dissenting:
In addition to joining the dissents of Mr. Justice Ryan and Mr. Justice Moran, I am compelled to add the following comments, for it seems clear to me that petitioners’ motion for leave to file their petition for mandamus should not have been allowed. As the authorities cited by Mr. Justice Ryan indicate, intervention by this court in the internal affairs of the legislative branch of government can be justified only to redress a violation of the Constitution. There has been no violation of the Constitution here.
The motion for leave to file the original petition for mandamus alleged only that no member of the Senate had received the votes of a majority of the elected senators for the office of Senate President, and that the Governor “fails and continues to fail” to convene the Senate for the purpose of electing a President of the Senate; a writ of mandamus was requested as necessary for the purpose of directing the Governor to comply with the constitutional mandate that he convene the Senate to elect its President. The petition repeated these allegations but further revealed that the Governor had convened the Senate for that purpose on January 14, and declared Senator Shapiro the duly elected Senate President after he had received 29 votes — the votes of all those Senators voting on the question. The motion for leave to file and the petition plainly assert only a single alleged constitutional violation by the Governor: proclaiming as President a Senator who had not received the votes for that office of a majority of the elected Senators — 30 votes. Consequently, only if the Constitution of this State requires 30 votes in order to elect a Senate President is there a violation of the Constitution and a basis upon which this court may intervene.
Four members of this court agree that there is no requirement of 30 votes contained in the Constitution. Since it is apparent that the only constitutional violation alleged by petitioners to have occurred did not occur, Mr. Justice Ryan, Mr. Justice Moran and I agree that the motion for leave to file should not have been allowed, and that the petition for mandamus should now be dismissed as improvidently permitted to be filed. Mr. Justice Simon indicates he doubts our authority to mandamus the Governor (People ex rel. Bruce v. Dunne (1913), 258 Ill. 441) but avoids the problem on the basis that the Governor indicated his willingness to have us hear and decide the case. It is true that during oral argument of the case the Attorney General did indicate the Governor’s willingness to abide by our decision on the merits of the matter. But agreeing to abide by our ruling on the petition for mandamus once we had decided to hear the case is not to be equated with agreeing that we should have allowed the motion for leave to file the petition in the first instance. That motion was vigorously opposed by the Governor, who specifically asserted in paragraph 6(C) of his objections, filed after we had requested a response, that:
“The proposed Petition for Writ of Mandamus would require the Court to invade the province of the legislative branch and violate the constitutional separation of powers. [Const. Art. IV sec. 6(d); Art. III, sec. 1; Reif v. Barrett, 355 Ill. 104, 126 (1933)].”
In paragraph 6(D) the Governor also asserted:
“The proposed petition for Writ of Mandamus would require the Court to invade the province of the Executive Branch also by telling the Governor how he must exercise his powers and discretion and thus violates the Constitutional separation of powers. People ex rel. Bruce v. Dunne, 258 Ill. 441, 456 (1913).”
Allowance of leave to file the petition cannot be justified on the grounds of the Governor’s consent.
I find somewhat remarkable the process by which those of our colleagues who find a constitutional requirement of 30 votes to elect a Senate President have reached that conclusion. They concede the correctness of the general rule that, “[i]n the absence of a constitutional or statutory provision or rule of a legislative body to the contrary, it is universally accepted that the act of a majority of a quorum is the act of the body.” (Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137, 142; Mason, Manual of Legislative Procedure for Legislative and Other Governmental Bodies sec. 510 (1979).) But, characterizing the election of a Senate President as of as great or greater importance than many other Senate actions for which a vote of more than a majority of a quorum is expressly required, my colleagues say it would “unthinkably” demean his status as a constitutional officer, and that it is “inconceivable” that the framers of the Constitution could have intended to permit election by less than a majority of the elected Senators. Given the fact that in nearly a score of other instances the constitutional framers expressly required an extraordinary majority before legislative action could be taken, it seems to me more nearly “unthinkable” and “inconceivable” that they could have inadvertently overlooked requiring an extraordinary majority here had they in fact so intended. 2A A. Sutherland, Statutes and Statutory Construction secs. 47.23, 47.24 (1973).
Petitioners gloss over the fact that rulings in earlier years on the question of whether election of a presiding officer required the votes of a majority of the members of the House or Senate have not been completely uniform. Usually that officer has been elected by the votes of a majority of the elected members — but not always. A Speaker of the House was elected under a majority-of-a-quorum rule as recently as 1973, and the Presidents Pro Tempore of the Senate have been elected in that manner with some frequency. Nor was the earlier ruling of the Governor in the election of the President of the Senate of a different General Assembly binding upon him here if he believed, as he obviously did, that his earlier ruling did not correctly interpret the Constitution’s requirements.
To recapitulate: The only constitutional question presented by the motion for leave to file the petition for mandamus and the petition itself was whether the Constitution required 30 votes to elect a President of the Senate. Clearly, in my opinion, it did not. At that point the doctrine of separation of powers dictated that our inquiry into the internal operations of the Senate terminate, for there had been no constitutional transgressions. The Constitution vests in each house of the legislative branch the power and responsibility to choose its own officers. In the absence of a constitutional violation during that process this court may not review what is a purely political process. Davids v. Akers (9th Cir. 1977), 549 F.2d 120; Reif v. Barrett (1933), 355 Ill. 104, 126.
I would dismiss the petition for a writ of mandamus as improvidently granted.
RYAN and MORAN, JJ., join in this dissent.