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Peo. Ex Rel. Engle v. Kerner

OPINION FILED FEBRUARY 4, 1965.

THE PEOPLE EX REL. ROBERT H. ENGLE, APPELLANT,

v.

OTTO KERNER, GOVERNOR, ET AL., APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. CLEM SMITH, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 18, 1965.

This is an appeal from a decree of the circuit court of Sangamon County denying relator's prayer for declaratory judgment and finding, inter alia, that the 1954 amendment to article IV of the Illinois constitution was validly proposed and does not violate either the constitutions of Illinois or the United States. Important questions concerning constitutional legislative reapportionment are here presented. The cause is here directly as questions arising under both the United States and State constitutions are involved. Illinois Const. art. VI, sec. 5; Supreme Court Rule 28-1.

Relator, appellant herein, a voter, taxpayer and potential candidate for the Illinois House, instituted suit in the circuit court asking for a declaratory judgment that (1) this amendment to article IV of the Illinois constitution (article IV, secs. 6, 7, 8,) is totally invalid; (2) the 68th (1953) General Assembly proposed amendments to more than three articles of the constitution in violation of the Gateway Amendment (article XIV, section 2,); (3) the 68th General Assembly was without power to propose any amendment denying people equality (on a population basis) of representation in the Illinois senate or in constitutional conventions; (4) the General Assembly consists of 51 senators and 153 representatives (instead of the present 58 and 177, respectively) under the last valid reapportionment of 1901 pursuant to the constitution of 1870; and (5) the 1964 amendments to the Election Code are invalid.

The 1954 amendment to article IV specifically provides:

ARTICLE IV

"§ 6. The General Assembly in 1955 shall redistrict the state for the purpose of electing state senators. There shall be fifty-eight senatorial districts. Cook county shall have twenty-four of the districts. These twenty-four districts shall be located as follows: Eighteen in the territory that is within the present corporate limits of the city of Chicago; and six in the territory that is in Cook county outside such corporate limits. The remaining one hundred and one counties of the state shall have thirty-four of the senatorial districts.

"All senatorial districts shall be formed of contiguous and compact territory. In their formation, area shall be the prime consideration.

"The senatorial districts shall be numbered one, two, three, and so forth, including fifty-eight. Each such district shall elect one senator, whose term of office shall be four years. Senators elected in districts bearing even numbers shall be elected in 1956 and every four years thereafter; and senators elected in districts bearing odd numbers shall be elected in 1958 and every four years thereafter.

"§ 7. The General Assembly in 1955 and in 1963, and every ten years thereafter, shall redistrict the state for the purpose of electing state representatives. There shall be fifty-nine representative districts. In the 1955 redistricting Cook County shall have thirty of the districts. These thirty districts shall be located as follows: Twenty-three in the territory that is within the present corporate limits of the City of Chicago; and seven in the territory that is in Cook County outside such corporate limits. In the 1955 redistricting, the remaining one hundred and one counties of the state shall have twenty-nine of the representative districts. In redistricting subsequent to the 1960 census, and thereafter, the fifty-nine representative districts shall be divided among (1) that part of Cook County that is within the present corporate limits of the City of Chicago, (2) that part of Cook county that is outside such corporate limits, and (3) the remaining one hundred and one counties of the state, as nearly as may be, as the population of each of these three divisions bears to the total population of the state.

"Representative districts shall be formed of contiguous and compact territory, and shall contain, as nearly as practicable, a population equal to the representative ratio; outside of Cook County, such districts shall be bounded by county lines unless the population of any county entitles it to more than one representative district. The representative ratio for the entire state shall be the quotient obtained by dividing the population of the state by fifty-nine. No representative district may contain less population than four-fifths of the representative ratio.

"Three representatives shall be elected in each representative district in 1956 and every two years thereafter. The term of office shall be two years. In all elections of representatives aforesaid, each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same, or equal parts thereof, among the candidates as he shall see fit; and the candidates highest in votes shall be declared elected.

"§ 8. In performing its duties under Sections 6 and 7 of this amendment, the General Assembly shall redistrict and reapportion in a single legislative enactment. If, however, the regular session of the General Assembly in 1955 as to both senatorial and representative districts or in 1963, or any ten years thereafter as to representative districts, fails by the first day of July to redistrict the state into such districts, then the redistricting shall be accomplished by a commission. Within thirty days after such first day of July, the state central committee of each of the two political parties, casting the highest votes for governor at the last preceding gubernatorial election, shall submit to the governor of the state a list of ten persons. Within thirty days thereafter, the governor shall appoint the commission of ten members, five from each list. If either of the state central committees fail to submit the list within the specified time, the governor, within the specified time, shall appoint five members of his own choice from the party of such committee. Each member of the committee shall receive $25.00 a day, but not more than $2,000 for his services.

"This commission shall redistrict the state into senatorial districts and into representative districts in the manner specified above. This commission shall file with the secretary of state a full statement of the numbers of the senatorial and representative districts and their boundaries. No such statement shall be valid unless approved by seven members of such commission.

"After such statement is filed, senators and representatives shall be elected according to the statement and the districts therein determined, until a redistricting and reapportionment are thereafter made by the General Assembly as provided in this amendment. If, however, the statement is not filed within four months after the commission is appointed it shall stand discharged. Thereupon, all senators, scheduled for election at the next election for state senators, and all state representatives shall be nominated and elected at the next election from the state at large. Following such an election at large, the General Assembly at its next regular session shall perform the duties specified in this amendment. 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 be only one valid senatorial and representative redistricting and reapportionment during a particular decade."

Relator first argues that because the amendment to article IV does not itself provide a legislative redistricting scheme, it violates article XIV, section 2, which requires that a proposed constitutional amendment be "entered in full" on the Journals of both Houses of the legislature and "published in full" at least three months preceding the general election. It is maintained that the proposed amendment must itself describe the precise geographical boundaries of the district, as well as all other details, in order to comply with "entered and published in full" requirements. However, relator cites no provision in the constitution nor any other authority for this proposition: i.e. that the constitution may not establish reapportionment standards and leave to the General Assembly the task of devising a statutory scheme in compliance therewith. This has been the traditional method of reapportionment, and this court has held that the legislature may exercise discretion in reapportioning according to constitutional standards. (See People ex rel. Heffernan v. Carlock, 198 Ill. 150, 160-61; People ex rel. Woodyatt v. Thompson, 155 Ill. 451.) We find nothing constitutionally offensive in the procedures here employed.

Relator next argues that the effect of section 6 of article IV of the 1954 amendment, with regard to the Senate, was to charge the succeeding General Assembly with the responsibility and the power to legislatively determine and freeze the senatorial districts, the only manner by which they might subsequently be changed being constitutional amendment, as "[o]nce the senate districts have been established, they are permanently fixed and may not be altered, revised or reallocated except by constitutional amendment. See Donovan v. Holtzman, 8 Ill.2d 87." (People ex rel. Giannis v. Carpentier, 30 Ill.2d 24, 26.) This, relator maintains, is to enable a legislature to enact merely by legislation that which may be undone only by constitutional ...


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