Original petition for mandamus.
MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE DECISION OF THE COURT AND THE FOLLOWING OPINION IN WHICH MR. JUSTICE WARD AND MR. JUSTICE CLARK JOIN:
On January 19, 1981, pursuant to Supreme Court Rule 381 (73 Ill.2d R. 381), we allowed the motion of Senators Philip J. Rock and James H. Donnewald, hereafter petitioners, for leave to file an original action for mandamus and an injunction. The petition prays for the issuance of a writ of mandamus directed to James R. Thompson, Governor of Illinois, hereafter respondent, "as Governor, to convene the Illinois Senate to elect from its membership a President of the Senate as presiding officer" and for an injunction restraining respondent Senator David C. Shapiro "from assuming or otherwise conducting or attempting to conduct the duties of office of President of the Senate during the pendency of these proceedings." We ordered an expedited briefing schedule, heard oral argument on January 27, and on February 9 ordered that a writ of mandamus should issue, "directed to the respondent, James R. Thompson, Governor of the State of Illinois, commanding that pursuant to article IV, section 6(b), of the Constitution he convene the Senate and, following the adoption by the Senate of a rule fixing the number of votes required to elect such officer, proceed with the election of a President." We further noted in our order that "An opinion setting forth the reasons for this order will be filed in due course." See, e.g., Coalition for Political Honesty v. State Board of Elections (1980), 83 Ill.2d 236; Dooley v. McGillicudy (1976), 63 Ill.2d 54, 55.
Article IV, section 6, of the Illinois Constitution of 1970 provides in part:
"(a) A majority of the members elected to each house constitutes a quorum.
(b) On the first day of the January session of the General Assembly in odd-numbered years, * * * the Governor shall convene the Senate to elect from its membership a President of the Senate as presiding officer.
(d) Each house shall determine the rules of its proceedings, * * * and choose its officers. * * *"
Transcripts of the proceedings show that respondent convened the Senate of the Eighty-Second General Assembly on January 14, 1981. Following the administration of the oaths of office to newly elected members of the Senate, and several ceremonial matters, the Senate adjourned until 10 a.m. on January 15, 1981.
Transcripts of the Senate proceedings of January 15, 1981, certified by Edward E. Fernandes as Secretary of the Senate, show that immediately following an opening prayer the roll was called and 51 of 59 elected Senators were declared present. Respondent indicated that a quorum was present and opened the nominations for President of the Senate. Senators Shapiro and Rock were nominated and the nominations were seconded. A motion that the Senate adjourn until February 10 was made and seconded, and a motion was made to table the adjournment motion. By a vote of 50 ayes to 5 nays the motion to adjourn was tabled. Nominations were closed, and respondent announced that a vote to elect the President would be held, ruling that "the vote of a majority of the members present and voting will be required to elect the President." Senator Dawn Clark Netsch appealed the ruling of the chair, stating:
"I would just question that ruling, it is completely contrary to everything that has been established as precedent and indeed to your own ruling of last Session, as I recall. It is — has required a majority of the Senators elected to the Senate, that has been our practice, at least, in the eight years that I have been here, and I can recall, at least, two explicit rulings, and I believe three to that effect."
Respondent explained his ruling by noting that "in the absence of a limitation in the Constitution, in the absence of a limitation in a Statute, in the absence of any pending ruling of this Senate now in effect, it is the opinion of the Chair that the Body has the right to conduct its business by * * * a vote of the majority of the members present and voting." Senator Netsch's appeal was seconded. Upon a request being made, a recess was called for party caucuses.
The transcripts show further that, upon reconvening, there was a call for a vote on Senator Netsch's appeal. After brief debate concerning a motion to limit debate Senator Netsch questioned the presence of a quorum and the Governor ordered that the roll be called to determine whether a quorum was present. While the transcript shows that the acting secretary began calling the names of the Senators aloud, the transcript does not reflect an affirmative response of "present" or a negative response of "not present" for each Senator called during this roll call. The names of 27 Senators had been called when respondent noted that: "the mover * * * on the question of the quorum has left the Floor, and so, her request is now out of order. Stop the roll call. I'm sorry, she's come back. Continue the roll call for as long as she remains on the floor." The names of 10 more Senators were then called, when once again respondent ordered the roll call stopped because "the questioner of the quorum has left the floor." A vote was then taken on Senator Netsch's appeal from the ruling of the chair, and the chair was sustained by a vote of 29 ayes to no nays.
Next the roll was called for election of the President of the Senate, during which respondent stated "The Chair notes the — presence of Senator Savickas," and after which respondent stated: "The Chair will again note * * * that Senator Frank Savickas was present on the Floor of the Senate during the roll call." While the names of all 59 Senators were called during this vote, the transcript shows only that Senator Shapiro received 29 votes and Senator Rock received no votes. Senator Savickas, whose name was called twice during the voting, did not respond either time. A motion to reconsider the vote by which Senator Shapiro was declared the President of the Senate was tabled on a voice vote. Following the administration of his oath, Senator Shapiro made a brief speech, and, in commenting on the appointment of a committee to escort the Governor from the Senate chamber noted: "I am sorry to say that at the present time there is no one on the Democratic side available to provide their members to the honor guard." Senator Shapiro then appointed assistant majority leaders, and further commented: "And since there is no one here from the loyal opposition, a Minority Leader will be selected by the Democratic Party at a later date."
The transcript also shows that the Senate proceeded to adopt a number of resolutions but that the only matter on which the vote was recorded was the selection of the body's "permanent" officers. These officers were elected by a vote of 29 ayes and no nays.
We consider first the respondents' contention that mandamus is not an appropriate remedy. They argue that a writ of mandamus cannot be used to compel the respondent Governor to "undo a performed act and redo it in another manner." Further they contend that as presiding officer the Governor "must engage in a variety of discretionary acts, including parliamentary rulings" and that "where the doing of the thing demanded is discretionary with the respondent, mandamus will not lie to compel it." Respondents also argue that "the acts which petitioners seek to compel the Governor to perform require the conduct, approval, and cooperation of the Senate" and mandamus is inappropriate where the official act to be performed depends upon the cooperation of a third party. It is also argued that the legal right of Senator Shapiro to hold his office can only be attacked through a proceeding in quo warrantor.
Petitioners contend that the duty to convene the Senate is "ministerial" and "is a present and continuing duty required to be performed by the Governor in accordance with the legislative provisions of the Constitution." They argue, too, that the court can act in mandamus where public issues of serious concern require a speedy resolution. Further, petitioners contend that the Governor's acts are "for the purposes of this proceeding no acts and the Governor has not performed the duty enjoined upon him * * *."
We note first that the pleadings in this case present no issue of what remedy may be appropriate, if any, in the event of the refusal on the part of the Senate to approve and cooperate in the performance of any act ordered by this court. Further, they present only as a secondary issue the question of the legal right of respondent Shapiro to hold the office of President of the Senate. The pleadings present only the questions whether the respondent Governor has failed to comply with the provision of article IV, section 6, of the Constitution and, if so, whether a writ of mandamus may appropriately issue requiring such performance.
Prior decisions of this court provide ample authority to hold that this court has jurisdiction to consider an original action in mandamus and, if appropriate, issue the writ. For many years the Election Code provided that "The Governor * * *, the Secretary of State, * * * the Attorney General, the State Treasurer, and the Auditor of Public Accounts shall constitute the State Electoral Board." (Ill. Rev. Stat. 1951, ch. 46, par. 7-14.) In People ex rel. Scott v. Kerner (1965), 32 Ill.2d 539, and People ex rel. Meyer v. Kerner (1966), 35 Ill.2d 33, this court granted leave to file original actions in mandamus and issued writs to the Electoral Board of which the incumbent Governor was a member. We perceive of no distinction between our jurisdiction to mandamus the Governor to perform a ministerial act prescribed by statute as a member of a collegial body and our jurisdiction to mandamus the performance of a ministerial duty imposed by the Constitution.
We have considered respondents' argument that mandamus will not lie to direct the performance of an act "where the doing of the thing demanded is discretionary with the respondent." We agree that while mandamus will not lie to direct the manner in which the discretion is to be exercised, it is available to compel the performance of an action which requires the exercise of discretion or even to compel the exercise of discretion itself. People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill.2d 178.
Simply stated, the issues raised and argued by the pleadings present the narrow question whether the Governor has complied with the constitutional directive "that he shall convene the Senate to elect from its membership a President of the Senate as presiding officer." If, as contended by petitioners, the purported election of the respondent Shapiro did not conform to the requirements of the Constitution, then the constitutional duty has not been performed and mandamus may appropriately lie. If, on the other hand, the purported election of the respondent Shapiro complied with the requirements of the Constitution, or if, as contended by respondents, this court is precluded from inquiring into the proceedings of the Senate in said purported election, then the writ must be denied.
Respondents recognize that "when a constitutional or statutory violation on behalf of the executive or legislative branch is asserted, the courts> obviously have the obligation to correct it." They contend, however, that the court has no jurisdiction to "enter into the legislative thicket" on matters relating to the organization and operation of the Senate, a legislative body. They argue that "petitioners seek to have internal discretionary activities of an independent branch of government reviewed by this Court." This, they contend, is proscribed by the doctrine of separation of powers. Petitioners argue that the doctrine of separation of powers does not prevent the court from ascertaining compliance with or mandating performance of constitutional duties. We agree.
Since the decision in Field v. People (1839), 3 Ill. 79, the separation of powers principle has not been understood to mean a separation of functions between the three branches of government which is so "distinct as to have no connection or dependence * * *; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in which this maxim was understood by the authors of our government, and those of the general and State governments, is evidenced by the Constitutions of all. In every one there is a theoretical or practical recognition of this maxim, and at the same time a blending and admixture of different powers. This admixture in practice, so far as to give each department a constitutional control over the other, is considered, by the wisest statesmen, as essential in a free government * * *." 3 Ill. 79, 83-84.) It is the duty of the judiciary to construe the Constitution and determine whether its provisions have been disregarded by the actions of any of the branches of government. (People ex rel. Harrod v. Illinois Courts> Com. (1977), 69 Ill.2d 445, 458; see also Powell v. McCormack (1969), 395 U.S. 486, 506, 23 L.Ed.2d 491, 508, 89 S.Ct. 1944, 1956.) While this court cannot exercise legislative powers (see, e.g., Fergus v. Marks (1926), 321 Ill. 510), the judiciary has always had the right and duty to review legislative acts in light of the Constitution. As the court said in Donovan v. Holzman (1956), 8 Ill.2d 87, 93: "The mere fact that political rights and questions are involved does not create immunity from judicial review. [Citations.]"
Respondents argue by analogy to the enrolled-bill doctrine (Ill. Const. 1970, art. IV, sec. 8(d); Benjamin v. Devon Bank (1977), 68 Ill.2d 142) that "the swearing and signing the oath of office by Senator Shapiro and its certification to the Secretary of State is equivalent to the certification of a bill by the presiding officer of the Senate." Thus, they argue, judicial review of the actions of the respondents and the Senate is foreclosed. Article IV, section 8(d), of the Illinois Constitution of 1970 provides in pertinent part that "The Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met." Pursuant to this provision, the signatures of the presiding officers are conclusive proof that all constitutional procedures have been properly followed in the manner of passage, if the bill shows on its face that it was properly passed. (See Polich v. Chicago School Finance Authority (1980), 79 Ill.2d 188, 211.) There is no constitutional basis for a similar presumption of validity with respect to the swearing and signing by Senator Shapiro of the oath of office and its certification to the Secretary of State. Furthermore, the petition alleges not merely procedural deficiencies, but substantive constitutional defects, which may be determined from the transcript. See Benjamin v. Devon Bank (1977), 68 Ill.2d 142.
Turning to the substantive issues, we consider first petitioners' contention that when the Senate action was taken on January 15, 1981, no quorum was present as required by article IV, section 6(a), of the 1970 Constitution.
The Constitution is silent on the effect of the absence of a quorum in a legislative body. (Compare Ill. Const. 1970, art. VI, sec. 3.) However, the parties are in agreement that in the absence of a quorum the election of Senator Shapiro as President would be invalid. It is an axiom of parliamentary law that "No question can be decided and no official action can be taken in the absence of a quorum, except to order a call or to adjourn." (P. Mason, Manual of Legislative Procedure for Legislative and Other Governmental Bodies sec. 505(1), at 350-51 (1979) (hereinafter cited as Mason).) It follows from this that "In the absence of a quorum, any business transacted * * * is null and void." H. Robert, Robert's Rules of Order Newly Revised sec. 39, at 295 (S. Robert ed. 1981) (hereinafter cited as Robert's).
Respondents contend that "the only evidence available to this Court is the transcript of the proceedings. That document fails to reveal the absence of a quorum. In the absence of a contrary rule, the existence of a quorum may be determined by the presiding officer. [Citations.] The presiding officer's determination of the quorum question is presumptively valid." Citing Auditor General v. Board of Supervisors (1891), 89 Mich. 552, 51 N.W. 483, respondents argue that a quorum, once ascertained, is presumed to continue. Citing Launtz v. People ex rel. Sullivan (1885), 113 Ill. 137, they assert that "Once a quorum has been established, legislative action may not be impeded by abstentions or refusals to participate."
In Auditor General a writ of mandamus was sought to compel a county board to levy State tax apportioned to that county for a certain year. The board set up in its answer a defense that the action of the Michigan Senate was taken in the absence of a quorum and was therefore invalid. According to the legislative journal, a roll call was taken on the adoption of a particular report and showed the presence of a quorum. The resolutions for which a quorum was allegedly absent followed. In holding that the resolution vote was valid the Supreme Court of Michigan said:
"The vote had upon the resolutions * * * appears to have followed immediately after the roll-call upon the adoption of the report, as no other business intervened. There was no recess taken, and no senator asked to be excused. * * *. Must it not be presumed in such case that the quorum continued to be present, and must not that presumption be conclusive? * * * The presumption as to the correctness of the journal in this case is supplemented by the further presumption as to the continuance of a quorum once ascertained and recorded, and that within a few moments, it may be a few seconds, of the time when the vote was had which is now attacked." 89 Mich. 552, 563-64, 51 N.W. 483, 487.
Launtz involved an action taken by the city council of East St. Louis. The council was comprised of eight aldermen and the mayor, and at the meeting in question all eight aldermen were present. Four voted in favor of the proposal in question and four "refused to vote." The mayor thereupon declared the measure carried. This court held the action valid and stated the governing principle as follows:
"`After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting, because their presence suffices to constitute the elective body; * * *.'" 113 Ill. 137, 142.
In our opinion, respondents' contention that a quorum must be presumed to have been present at the time of the election of Senator Shapiro is supported by neither Auditor General nor Launtz. In Auditor General, the Michigan court, by specifically recognizing that no recess intervened between the reported roll call and the resolution vote, implied that an intervening recess would have necessitated a different result. (See also Mason, sec. 504(2), at 349, on the effect of a recess, and sec. 504(1), at 349, on the effect of a vote on the presumption of a quorum.) Moreover, there, the journal did not, as does the transcript before us, record a challenge to the presence of a quorum. Thus, every reason existed in Auditor General to presume the continued presence of a quorum, and we do not deny the utility and ultimate fairness of such a presumption in those circumstances. However, respondents have not suggested why such a presumption should apply where a recess interrupts a legislative proceeding, where the existence of a quorum is challenged after the recess, and where an incomplete quorum roll call and other recorded votes fail to demonstrate the presence of a quorum.
In Launtz the presence of a quorum was not disputed. The issue was whether a refusal to vote by a majority of those present served to invalidate the act of the others. Since a quorum was clearly present in Launtz, it is inapposite to our consideration of this case. See also Clark v. City Council (1951), 328 Mass. 40, 101 N.E.2d 369; Attorney General v. Remick (1902), 71 N.H. 480, 53 A. 308.
More nearly on point is the recent case of Fargnoli v. Cianci (1979), ___ R.I. ___, 397 A.2d 68. That case concerned the Providence city council's confirmation of 28 mayoral appointments. When the council meeting in question was called to order 20 of the 24 qualified council members were present. Prior to the meeting in question the mayoral appointments had been repeatedly rejected. However, three Democrats (the majority party) were hospitalized when the meeting in question was called and as a consequence the Republican councilmen outnumbered the Democrats 11 to 9. After heated oratory, 9 councilmen walked out. The 11 remaining members unanimously approved the mayoral appointments, having been advised by the assistant city solicitor that it was sufficient that there was a quorum at the outset of the meeting. Regarding this advice, the Supreme Court of Rhode Island said:
"The solicitor's advice * * * relative to the continuance of a quorum brings to mind Moore v. Langton, 92 R.I. 141, 167 A.2d 558 (1961), where this court spoke of the well-recognized principle which holds that when a legislative record shows that a quorum is present at the beginning of a legislative session, there is a presumption that the quorum continues throughout the session. However, this presumption exists only if there is no evidence to the contrary. Id. at 147-48, 167 A.2d at 561. In Moore the presumption concerning the continuity of the quorum vanished like a bursting bubble once the Journal of the House of Representatives for April 27, 1960, showed that only forty-one of the one hundred members had participated in a vote which had supposedly passed a bill calling for the imposition of a tax on intangible personal property." ___ R.I. ___, ___, 397 A.2d 68, 75.
In Fargnoli, the court also addressed the trial court's determination that certain council members who were arguably "present" in the council chambers should be counted toward a quorum:
"[T]he trial justice relied upon a doctrine which he described as `physical presence at [a] meeting makes [one] eligible to be counted toward a quorum' and cited as support for this doctrine Launtz v. People, 113 Ill. 137 (1885); State ex rel. Young v. Yates, 19 Mont. 239, 47 P. 1004 (1897); and Northwestern Bell Telephone Co. v. Board of Commissioners, N.D., 211 N.W.2d 399 (1973). The courts> in all three cases were concerned with the effect upon a particular requisite majority needed for passage of an ordinance when a member of a municipal council who is actually present at the time when the vote if taken abstains from voting. A diversity of opinion exists about the effect which results when a legislator who is present as a question is pending before the body refrains from voting on the question. Some courts> take the view that silence is acquiescence in the position taken by the majority who vote, while other courts> take a contrary position. The conflicting views which have been expressed on this issue can be found in 63 A.L.R.3d 1072 (1975). The annotation makes clear that the doctrine alluded to by the trial justice comes into play `provided, of course, that there was a quorum.' Id. at 1077, sec. 3. Yet the existence of a quorum is the very issue so hotly disputed in this controversy." ___ R.I. ___, ___, 397 A.2d 68, 75.
Respondents' contentions regarding the presumptive validity of a presiding officer's quorum determination (see Mason sec. 503(3), at 347, and sec. 504(6), at 350) are equally unpersuasive in the factual context of this case. Absent challenge or evidence to the contrary, certainly a presiding officer's determination that a quorum exists during a legislative session is entitled to a presumption of validity. Any other rule would unduly encumber the legislative process. However, to conclusively presume the presiding officer's determination to be correct would serve only to vitiate the quorum requirement. This fact is recognized in Robert's Rules of Order wherein it is said, "When the chair has called a meeting to order after finding that a quorum is present, the continued presence of a quorum is presumed unless the chair or a member notices that a quorum is no longer present." Robert's sec. 39, at 296.
We are of the view that, absent a contrary rule adopted by the legislative body, a presiding officer's determination of the presence of a quorum is presumed correct until challenged or until a vote discloses the absence of a quorum.
Finally, apart from the assertions regarding presumptions of a quorum, respondents contend "it is clear that, in addition to the 29 Senators who voted, Senator Savickas was present in the chamber; and the Governor made an appropriate factual finding for the record."
Apposite to our consideration of this issue is the parliamentary dispute which arose in the Fifty-First United States Congress concerning the presence of a quorum. Events, as described by J. Tilson in Parliamentary Law and Procedure 18-19, were as follows:
"Although apparently it was the earlier practice to determine by a count, it had become the later practice of the House to accept the report of a roll call as to whether or not a quorum was present. * * *
On one occasion when the roll call was completed it failed to show a quorum present. Whereupon Speaker Reed directed the Clerk to record as present a sufficient number of additional members then sitting in front of him, naming them, to make up the necessary quorum."
Ultimately the propriety of Speaker Reed's action came before the United States Supreme Court in United States v. Ballin (1892), 144 U.S. 1, 4-5, 36 L.Ed. 321, 12 S.Ct. 507. The court based its decision on House Rule 15, which provided:
"`On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence ...