Before Castle, Circuit Judge, and Hoffman and Will, District
The opinion of the court was delivered by: Will, District Judge.
These cases have their genesis in the, failure of the
General Assembly of the State of Illinois to reapportion the
State's House of Representatives during the 1963 legislative
session as required and directed by Art. IV, §§ 7 and 8, of the
Illinois Constitution of 1870, as amended, S.H.A.*fn1
During the final days of the regular session of the
Seventy-Third General Assembly, the two Houses of the
legislature passed a bill redistricting the state into 59
Representative Districts.*fn2 Governor Kerner vetoed the
bill, which veto survived a court test in Williams v. Kerner,
30 Ill.2d 11, 195 N.E.2d 680 (1964). After vetoing the
redistricting bill passed by the legislature, the Governor,
pursuant to the procedures set out in the above sections of
the Illinois Constitution, appointed a ten member commission
empowered to reapportion the state. That body was unable,
within its statutory life, to reach agreement on new district
As the state prepared to hold an at large election, certain
citizens challenged the interpretation of the above related
facts as requiring an at large election and sought a ruling
permitting candidates for the office of State Representative
to run from the old districts. Refusing the construction urged
upon it, the Supreme Court of Illinois, in People ex rel.
Spence v. Carpentier, 30 Ill.2d 43, 195 N.E.2d 690 (1964) held
"that since no act was passed which became law there was a
failure by the General Assembly to `redistrict', that the
commission was therefore validly appointed, and that its
failure to act must result, under the requirements of section
8, in the nomination and election of State representatives at
large." Id., 195 N.E.2d at 693.
Faced with the reality of an impending at large election,
the Governor called the General Assembly into special session
to provide legislation establishing the mechanics for such
balloting. The legislature responded to its task by passing
House Bill 1*fn3, which was subsequently signed into law by
the Governor. That Act, detailing the procedures to be
followed in conducting the 1964 at large election, is now
under attack in the Illinois Supreme Court as being violative
of the Federal Constitution. The case, Daniels v. Carpentier,
No. 38386, Sup.Ct. Ill., Mar. Term, 1964, is set for a hearing
on March 17, 1964.
The plaintiffs in the two cases here consolidated for
hearing challenge the validity of Art. IV, §§ 7 and 8, of the
Illinois Constitution under the Federal Constitution. Both
Swanson and Chesley are identified as citizens and electors
residing in the State of Illinois and as voters eligible to
vote for candidates for State Representative in the November,
1964, general election. The plaintiffs seek to make this cause
a class action, bringing suit on their own behalf and for all
other electors and citizens of the state.
Defendant Kerner is named in his capacity as Governor of the
state; defendant Carpentier, as the incumbent Secretary of
State. Both defendants are members of the State Electoral
Board, which is charged with general supervisory authority
over elections held in the state and which body attorneys for
the defendants suggest, while waiving the point as an avenue
of possible defense, is the proper defendant in this case. The
State of Illinois, made a defendant in Swanson, 63 C 2303, is
improperly joined and is hereby dismissed as a party in that
The Court's jurisdiction in this cause rests on
28 U.S.C. § 1343(3). This three judge panel is constituted and convened
under 28 U.S.C. § 2284, pursuant to 28 U.S.C. § 2281. The cases
come on for hearing on defendants' motions to dismiss or, in
the alternative, to abstain.
Plaintiffs would have us hold that any at large election for
the office of State Representative is unconstitutional.
It is clear that at large elections are not unconstitutional
per se. See Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76
L.Ed. 795 (1932) and Carroll v. Becker, 285 U.S. 380, 52 S.Ct.
402, 76 L.Ed. 807 (1932), holding constitutional at large
elections of members of the United States House of
Representatives. The office and numbers are different in the
instant case, but, so far as the due process and equal
protection challenges raised here, the principle is the same.
Moreover, it is well settled that courts will not pass on
constitutional questions in the abstract. Allen-Bradley Local
No. 1111, Elec., etc. Workers v. Wisconsin Employment
Relations Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154
(1942); Local No. 8-6, Oil, etc. Workers v. Missouri,
361 U.S. 363, 80 S.Ct. 391, 4 L.Ed.2d 373 (1960). In this connection,
it should be noted that the instant cases, which were
instituted prior to the enactment of House Bill 1, do not
raise the question, now before the Illinois Supreme Court in
Daniels, supra, of the constitutionality of the at large
election procedure embodied in that bill. On the contrary, in
oral argument, counsel for the plaintiffs specifically
rejected that issue in these cases. Accordingly, there is not
before this Court at the present time any Federal
constitutional question on which it may properly rule.
Before this Court can rule on the constitutionality of the
contemplated November, 1964, at large election for State
Representatives in Illinois, we must await interpretation of
the statute, House Bill 1, enacted to govern that election.
Hence, we must abstain until after a final determination of
the issues raised in Daniels.
Our employment of the abstention doctrine does not work to
deprive the plaintiffs of a federal forum. We maintain
jurisdiction and retain the cases until Daniels is decided.
If, after final determination of Daniels, Federal
constitutional questions remain unresolved, the plaintiffs may
return to this Court for a determination of those issues.
If, on the other hand as seems likely, the Illinois Supreme
Court in Daniels weighs the Federal constitutional questions
relating to the at large election contemplated by House Bill
1, its decision may be reviewed by the United States Supreme
Court upon certiorari. England v. Louisiana State Bd. of
Medical Examiners, 1964, 84 S.Ct. 461; NAACP v. Button,
371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Upon final
adjudication of Daniels, it may well be that the plaintiffs
here, as members of the class represented in that case, will
have had a complete and final adjudication of their claims and
the instant actions will become moot.
In the light of all the foregoing considerations, we
conclude that abstention is the only proper course ...