ARTICLE IV-LEGISLATIVE DEPARTMENT.

Section 1. 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.

In construing this section, two principal questions have presented themselves. These questions are (1) the extent of the legislative power of the General Assembly, and (2) the authority of the General Assembly to delegate the legislative power conferred upon it.

Extent of power of General Assembly. The General Assembly has all powers not denied to it by the Federal or State constitutions.1 The state constitution is not a grant of power to the General Assembly but is merely a limitation on the power of the General Assembly, and that body is fully authorized to legislate on all subjects unless the constitutions of the United States or the state forbid.2 Thus the General Assembly, since there is nothing in the constitution which denies it the power to regulate the practice of the courts, may pass a law requiring that an affidavit of merits shall be filed with the defendant's plea in certain classes of suits at law.* And for the same reason the General Assembly may provide for the removal, by the county board of supervisors, of county treasurers for misconduct in office, or for the removal, by the Governor, of sheriffs for failure to do all in their power to prevent lynchings, or for the disposal of land owned by a county, or for the levy of a wheel tax by cities. But the General Assembly cannot provide for more than one senatorial apportionment in any ten year period following a Federal census, because the constitution, as construed by the Supreme Court, forbids more than one such apportionment. Nor can the General Assembly make appropriations for the maintenance of the Illinois and Michigan Canal, for the reason that such appropriations, in the opinion of the court, are forbidden by the constitution."

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The rule in connection with this matter is easily stated. The difficulty, however, arises in determining whether or not the constitution does in fact limit the power of the General Assembly with respect to certain things. The courts have frequently held that the power of the General Assembly with reference to a certain subject, is limited by the constitution, although the constitutional language contains no express limitation of power-that is, constitutional limitations on legislative power are not always to be found in the express language of the constitution but may arise by implication. For example, the constitution (article 4, section 6) provides that "the General

1 Harder's Storage Co. v City of Chicago, 235 Ill. 58 (1908); People v Board of Supervisors. 223 Ill. 187 (1906); People v McCormick. 261 Ill. 413 (1914). 2 Harris v Board of Supervisors. 105 Ill. 445 (1883); People v Hutchinson, 172 Ill. 486 (1898).

3 Honore v Home National Bank, 80 Ill. 489 (1875).

4 Donahue v Will County, 100 Ill. 94 (1881).

5 People v. Nellis, 249 Ill. 12 (1911).

Harris v Board of Supervisors, 105 Ill. 445 (1883).

7 Harder's Storage Co. v City of Chicago, 235 Ill. 58 (1908).

8 People v Hutchinson, 172 Iil. 486 (1898).

Burke v Snively, 208 Ill. 328 (1904).

Assembly shall apportion the state every ten years beginning with the year one thousand eight hundred and seventy-one." There is nothing in this language that expressly forbids more than one apportionment in each ten year period following a Federal census. But the Supreme Court has held that this language is a limitation on the power of the General Assembly and that only one apportionment can be made in each ten year period following a Federal census.1 10 The whole problem of implied limitations on the power of the General Assembly is a difficult one, and it is not an easy matter to harmonize all of the judicial decisions on the subject.

The constitution (article 5, section 1) provides that the Attorney General "shall perform such duties as may be prescribed by law." It would seem that under this language the General Assembly would have full and complete power to regulate the duties of the Attorney General in any manner that was deemed necessary. But in Fergus v Russel the court held that, even though the Attorney General was not a constitutional officer under the constitution of 1848, the constitution of 1870, in creating the office of Attorney General, endowed that officer with all of the powers and duties of the attorney general known to the common law; and that the General Assembly could not deprive the Attorney General of any of the powers and duties which were exercisable by that officer under the common law. And the same rule has been applied to sheriffs12, who are county officers created by the constitution (article 10, section 8). It should be pointed out, however, that with respect to the duties of sheriffs the constitution is absolutely silent.

Section 1 of article 7 expressly limits the right of suffrage to males. But it has been held that this section is a limitation of power on the General Assembly only with respect to the officers created by the constitution, and those questions which are required by that instrument to be submitted to the voters; and that the General Assembly may authorize women to vote for all officers created by statute, and on all questions required by statute to be submitted to a vote of the people.13 On the other hand primary elections, which were unknown when the constitution of 1870 was adopted, and which are pure statutory innovations, are included within the meaning of the word "elections" as used in section 18 of article 2.1+

Section 6 of article 7 provides that "no person shall be elected or appointed to any office in this state, who is not a citizen of the United States, and who shall not have resided in this state one year next preceding the election or appointment." This section clearly prevents the General Assembly from providing that persons who have resided less than one year in this state shall be eligible to any office. And it would seem that this section does not deprive the General Assembly of the power to provide that no person shall be eligible to a certain office unless he has resided in the state for a period of five years. In People v McCormick,15 however, the court held that the General Assembly, with respect to an office, eligibility to which is not prescribed by other provisions of the constitution, could not 10 People v Hutchinson, 172 Ill. 486 (1898).

11 270 Ill. 304 (1915).

12 Dahnke v People, 168 Ill. 102 (1897).

13 Scown v Czarnecki, 264 Ill. 305 (1914); see, also, People v Nelson, 133 Ill. 565 (1890). The case of People v Nellis. 249 Ill. 12 (1911) involves a similar construction of constitutional language. The constitution (article 5, section 12) provides that "the Governor shall have power to remove any officer whom he may appoint Section 8 of article 10 creates the office of sheriff and provides that the sheriff shall hold office for four years. The first provision might well have been construed as denying to the Governor the power to remove any officer not appointed by him. The second provision could have been construed as denying the right to reduce the sheriff's term of four years. But it was held in the Nellis case that the General Assembly could authorize the Governor, under certain circumstances, to remove sheriffs from office.

14 People v Board of Election Commissioners. 221 Ill. 9 (1906); Rouse v Thompson, 228 Ill. 522 (1907); People v Strassheim, 240 III. 279 (1909); People v Deneen, 247 Ill. 289 (1910).

provide that a person should be ineligible to that office unless he had resided in the state for a certain period, more than one year.

An interesting case in this connection arose under the constitution of 1848. That instrument (article 7, section 6) provided that "the General Assembly shall provide by a general law, for a township organization, under which any county may organize whenever a majority of the voters of such county at any general election shall so determine”. No provision was made in the constitution with reference to the abandonment of township organization by a county which had adopted the township system. The General Assembly passed a law providing that any county, which had adopted the township system, could abandon it by a vote of a majority of those participating in a special election. In holding that this act was void the court said: "Although the constitution makes no express provision for the abandonment of the system, when once adopted according to its provisions, we are not prepared to say that it may not reasonably be construed to allow the legislature to provide for its abrogation; but if they do so, it must be done by pursuing the same course and adopting the same guarantees, to protect the rights of all, which the constitution requires to be observed in the adoption of the system; that is to say, it must be done at a general election, and by a majority of the voters."

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These cases may suffice to indicate that qualifications must be made to the statement that the General Assembly has all powers not denied by the constitution. The real question is that as to what powers the Supreme Court will find to be denied by the language of the constitution. In some cases the court has construed constitutional language as containing no denial of power beyond the express language of the constitutional text, as for example, with respect to woman suffrage; in other cases the court has found limitations to exist by implications which are not within the express terms of the constitutional language, as in the cases of Fergus v Russel and People v McCormick.

Delegation of legislative power. The whole of the legislative power of the state is vested in the General Assembly and this power may not be delegated.1 This, however, does not prevent the General Assembly from delegating to municipalities such legislative power as it may lawfully exercise for the government and regulation of local affairs.18

The General Assembly is the law-making power, but it may authorize others to do things which it might properly but cannot understandingly or advantageously do itself. So, the General Assembly may authorize a civil service commission to hold and conduct examinations to determine the fitness and competency of persons seeking employment by the state or its municipalities,19 or authorize the factory inspector to prescribe the number, location, material, kind, and manner of construction of fire escapes.20 The General Assembly may also authorize a board or commission to fix and regulate railroad rates.21

The General Assembly cannot delegate the power to determine what a law shall be, but may confer authority or discretion as to its execution. Legislative power does not mean that every act of the officers created by the General Assembly must be expressly prescribed by the law-making power. Thus, the General Assembly may grant power to the board of pardons to make rules and regulations for the administration of the parole law; 22 or give to the board of dental examiners the power to make

10 People v Couchman, 15 Ill. 142 (1853).

17 People v Board of Election Commissioners, 221 Ill. 9 (1906); Rouse v Thompson, 228 Ill. 522 (1907).

18 Condon v Village of Forest Park, 278 Ill. 218 (1917); City of Clinton v Wilson, 257 Ill. 580 (1913).

19 People v Kipley, 171 Ill. 44 (1898).

20 Arms v Ayer, 192 Ill. 601 (1901).

21 C. B. & Q. R. R. Co. v Jones, 149 Ill. 361 (1894).

23 People v Roth, 249 Ill. 532 (1911).

reasonable rules and regulations pertaining to the administration of the dentistry act; 23 or authorize the board of examiners of architects to revoke licenses of architects for gross incompetency or recklessness in the construction of buildings.24

While the General Assembly may permit the exercise of some discretion by an administrative agency with reference to the execution of a law, it cannot vest such an agency with an absolute or arbitrary discretion. A law which vests in the discretion of a public officer, unregulated by any rules or conditions, whether it shall be enforced or not, is void, as being an unconstitutional delegation of legislative power. Thus, a law which confers upon a public officer the power, in his discretion, to issue or revoke licenses or permits to engage in a certain business or calling, or to determine, in his discretion, whether or not the law shall be enforced, is unconstitutional, because it delegates legislative power to such officer.25 (See discussion article 2, section 2, sub-heading "Arbitrary discretion").

And a law must be complete in all its terms and conditions when it leaves the General Assembly The primary election law of 1905 was held void, because it gave the county central committee of each political party the power to determine whether candidates for county offices should be nominated at a primary election, or by delegates chosen at the primary election, and also because it gave the central committee power to determine whether the candidates for county offices should be nominated by a majority or plurality vote. In the opinion of the court, the law was not complete when it left the General Assembly but delegated to the county central committee the power to determine what the law should be.

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This section of the constitution does not prevent the General Assembly 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," or upon the action of some municipality, commission or other public agency, provided that the law when it leaves the General Assembly is complete. It must be borne in mind, however, that the power to determine the contingency upon which a law shall go into effect cannot be given to a private person or agency, but must be given, if at all, to the people, or a public agency or officer." The Attorney General has held that the General Assembly may pass a law and make its effectiveness depend upon a state wide referendum.30

Section 2. An election for members of the General Assembly shall be held on the Tuesday next after the first Monday in November, in the year of our Lord one thousand eight hundred and seventy, and every two years thereafter, in each county, at such places therein as may be provided by law. When vacancies occur in either house, the Governor, or person exercising the powers of Governor, shall issue writs of election to fill such vacancies.

23 Kettles v People, 221 Ill. 221 (1906).

24 Klafter v Board of Examiners, 259 Ill. 15 (1913); see, also, Block v People, 239 Ill. 251 (1909) and People v Heise, 257 Ill. 554 (1913).

25 People v Kane 288 Ill. 235 (1919); Kenyon v Moore, 287 Ill. 233 (1919); Sheldon v Hoyne, 261 Ill. 222 (1914); Noel v People, 187 Ill. 587 (1900); Veto Messages, 1919 p. 9.

26 People v Board of Election Commissioners, 221 Ill. 9 (1906).

27 People v McBride, 234 Ill. 146 (1908); Chicago Terminal R. R. Co. v Greer, 223 Ill. 104 (1906); People v Reynolds, 10 Ill. 1 (1848); Report Attorney General 1915, p. 464.

28 Schweiker v Husser, 146 Ill. 399 (1893); Home Insurance Co. v Swigert, 104 Ill. 653 (1882).

29 Rouse v Thompson, 228 Ill. 522 (1907).