*1 suсh do, however, it appropriate consider thereto. We trial court. made determination County Madison court of the circuit The judgment reversed, and the hereby a tax deed is issuance ordering is so vacate deed with directions cause is remanded should the sale question determine whether sued and to section under the in error provisions a sale be considered Stat., 1963, chap. Rev. Act. Ill. 266 of the Revenue par. 747. remanded, with directions.
Reversed and (No. 39201. al., Petitioners Scott et ex rel. William J. Governor, al., et Respondents. Kerner,
Otto Opinion June filed
Schaefer, J., dissenting. of
Kirkland, Ellis, Hodson, Masters, Chaffetz & Chicago, (Don of counsel,) for petitioners. Reuben, H. General, G. Attorney of Springfield, Clark,
William General, A. Assistant of Attorney Michael, (Richard counsel,) for respondents.
Mr. delivered the opinion Underwood Justice court:
Leave was file granted original mandamus peti- tion which the include residents and petitioners electors the several of districts in congressional this State and Illinois, who, officer, the of Treasurer the State of as such is a the Electoral member of State Board. Respondents are Governor, General Attorney the Trеasurer, Accounts, who, of Public with the State Auditor Electoral Board. constitute the State estab the districts petition congressional alleges Rev. Stat. Assembly (Ill. lished General con the Federal contravene par. 156f.1,) I, Const., 2,) art. sec. stitutional (U.S. requirements in as that rule has been substantial of population equality 2d Sanders, L. ed. U.S. Wesberry terpreted districts, in that of such S. Ct. population census, substantially, varies as established by i960 Tenth between greatest disparity apparently District with a census population Congressional i960 оf 278,703 Sixth District with 552,582, population course, elects one Other allegations (each, congressman). connection are as the duties of electoral board elections, two congressional pendency Illi Federal court actions constitutionality involving *3 Act, necessity and the nois’s Congressional Apportionment for decision as to the of districts constitutionality existing of to session the General adjournment present that an redistrict so have to Assembly body may opportunity The is that court the elec the Stаte. this command prayer not to conduct an to toral board election pursuant scheme, that retain to jurisdiction and we districting present insure that the election of congressional representa a tives valid pursuant constitutionally plan. the At- this filed
A motion to dismiss was by petition nature that the real asserting pro- General torney and that of action for declaratory judgment was an ceeding an amendment to the Subsequently petition injunction. that for representative added candidates allegations their circulate nominating and supporters might Congress hereafter; at that such time persons now petitions with in- of State are furnished currently formation, and of statutes relating instructions copies such that such and statutes direct procedures; instructions within candidates to from prospective present petition districts; unconstitutional that the effect of this allegedly action is to mislead the and into candidates potential which must securing nominating petitions subsequently rejected electoral board. The аmendment requested issuance of the writ mandamus directing of State to advise should not be inquirers petitions districts; circulated to inform such persons districts are unconstitutional and that no petitions from such districts will be for but accepted filing from districts will be yet created petitions accepted. objections the amend- Respondents’ propriety overruled, ment were leave to an- granted respondents swer, the motion ordered taken with the case and issues declared closed. case is thereforе before us on the amended reserved motion to dismiss the an- petition, swer of respondents urges pendency Federal suits as for dismissal of this action. grounds
The issues here are: Does presented the amended (1) a state cause action mandamus? Is the petition (2) of the Federal actions bar to this pendency ? proceeding Is the (3) Act present Congressional con- Apportionment not, stitutional? If retain (4) should court jurisdiction to insure the of a availability constitutionally valid for plan elections? that this was
Respondents argue proceeding improperly filed is, as an action original mandamus since it in reality, suit declaratory judgment injunction not included our within constitutional grant jurisdiction which original mandamus, limited prohibition, habeas corpus *4 VI, actions to the revenue. (Ill. Const. relating art. 1870, sec. that a to a 5.) They urge prerequisite mandamus action ais on the of a official part which has been vio action, lated to commencement prior on relying ex rel. Ill. Heydenreich Lyons, They is awarded compel that the writ also we agree, urge, ac not to of an affirmative duty, prohibit performance Wilmette, tion. As was out in Ehrlich v. Village pointed * * are and mandamus 221: injunction 361 not correlative remedies the sense being applicable resorted matter, the writ to be same the choice of subject an there is a case whether particular depending upon excess of to be supplied.” action to be restrained or defect other than As to the members of the electoral board be relief is they requested to” commanded “not to conduct an election pursuant arise It that their first duties is clear statutory districting. hence, days some six months “not less than sixty-one (61) to the date are to meet of the when they primary” examine the for nomination Rev. (Ill. Stat. petitions Moreover, action is no affirmative par. 14). 7— of them. The presently solely pro requested prayer action and the for affirmative re hibitory absence of basis lief us to conclude that the of mandamus may writ compels However, not them. be merely awarded presently cause a has relief he cannot ob asked for petitioner , tain insufficient does render the mandamus petition where he has also asked for some relief which he shows Mandamus, I.L.P., himself entitled to receive. clearly (26 Here, in the amended have par. 146.) petitioners, petition, sufficient affirmative relief to mandatory preclude requested the dismissal of the suit on jurisdictional grounds.
It the amended and nowhere alleged petition, asserted, denied, that, of State has although Federal herеinafter re court pending proceedings to, ferred unconstitutionality Ap Congressional Act, he is thereof portionment currently distributing copies them that nominating inquiring public informing should be circulated within the petitions existing congres sional districts. Since these are not allegations specifically denied, must be Stat. they deemed admitted. Rev. (Ill. *5 It well be that the 40.) may Secretary par.
State is to with a one obligated comply request, by offering fee, necessary of documents his pay copies laws, even unconstitutional Rev. custody, including (111. Stat. but if the instant act be in- рar. 1953, chap. 5,) valid, we believe have a clear to have it so right petitioners declared and to of State to so inform require of him or his staff in order that those who inquire potential candidates and the will not be misled. public
Much said in brief and respondents’ suggestions thereof as to the for a necessity legal duty support thereof to exist before mandamus will lie to breach compel of such be found duty. authority While may performance where mandamus is to en- so holding, particularly sought the same does nоt force rights, rigidity private prevail concern, may matters mandamus grave duties when the of the utilized as exigencies prospective and the facts and duties involved are not case so require Mandamus, sec. Am. While (34 79, p. 868.) uncertain. Jur. that the of State is under a be said hardly it can determine the constitutional status of the Con- duty legal Act to a declaration judicial prior gressional Apportionment sense, thereof, and, in that action in his advising inquirers herein districts held uncon- to circulate existing petitions is not violativе of stitutional this the existence of such duty, announcement of opinion, sense, if it be conceivably in a thought necessary might legal of the unconstitutionality in the fact lie however, ab initio. We since act renders void prefer, exists in our own decisions and elsewhere authority ample of the writ cases where the duty sought for the issuance from declaration of first arises invalidity to be enforced statute, writ, in the decision of the announced awarding To as our conclusion upon ground. require, place do, that а some decisions determination constitutionality in a to the com- must be made proceeding prior separate necessitates action simply of the mandamus mencement with prevailing of actions often incompatible multiplicity time limitations. cases, as well recent
In the majority large an ones, deemed appropriate has been older mandamus many of issues the simultaneous determination vehicle for of rights the enforcement constitutionality statutory awarding to exist in the determined initially proceeding *6 Peo Barrett, Ill.2d 360; Barrett v. writ. ex rel. (People 31 ex rel. 24; Ill.2d ex Giannis People el. v. ple Carpentier, 30 ex rel. Daniels Spence 43; Ill.2d Carpentier, People 30 v. Car ex rel. Nachman Ill.2d 590; Carpentier, People 30 Broomell v. Board Ill.2d ex rel. 475; pentier, People was not Commissioners, the writ Election Ill. While 66.) on whether in all of these cases awarded (depending all sustained or invalidated) statute was parties challenged as a mandamus thereto and this court viewed apparently action since no as to its appears proper propriety question note, also, in a num to have been raised. presence, We cases, mem and other ber of those General Attorney here dismissal bers of the State Electoral Board who urge not, in on the that the action is reality, ground present action, either mandamus and were they requesting identical in the use of mandamus for purposes acquiescing insofar as con factual situations under indistinguishable duties cerns the existence of and failure to legal perform of these to commencement of the action. Illustrative prior there was no are and both of which pre Giannis Spence, officials and thereof breach legal duty public existing and both of which as to whom writ was sought, issue. The situa General mandamus Attorney requested in Nach from that is indistinguishable tion here principle to follow was man where the Secretary proposing State not, the time man had at an unconstitutional statute which declared, issued the writ been so and we was sought, damus ad- staff directive requiring withdrawal of a compelling herence And, statute we there held invalid. as was said ex rel. Broomell v. Board Election Com missioners, court has held that “[T]his 68-69: * * * where an election law is inconsistent and repugnant conditions of the so law as to render * * * * * * and inoperative dangerous, [law] * * * * * * this court will declare void and by [it] mandamus order the officer to it.” proper disregard
It that, is therefore where issues of apparent serious concern resolution, court require speedy others have not hesitated to act in mandamus even though the duty which the action is upon existed predicated to commencement sense, action fictional was, in reality, created decision which awarded writ to enforce performance of the See duty. cases above cited and Fooshee v. Martin 88 P.2d (Okla.), 900, 902; State ex rel. Morris et al. v. Atl. Wrightson (N.J.), 56; Booz v. Reed (Pa.), A.2d
We is, believe of State the an- decision, nouncement of this under a continuing advise those that the inquiring existing congres- sional statute is apportionment unconstitutional and hence *7 void, that no circulated within the nominating petitions districts will be the electoral accepted by board for certification, and that future congressional elections must be conducted to a pursuant valid constitutionally yet plan devised, and that the writ of mandamus is therefore awardable. properly
It is further contended since identi respondents cal court, causes are in a Federal district this cause pending should be dismissed to section pursuant 48(1) (c) Civil Practice (Ill. 110, Act Rev. Stat. 1963, chap. par. 48(1) it hаs (c)). Although been stated that the provisions of the Mandamus Act Rev. 1 (Ill. 1963, 87, Stat. chap. par. et which state that the seq.), Civil Practice Act shall govern in mandamus actions unless are not specifically excepted,
547 Court applicable proceedings Supreme (People Haas, ex rel. O’Connor v. we believe more 320), 239 reasons compelling preclude application dismissal rule here. It is clear that all to this suit are not parties court, versa, those the Federal and vice parties which is spеcifically of sec required by unambiguous language Moreover, tion 48(1) we have stated (c). previously, here, reaffirm that we believe the initial responsibility State resolving reapportionment lies with problems properly State Kerner, ex rel. v. agencies. People Engle Ill.2d 32
itWhile is affirmatively alleged amended petition that present districts are congressional unconstitutionally and this fact is apportioned conceded apparently by respond ents, no judicial of this pronouncement conсlusion has been In Sanders, 1, made. Wesberry U.S. 11 L. ed. 481, 2d S. Ct. 526, United States Court Supreme held statute districts, Georgia prescribing congressional some of which contained two and three times as residents many others, I, as violated article section 2 of the. United States In there, Constitution. its result reaching and in Gray Sanders, L. U.S. ed. 2d S. Ct.
court used language conclusively establishes in of Illinois’s validity districts which the smallest contains one half the approximately population the larg districts, est. some of the While as constituted, presently are within undoubtedly variance permissible from the state wide under the computed average census it is figures, i960 clear that to hold the apportionment statute valid as to such districts and invalid as to those which the variance is would create a chaotic greater situation It redistricting. clear the General equally Assembly would have the act aas unit. adopted (See ex rel. Adamow Wilson, ski v. Ill.2d We 568.) therefore hold that the present congressional districting scheme (Ill. Rev. Stat. 156f.1,) par. totally invalid.
We regard appropriate petitioners’ that we request *8 548 ex rel.
retain of this cause. As jurisdiction Engle 212, Kernеr, we trust v. Ill.2d legislature, prior 32 will a constitutionally to its adjournment, proper adopt fail system districting. possibility congressional Ill.2d Spence Carpentier, 43), ex rel. v. ure (People 30 however, a consideration us that realism requires convinces or di alternatives for which no constitutional statutory indication (Mary rective exists. There is some judicial now Tawes, Committee Fair v. U.S. Representation land 377 D.C. 1440; L. ed. 2d S. Ct. 1429, 12 656, 676, 595, 84 ed. Sims, 12 L. affirmed v. U.S. ruling Reynolds 533, 377 bodies that State 2d S. Ct. 506, 1362) legislative 84 1966 to a valid constitutionally to be elected pursuant plan. ought this conclusion as to State legis motivating Considerations latures well be congressional representa might applied made seems desirable that tives. It therefore provision otherwise, that a to insure during plan, provisional 1965 constitutional becomes law. Should objection free from redistrict, the task must be fail to Assembly per General held or an election at-large some other agency formed by for all representatives Congress. have been State
Historically
logically,
agencies
for resolutiоn of State
as the
source
looked upon
proper
Germano;
In
U.S.
Scott
problems.
apportionment
Court, on
States
L. ed. 2d
United
477,
Supreme
407, 14
in accordance with its earlier expression
June
S.
at
and Scranton
Tawes,
1439)
at
Ct.
U.S.
(377
re-
ed.
S. Ct.
Drew,
U.S.
L.
2d 107,
between this court
conflicting jurisdictional opinions
solved
court,
re-
constitutionally
a Federal district
regarding
of our
of one
State legislative
reapportionment
quired
forum,
bodies,
this
notwithstanding
in favor of
Federal court. We
before the
of similar litigation
pendenсy
that,
here, and
equally
considerations apply
the same
believe
instance,
hence,
is,
in the first
responsibility
to taking
herin for the purpose
retain jurisdiction
court to
*9
that the
insure
necessary
as
be
may
such action
is conducted
in Congress
election of Illinois representatives
Federal constitutional principles.
accordance
court
bemay
action which this
extent of the
While
we must devise a
in the event
pro
to undertake
obligated
be
cannot
reapportionment
visional scheme
congressional
that
foreseen,
to conclude
it
not unreasonable
is
accurately
as the sub
all
well
as to
parties,
retention of jurisdiction
so devised
of a
is desirable.
plan
ject-matter,
Implementation
retention of
such
and expedited
be facilitated
well
may
Electoral Board
members of the State
since the
jurisdiction
to such
if not indispensable,
at least be
parties
would
proper,
School District 118
ex rel.
(See
proceedings.
Koerner,
ex rel.
Reinhardt,
Perry
State; retained. jurisdiction Schaefer, Mr. Justice dissenting: of the court insofar as it holds
I concur opinion for mandamus as filed did not state initially that the petition court, of this and in- jurisdiction the original a case within silentio, the it sub the relators rejects, argument sofar as refuse “to be fettered from this court should originally the archaisms of common law man- the case by hearing the deficiencies of But in the original my opinion damus.” the amend- for mandamus were remedied petition ment, for the case not a one and the is therefore proper court. jurisdiction exercise of the of this original The constitution confers on jurisdiction original exercise court these terms: “The Court may Supreme revenue, man- cases jurisdiction relating original damus, juris- and habeas such original prohibition corpus, diction as determination may necessary complete review, in all cause on jurisdiction only appellate VI, has other cases.” sec. This court (Article original 5.) cаse if is a mandamus jurisdiction action. writ of mandamus
“The extraordinary purpose *10 a which one to the of ministerial duty compel performance the The writ with has refused to duty charged perform. it his can be issued to a to act when was party compel act to without it. It confers the duty upon party against whom it be issued no new and from its authority, very may Gilmer, 242; nature can confer none. Gilm. (People Cline, Ottawa v. Ill. City People, 233; People Dunne, id. ex rel. Bruce v. 394.)” People 446- lies to enforce an not create Mandamus to existing duty, American nonеxistent one. The section of Jurisprudence not at all the relied the does deal majority upon the be- that is now before court. The distinction is problem that tween the use of the writ to enforce duty prospec- future, tive in the sense that it is to be performed with, the which is what section relied is concerned upon existed, the use create a that never of the writ to duty is what the of the court does. The statement opinion American is as follows: Jurisprudence Prospective Duty— Violation Anticipated
“§ 79. Mandamus is used to the of a compel performance default, as to which an there has been actual existing duty writ, and it is not to take effect granted prospectively. is, to the that not be awarded compel per- will ordinarily actually one which is formance of an act unless the act is due from the at the time of the Un- application. respondent til there the time arrives when the should be duty performed, the is no default of mere threats not to duty; and perform So, not, rule, it as a take the of default. has will duty рlace been that mandamus not be issued in stated will anticipa- tion of however the omission duty, supposed strong to be the whom is may presumption person sought coerce writ will refuse to his when duty perform This, however, time arrives. is a rule merely proper general not the use of does mandamus to control prevent duties where the performance prospective exigencies it. If the case demand law imposing duty sought clear enforced is and the facts undis- unambiguous mandamus will sometimes be where the rе- puted, granted officer an manifests intention not to spondent clearly per- form the act in It has also been held that it cannot question. be said in a mandamus a railroad proceeding compel its certain streets of a perform sprinkle city is a moot one because the is heard question proceeding at a time certain months when such during sprinkling that when next required, upon ground required do its where it that it re- may duty, has company appears So, fused to for over do so five years. regards levy tax, оf a it has been held mandamus issue to co- may action, erce the officers as to their future although *11 arrived, time for the has not it when levy clearly appears from their conduct will past they their disregard duty Mandamus, in this Am. sec. 868. respect.” Jur., 79, p. 34 the decisions of this court Of relied upon by major ex rel. Giannis v. ity, Carpentier, People Ill.2d did 30 of not involve exercise jurisdiction of this original others, court. The and ex particularly rel. Nachman Ill.2d dealt with the assertion Carpentier, 30 future, a election of officialsin the duty performed b)^ and in that sense not involve an But did they existing duty. in each case there no the election day was when question it to handle arrived would be the of duty respondents the election of which was aspect proceeding dispute. Each case concerned the nature of the official’s rather duty cases, than its existence. The several of question to con- was whether the were example, required respondents duct the election at or large according But in all of them the to conduct the apportionment. duty this court rend- election existed before the decision of was ered, and none of them did the of this court jurisdiction the creation of the depend duty. upon it The statutes from which the court distills the duty custodial ministerial duties creates impose only upon of the act of of State. Section Secretary concerning of State “All the duties of Secretary provides: acts, the General Assembly laws and resolutions passed state, in the officeof the of this shall be carefully deposited State, of and the State is Secretary Secretary charged office, laws, acts, resolutions, all of said safety bonds, and records now are or shall hereafter papers therein.” Rev. Stat. (Ill. deposited par. of the same act “It shall be the Section duty 3.) provides: * * To of the give any person State —* therefor, the lawful fees the same copy paying requiring law, act, resolution, office, record or in his paper certificate, thereto his under the seal of the state.” attach Stat. 111.Rev. 1963, chаp. par. 5. to furnish a certified statutory duty upon request act, resolution, law, record or his “any paper
copy of the lawful fee therefor does office” upon payment duty legality embrace legal pass upon validity of those documents. of any the court is somewhat
Although
opinion
equivocal,
the contention of the relators that
these
rejects
apparently
make it the
who
statutes
*12
the constitutionality
be a
to determine
not
lawyer,
required
those laws that he finds
of
and to distribute only
legislation
that if
constitutional. I
have
thought
legislature
should
it
made
had
statute that
duty
passed
expressly
of State to determine the
Secretary
constitutionality
to distribute
those laws that he found
legislation
only
would,
constitutional,
doubt,
this court
without
have de-
clared the statute invalid as a violation of the constitutional
provision concerning
separation
governmental powers.
See State ex Martin v. Zimmerman
rel.
(1939)
Wis.
16,
The that the advances sua majority theory sponte unsound. The everyone statute which is un- equally agreеs constitutional in the is not of case course the only present been, be, statute has or will held invalid this court. Unless the court creates is as duty regarded case, some reason applicable only will be duty of State to render Secretary advice to legal all of the laws in all persons seeking cases in which copies court has held a statute wholly invalid. partially Clerks of cities and and other villages, officialsof local gov- ernments, have same custodial duties and the same duties to distribute of ordinances and other copies official docu- The duty ments. court in created order to its expand jurisdiction in this case original would to them as well apply too, as to the will be they, required to advise as to effect court, of decisions of this but of the circuit court and all federal as courts well. legisla- ture has not it wise or thought necessary to these impose duties, and their this court seems to me imposition by as much a violation of separation powers would be the which the relator by amendment his petition sought upon impose State.