear. Blinois’ exiles will be effectively cut off from contact with their friends, relatives and attorneys. In addition, I am concerned over whether our State will provide adequate facilities to monitor conditions in out-of-State prisons to insure humane and fair treatment of Blinois prisoners once they are in the custody of authorities in other States.
Finally, I would like to recall the judicial philosophy of the late Justice Black of the United States Supreme Court. His strict interpretation of the United States Constitution was epitomized by his construction of the first amendment (U.S. Const., amend. I). He interpreted the phrase “Congress shall make no law *** abridging the freedom of speech” to mean just that — no law. He would not tolerate interpretations that indorsed some laws, as long as they were reasonable. (See Frank, Mr. Justice Black, The Man and His Opinions 253-309 (1949).) In the case at bar, we have the clear language of the Illinois Constitution:
“No person shall be transported out of the State for an offense committed within the State.” Ill. Const. 1970, art. I, sec. 11.
The Illinois Constitution does not forbid the movement of prisoners outside of the State unless it is reasonable, or cruel and unusual, or anything else. It simply forbids it.
I respectfully dissent.
JUSTICE SIMON joins in this dissent.