THE PEOPLE ex rel. George R. Bruce, Petitioner, vs. EDWARD F. DUNNE, Governor, et al. Defendants.—THE PEOPLE ex rel. James H. Felts, Petitioner, vs. EDWARD F. DUNNE, Governor, et al. Defendants.

Opinion filed April 19, 1913.

I. MANDAMUS-purpose of writ of mandamus. The purpose of the writ of mandamus is to compel the performance of a ministerial duty which one charged with such duty has refused to perform.

2. SAME-writ of mandamus confers no new authority to act. As the writ of mandamus only issues to compel a party to act when it was his duty to act without the writ, such writ confers upon the party against whom it is issued no new authority to act.

3. SAME-writ only issues to compel action by the unwilling. To justify the issuing of a writ of mandamus there must be a refusal to act, and in case private rights are involved the refusal must follow a demand, and hence mandamus will not issue to compel the doing of an act which the person sought to be coerced admits upon the record he is willing to do without coercion.

4. SAME-writ will not issue where it would create public disorder and confusion. The writ of mandamus, which is awarded in the discretion of the court, will not be issued where its effect is to create public disorder and confusion.

5. SAME the courts cannot compel the Governor to perform a duty imposed upon him by his office. Article 3 of the constitution, which divides the government of the State into three distinct departments, contemplates that neither department shall coerce the other, and hence the judicial department is without jurisdiction to award a writ of mandamus to compel the Governor to perform a duty, either ministerial or discretionary, imposed upon him by his office. (People v. Bissell, 19 Ill. 229, followed.)

6. CONSTITUTIONAL LAW-interpretation of article 3 of constitution applies to each department of government. Article 3 of the constitution includes each of the three departments of government in its prohibition against one department exercising the functions. of the other, and the interpretation of such article as to one department applies with equal force to each of the others.

7. SAME-the constitution is the only law made by the people. The only law made by the people is the constitution, enacted by them, under their original and sovereign power, as the fundamental law, wherein they have granted powers to and prescribed limits for each one of the several departments of government.

8. SAME-it is the province of the judicial department to determine whether constitution has been disregarded. The judicial department has no power to compel the legislature to enact laws nor can it pass upon the wisdom of laws enacted, but it is its duty, when called upon in some form known to the law, to determine whether laws enacted by the legislature disregard the limits imposed by the constitution, which is the fundamental law of the land.

9. SAME declaring law unconstitutional is not an interference with legislative action. If a law enacted by the legislature is in conflict with some provision of the constitution, so that it cannot reasonably be reconciled to it, the courts cannot avoid the duty of declaring its invalidity; but the performance of such duty is in no sense an interference by the courts with legislative action.

10. ELECTIONS-Supreme Court cannot compel State canvassing board to issue certificate of election. The Supreme Court can not, by mandamus, compel the State canvassing board to issue a certificate of election even though the Governor and other members of the board are willing to submit to the jurisdiction of the court, where the effect would be to set aside the action of the former Governor and other members of the old board, who are not consenting to having their action as members of the executive department reviewed.

FARMER and COOKE, JJ., dissenting.

ORIGINAL petition for mandamus.

JOHN E. HOGAN, W. S. CANTRALL, and GEORGE B. GILLESPIE, (GILLESPIE & FITZGERALD, of counsel,) for petitioners.

P. J. LUCEY, Attorney General, and LESTER H. STRAWN, for defendants.

FRANK F. NOLEMAN, and JUNE C. SMITH, for George A. Miller and R. D. Kirkpatrick.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the

court:

By leave of court granted at the December term, 1912, George R. Bruce filed his petition for a peremptory writ of mandamus directed to Charles S. Deneen, Governor, Cor

nelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, and William H. Stead, Attorney General. The petition alleged that at the general election held in the twenty-third senatorial district in November, 1912, the petitioner was a candidate for the office of representative in the General Assembly; that the canvassing board for Cook county outside of the city of Chicago and town of Cicero, and the canvassing board for said city and town, severally canvassed the returns of said election and certified the result to the county clerk; that the county clerk prepared abstracts of the votes, showing that Joseph Strauss received 99972 votes, the petitioner, George R. Bruce, 10,925, George A. Miller 10,778, Carl Bloomberg 91722, J. C. Scovern 274, Christian M. Madsen 13,699 and Emil N. Zolla 17,285, and an abstract, properly certified, was forwarded to the Secretary of State; that notwithstanding the petitioner was one of the three who received the highest number of votes, as shown by said abstract, said Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, William H. Stead, Attorney General, and Charles S. Deneen, Governor, refused to declare the petitioner elected, and said Charles S. Deneen, Governor, refused to make proclamation that the petitioner had been duly elected a representative in the General Assembly. The prayer was for the writ, directed to Charles S. Deneen, Governor, Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, and William H. Stead, Attorney General, commanding them forthwith to correctly and properly canvass the abstract of votes as returned to them and to declare the petitioner elected to said office, and to cause proclamation of the result to be made. and to issue a certificate of election to the petitioner.

By like leave a petition for a peremptory writ of mandamus was filed by James H. Felts against the same defendants, alleging that he was a candidate in the fiftieth

senatorial district, at the same election, for the office of representative in the General Assembly; that the canvassing boards of the counties composing the district canvassed the returns, and the county clerk in each county prepared an abstract of the votes cast and forwarded the same to Cornelius J. Doyle, Secretary of State; that the total votes received by the candidates, as shown by the abstracts, were as follows: George W. Crawford 17,551, the petitioner, James H. Felts, 16,281, R. D. Kirkpatrick 16,1431⁄2 and Charles Curran 17,525; that notwithstanding the petitioner was one of the three who received the highest number of votes, as shown by the abstracts, Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, William H. Stead, Attorney General, and Charles S. Deneen, Governor, refused to declare the petitioner elected, and that Charles S. Deneen, Governor, refused to make proclamation that the petitioner had been elected or to certify to his election. The prayer was of the same character as that of George R. Bruce.

Writs were issued, returnable on the first day of the succeeding February term. Before the return day of the writs the terms of office of the defendants had expired and the petitioners were permitted to amend the titles of their suits so as to prosecute in the name of the People, on relation of the said petitioners, respectively, and to amend their petitions by substituting for the original defendants their successors in office, Edward F. Dunne, Governor, Harry Woods, Secretary of State, James J. Brady, Aud-' itor, William Ryan, Jr., Treasurer, and P. J. Lucey, Attorney General. The prayers were also amended so as to ask the court to require the Governor to make proclamation that the relators were duly elected and to issue certificates of election to them, instead of commanding all of the defendants to perform such acts. The defendants, who were substituted, appeared and answered the petition in each case, admitting the averments contained therein, except as

to William H. Stead, Attorney General, who, the answers averred, refused to take part in the proceedings. The answers averred that the Secretary of State, Auditor and Treasurer met as a canvassing board in the presence of the Governor, and, objection being made to the returns, heard evidence as to their correctness and found that the returns as received were erroneous, and while the returns showed the relators elected they were not correct, and therefore they refused to make proclamation that the relators had been duly elected. They further set forth in their answers their election to the offices of Governor, Secretary of State, Auditor, Treasurer and Attorney General, and submitted to the court whether the writs asked for should issue. George A. Miller and R. D. Kirkpatrick presented motions to be admitted as defendants, from which it appeared that certificates of election had been issued to them by Gov. Deneen, and counsel for the relators in each case, in the statement of the case, say that certificates of election were so issued to George A. Miller and R. D. Kirkpatrick, and that the State canvassing board went back of the abstracts of the votes and attempted to correct errors in the work of the judges of election and the county canvassing boards. The Election law provides that one of the lists of voters, with the certificate of the judges of election written thereon, and one of the tally papers, footed up, shall be directed to the Secretary of State and mailed to him, to be kept for one year. The canvassing board accepted the lists of voters and tally papers in preference to the abstracts. The cases were submitted on the petitions. and answers. The questions in the two cases and the arguments of counsel in each being identical, they were heard and have been considered together.

The points which are made in the briefs and argued by counsel for the relators are, that the duties of the State canvassing board are purely ministerial; that a writ of mandamus may issue against the Governor to compel the per