152 N.E. 557 | Ill. | 1926
Section 6 of article 4 of the Illinois constitution of 1870 provides: "The General Assembly shall apportion the State every ten years, beginning with the year 1871, by dividing the population of the State, as ascertained by the Federal census, by the number fifty-one, and the quotient shall be the ratio of representation in the senate. The State shall be divided into fifty-one senatorial districts, each of which shall elect one senator, whose term of office shall be four years. The senators elected in the year of our Lord 1872 in districts bearing odd numbers, shall vacate their offices at the end of two years, and those elected in districts bearing even numbers, at the end of four years; and vacancies *512 occurring by the expiration of term, shall be filled by the election of senators for the full term. Senatorial districts shall be formed of contiguous and compact territory, bounded by county lines, and contain, as nearly as practicable, an equal number of inhabitants; but no district shall contain less than four-fifths of the senatorial ratio. Counties containing not less than the ratio and three-fourths, may be divided into separate districts, and shall be entitled to two senators, and to one additional senator for each number of inhabitants equal to the ratio contained by such counties in excess of twice the number of said ratio."
In accordance with this provision the General Assembly in 1901 passed an apportionment act dividing the State into fifty-one senatorial districts, since which time it has failed or neglected to comply with this constitutional provision to pass an apportionment bill, and its members are still elected and function under the act of 1901. The petitioner, by leave of this court, has filed his petition herein asking this court to issue the people's writ of mandamus to compel the respondents, who comprise the membership of the General Assembly, to meet and apportion the State in accordance with this constitutional provision. Several of the respondents have filed answers, saying that they have fully performed their constitutional duties imposed upon them with respect to the re-apportionment of the State of Illinois, and that they have, as members of the Fifty-fourth General Assembly, taken all steps possible to urge and bring about obedience to the provisions of the constitution; that they are in accord with the spirit and prayer of the petition and are willing and anxious to proceed further under such proper, lawful and constitutional means as may bring about re-apportionment of the State of Illinois as provided by section 6 of article 4 of the constitution. Other of the respondents have filed their motion to dismiss the petition and quash the writ issued thereon, and for grounds of the *513 motion say that this court has no jurisdiction of the subject matter of the cause, that it is without jurisdiction to issue the writ of mandamus prayed for in the petition, and that the court is without power to grant the relief, or any part thereof, prayed for in the petition.
Petitioner contends that the duty imposed by the people upon the General Assembly to apportion the State after each Federal census is clear and unmistakable and the provisions of the constitution are mandatory in this respect. The right which the petitioner sets up as the basis for the relief sought is the right of representation, which by the Declaration of Independence is said to be a right inestimable to the people and formidable only to tyrants.
The writ of mandamus is a summary writ issuing from a court of competent jurisdiction, commanding the officer or body to whom it is addressed to perform some specific duty which the relator is entitled, of right, to have performed and which the party owing the duty has failed to perform. The writ ofmandamus issues to compel the performance of a public duty by a public functionary in a case in which the public has a right to complain of the failure to perform that particular duty. (School Inspectors v. People,
By article 3 of the Illinois constitution of 1870 the powers of the government of this State are divided into *514
three distinct departments, — the legislative, executive and judicial, — and no person or collection of persons, being one of these departments, may exercise any power properly belonging to either of the others, except as expressly directed or permitted by the constitution. Neither of these three departments is subordinate to or may exercise any control over another except as is provided by the constitution. Their status is that of equality, each acting within its own sphere independent of each of the others, so long as its action does not exceed the powers confided to it, unless particular exceptions are made to this general rule by the constitution itself. (People v. Bissell,
In People v. Dunne,
"In People v. Bissell,
"In People v. O'Toole,
"Article 3 of the constitution includes in its prohibition each of the three departments of the government, and its interpretation as to one department applies with equal force to each of the others. * * *
"The court has never attempted to exercise any compulsory power over the legislative department. The constitution enjoins upon that department the duty to enact certain laws, such as liberal homestead and exemption laws, laws necessary for the protection of operative miners, and laws to give full effect to article 13, relating to warehouses; and the court has not only never attempted to determine whether the laws enacted for those purposes were such as were necessary or proper, but if the legislature had neglected or refused to pass any such laws no one would think for a moment of asking the court to enforce the performance of the *517
duties so specifically enjoined upon the legislature. These are commands of the people to the legislature, but they can not be enforced by the courts. — Gillinwater v. Mississippi andAtlantic Railroad Co.
This court, from its organization to the present term, has observed with sedulous care the principles announced in the cases above cited and has consistently declined to encroach upon the powers granted by the constitution to the legislature, and has never arrogated to itself the right to pass upon the wisdom or propriety of legislative acts within such powers. The duty to re-apportion the State is a specific legislative duty imposed by the constitution solely upon the legislative department of the State, and it, alone, is responsible to the people for a failure to perform that duty.
It is contended by petitioner that even though this court may not be able to compel the legislature to re-district the State in any particular manner, the duty upon respondents to apportion the State being clear the court can bymandamus compel them to act in the premises. It is ordinarily the rule that an officer clothed with discretion as to the manner in which he will perform his duty, who fails to perform that duty, cannot be required to perform the duty in a particular manner, yet he may be compelled by mandamus to act, the court in such case simply compelling action and not the manner of action. (People v. Webb,
This court being debarred by the constitutional division of governmental functions from compelling by mandamus the performance of a duty by the legislative department of the State, the relief prayed for by the petitioner in this case cannot be granted, and the writ is denied.
Writ denied.