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People Ex Rel. Engle v. Kerner

OPINION FILED SEPTEMBER 9, 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:

The 74th General Assembly, recently adjourned sine die, unfortunately failed in its task of senatorial reapportionment. It therefore becomes necessary for this court, pursuant to our retention of jurisdiction herein, (People ex rel. Engle v. Kerner, 32 Ill.2d 212) to frame such affirmative relief as is necessary to insure a constitutionally valid election of Illinois senators in 1966.

By our order of June 24, 1965, we directed the parties hereto to submit suggestions for a judicially constructed senatorial reapportionment plan. Pursuant thereto widely divergent proposals were filed. Subsequently, Chief Judge Campbell of the United States District Court for the Northern District of Illinois, which also had jurisdiction of the same problem, (see Scott v. Germano, 381 U.S. 407, 14 L.ed.2d 477, 85 S.Ct. 1525) with our knowledge and approval undertook pretrial conferences in an attempt to promote agreement upon the unresolved questions. By order dated July 29, 1965, we appointed Deans Russell N. Sullivan of the University of Illinois College of Law, John Ritchie of the Northwestern University School of Law, and Phil C. Neal of the University of Chicago Law School as amici curiae for the purpose of preparing and submitting for our approval a reapportionment plan, and simultaneously allowed the opposing parties a final opportunity to resolve existing senatorial reapportionment disputes and submit to this court an equitable and constitutionally valid proposal. Although complete agreement was not reached, several proposed reapportionment plans, together with supporting population data, have been submitted and examined by both this court and the Federal district court. From these proposed plans a provisional reapportionment scheme, based principally upon the areas of preliminary agreement, has been prepared.

We believe this plan to be just, equitable and constitutionally valid, representing a fair compromise between the divergent proposals originally submitted by the parties. Accordingly, we, together with the Federal district court, on August 25, 1965, indicated our approval of such plan. As a consequence, all Illinois senators shall be elected in 1966 from districts described by the provisional plan, a copy of which is attached as an appendix hereto, including legal descriptions and maps.

The plan adopted clearly complies with the "one man-one vote" principle, for the largest district, No. 58, contains (based upon 1960 census statistics) 187,247 inhabitants, thereby deviating from the hypothetical perfectly populated district or "norm" (173,813) by only 7.7%. The smallest district, No. 44, contains 161,586 people and deviates from the norm by 7.0%. It is well settled that mathematical nicety is not constitutionally required in devising reapportionment schemes, and that districts not substantially diluting the equal-population principle are valid. (Reynolds v. Sims, 377 U.S. 533, 12 L.ed.2d 506, 84 S.Ct. 1362.) We believe the minor deviations from the population norm, made necessary by a desire to preserve the integrity of existing political subdivisions, are embraced within constitutionally permissible limits. We also recognize that this provisional plan may be somewhat less than ideal in terms of compactness and contiguity, but, under existing circumstances, we believe that the present plan represents a reasonable resolution of the problems involved.

We have previously indicated by our order of July 29, 1965, that all 58 senatorial seats are to be filled in the 1966 election. This may properly be done, as existing de facto office holders have no vested tenure in office as such. Hughes v. WMCA, Inc., 379 U.S. 694, 85 S.Ct. 713 (see factual statement in dissenting opinion); Davis v. Mann, 238 F. Supp. 458, 460 (E.D. Va.), affirmed 379 U.S. 694, 85 S.Ct. 713; Parsons v. Buckley, 379 U.S. 359, 13 L.ed.2d 352, 85 S.Ct. 503.

The Illinois constitution (art. IV, sec. 6) provides for staggering the terms of senators. We have held this provision to be valid (People ex rel. Engle v. Kerner, 32 Ill.2d 212,) and in any legislatively devised reapportionment scheme, the principle would of course be mandatory. However, the plan adopted here is clearly provisional and temporary in nature, made necessary only by legislative nonfeasance. To judicially provide for staggered terms in a temporary redistricting scheme would unduly and unnecessarily encroach upon the legislative domain. We hold, therefore, that all 58 senators shall be elected in 1966 and thereafter for identical four-year terms until such time as 1970 census figures become available for legislative action.

Reapportionment is a legislative responsibility, and certain Illinois constitutional provisions have been held incompatable with Federal constitutional requirements. The desirability of a new constitutional amendment is apparent and we commend this subject to the consideration of the General Assembly.

Since a provisional plan has been adopted, the services of amici curiae appointed by order of July 29, 1965, are no longer necessary. They are accordingly hereby discharged, with instructions to present to the clerk of this court statements of reasonable expenses, if any, heretofore incurred by them as amici. We express our appreciation to Deans Sullivan, Ritchie, and Neal, and commend their willingness to serve this court and the public in these sensitive and troublesome areas of legislative reapportionment.

Provisional Senatorial Reapportionment adopted.

APPENDIX

POPULATION DATA FOR COOK COUNTY SENATE DISTRICTS OUTSIDE THE CITY OF CHICAGO

District No. Population Deviation from Norm (173,813) 1 169,103 - 2.7% 2 163,871 - 5.8% 3 172,069 - 1.0% 4 178,204 2.5% 5 185,014 6.4% 6 175,943 1.2% 7 176,647 1.6% 8 176,368 1.5% 9 182,865 5.2%

LEGAL DESCRIPTIONS FOR COOK COUNTY SENATE DISTRICTS OUTSIDE THE CITY OF CHICAGO

District 1: New Trier Township, Evanston Township, that part of Northfield Township lying to the south and east of a line described as follows: beginning at the point where Voltz Road extended intercepts the eastern township boundary proceed west along the center of Voltz Road to the center of the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then in a southerly and westerly direction along said freight line to the point where it intercepts the southern township boundary, that part of Niles Township lying north of Dempster Street and east of Crawford Avenue, all in Cook County.

District 2: The townships of Leyden, Norwood Park, River Forest, and that part of Oak Park Township lying north of Madison Street, all in Cook County.

District 3: The townships of Barrington, Elk Grove, Hanover, Palatine, Shaumberg, and Wheeling, that part of Northfield Township lying to the north and west of a line described as follows: beginning at the point where Voltz Road extended intercepts the eastern township boundary proceed west along the center of Voltz Road to the center of the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then proceed in a southerly and westerly direction along said freight line to the point where it intercepts the south township boundary, that part of Maine Township lying north and west of a line described as follows: beginning at the western boundary of Maine Township at Thacker Street proceed east on Thacker Street to the Chicago and North Western Railway right-of-way then north along said right of way to the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then northeasterly along said freight line to the Des Plaines River, then northerly along the Des Plaines River to the northern boundary of Maine Township, all in Cook County.

District 4: Maine Township, excepting that portion which lies to the north and west of a line described as follows: beginning at the western boundary of Maine Township proceed east along the center of Thacker Street to the Chicago and North Western Railway right-of-way then north along said right-of-way to the intersection with the Chicago and North Western Railway Company's Valley-to-Norma freight line, then northeasterly along said freight line to the Des Plaines River, then northerly along the Des Plaines River to the northern boundary of Maine Township, and Niles Township excepting that part lying north of Dempster Street and east of Crawford Avenue, all in Cook County.

District 5: That part of Oak Park Township that lies south of Madison Street, all of Proviso Township excepting that portion that lies to the south and east of a line described as follows: beginning at the point where the east township boundary is intercepted by Cermak Road proceed west along the center of Cermak Road to La Grange Road then south on La Grange Road to the township boundary, and that part of Berwyn Township north of Cermak Road, all in Cook County.

District 6: Calumet Township, Worth Township, that part of Stickney Township that lies south of Fifty-First Street, that part of Thornton Township that lies to the north and west of a line described as follows: beginning at the center of the intersection of the Calumet Expressway with the north township boundary proceed south along the Calumet Expressway to the center of the intersection with Sibley Boulevard then west on Sibley Boulevard to the center of the intersection with the Illinois Central Railroad right-of-way then northeasterly along the right-of-way to the center of the intersection with 146th Street being the south boundary of the Village of Riverdale, then west along the south boundary of the Village of Riverdale and its extension to the center of the intersection with the Dixie Highway, then northwesterly along the Dixie Highway to the center of the intersection with Ash Street, then west along Ash Street to the intersection with the western township boundary, all in Cook County.

District 7: The townships of Cicero and Riverside, that part of Berwyn Township south of Cermak Road, that part of Stickney Township that lies north of Fifty-First Street, that part of Proviso Township that lies south and east of a line described as follows: beginning at the southern boundary of Proviso Township proceed north along the center of La Grange Road to the center of the intersection with Cermak Road then east along the center of Cermak Road to the eastern boundary of the township, that part of Lyons Township lying north and east of a line described as follows: beginning at the intersection of Gilbert Avenue and the northern township boundary proceed south along the center of Gilbert Avenue to the center of the intersection with Forty-Seventh Street then east along the center of Forty-Seventh Street to the township boundary, all in Cook County.

District 8: Bloom Township, Rich Township, and that part of Thornton Township to the south and east of a line described as follows: beginning at the north township boundary proceed south along the Calumet Expressway to the point where it intercepts Sibley Boulevard then west along the center of Sibley Boulevard to the center of the intersection with Indiana Avenue (State Street) then south along the center of Indiana Avenue (State Street) to the center of the intersection with 167th Street then west along the center of 167th Street to the center of the intersection with Halsted Street then south along the center of Halsted Street to the center of the intersection with the Tri-State Tollway then west along the Tri-State Tollway to the western township boundary, all in Cook County.

District 9: The townships of Bremen, Lemont, Orland, Palos, that part of Lyons Township that lies to the south and west of a line described as follows: beginning at the northern township boundary proceed south along the center of Gilbert Avenue to the center of the intersection with Forty-Seventh Street then east along the center of Forty-Seventh Street to the eastern township boundary, that part of Thorton Township bounded by a line described as follows: beginning at the western boundary of Thornton Township proceed east on Ash Street to the center of the intersection with Dixie Highway, then southeasterly along Dixie Highway to intersection with the south boundary of the Village of Riverdale as extended west, then east along said boundary to the center of the intersection with the Illinois Central Railroad right-of-way then south-westerly along the right-of-way to the center of Sibley Boulevard then east along the center of Sibley Boulevard to Indiana Avenue (State Street) then south along the center of Indiana Avenue to the center of the intersection with 167th Street then west along the center of 167th Street to the center of the ...


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