Rouse v. Thompson

81 N.E. 1109, 228 Ill. 522

Opinions

Mr. Chief Justice Hand

delivered the opinion of the court:

This was a bill in chancery filed in the circuit court of. Cook county by the appellant, George W. Rouse, a resident and tax-payer of said county, for and on behalf of himself and all other persons similarly situated who might join therein as parties' complainant, against the appellee, John R. Thompson, as county treasurer of said county, to enjoin the said county treasurer from paying from the funds of said county to the judges and clerks of election and the persons furnishing supplies, the fees and expenses incurred in holding a primary election on August 4, 1906, in said county, under the provisions of an act entitled “An act to provide for the holding and the regulation of primary elections of delegates to nominating conventions, for. the holding of such conventions, filling vacancies and fixing penalties for the violation of the provisions thereof,” approved May 23, 1906, in force July 1, 1906. A demurrer was interposed to said bill and sustained and the bill was dismissed for want of equity, and an appeal is prosecuted to this court.

The object of the bill was to test the constitutionality of said act of May 23, and numerous grounds have been urged in this court in support of the contention that said act is unconstitutional and that the court erred in sustaining the demurrer to said bill and in dismissing the bill, which grounds will be considered in what we deem their logical order.

It is first contended that said act violates that portion of section 13 of article 4 of the constitution which reads as follows: “No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title,” on the ground that the subject of the act is not embraced in its title. The title of an act formerly was of little importance. Of recent years, however, by reason of the adoption by most of the States of constitutional provisions similar to the one above quoted, the title to an act in such States is now of very great importance. Some of the reasons which led to the adoption of such constitutional provisions are said to be, first, to prevent “log-rolling” legislation; second, to prevent surprise or fraud upon the legislature by inserting provisions into bills of which the titles give no intimation and which might by oversight be carelessly and unintentionally adopted; and third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation being considered, so they might be' heard thereon, if they so desire, by petition or remonstrance. And while such constitutional provisions are to be liberally construed in order that a legislative enactment may be sustained, the courts cannot permit such provisions to be disregarded or overridden in the enactment of legislation. It will be observed that the title to the act in question is general in its terms and applies to all primary elections held for the election of delegates to nominating conventions, and is not confined to primary elections of delegates to nominating conventions of political parties or organizations, which, is the subject matter of the act which follows said title. If the title of the act is read, the ordinary mind would not, we think, from, such reading alone, conceive that the subject of the act which was to follow the title would relate only to a primary election of delegates to nominating conventions of political parties or organizations, but might readily conceive that the legislature was providing a method whereby the delegates to all nominating conventions which might thereafter be held, and which might include conventions held by the various civic societies, orders, etc., existing throughout the State, as well as the numerous political and semi-political parties and organizations which exist in the State, were to be elected at a primary election held by virtue of the provisions of the act which was to follow said title. We think the title to said act, in order to be in harmony with the provisions of the act which follows it, as it was clearly the intention of the legislature to pass an act which should only provide for the holding of primary elections to elect delegates to nominating conventions to be held by political parties or organizations, should have contained apt words pointing out that the delegates to nominating conventions to be chosen at the primary elections which were to be held under the provisions of the act which the legislature were about to pass, were delegates to conventions to be held by political parties and organizations. The title of an act and the act should correspond, not literally but substantially, and while the title may be couched in general terms, to be sufficient it must fairly point out the subject matter of the act which is to follow it.

If, however, it be conceded that the title of the act sufficiently describes the conventions to which primary delegates are to be elected and in that particular be held to be sufficient, there is one subject of the act which is not only entirely omitted from the title, but by the language used in the title is excluded from the title of the act, which, under all the authorities, is not permissible. The act contains sixty-four sections, and not only provides for the holding and the regulation of primary elections of delegates to nominating conventions, but provides for a primary election, which is to be held at the same time that delegates are elected to said conventions, at which tire voter may express his preference for United States Senator, and may vote direct for a candidate of his party for Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Superintendent of Public Instruction, Attorney General, clerk of the Supreme Court, clerk of the Appellate Court, representative in Congress, member of the State Board of Equalization, State Senator, one representative in the General Assembly, county judge, county clerk, judge of the probate court, clerk of the probate court, clerk of the circuit court, recorder of deeds, county treasurer, county superintendent of schools, county Surveyor, sheriff, coroner and State’s attorney. It also provides for the printing and distribution, at public expense, of an “official primary ballot,” which is to be voted by the voter at the primary election, and a method is provided by which the party candidates for the offices above enumerated, by petition or otherwise, can cause their names to appear upon the “official primary ballot,” and for the receipt of such ballot at the primary election, and for the canvass thereof and a certified return by the election officers of the result of the casting of said official primary ballots cast at the primary election; and it is also provided, if it appear upon the canvass of the official primary ballots cast at the primary election that any candidate of any political party for the nomination for any State, congressional or senatorial office has received a plurality of all the votes cast in any delegate district at such primary election, such candidate shall have cast for him the votes of all the delegates from such delegate district in the convention before which he is a candidate, for at least the first ballot. In reality we have here two acts, or two parts of one act, which provide for two separate and distinct primary elections, one of which is to be had by “official primary ballot” furnished at public expense, upon which the names of the official candidates appear, and the other of which is by “delegate ballot” and which is not official and is paid for otherwise than at the expense of the public, the one election being held for the purpose of selecting persons who shall be the candidates of the respective political parties in the respective conventions which are to be held by said several political parties, and who, if successful before such conventions, will be the candidates of their respective political parties at the regular election thereafter to be held, and the other of which elections is held for the purpose of selecting delegates from delegate districts to represent the respective political parties in the different political conventions which are to be held for the purpose of placing in the field candidates for the several political parties at the ensuing elections. When we examine the title of the act, however, we find only that an act is authorized which is to provide for the “holding and the regulation of primary-elections of delegates to nominating conventions,” and that the title of the act wholly fails to authorize the incorporation in such act of provisions providing for the holding of a primary election for the purpose of selecting persons who are to be candidates of the several political parties and organizations before the several conventions of the respective political parties which may hold conventions, some of which candidates may be named by such conventions to stand as candidates of the respective political parties and organizations at the ensuing elections;—that is to say, one subject of the act is not only entirely omitted from the title of the act, but the title of the act is so framed as to exclude that subject.

In the case of People v. Institution of Protestant Deaconesses, 71 Ill. 229, the legislature, by an act entitled “An act to incorporate the Institution of Protestant Deaconesses and to provide for the encouragement and control of an hospital in Chicago,” authorized the incorporation of the Institution of Protestant Deaconesses. Subsequent to its incorporation it sought to establish and maintain an orphan asylum in the city of Jacksonville, in Morgan county, by virtue of certain general powers conferred upon it by sections 2 and 3 of its charter, and the question was raised that it did not have the power, under its charter, to establish and maintain an orphan asylum outside of the city of Chicago, and the court held that if such power was conferred by sections 2 and 3 of its charter, the granting of such power was void under the constitution of 1848, which provided, “no private or local law, which may be passed by the General Assembly, shall embrace more than one subject, and that shall be expressed in the title.” As the title of the act by which the Institution of Protestant Deaconesses was created confined its operation to the city of Chicago, that case would, in principle, seem to control this case, as here the title of the act confines the subject matter of the act' to “the holding and the regulation of primary elections of delegates to nominating conventions,” and in so far as the act attempts to authorize and direct primary voting for the selection of party candidates it is outside of and beyond the title of the act and void.

We make no question but that the subjects covered by this act are germane to each other, and that under a proper title the legislature might pass an act authorizing a primary election to be held for the selection of delegates to nominating conventions and at the same time a primary election at which the voter might express his preference for party candidates. In order to do this, however, a title must be selected broad enough to include the two subjects. The generality of the subject expressed in the title of the act is no objection to it, as it is purely a matter of legislative discretion whether the subject expressed shall be general or specific. If general, it will include all subjects which are germane thereto and fall within the general designation; if specific, it will be confined to the subject specified in the title. The broader and more general the subject of the title the greater the number of particular or subordinate subjects which may be legitimately embraced in an act framed under such title. The subject has thus been illustrated: “If the title- of an act should be ‘An act to define and punish the crime of larceny,’ it is clear that provisions defining perjury, arson or felonious homicide, and fixing the punishment of those offenses, would be subjects wholly foreign to the title of the act. But if the title should be, as is the case with our present Criminal Code, ‘An act to revise the law in relation to criminal jurisprudence,’ the subject thus expressed would clearly be broad enough to include provisions defining and fixing the punishment, not only of these, but of all other imaginable offenses against the public law, and also all proper provisions for the. prevention of crimes, for the indictment, trial, conviction and punishment of all classes of offenders, and for fixing the jurisdiction, both original and appellate, of the various courts in criminal cases, and prescribing the mode of procedure and the rules of evidence applicable to criminal trials. These subjects, multiplied as they are in detail, are all included in the general subject of criminal jurisprudence, and if the title of our Criminal Code, in expressing the subject of the act, had added to the words, ‘to revise the law in relation to criminal jurisprudence,' as follows: ‘and to define and punish larceny, perjury, arson,' etc., inserting a catalogue of every distinct species of crime known to the law, there would still have been but one subject expressed.” So here, had the title of this act been “An act to provide for the holding of primary elections by political parties or organizations,” the subject, as thus expressed, would have been broad enough to include the selection of both party candidates and delegates to a party convention at a primary election. It is, however, clear, we think, that provisions providing for the selection of party candidates are excluded from and entirely foreign to the title of an act “to provide for the holding * * * of primary elections of delegates to nominating conventions.” The views hereinbefore expressed are supported by the following cases: People v. Institution of Protestant Deaconesses, supra; Leach v. People, 122 Ill. 420; People v. Nelson, 133 id. 565; Dolese v. Pierce, 124 id. 140; Ritchie v. People, 155 id. 98; City of Chicago v. Reeves, 220 id. 274; Boehm v. Hertz, 182 id. 154; Milne v. People, 224 id. 125; Cooley’s Const. Lim. (2d ed.) p. 144.

It is next contended that said act is unconstitutional in this: That it violates section 1 of article 4 of the constitution, which is as follows: “The legislative power shall be vested in a General Assembly, which shall consist of a senate and house of representatives, both to be elected by the people,”—by attempting to lodge legislative power in the county central committees of the several political parties in the State by authorizing such county central committees to designate and establish delegate districts in their respective counties. The power referred to is conferred upon said county central committees by sections 2 and 3 of the act, which read as follows:

“Sec. 2. The county central committee of each political party shall designate and establish delegate districts in their respective counties on or before the third day of July, A. D. 1906, and on or before the first day of March, A. D. 1909, and every four years thereafter. Such delegate district shall consist of not more than seven (7) contiguous election precincts or election districts in as compact a form, as possible, as now established or that may hereafter be established for the purpose of a general election, and shall contain, as near as may be, and not exceeding, eight hundred (800) voters of any, one political party, for the purpose of electing delegates to a State, congressional, senatorial, county or sanitary district, and a municipal convention for the nomination of such municipal officers as are to be elected at the November election.

“Sec. 3. No delegate district for the election of delegates to any county convention shall consist of a larger area than one political town as now organized by law, or of a larger area than a congressional township in counties not under township organization. Separate delegate districts may be established for the purpose of selecting delegates to county conventions, making such delegate districts as nearly equal as practicable, having in view the number of party voters in such districts.”

It is well settled that the power delegated to the legislature to make laws cannot be by that body delegated; that the legislature must decide what the law shall be, and that the power delegated to that department by the constitution cannot be again delegated to another body or authority; that a law must be complete in all its terms and conditions when it leaves the legislature. (Cooley’s Const. Lim.—7th ed.— p. 163; 6 Am. & Eng. Ency. of Law,—2d ed.—1021; Arms v. Ayer, 192 Ill. 601; People v. Board of Election Comrs. 221 id. 9.) The principle established by the foregoing authorities, and many others which might be cited, does not, however, prevent the legislature from passing a law the ultimate operation of which may by its own terms be made to depend upon some contingency, such as the affirmative vote of the electors in a given district; (People v. Reynolds, 5 Gilm. 1; People v. Salomon, 51 Ill. 37; Erlinger v. Boneau, id. 94;) or upon the action of some municipality, commission or other public agency designated in the act. (Home Ins. Co. v. Swigert, 104 Ill. 653; Schweiker v. Husser, 146 id. 399.) We have, however, examined the reported cases Avith care and been unable to find any case, nor has the diligence of counsel been able to point one out, where the delegation of such power to an individual or a number of individuals has been sustained by the courts. The general rule is that such power cannot be conferred upon á private person, but must be delegated, if at all, to some public agency, such as a municipal corporation, commission, local board or public officer. (8 Cyc. 831; Banaz v. Smith, 133 Cal. 102; Ohio, etc. Railroad Co. v. Todd, 12 Ky. L. 726; People v. Bennett, 29 Mich. 451; Fogg v. Union Bank, 1 Baxt. (Tenn.) 435; Winters v. Hughes, 3 Utah, 443.) In the Bennett case, in a well considered opinion by Campbell, judge, on page 464, it was said: “It is not in the power of a legislature to abdicate its functions or to subject citizens and their interests to the interference of any but lawful public agencies. * * * Such legislative and local authority as can be delegated at all must be delegated to' municipal corporations or local boards and officers. * * * If it can be delegated at all * * * it must be delegated to some body recognized by the constitution as capable of receiving such authority. * * * It is impossible to sustain a delegation of any sovereign poAver of government to private citizens or to justify their assumption of it.”

The entire act here under consideration is dependent upon the action of the county central committees of the several political parties of the State, founded upon said sections 2 and 3, in designating and establishing delegate districts in the respective counties of the State, and without such action the act is incomplete and incapable of execution. The several county central committees of the several political parties in this State, as such, are not created by any statute. They in no way represent the State or any political division thereof, and cannot be classified as belonging to either the legislative, executive or judicial departments of the State. They represent only a political party, and that party may only represent a vote equal to two per cent of the vote cast for president at the preceding presidential election. Such committees are not, therefore, officers of -the State, but are the representatives of voluntary associations. The legislature, we think, was not therefore warranted by the constitution in conferring upon such county central committees the power to designate and establish delegate districts in the several counties of the State, as was attempted to be done by said sections 2 and 3 of said act, as said sections of said act clearly confer legislative power upon said county central committees.

It is, however, urged that such power has repeatedly been conferred by the legislature upon similar bodies in this State, which delegation of power has been sustained by the courts, and the power conferred upon the county boards of the several counties, and on the board of election commissioners, to establish election districts in the several counties of the State, is instanced as an example of the delegation and exercise of such power. We think the legislature clearly has the power to confer upon county boards and the board of election commissioners the power to establish election districts, and that it would have power to confer- upon such bodies the power to establish delegate districts. The distinction between the county boards and the board of election commissioners, and the county central committees of the several political parties in the State, as applied to the exercise of such power, is, that said county boards and board of election commissioners are public' officers while the county central committees of the several political parties are not. The county boards and board of election commissioners fall clearly within the designation of “public agencies,” as those words are used in the Bennett case; but the county central committees of political parties, where they exist, as they do in this State, as the representatives of purely voluntary organizations, cannot be said to be “public agencies,” as they represent, not the State or any political division or department thereof, but a political party, which may be composed of only an inconsiderable portion of the people. We think, therefore, that sections 2 and 3 of said act are clearly unconstitutional and void in attempting to- confer the power to designate and establish delegate districts throughout the State upon the county central committees of the several political parties in the State, on the ground that said county central committees' are not public agencies but private individuals, and that legislative power, under no circumstances-, can be delegated to a private individual.

It is further contended that section 59 of said act, which provides when a vacancy shall occur in any elective office and a special election shall become necessary to fill said vacancy, the managing committee of the several political parties for the territorial area in which such vacancy occurs shall nominate the candidate or candidates for the respective parties to fill such vacancies, is in conflict with section 18 of the Bill of Rights, which provides that “all elections shall be free and equal.” It is provided by section 1 of the act that hereafter the nominations of all candidates for all elective State and county offices, clerks of the Appellate Courts, representatives in Congress, members of the State Board of Equalization, members of the General Assembly, sanitary district trustees, and such municipal officers as are to be elected at the November election by all political parties, shall be made by conventions of delegates to be elected by means of a primary election under the provisions of said act; and by section 4, that the primary elections provided for to be held under said act shall be held on the first Saturday in August, 1906, and on the last Saturday in April, 1908, and every two years thereafter; and by section 64, that all acts and parts of acts in conflict with said act are repealed. It is clear that the offices enumerated in section 1 of said act are all brought under the provisions of said act, and if the several political parties desire to nominate candidates to be voted for for any or all of said offices, the same must be nominated by a convention selected and held under the provisions of said act at the time specified in said act, unless they can be, in case of vacancies, nominated by the respective managing committees of the several political parties, as is provided for in section 59 of the act. If it be true that a candidate for the full term of an office must be nominated by a convention selected and held under the provisions of said act, where in the constitution, it may be asked, is the power found, in case of a vacancy, for the delegation of such power of nomination to a managing party committee ? The vacancy may occur one day after the office has been filled by an election, or the officer elect may never qualify, and on what principle can the individual member of a party be deprived of the right to participate in the selection of a candidate to fill such vacancy any more than he can be deprived by the legislature of the right to participate in the making of a nomination of a candidate for such office for a full term ? And we apprehend no one would contend that the legislature could provide that all candidates for office should be nominated by the managing committees of the several political parties, as the exercise of such power would clearly destroy all party organization and thereby prevent free and equal elections, as they have been carried on in this State since long prior to the adoption of the constitution of 1870.

In People v. Board of Election Comrs. supra, it was held that when statutes are enacted which regulate the method of selecting party candidates the provisions of the Bill of Rights apply, and that the right to choose candidates for public office is as valuable a constitutional right as the right to vote for them after they are chosen, and that the two rights are of precisely the same nature. Such being the case, we are of the opinion that the legislature cannot deprive the individual members of the several political parties of the State of the right to participate in the selection of party candidates to fill vacancies, by conferring the power to select such candidates upon managing committees or otherwise. The power of the individual voter at the polls to cast his vote, untrammeled, for the candidate of his choice is no more sacred than the right of the individual member of a political party to express his choice for party candidates at a primary election, and such right cannot be taken from him, even in the selection of a party candidate to fill a vacancy, under the guise of conferring such power upon a managing committee, or otherwise, without infringing upon his constitutional right to participate in a free and equal election as secured to him by the Bill of Rights. It is undoubtedly true that party committees may be authorized to fill vacancies occurring by reason of the death of candidates or their withdrawal, or other contingencies making such action upon behalf of such committees necessary by reason of the fact that it would be impracticable, for want of time, to nominate by the convention method. We are of the opinion section 59 of said act is unconstitutional and void.

It is also contended that the portion of section 33 of said act which provides, “in all cases where registration is required, as a condition precedent to voting at regular elections, only registered voters shall be permitted to vote at such primary election,” is void, as it is said the Registration law, as it now stands in those cities of the State which have adopted what is commonly called the City Election law, fails to provide in such cities a means for the registration of voters within thirty days of the respective dates when it is provided by said act said primary election shall be held,—which contention appears to be true, as registration day in such cities is fixed three weeks prior to the first Tuesday in April and the time for holding primary elections is fixed on the first Saturday of August in 1906 and on the last Saturday of April in 1908, and every two years thereafter, and that more than thirty days must elapse, in every instance, between the date fixed for registration and the date upon which the primary elections are to be held, the effect of which is, that in such cities many persons who are legal voters in said cities on the day upon which the primary elections are required to be held, are prohibited from voting at such primary elections by reason of the fact that they are not registered, which disqualification has been occasioned through no fault of the voter but by a defect in the law, as the law has not afforded him an opportunity to register.

Section 1 of article 7 of the constitution provides: “Every person having resided in this State one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this State on the first day of April, in the year of our Lord 1848, or obtained a certificate of naturalization before any court of record in this State prior to the first day of January, in the year of our Lord 1870, or who shall be a male citizen of the United States, above the age of twenty-one years, shall be entitled to vote at such election.”

This provision of the constitution applies to a primary election with the same force that it does to a general election, and any provision found in a primary election law which prevents a legal voter who is qualified to participate in a primary election of his party organization from voting at such election by requiring him to reside in the election district more than thirty days prior to the primary election is unconstitutional and void. The act in question, by requiring certain voters in the State to be registered before they can participate in a primary election of their party and then failing to furnish them an opportunity to register within thirty days of the date of the primary election, adds to the qualification of such voters by requiring a residence in the election district of more than thirty days prior to the election, which clearly is in conflict with the constitutional provision which provides if such voter has resided in his election district thirty days he shall be a qualified elector. If, under the guise of a registration law, a residence of thirty-three days, or any greater number of days than thirty, can be required of the voter in the election district where he is entitled to vote before he can vote at a primary election, then the qualifications of the voter might be extended until every qualification of the voter fixed by the constitution is annulled and all voters but a favored few can be prevented from participating in primary elections. In People v. Board of Election Comrs. supra, it was held the vote of every qualified elector must be equal in its influence with that of every other one. If voters in one part of the State who have resided in an election district thirty days aré permitted to vote at primary elections while in other portions of the State they are not, then is the freedom and equality of elections secured to the people by their fundamental law destroyed.

We are of the opinion that section 33 of said act, in so far as it prohibits otherwise qualified electors from voting at primary elections unless they are registered, when no opportunity is afforded them by law to register within thirty days of the time when primary elections are to be held, is in conflict with the constitution and void.

It is also urged that the act is unconstitutional by reason of the fact that it permits the voter to vote for only one candidate for representative in the General Assembly, while under the provisions of the constitution it is said he has the right to vote for one, two or three candidates for such office. The constitution provides that the General Assembly shall consist of a senate and house of representatives, to be elected by the people; that the State shall be divided into fifty-one senatorial districts, and that one senator and three representatives shall be elected from each senatorial district; and in the election of representatives “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.” Section i of said act provides “that hereafter the nomination of all candidates for * * * members of the General Assembly * * * by all political parties, shall be made by conventions of delegates to be elected by means of a primary election under the provisions of this act.” Section 16, that “any candidate for nomination for member of the General Assembly shall have his name printed upon the official primary ballot: Provided, at least thirty (30) days prior to the date fixed by law for the primary election, he shall file in the office of the Secretary of State a petition signed by at least two (2) per cent of the qualified primary electors of his party in his senatorial district.” Section 24 provides that below the name of each office upon the official primary ballot shall be printed, in small letters, the direction to the voter to “vote for one,” and the form of the official primary ballot to be prepared for the use of the voter by the county clerks or board of election commissioners is, so far as it applies to representatives in the General Assembly, in the following form:

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It is apparent from the most casual examination of said constitutional provision that the voter has the right to vote for one, two or three representatives in the General Assembly at the general election, as he may see fit, while by virtue of the provisions of said act hereinbefore referred to, at the primary election he has the right to vote for only one can didate for representative in the General Assembly, it being the clear intention, as expressed in the act, that one candidate for representative in the General Assembly shall be nominated by the voters of the respective political parties at the primary election, while if more than one candidate for representative in the General Assembly is to be nominated by a political party in any senatorial district, such additional candidate or candidates must be nominated by the senatorial convention of said district without reference to the vote of the members of the party at the primary election. The primary election, within the purview of the constitution, is an election and is controlled by its provisions, (People v. Board of Election Comrs. supra,) and the offices of representatives in the General Assembly having been brought under the provisions of said act by the express terms of section i thereof, and said offices being of the same class, we do not think that the legislature has the power to provide that one candidate for representative in the General Assembly shall be voted for by the individual voters of the party at the primary election, and if more than one candidate for representative in the General Assembly is to be nominated by a political party that such candidates in excess of one shall be nominated by the senatorial convention of such political party without reference to the result of the primary election. The right to nominate candidates for representative in the General Assembly is as important a right to the voter as the right to vote for said candidates after they are nominated and is of the same character, and if the constitution, as it does, confers upon the voter the right to vote for one, two or three candidates for representative in the General Assembly, any primary election law, to be valid, which provides for ..the nomination of candidates for representative in the General Assembly, must give the voter the right to participate in the selection of all the candidates of his party for representative in the General Assembly which are to be nominated by his party.

It is said, however, that to hold that the voter has the right to vote at the primary election for more than one candidate for representative in the General Assembly is to hold that each party must nominate at least two candidates for representative in the General Assembly, if not three, which would in all the senatorial districts of the State defeat minority representation, which is established by the constitution. We do not think such a result would follow. Since the adoption of the constitution of 1870 the practice in most, if not all, the senatorial districts of the State has been for the majority party to nominate two candidates for representative in the General Assembly and the minority party to nominate one candidate for representative in the General Assembly, and for the majority party, at the election, to cumulate its vote upon the two candidates nominated by it and the minority party to cumulate its vote upon the candidate nominated by it. The decision of the question whether the several political parties in the State will each nominate one, two or three candidates for representative in the General Assembly has heretofore rested with the respective political parties, and the Australian Ballot law clearly recognizes their right to determine such question and to have the ballots so printed as to effectuate such intention. That fact, however, has never been supposed to prevent the voter from voting for one, two or three candidates for representative in the General Assembly at the polls if he saw fit so to do. We see no reason why a primary election law cannot be so framed as to permit the different senatorial committees of the several political parties of the State, by resolution or otherwise, to suggest to the voters of their respective parties the number of candidates that ought to be selected by their party at the primary election for representative in the General Assembly and to have such suggestion placed in some form upon the official primary ballot for the guidance of the individual voter, and to authorize the respective senatorial conventions of the several political parties to determine, by resolution or otherwise, the number of candidates for representative in the General Assembly which their party shall nominate in their senatorial convention. By such action each voter would enjoy his constitutional right to vote for one, two or three candidates in his senatorial district for representative in the General Assembly and to cumulate his vote upon one or two candidates, if he saw fit, and the political parties would be permitted to carry out the minority representation plan of the election of representatives in the General Assembly contained in the constitution. The present act deprives the voter of any choice in selection of more than one of the candidates of his party for representative in the General Assembly, if more than one candidate is nominated for such office. No law, as we view the matter, can be constitutional which prevents the individual voter from participating in the nomination of all the candidates of his party for representative in the General Assembly which are to be nominated at a primary election, if any candidate for representative in the General Assembly is to be so nominated. The grant of power to the senatorial committee or convention of a political party to determine for their party organization the number of candidates which their party will nominate for representative in the General Assembly would not be a delegation of legislative power to such senatorial committee or convention, as the right to determine whether or not a political party will nominate one or more candidates for representative in the General Assembly is a political and not a legislative question, and must be left necessarily, like many other questions pertaining to party management, to the managing committees or conventions of the several" political parties of the State. We think the act.in question, for the reason suggested, in so far as it deprives the individual voter of the several political parties of the right to participate in the nomination of all the candidates of his party for representative in the General Assembly which are to be nominated by his party, infringes upon the right of the individual voter and is in conflict with the constitution.

By sections 33 and 34 of said act no person shall be allowed to vote at a primary election (1) who shall have signed the petition of a candidate of any party with which he does not affiliate, when such candidate is to be voted for at the primary election; or (2) who shall have signed the nominating petition of an independent candidate for any office for which office candidates are to be voted for at said primary election; or (3) who shall have voted at the primary election of another political party within the period of one year next preceding such primary election; and (4) any person desiring to vote at a primary election shall state his name, residence and party affiliation to the primary judges, one of whom shall thereupon announce the same in a distinct tone of voice, sufficiently loud to be heard by those present in the polling place, and no person who refuses to state his party affiliation shall be allowed to vote at a primary election ; and the contention is made that all of said provisions place limitations upon the right of the voter to vote at a primary election not allowed by the constitution, and that they are unconstitutional and void. The object of holding a primary election by a political party is to select party candidates, and it is too plain for argument that no voter should be permitted to vote at the primary election of a political party unless he is a member of such party, and unless provision is made to prevent persons voting at a primary election for the candidates of a party who are not affiliated with such party, the whole scheme of nominating party candidates by a primary election would fail, because of being incapable of execution. In view of the object for which the primary election is held we have been unable to discover any constitutional right of which the voter has been deprived by any of the foregoing enactments. It is the duty of the legislature to provide all such reasonable regulations as will make the provisions of the constitution effectual, and laws to prevent fraud, undue influence or oppression, and to preserve the equal rights of all from interference or encroachment, have universally been sustained by this court. (Sherman v. People, 210 Ill. 552; People v. Board of Election Comrs. supra.) The members of the several political parties must be guaranteed by law the right to select their candidates for office with the same freedom as they have the right to choose them after they are nominated, or the primary election at which they vote for candidates is a delusion and a fraud upon the individual voter. If the independent voter or the voter affiliating with an opposition party can vote at the primary election of a party with which he has no political affiliation, and thereby control the nominations of a party to which he is opposed and whose candidates he will vote against at the polls, the freedom of the primary election is destroyed. What regulations should be had to secure fair primary elections must rest largely with the legislature, and the courts should not override the discretion placed in that branch of the government by the constitution unless it clearly appears that the constitutional rights of the individual voter have been infringed upon. We are of the opinion that the provisions of the statute above referred to are not subject to constitutional objection.

In the consideration of the constitutional questions presented by this record we have not been unmindful of the well settled principle that all doubts should be resolved in favor of the constitutionality of a law when it is assailed; neither have we been unmindful of an equally well established principle of constitutional construction that some of the provisions of an act may be held valid while other portions thereof may be held unconstitutional. In the particulars hereinbefore pointed out we entertain no doubt but that the act under consideration is in conflict with the constitution, and while some of its unconstitutional provisions might be eliminated from the act and its valid provisions enforced, several of the constitutional objections to the act pointed out go to the entire act, and render it, as a whole, inoperative and void.

As we have heretofore said, the entire act of May 23, 1906, is dependent upon the action of the county central committees of the several political parties of the State, founded upon sections 2 and 3, in designating and establishing delegate districts in their respective counties of the State, and without such action the act is incomplete and incapable of execution. The action of the several county central committees under said sections is purely voluntary. They are not required to make a record of their action or to certify the result thereof to the county clerks of their respective counties or to the board of election commissioners, or to any other officer, although the county clerks and boards of election commissioners are required to furnish official primary ballots and do numerous other acts based upon the action of said county central committees in designating and establishing such delegate districts. As to the manner in which the county clerks or boards of election commissioners are to obtain the information from said county central committees upon which to base the acts required of them by other sections of the act the act is entirely silent. If the several county central commitees should refuse to furnish such information and the county clerks or board of election commissioners or parties interested should seek, by mandamus, to require said county central committees to make a record of their action in designating and establishing delegate districts or to certify the result of their action in designating and establishing delegate districts to such officers, a legal answer to such application, if it were held mandamus would lie, would clearly be that no legal duty rested upon them to make such record or to furnish to said officer or board such information. There seems to be a complete hiatus between sections 2 and 3 and the other sections of the act, which would render it impossible for the courts to compel the several committees and officials named in said act to carry its provisions into effect.

The decree of the circuit court of Cook county will be reversed and the cause remanded to that court, with directions to overrule the demurrer to the bill.

Reversed and remanded, with directions.