dissenting:
I agree with the opinion of the majority of the court insofar as it holds (1) that no more than three constitutional amendments were proposed by the 68th General Assembly; (2) that issues concerning the validity of those provisions of the Election Code that relate to the 1964 at-large election of representatives are now moot, and (3) that the present members of the state Senate, although elected from discriminatory districts that violate the constitution of the United States, nevertheless have de facto authority to act as members of the Senate of Illinois. But other conclusions are reached with which I can not agree.
The primary contention of the relator is not answered by the majority opinion. That contention is that the constitution of Illinois was not complied with in the adoption of the 1954 reapportionment amendment. The argument is that if senatorial districts once fixed by the legislature can be changed only by constitutional amendment, the districts so fixed have been made a part of the constitution without having been published and without having been submitted to and adopted by the people of the state at a referendum election, as the amending clause of the constitution requires. Constitution, art. XIV.
The opinion disposes of this contention on the ground that since the decision of the Supreme Court of the United States in Germano v. Kerner, 378 U.S. 560, “it can no longer be contended that the area apportionment provisions of article IV, section 6, and its prohibitions against subsequent legislative change are valid.” But this statement does not meet the relator’s contention. That contention, if sound, would completely invalidate the 1954 amendment upon the ground that the entire amendment was'not submitted to and adopted by the people, as required by the constitution of Illinois. The fact that the Supreme Court of the United States has held a portion of the amendment invalid because it violates the federal constitution has nothing to do with the relator’s claim that requirements of the Illinois constitution were not complied with.
This contention of the relator is based upon the statement in People ex rel. Giannis v. Carpentier, 30 Ill.2d 24, 26, concurred in by only three members of this court, that “Once Senate districts have been established, they are permanently fixed and may not be altered, revised or reallocated except by constitutional amendment.” As was pointed out in the dissent in the Giannis case, and as is conceded in the majority opinion in this case, no issue concerning the immutability of Senate district boundaries was before the court in the Giannis case. The observation as to the constitutional status of Senate districts was unnecessary to the decision and in my opinion the court should not adhere to it.
The language of the 1954 amendment contemplates senatorial, as well as representative, redistricting every ten years: “But if such a General Assembly fails to perform these duties, then another commission, as specified in this Section 8, shall be appointed in like manner, with like duties, and power, and with like effect; and so forth until a valid senatorial and representative redistricting and reapportionment are secured in this 1950 decade and each decade thereafter. But there can he only one valid senatorial and representative redistricting and reapportionment during a particular decade.” (Italics supplied.)
If this court were to hold, in accordance with this language, that senatorial districts once established are not immutable, the relator’s contention in this case would fall. But the court does not so hold. It leaves the contention unanswered, except as it refers to the legislation which prescribes district boundaries which can be changed only by constitutional amendment as “the traditional method of reapportionment.” The majority opinion cites no authority whatsoever to support its assumption that legislation which can be altered only by constitutional amendment is a traditional method of reapportionment. None has been cited by the parties, and I am aware of none.
The relator’s contention that the 1954 amendment violates the Illinois constitution could easily be answered by adhering to the actual language of the 1954 amendment and repudiating the Giannis dictum as to the immutability of Senate districts. But the court now appears to have rejected that course. I see no escape from the conclusion that, if the 1954 amendment meant that Senate districts established without having been published or submitted to a constitutional referendum, could be changed only by constitutional amendment, the relator’s contention is sound and the 1954 amendment was not validly adopted under the constitution of Illinois.
Section 8 of the 1954 amendment provides that if the legislature fails to reapportion, a special commission is to be convened to do so and that if it fails one half of the Senate and all of the House must run at large. This provision was one of the most important aspects of the 1954 amendment since it was believed that this would solve the problem of legislative refusal to obey the constitutional mandate to reapportion every ten years. (See Donovan v. Holzman, 8 Ill.2d 87.) The majority opinion omits any reference to this provision when it enumerates the valid portions of the amendment. This omission, coupled with the gratuitous observation, “We do not here determine whether, in the absence of a constitutional legislatively determined plan, language in Tawes, and in Lucas v. 44th General Assembly of Colorado, 377 U.S. 713, 84 S. Ct. 1472, 12 L. ed. 2d 632, and related United States Supreme Court decisions, requires us to adopt, simultaneously, provisional reapportionment and redistricting plans for both houses”, and the court’s retention of jurisdiction, can apparently be explained only on the ground that the majority is getting ready to read section 8 out of the constitution.
Section 8 provides explicitly what is to happen in the event that the General Assembly fails to reapportion. The constitution of Illinois does not contemplate reapportionment by any court, state or federal. There is therefore no practical reason for the retention of jurisdiction of this case. Nor is there any legal basis for the retention of jurisdiction of this case. This is an action for a declaratory judgment, of which this court does not have original jurisdiction. The case is here on appeal from the circuit court of Sangamon County. The jurisdiction of this court ends when it has affirmed or reversed the judgment of the circuit court, or remanded the case to that court for further proceedings. The issues presented in the circuit court concerned only the November 1964 election. They did not at all involve the contingency that the General Assembly might, in 1965, fail to perform its duty. The circuit court decided only the issues that were presented to it, and those are the only issues that are actually before this court.
If the majority were to hold that the provisions of section 8 are still applicable, I would agree on the severability issue. But if, as appears to be the case, they are reading that provision out of the amendment, I can not agree that what remains is separable and valid. The majority correctly states the applicable legal principle as set forth in People ex rel. Adamowski v. Wilson, 20 Ill.2d 568, but it fails to apply that principle. The test of separability there stated is: “If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section unconstitutional unless it can be said that the General Assembly would not have passed the statute with the invalid portion eliminated.” (20 Ill.2d at 582.) The majority opinion completely ignores the second portion of the test.
As I read that opinion the only new provisions embodied in the 1954 amendment that certainly remain valid are those which increase the number of senatorial and representative districts and those which provide that in establishing legislative districts some districts are to be allocated to the city of Chicago, some to the county of Cook outside the city of Chicago, and some to the remaining counties of the state. Certainly the General Assembly in 1953 would not have proposed, nor would the people in 1954 have ratified, a constitutional amendment that made only those relatively insignificant changes in the existing constitution. The suggestion that such an amendment would have been adopted disregards the serious problem that had confronted the state since 1911.
That problem was described in the official explanation of the proposed amendment:
“The Constitution now requires legislative districts to be based solely on population. This has proved unworkable ever since the 1910 census because a valid redistricting would have given the single county of Cook a majority in both houses of the General Assembly. * * *
“Illinois badly needs a legislative redistricting. The present districts stand as they were created half a century ago. As a result, serious inequalities of population have developed, not only as between Cook County and downstate, but even within these major areas of the State. The apportionment amendment tends to assure the people of a constitutional districting because if the General Assembly fails to act, a commission is provided; and if the commission fails to act, legislators will be elected at large.” Quoted in Donovan v. Holzman, 8 Ill.2d 87, 92.
The majority opinion enumerates six purposes sought to be achieved by the 1954 amendment, and describes them as “clearly multiple, independent, and severable.” Five of these purposes were not new, but were contained in the constitution as it existed before the 1954 amendment. Power to redistrict the House of Representatives on the basis of population, a provision for periodic apportionment, a provision establishing the number of senatorial and representative districts and the number of legislators to be elected from each district, a requirement that legislative districts be formed of contiguous and compact territory, and provisions for the terms of office and the times of election of legislators — all these were contained in article IV of the constitution of 1870 prior to its amendment in 1954.
It simply can not be said that repetition of existing provisions was the purpose of the 1954 amendment. In no way would the solution of the problem that confronted the state have been advanced by an amendment that included only these provisions. The sixth of the purposes of the amendment as described by the majority was new — to “give due regard to the three separate traditional regions of the State.” But no one would have regarded that provision, standing alone without the unconstitutional discrimination it was designed to implement, as of any significance in terms of the problem facing the people.
Although the opinion describes the purposes of the amendment, apart from its unconstitutional discriminatory provisions, as primarily the re-enactment of existing provisions of the 1870 constitution, it omits the provision for automatic redistricting contained in article 8. It has not been suggested by anyone that this provision is invalid. The official explanation quoted above, as well as all the other contemporaneous explanations, emphasize the vital importance of this provision. (See People ex rel. Giannis v. Carpentier, 30 Ill.2d 24, 35.) No reason for its omission is suggested. If any part of the 1954 amendment remains valid, that provision remains.
Mr. Justice Hershey joins in this dissent.