People Ex Rel. Kell v. Kramer ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an original petition for mandamus in this court filed on leave granted, praying that the respondent, as county clerk of the county of Marion, be commanded to do, at the time and in the manner prescribed by law, all things required to be done and performed by county clerks in preparation for and the holding of a primary election on the second Tuesday of April, 1928, under the provisions of an act entitled, "An act to provide for the making of nominations by, and the organization of, political parties," approved July 6, 1927. The petition recites that the county clerk has announced that on legal advice he will not comply with said Primary law because he is informed that the law is unconstitutional and void, and that he, as county clerk, has no right to incur bills or liabilities against the county in the preparation for or conduct of such primary election. The respondent has filed a general and special demurrer to the petition, alleging the invalidity of the Primary law of 1927, and various grounds are set out in support of the demurrer.

It is first contended that the act violates section 13 of article 4 of the constitution of this State, in that the title of the act expresses more than one subject and the body of the act contains provisions covering more than one subject. In support of this ground of demurrer it is urged that there is no proper relationship existing between the nomination of candidates of political parties and the organization of political parties. It is established that if an act of the legislature embraces two subjects and both are expressed in the title the entire act must be declared void, as the court is powerless to elect between the two subjects so as to save one and reject the other. (Michaels v. Hill, ante, p. 11; Sutter v.People's Gas Light Co. 284 id. 634; People v. Nelson, 133 id. 565.) The rule is that all matters may property be included in an act which are germane to the title, and those matters may be included in the title which relate to the same general subject. Michaels v. Hill, supra.

It is urged by the respondent that the making of nominations by political parties and the organization of political parties are two subjects unrelated and not germane. "Germane" means "akin" or "closely allied." (Dolese v. Pierce, 124 Ill. 140.) A political party is a voluntary association or organization made up of a group of electors united to promote certain political views or opinions, which they seek to make effective by nominating and electing to public office members of their party. A primary law does not confer upon political parties the power to nominate candidates but recognizes such power existing in them and prescribes the manner in which it shall be exercised. The various provisions of the act show an intention to provide for a primary election at which political parties shall nominate their candidates for office. The act prescribes certain regulations to bring about a free and equal election, as required by the constitution. By certain of its provisions precinct committeemen are elected who are made members of the county central committee. One of their duties is to select delegates to the State convention. These delegates nominate candidates for electors and trustees of the State University and select delegates at large to the national convention in accordance with the provisions of the act. The county central committees, which select the delegates to the State convention, must, by reason of the nature of the business of selecting such delegates, be first organized in such a manner as to enable them to discharge that function. This necessity is met by provisions of the Primary law directing that they shall be organized into a county convention. It at once becomes clear that the nomination of certain candidates under the Primary law involves, as a necessary preliminary step, the organization of the party machinery.

It is argued that political parties, when organized, discharge functions other than nominating candidates, such as writing platforms, managing and conducting general elections, and the like, and that these functions are not germane to the purpose of nominating candidates. The organization of political parties as provided in the act is for the purpose of bringing about the nomination of candidates. The Primary law makes no provision for conducting general elections, managing campaigns, or the discharge of other functions of political parties. Nor does it require that committeemen, when organized, shall do so. These powers are inherent in political organizations and exist regardless of statute. This is recognized by the Primary law, which by paragraph (f) of section 9 reserves to the committees and their officers "the powers usually exercised by such committees and by the officers thereof" not inconsistent with the act, and by paragraph (d) of section 10 reserving to conventions the power to "perform all other functions inherent to such political organization" and not inconsistent with the act. The only exercise of power referred to in the act which may not be said to be an act directly in furtherance of the scheme or plan to nominate candidates is that mentioned in paragraph (b) of section to, which is "to adopt any party platform." This provision is not a regulation or direction but is an attempt to confer a power already inherently existing in political parties. The act in nowise attempts to limit or regulate such power. Such a provision cannot be said to render the title or act double. The only regulations in the act concerning party organization are there for the purpose of bringing about the nomination of candidates. The constitution requires that the subject of the act be expressed in the title and that the title contain but one subject. It seems clear that the organization of political parties is a necessary part of the scheme to accomplish the nomination of candidates and is so closely allied with it as to be germane to the central purpose expressed in the title. These matters are germane one to the other, and the title expresses but one subject. The act is not therefore open to the objection urged. People v. Strassheim,240 Ill. 279; Rouse v. Thompson, 228 id. 522.

It is also objected that the Primary law violates section 18 of article 2 of the constitution of Illinois, insuring freedom of elections, because it fails to make provision for filling vacancies in the case of the death, resignation or removal of precinct or State central committeemen. It is conceded by the relator that there is no provision in the act for filling such vacancies on the county committees or the State central committee, but it is urged that such is a power inherent in a committee itself, representing the party, and, the legislature not having provided otherwise, a right exists to fill these vacancies by such means as the committee may adopt. The respondent, on the other hand, contends that while it is true that certain inherent powers ordinarily exist in political parties, yet in the instant case the legislature has by the Primary law taken over the control of all activities of political parties so that none of their inherent powers remain, and so no power to fill vacancies on the county committees or State committee exists anywhere. Provisions of the Primary law which may throw light upon the matter are as follows: Paragraph (f) of section 9 of the act provides: "Each committee and its officers shall have the powers usually exercised by such committees and by the officers thereof, not inconsistent with the provisions of this act." Paragraph (d) of section 10 of the act provides: "Each convention may perform all other functions inherent to such political organization and not inconsistent with this act." Political parties were organized and in existence prior to the enactment of any statutory regulation thereof. The right of political parties to make nominations is not a right enumerated in the constitution but is a political privilege which may be regulated by the legislature, and in the absence of such regulation is exercised in accordance with the will of members of the political party concerned, as that will is expressed through the rules, customs, conventions or caucuses of such political organization. Constitutional provisions or inhibitions arise only where the legislature, in attempting to regulate the nomination of candidates, violates such provisions. A committeeman is not a public officer. The position carries with it no salary, fees or emoluments. The incumbent is not required to give a bond or subscribe to an oath, as required by section 25 of article 5 of the constitution, nor do the committeemen represent the public at large or exercise any of the sovereign powers of the State. They represent the members of the political parties and are accountable to them alone. People v. Brady, 302 Ill. 576;Winston v. Moore, 244 Pa. 447, 53 L.R.A. (n. s.) 1190.

The question of the inherent power of committeemen to fill vacancies on committees has not previously been considered by this court but it has received consideration in other States under constitutional and statutory provisions similar to ours. In People v. Kings County Republican Central Committee, 63 N.Y. App. Div. 438, this question was considered, and it was there held that in the absence of statutory provisions regulating the matter the republican general committee of Kings county had a right to adopt rules providing for the filling of vacancies caused by death, resignation or removal of a member thereof, and that this power of the committee is inherent in political parties. This was the one point involved in the case, and the decision of the New York Appellate Division was affirmed by the New York Court of Appeals without a written opinion. (168 N.Y. 639. ) In Mills v. Stewart, 210 Pac. (Mont.) 465, it was held that in the absence of legislative enactment a political party is governed by its own usages and establishes its own rules. To the same effect are Davis v. Hambrick, 58 S.W. (Ky.) 779, Davidson v. Hanson, 87 Minn. 211, and Morrow, v. Wipf, 22 S.D. 146, 115 N.W. 1121.

It is argued that to fill such a vacancy in any other way than by an election would deprive the party members in such precinct of the right to select such committeemen. It is a sufficient answer to say that it does not necessarily follow that the members of the party in such precinct may not have a voice in filling such vacancy, as this can be done in any manner conformable to the rules, usages and practices of such party.

We are unable to agree with the contention of counsel for the respondent that the legislature has taken over entire control of all the activities of political parties by the Primary law. The provisions of sections 9 and 10 that each committee and its officers shall have the powers usually exercised by such committees and their officers not inconsistent with the provisions of the act, and that each convention may perform all other functions inherent to such political organizations not inconsistent with the act, demonstrate that it was not the intention of the legislature to take over and regulate all inherent rights and powers existing in political parties, but that, on the other hand, the parties are left to the exercise of those privileges not expressly regulated by the law.

It is also argued by counsel for the respondent that it would be impossible to determine the voting strength of one appointed to fill a vacancy, as no record is required to be kept of the voting strength of committeemen elected. Section 57 of the act provides that the county clerk shall issue a certificate of election to each person shown by the returns to be elected a precinct committeeman. This certificate is required to state the number of ballots voted in his precinct by the primary electors of his party at the primary at which he was elected. Section 57 also requires that the canvassing board file with the proper clerk or the Secretary of State, as the case may be, the result of the official canvass. As the clerk must state, in his certificate to the committeeman elected, the number of votes cast at the primary election at which such committeeman was elected, it is evident that the proclamation of the canvassing board filed with the county clerk must show the number of votes cast. That fact thereby becomes a matter of record in the office of the county clerk. One selected to fill a vacancy would, of course, have the powers, and only the powers, of the committeeman whose place he takes. The records of the county clerk's office give the necessary information as to voting strength, which is the same as shown in the certificate issued to the originally elected committeeman for that precinct. We are of the opinion, therefore, that in cases of a vacancy on State or county committees caused by the death, resignation or removal of a member thereof, such vacancy for the unexpired term of the member whose death, resignation or removal has caused the same may be filled according to the rules and usages of the party. This objection, therefore, cannot be sustained.

It is also objected that the Primary law violates section 18 of article 2 and section I of article 7 of the constitution, providing for freedom of elections in other respects. Among the provisions objected to on this ground are those defining the tenure of office and the voting strength of the precinct committeeman. Paragraph (c) of section 9 of the act provides: "In the organization and proceedings of the county central committee each precinct committeeman shall have one vote for each ballot voted in his precinct by the primary electors of his party at the primary at which he was elected." Paragraph (f) of section 10 of the act provides: "All precinct committeemen when elected as herein provided shall serve as though elected at large irrespective of any changes that may be made in precinct boundaries and the voting strength of each committeeman shall remain as herein provided for the entire time for which he is elected." Section 30 of the act in regard to elections (Cahill's Stat. 1927, p. 1107,) provides that the county board of each county shall at its regular meeting in June or an adjourned meeting in July, divide the election precincts which contain more than 800 voters into election districts, so that each district shall contain, as near as may be practicable, 500 voters, and not more, in any case, than 800. The act provides that polling places shall be fixed within these election districts, at which places all general and special elections shall be held. The respondent urges that because of the changes made subsequent to the election of committeemen vacancies will be created in such new voting districts, and the voting strength of the committeeman elected in the new district and of those in the remaining precincts cannot be determined; that the provisions of section 30 of the Election law are mandatory, and that when changes in precinct lines occur it will frequently happen that a precinct made up of parts of two other precincts would, unless an election be provided, have no committeeman within its boundaries, and other cases would occur where the precinct newly created would have two committeemen, whereas the remainder of the two original precincts would have none, and that in any event there would be no method of telling the voting strength of the committeemen of the new districts, and the act is therefore open to the objection urged against the Primary law held invalid in McAlpine v. Dimick, 326 Ill. 240; and that paragraph (f) of section 10 of the act, providing that all precinct committeemen, when elected, shall serve as though elected at large, irrespective of any changes that may be made, and shall have the same voting strength through the period for which they are elected, is merely an attempt to evade the decision in the McAlpine case.

A perusal of the act discloses that no provision is made for the election or appointment, before the next regular primary, of a committeeman in a new election district created by the act of the board of supervisors under section 30 of the Election law, and it seems apparent by the provisions of paragraph (f) of section 10 just referred to, that it is the purpose and intention of the legislature that the territory in which a committeeman is elected shall not, so far as party representation and government are concerned, be changed prior to the next primary election although new election districts are formed from parts of his precinct, and that, regardless of the creation of new polling districts by the board of supervisors, the committeeman shall act as the representative of his party for the territory in which he is elected, during the term of his incumbency. To illustrate: Assuming that precincts A and B adjoin, and from the territory of these there is created a third voting district by taking sufficient territory on either side of the boundary line between precincts A and B to create such district, so that out of the original territory of A and B three election districts are formed. Precinct committeemen were previous to such change elected in precincts A and B. While a third election district has been treated out of the territory of precincts A and B, that territory and its population are the same, and it seems clear that the legislature intended that the committeemen elected in precincts A and B should act as representatives of their party in that territory for the period for which they were elected. Their voting power was fixed at the time of their election, and the intent of the Primary law clearly appears to be that such power should remain the same regardless of such change. This would also be true in cases where new voting districts are created from parts of more than two precincts. To such purpose no constitutional objection is seen. The creation of new voting districts under section 30 of the Election law is for the convenience of the voting public and for expedition in handling the returns. No reason appears why a committeeman of a political party may not represent the voters of his party in the original territory for which he is elected. Although voting districts may be increased within the territory of the original precincts, each voter is represented in the voting strength of the committeemen as elected in such original precincts until the next primary election, when a committeeman is to be selected from the new election district. There is nothing in the Primary law requiring the doing of an act by committeemen, either separately or in convention, in which or concerning which such newly made voting district must be represented as a separate unit.

It is argued that under the above plan committeemen of precincts A and B, after such change, could not be held responsible to voters of the territory taken from their respective precincts by the formation of new election districts, and that such a situation is contrary to our theory of representative government. Those committeemen were elected to represent the members of their party in the original territory of precincts A and B for a period of two years, and there is no basis for assuming that they will violate that trust. A like situation arises in cases where congressional or senatorial districts are changed. The representatives in Congress or in the State legislature, or State senators, continue to represent the people of the district in which they are elected until the next congressional or senatorial election. No constitutional objection to such plan can be said to arise from this fact. Such a plan does not violate the principles of equality and freedom of elections provided by section 18 of article 2 and section I of article 7 of the constitution. It is apparent that it is not intended by the Primary law to have an intermediate election in the newly formed precincts, and there is no constitutional requirement that there be one. Such a plan is not an evasion of the rule in the McAlpine case, supra. The Primary law there considered provided that the voting strength of committeemen should be one vote, and one additional vote for each fifty votes, or major fraction thereof, cast in the precinct for Governor at the last general election for that office. Elections for Governor occur once in four years, while committeemen were to be elected for a term of two years. No provision was made for the equal representation of newly made precincts, and it was held that by reason of the impossibility of determining in a new district the vote for Governor, the additional voting strength of committeemen elected in such new districts could not be determined, and such committeemen would therefore have but one vote as against many times that number in other like precincts not affected by change of boundaries. While it is evident that the changes made in the present Primary law were for the purpose of meeting the objection to the act under consideration in the McAlpine case, that fact is not an evidence of an attempt to evade the decision in that case.

It is next urged that the law violates section 18 of article 2 and section I of article 7 of the constitution in that it requires that in cities, villages and incorporated towns having a board of election commissioners the primary electors must be registered voters, while there is no provision in the Primary law or any other law for intermediate or other registration of voters in cities having a population of 200,000 or more. Section 43 of the Primary law specifies certain requirements as to qualifications of the voters. It provides, in part, as follows: "In cities having a board of election commissioners, the following additional regulations shall be applicable: In such cities only voters, registered as herein provided, shall be entitled to vote at such primary. * * * In any such city having a population of 200,000 or more, and in any incorporated town, under the jurisdiction of such board of election commissioners the said registration books shall be revised three weeks preceding such primary under the direction of said board of election commissioners in the same manner as is now provided by law for intermediate registration in cities having boards of election commissioners, provided that when an intermediate registration and revision is now provided for by law to be held within thirty days prior to such primary election then such intermediate registration and revision shall be the registration and revision for such primary election." (Laws of 1927, p. 477.) The legislature at the same session amended sections 3, 4, 5 and 17 of article 3 of the act known as the City Election law. (Laws of 1927, p. 443.) By these amendments provisions for registration are made applicable only to municipalities having a population of less than 200,000.

The general Primary law was signed by the Governor on July 6, 1927. The amendments to the City Election law just referred to were signed by the Governor on July 7, 1927. When an act is signed by the Governor after the first of July of the year in which it is passed it becomes a law and takes effect when signed. (Board of Education v. Morgan, 316 Ill. 143.) The Primary law therefore went into effect on the 6th day of July. It does not purport to provide a system of registration, but it was the apparent intention of the legislature to adopt by reference the law relating to registration as it existed when this law went into effect and to incorporate such law into the Primary law. This is not an unusual method of drafting legislation and has been frequently approved by this court. (Hagler v. Small, 307 Ill. 460; Evans v. Illinois Surety Co. 298 id. 101; People v. Crossley, 261 id. 78; 2 Sutherland on Stat. Const. — 2d ed. — sec. 405.) The 18th clause of section I of the act concerning statutes (Cahill's Stat. 1927, p. 2431,) provides in relation to the construction of statutes: "The term 'laws now in force' and words of similar import, shall mean the laws in force at the time the act containing the words shall take effect." The general rule is, that an act which adopts by reference the whole or a portion of another statute adopts that statute or such portion as exists at the time of such adoption, and does not include subsequent additions or modifications of such statute so adopted unless it does so by express or strongly implied intent. (Culver v.People, 161 Ill. 89.) This rule applies only, however, where the adopting statute makes reference to a particular act by its title or other specific description or reference. Where the adopting statute makes no such particular reference but refers to the law relating to the subject treated, such adoption by reference will be regarded as including not only the law in force at the date of adopting the act, but also such law as in force when the action is taken or the proceeding is resorted to. (Culver v. People, supra; Snell v. City of Chicago,133 Ill. 413; Jones v. Dexter, 8 Fla. 276; Kugler'sAppeal, 55 Pa. St. 123; Harris v. White, 81 N.Y. 532; 2 Sutherland on Stat. Const. — 2d ed. — sec. 405.) Applying this rule, it will be seen that on July 6, 1927, when the Primary law went into effect, the law governing registration "as is now provided by law for intermediate registration," etc., was incorporated by reference into the Primary law. The laws relating to the subject of registration are to be found in the City Election law. The Primary act did not, however, specify any particular statute, and therefore, under the rule just stated, the adoption by reference of the law on registration included the City Election law pertaining to the subject of registration and any amendments thereto that might be thereafter adopted. The amendments of sections 3, 4, 5 and 17 of article 3 of the City Election law became a law on July 7, and are therefore to be included as incorporated in the Primary law by reference, so that as the Primary law now stands section 43 requires intermediate registration in cities of 200,000 or more, while the amendment of July 7 incorporated into the Primary law by reference does away with all registration in cities of 200,000 and more.

While it is the rule that in cases where two statutes are enacted during the same session of the legislature they should receive such construction, if possible, as will give effect to each, as they are within the reason of the rule governing the construction of statutes in pari materia, since each is supposed to speak the mind of the same legislature, (Hutchinson v. Self, 153 Ill. 542; State v. Archibald, 43 Minn. 328; Town School District v. School District,72 Vt. 451, 48 A. 697; 1 Sutherland on Stat. Const. — 2d ed. — sec. 268;) yet where parts of one of such acts are inconsistent with and repugnant to parts of the other act, so that all parts of both acts cannot be reconciled, the later act must be taken as a repeal by implication of the inconsistent portions of the act first passed. (People v. Crossley, supra; Holmgren v. Cityof Moline, 269 Ill. 248.) An inconsistency plainly exists between the provision of the Primary law requiring intermediate registration in cities of 200,000, and the amendments of the City Election law incorporated into it which limit registration to cities, villages or incorporated towns of less than 200,000. This inconsistency renders it impossible that both provisions be carried out. The inconsistent provisions of the Primary law of July 6 must therefore be held to have been repealed by implication by the incorporated amendment of July 7, and the result is to limit the registration, and therefore the necessity for such registration on the part of the primary voter, to cities, incorporated towns or villages having a population of less than 200,000. So construed the law is not repugnant to the constitutional provisions invoked by the respondent.

It is also contended by respondent that paragraph (b) of section 9 of the law in question is invalid, in that it requires that in cities, villages and incorporated towns where registration of voters is required, precinct committeemen must not only be qualified but also registered voters. That paragraph, in so far as it relates to the question here, is as follows: "Each candidate for precinct committeeman must be a qualified (and in cities where registration is required, a duly registered) voter of and in the precinct where he seeks to be elected precinct committeeman." The decision of the point just considered disposes of this question. The candidate must be registered in those cities where registration is required, and under the view expressed in this opinion the Primary law as it now stands does not impose registration as a qualification for election on committeemen in cities of over 200,000, and therefore no such a requirement can be said to exist as to candidates for committeemen in such cities.

It is also contended that the Primary law is inconsistent and unworkable in this: Paragraph (f) of section 9 of the law provides that "the several committees herein provided for shall not have power to delegate any of their powers, or functions to any other person," while paragraph (a) of section 10 provides that the committeemen sitting in county convention shall choose delegates to the State convention of their party who shall nominate certain officers, and that in so providing the law requires that the committeemen in convention delegate their powers to other persons. Counsel have mistaken the discharge of a power for a delegation of such power. One of the powers and duties of the committeemen sitting in county conventions is to select delegates to the State convention. The selection of such delegates, therefore, is not a delegation of power but it is an exercise of that power. Committeemen, as such, have nothing to do with the duties of delegates selected by them, nor is it the intention of the law that the committeemen themselves shall be such delegates. They may be, but the law in nowise requires it. The act is not open to this objection.

It is also urged that section II of the Primary law is invalid. Section II provides for the nomination of candidates for aldermen in those cities which have adopted the law in relation to minority representation in the city council. That section also provides that in cities which have adopted such minority representation the municipal central committee, which is composed of the precinct committeemen representing the precincts of the city, shall, at least sixty days prior to the date of the primary, determine and fix, by resolution, the number of candidates for aldermen in each ward in the city to be nominated by their party at the primary for the nomination of city officers. It then provides: "In all primaries for the nomination of candidates for alderman under minority representation, each qualified (minority). elector may cast as many votes for one candidate as there are candidates to be nominated, or may distribute the same, or equal parts thereof, among the candidates for nomination as he shall see fit, and the candidate for nomination highest in votes shall be declared nominated." It is contended that this is invalid as violating the clauses of the constitution insuring freedom of election, for two reasons: First, under the language last quoted only a member of a minority party may use the cumulative voting system; and second, that this section is not susceptible of practical operation in any case where an election precinct lies partly within and partly without the boundary of a city which has adopted the minority representation plan. The municipal committeemen in such city are by the law given the same voting strength as they have on the county central committee, which is one vote for each vote cast at the primary election at which the committeeman was elected. The respondent therefore argues that under section II, when the municipal central committee meets to decide upon the number of aldermen to be nominated, the committeeman from a precinct lying partly within and partly without the city has a voting strength arising not alone from the number of voters within the city who voted at the primary at which he was elected, but from the entire number of votes cast in the precinct at such election, though such votes were cast partly by residents within and partly without the city. The relator seems to concede that these objections are good and that this section is invalid, but takes the ground that its invalidity does not affect the balance of the Primary law, but that in such cities candidates for alderman may be nominated under the general provisions of the Primary law.

It seems apparent that section II affords privileges to the voter of a minority party in cities adopting minority representation that it does not afford to the voter of a majority party in such city. It is also impracticable of operation in that there is no method by which the voting strength of the municipal central committee is to be limited in all cases to a voting power derived from votes cast by voters living within the city. Section 6 of article 4 of Cities and Villages act (Cahill's Stat. 1927, p. 311,) provides that cities may by a vote adopt the provisions of the act in relation to minority representation in the city council. Under this plan the city is to be divided into districts, and each district is entitled to three aldermen. The application of section II is limited to the nomination of candidates for alderman in cities which have adopted minority representation. It is apparent that the Primary law is not dependent upon these provisions for the validity of the balance of its sections. The respondent contends, however, that with section II out of the Primary law there is an inequality in the rights of voters and requirements as to nomination of candidates for alderman in cities adopting the minority plan when compared with other cities of the State. We are of the opinion, however, that the effect of the invalidity of section II is to remove the cumulative voting feature in primary elections and the method of determining the number of candidates in such cities as prescribed by the Primary law, and no reason appears why nominations for alderman may not be made under the general provisions of the Primary law and the number of candidates determined without reference to that law. This being so, the inequalities complained of do not, therefore, exist. The invalidity of section II cannot be said to render the entire law void.

It is also contended by the respondent that the law is invalid because of the provision of paragraph (g) of section 9 that the "political party committees now in existence are hereby recognized and shall exercise the powers and perform the duties herein prescribed until, but only until, committeemen are chosen in accordance with the provisions of this act." The argument is, that owing to the invalidity of the 1910 Primary law as determined in McAlpine v. Dimick, supra, there were, in fact, no committees in existence when this Primary law was passed, and the section referred to renders the whole law invalid because it attempts to validate the existing political party committees, while no such purpose appears in the title of the law. This position is untenable. This provision of the act is a designation of certain persons who were then acting as committeemen to be such until an election was held under the law. Even though it be said that there were no such committees provided by law at the time of the passage of the present Primary law, no reason is seen why the act may not designate certain persons to act as committeemen and thus maintain thestatus quo until such time as an election can be held under the law. The act does not purport to validate these committees, if such could be done, but is a designation of specified persons to act as committeemen until a new committee is formed. Such a provision does not violate any constitutional provision called to our attention, and this objection cannot be sustained.

It is also contended that the law provides an unequal manner of choosing delegates to State and county conventions, in that it provides by paragraph (a) of section 10 that in counties having a city of 200,000 or more the delegates from the city shall be chosen by precinct committeemen from the separate wards, while the delegates from the county outside the city shall be selected by the precinct committeemen of the precincts outside such city, as a unit. The objection is, that it does not require that the delegates chosen by the city committeemen shall be residents of the city or that delegates chosen from the county outside the city shall be residents of such territory, but that all the delegates may come from a single precinct, town, city or village in the county. The provisions of paragraph (a) of section 10 complained of are as follows: "But in any county having within its limits any city having a population of 200,000 or over the delegates shall be chosen by wards, the precinct committeemen from the respective wards choosing the number of delegates to which such ward is entitled on the basis prescribed in paragraph (e) of this section, such delegates to be members of the delegation to the State convention from such county, and the precinct committeemen representing the precincts outside such city shall ballot as a unit in choosing the delegates to which such precincts are entitled on the basis prescribed in said paragraph (e)." Paragraph (e) of section 10 provides the basis of representation in the various counties and precincts. It will be noted that the delegates chosen by the committeemen of the various wards of the city are the delegates to which such wards are entitled, and in the country outside the city the delegates are those to which the precincts there included are entitled. This language clearly indicates that the delegates to the State convention from the city are to be residents of the city, while those from the country outside are to be residents of that territory. This objection is not tenable.

For the reasons herein given we are of the opinion that the provisions of the act other than those of section II are not open to the constitutional objections urged. As the only objections raised to the Legislative Primary law are those which depend upon the determination of the validity of the general Primary law for their solution, it follows that no valid constitutional objections to the legislative Primary law have been pointed out. It is the duty, therefore, of the county clerk to prepare notices and ballots and to do all things necessary, as required by the law, to prepare for the primary election to be held in accordance with the law.

The writ of mandamus will therefore be awarded.

Writ awarded.