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Williams v. Kerner

OPINION FILED DECEMBER 10, 1963.

GALE WILLIAMS, APPELLANT,

v.

OTTO KERNER, GOVERNOR, APPELLEE.



APPEAL from the Circuit Court of Sangamon County; the Hon. DeWITT S. CROW, Judge, presiding.

MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 4, 1964.

In June, 1963, the General Assembly adopted and sent to the Governor a bill redistricting the State into 59 districts for the purpose of electing State representatives. On July 1, the Governor vetoed the bill. Gale Williams, a State representative, thereupon brought the present action in the circuit court of Sangamon County to declare the veto void. By stipulation the cause was submitted on the pleadings, and after argument of counsel judgment was entered in favor of defendant. The plaintiff appeals directly to this court, a construction of the constitution being involved.

The question is whether a reapportionment or redistricting for the purpose of electing State representatives is within the veto power. The plaintiff argues that this kind of action by the General Assembly is not a "bill," within the meaning of section 16 of article V of the constitution, requiring every bill passed to be presented to the Governor, and that under a proper construction of the applicable constitutional language the duty to reapportion is imposed solely upon the legislature. Defendant contends that the constitution reveals no intention to vary the normal procedure in cases of reapportionment legislation, and that while there are no Illinois decisions directly in point, the Governor's veto power with respect to such legislation is indicated both by authority from other jurisdictions and by the past practice in Illinois.

The constitutional provisions for redistricting are found in sections 6, 7 and 8 of article IV, as amended in 1954. Section 7 directs that "The General Assembly in 1955 and in 1963, and every ten years thereafter, shall redistrict the state for the purpose of electing state representatives. Section 8 provides that "In performing its duties under Sections 6 and 7 of this amendment, the General Assembly shall redistrict and reapportion in a single legislative enactment," and that if it fails to redistrict by July 1, the redistricting shall be accomplished by a commission appointed in the manner therein specified. If the commission fails to perform within four months of its appointment all State representatives are to be nominated and elected at the next election from the State at large. It is further provided that "Following such an election at large, the General Assembly at its next regular session shall perform the duties specified in this amendment."

The plaintiff argues that in referring to the redistricting as "its duties" (namely the General Assembly's duties) and in using the words "a single legislative enactment" the constitution discloses an intention that the Executive should have no part in creating these districts. We do not think the language in question can be given any such interpretation. It is undisputed that prior to the 1954 amendment there had been a number of reapportionments and that in each case the measure had been submitted to the Governor for approval. If there had been an intention to change this custom in 1954 it would have been expressed in clear and unmistakable terms. It would hardly have been left to inference from language such as that relied upon by the plaintiff.

Although the practice has been to submit these measures to the Governor, the question whether such is required by law has not heretofore been decided in this State. The general problem has been considered elsewhere, however, with conclusions similar to that reached by the circuit court. The principal authority, relied upon by both parties, is Smiley v. Holm, 285 U.S. 355, 76 L.ed. 795. In that case the Governor of Minnesota vetoed a measure redistricting the State for congressional election purposes. The bill was not repassed by the required two-thirds vote but was merely deposited with the Secretary of State. An action was thereafter brought to declare invalid certain nomination filings and election notices based upon the congressional districts as so formed. In affirming a judgment for defendant the State Supreme Court held that the legislature was not acting in the exercise of lawmaking power but merely as an agency of the people, discharging a particular duty in the manner required by the Federal constitution, and that the Governor's veto power had no relation to such matters. On further review, however, the United States Supreme Court rejected this view. It held that the constitution (U.S. Const., art 1, sec. 4), in providing that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof * * *", contemplates the function of making laws, and that the measure in question was subject to the Governor's veto power as a part of the legislative process. Having been vetoed, the bill was ineffective to redistrict the State.

Plaintiff seeks to distinguish the Smiley case on the ground that the constitutional provision involved there granted authority to provide a complete code for congressional elections, rather than a bare redistricting as in the case at bar, and that in concluding it contemplated the exercise of law-making power the United States Supreme Court relied upon this as the distinguishing feature. Although the distinction does exist, we do not think it follows that a contrary result is called for in this case. As we have indicated, there is nothing in the constitutional language involved here to indicate that anything but a legislative function is contemplated. And when engaged in considering bills the Governor is acting in a legislative capacity. For that purpose he is a part of the legislative department. (See Fergus v. Russel, 270 Ill. 304, 349-350.) It follows that the veto power is applicable.

The conclusion is in accord, also, with Koenig v. Flynn, 285 U.S. 375, 76 L.ed. 805, which decided, on authority of the Smiley case, that a concurrent resolution of the senate and assembly of the State of New York establishing new congressional districts was ineffective for want of the Governor's approval, with the Florida Supreme Court's Advisory Opinion to the Governor, 81 So.2d 782, wherein constitutional provisions similar to our own were construed to contemplate that apportionment bills take the same course as other legislation insofar as the veto power is concerned, and with State ex rel. Broughton v. Zimmerman, 261 Wis. 398, 52 N.W.2d 903, which involved a 1951 act reapportioning legislative districts of Wisconsin. The applicable section of the Wisconsin constitution provided that "At their first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants, excluding Indians not taxed, soldiers, and officers of the United States army and navy." In rejecting a number of objections to the validity of the reapportionment act the court observed "The power and duty imposed upon the legislature by the constitution to reapportion the state after each federal census can only be exercised by both the houses of the legislature passing a bill that becomes a law upon the signature of the governor and publication, or, if the governor should veto it, upon repassage by the required vote over his veto, and publication."

Further support for a like interpretation in this case is found in the fact that previous redistricting bills, under substantially the same constitutional language, have been submitted to the Governor for his approval. As the United States Supreme Court pointed out in the Smiley case "General acquiescence cannot justify departure from the law, but long and continuous interpretation in the course of official action under the law may aid in removing doubts as to its meaning. This is especially true in the case of constitutional provisions governing the exercise of political rights and hence subject to constant and careful scrutiny." This language is equally applicable to the provisions involved here.

Not only is there a failure to negative the veto power, in the face of long recognized practice under predecessor provisions, but express recognition of its applicability under present provisions was given by the Illinois Committee for Constitutional Revision, whose activities were so instrumental in securing the amendment's adoption and implementation. Thus at the 1955 session of the General Assembly a proposed map, rejected after protest by the Committee, was replaced by a second objectionable one, whereupon "The Illinois Committee for Constitutional Revision again protested and urged the Governor to use his good offices to correct the disparities, and if that could not be done to veto the entire legislation." (Report on the Campaign for the Passage of the Reapportionment Amendment, Appendix "E", entitled "Post Election History of Blue Ballot Reapportionment Amendment", p. 2. Emphasis supplied.) That the veto power is applicable is shown, therefore, by past practice, by authority, and by contemporaneous construction. The Governor did not exceed his authority in exercising it.

The circuit court was correct in dismissing the complaint. Its judgment is accordingly affirmed.

Judgment affirmed.

Mr. JUSTICE HOUSE, ...


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