Case Summary: The People ex rel. Antonia E. Rago v. Harry A. Lipsky et al. (Opinion delivered by Justice Gunn, March 21, 1945)

Factual and Procedural Background

Antonia E. Rago filed a petition in the Superior Court of Cook County seeking a writ of mandamus to require the Board of Election Commissioners of the City of Chicago to register her to vote under the name "Antonia E. Rago" rather than "Antonia Rago MacFarland" after her marriage on February 12, 1944. The petition alleges she has lived at her present residence practically all her life, has been a member of the Illinois bar since 1938, maintains an individual law office under the name Antonia E. Rago, and desires to keep that professional name. After her marriage she received notice (March 25, 1944) that her prior registration would be removed under the Election Code provision requiring persons who change their names by marriage or otherwise to reregister; as a result she lost the right to vote in the April 1944 primaries.

Defendants (the commissioners) answered, denying she was entitled to the requested relief. The cause was tried on the petition, defendants' motion to strike, defendants' verified answer, and certain stipulated facts. The Superior Court found for the plaintiff and ordered the commissioners to restore her registration under the name Antonia E. Rago and to recognize and accept that registration for succeeding elections so long as she remained otherwise qualified. The commissioners appealed to the Appellate Court, First District. Plaintiff moved to transfer the cause to the Supreme Court on the ground that constitutional questions were involved; the Appellate Court transferred the cause to the Supreme Court by order entered November 20, 1944.

Legal Issues Presented

Whether this Court (the Supreme Court of Illinois) has jurisdiction to hear the case on the ground that constitutional questions are involved.
Whether the record affirmatively shows that a constitutional question (including any construction of the Nineteenth Amendment or the validity of the statute governing reregistration after name change) was presented to and decided by the trial court, thereby supporting transfer to this Court.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ryan v. City of Chicago, 363 Ill. 607	The record must affirmatively disclose that a constitutional question was presented and passed upon by the trial court before this Court may assert jurisdiction on that ground.	The Court applied this rule to hold the record did not show any constitutional question was decided by the Superior Court, and therefore jurisdiction could not be based on the affidavit alone.
Illinois Central Railroad Co. v. Chicago Great Western Railway Co., 246 Ill. 620	To give this Court jurisdiction on the ground that the validity of a statute is involved, the statute must be the foundation of some right asserted or defense made and its validity must necessarily be involved in resolving the issue.	The Court noted the petition did not make the statute the necessary foundation of a right or defense decided by the trial court and therefore the statute's validity was not necessarily involved for purposes of Supreme Court jurisdiction.
McNeil Higgins Co. v. Neenah Cheese Co. 290 Ill. 449	Constitutional questions must have been passed upon by the trial court to confer jurisdiction here.	The Court relied on this precedent to reinforce that the Superior Court must have decided the constitutional question before the Supreme Court may consider it.
Masonic Fraternity Temple Ass'n v. City of Chicago, 217 Ill. 58	A constitutional question must be based upon the record itself, not merely upon counsel's argument.	The Court cited this to support the conclusion that the affidavit of counsel was insufficient to establish that a constitutional question was before and decided by the trial court.
City of Sullivan v. Central Illinois Public Service Co. 287 Ill. 19	Same principle: constitutional questions must be based on the record, not merely arguments.	The Court applied this principle to find the record did not show a constitutional question was presented and passed upon by the Superior Court.
Pollack v. County of DuPage, 371 Ill. 199	Followed the rule that the record must show a constitutional question was raised and decided by the trial court to confer Supreme Court jurisdiction.	The Court cited this among subsequent cases that follow Ryan and used them collectively to conclude the affidavit did not give the Supreme Court jurisdiction.
Kellogg v. Kellogg, 371 Ill. 241	Followed the rule requiring the record to show a constitutional question was decided below.	Applied as part of a line of cases reinforcing the jurisdictional rule relied upon by the Court.
Holsman v. Campbell Realty Co. 371 Ill. 614	Same jurisdictional principle regarding constitutional questions and the trial record.	Listed as a case following the Ryan rule; used to support the Court's conclusion that transfer was improper on the basis of the affidavit alone.
City of Springfield v. Kable, 372 Ill. 455	Same principle: constitutional question must be shown by the record.	Included among cases showing the consistent application of the rule that the trial court must have passed on constitutional issues.
Shilvock v. Retirement Board, 375 Ill. 68	Reaffirmation of the requirement that constitutional questions be presented and decided below to vest this Court with jurisdiction.	Cited with other cases to demonstrate the established rule that the affidavit alone cannot confer jurisdiction.

Court's Reasoning and Analysis

The Court began by addressing the preliminary jurisdictional question: whether the Supreme Court had jurisdiction because "constitutional questions are involved." The petition sought mandamus relief to allow plaintiff to be registered under her unmarried professional name and did not challenge the validity of the statutory provision requiring persons who change their names to reregister (Ill. Rev. Stat. 1943, chap. 46, par. 6-54). Although the petition quoted the Nineteenth Amendment at length and plaintiff's counsel filed an affidavit asserting that the cause involved substantial constitutional questions, the Superior Court's judgment contained no indication that it had decided any constitutional question.

The Court emphasized the settled rule that jurisdiction in the Supreme Court on the ground that a constitutional question is involved requires the trial record to affirmatively show the constitutional question was presented and passed upon by the trial court. The affidavit by plaintiff's counsel merely asserted, without specification, that constitutional questions were involved; the Court held this was insufficient. The Court also relied on the principle that the constitutional question must be apparent from the record itself and not merely from counsel's argument. Applying these principles and the cited precedents, the Court concluded the record failed to show the Superior Court decided any constitutional question; therefore, the Supreme Court did not have jurisdiction on that ground.

Holding and Implications

Holding: The Supreme Court concluded it lacked jurisdiction to decide the case on the basis that constitutional questions were involved and accordingly transferred the cause back to the Appellate Court for the First District for action upon the merits. Cause transferred back to the Appellate Court for the First District for action upon the merits.

Implications: The direct effect is procedural—the Supreme Court declined to exercise jurisdiction because the record did not show a constitutional question had been presented to and decided by the trial court. The Court did not announce or apply any new legal principle beyond enforcing the established rule that the record must show constitutional questions were passed upon below; no broader constitutional holding was made.

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THE PEOPLE ex rel. Antonia E. Rago, Appellee, vs. HARRY A. LIPSKY et al., Appellants.

Mr. JUSTICE GUNN delivered the opinion of the court:

Antonia E. Rago filed her petition in the superior court of Cook county for a writ of mandamus against the members of the Board of Election Commissioners of the city of Chicago to require them to permit her to be registered as a voter in the city of Chicago under the name of Antonia E. Rago, rather than as Antonia Rago MacFarland, as required by appellants, by reason of being married on February 12, 1944, to one William C. MacFarland. The commissioners answered denying she was entitled to such relief. A stipulation was filed agreeing that the cause be tried upon the plaintiff's petition, defendants' motion to strike, and defendants' verified answer and certain additional facts. The court made a finding in favor of plaintiff and ordered and commanded the defendants: (a) to restore the records of registration of the petitioner under the name of Antonia E. Rago to the active registration records of said commissioners, and to desist from holding that the petitioner be required to register under any other name than Antonia E. Rago; and (b) the commissioners were further ordered and commanded, notwithstanding the marriage of the petitioner with William C. MacFarland, to hereafter recognize and accept the registration of the said petitioner in her precinct and ward under the name of Antonia E. Rago for succeeding elections, so long as she shall be otherwise qualified to register.

The petition shows that the plaintiff has lived in her present place of residence practically all of her life; that she has been a member of the bar of Illinois since 1938, and is admitted to the bar of other jurisdictions and has maintained her individual law office under the name and style of Antonia E. Rago, and desires to keep her professional name in that respect; and that after she was married on February 12, 1944, she received a notice March 25, 1944, from the chief clerk of the Board of Election Commissioners notifying her that the registration under her former name would be removed under the provision of the Election Code, which provides that persons who change their names by marriage or otherwise must register anew to be entitled to vote, and accordingly she lost her right to vote in the April primaries, 1944.

The commissioners appealed to the Appellate Court for the First District, and filed record, briefs and abstracts in that court. A motion was made by appellee to transfer-the cause to the Supreme Court on the ground that constitutional questions are involved in the decision of the case, in accordance with the affidavit filed in said cause by the attorney for plaintiff. The cause was thereupon transferred to the Supreme Court by order entered November 20, 1944.

The first question to be disposed of notwithstanding the transfer of the cause to this court is whether we have jurisdiction. The plaintiff based her right to be registered in her unmarried name upon the proposition that it was not necessary for a married woman to adopt her husband's name. The petition does not question or raise the validity of the section of the statute requiring a registered voter, who changes his or her name by marriage or otherwise, to reregister. (Ill. Rev. Stat. 1943, chap. 46, par. 6-54.) No question is raised as to the construction of this section of the statute, whether it be mandatory or directory. The only matter remotely approaching a constitutional question is the setting out at length of the nineteenth amendment to the constitution of the United States, which provides that the rights of citizens to vote shall not be denied or abridged on account of sex. It is not alleged that any provision of the Illinois statutes is in contravention of the constitution of the United States or of Illinois.

An affidavit was filed in the Appellate Court by the attorney for plaintiff, and all that is shown in said affidavit is that the cause involves substantial questions of constitutional law without specifying them. The judgment of the superior court contains nothing which indicates a constitutional question was decided by it. It contains nothing more than a recital of the jurisdiction of the parties and of the subject matter; the findings for the plaintiff and against the defendants, and the matters set out above. The record fails to show that the superior court decided a constitutional question.

It is elementary that it is not sufficient to confer jurisdiction on this court for a pleading to allege only the violation by a statute of some constitutional provision, but the record must affirmatively disclose that the constitutional question was not only presented in the trial court for decision, but was passed upon by it. (Ryan v. City of Chicago, 363 Ill. 607. ) In Illinois Central Railroad Co. v. Chicago Great Western Railway Co. 246 Ill. 620, we held that in order to give this court jurisdiction on the ground that the validity of a statute is involved, such statute must be the foundation of some right asserted or some defense made, and its validity must necessarily be involved in a determination of the issue involved.

Assuming that the validity of section 6 of the Permanent Registration Act is incidentally involved, it is not so alleged in the complaint or passed upon by the court, and it therefore cannot be said that thereby construction of the nineteenth amendment of the constitution of the United States is involved. If it be considered that the petition for mandamus is broad enough to include a construction of the United States constitution, or the validity of the section of the statute involved, still a constitutional question is not before this court because it was not passed upon by the superior court. This is necessary. (McNeil Higgins Co. v. Neenah Cheese Co. 290 Ill. 449; Ryan v. City of Chicago, 363 Ill. 607.) It has likewise been held that the constitutional question must be based upon the record itself, and not merely upon the argument of counsel. (Masonic Fraternity Temple Ass'n v. City of Chicago, 217 Ill. 58; City of Sullivan v. Central Illinois Public Service Co. 287 Ill. 19. ) The affidavit filed by plaintiff's counsel is therefore not effective to give us jurisdiction. The rule laid down in Ryan v. City of Chicago, 363 Ill. 607, that the record must show the constitutional question was not only raised but passed upon by the trial court has been followed in Pollack v. County of DuPage, 371 Ill. 199; Kellogg v. Kellogg, 371 Ill. 241; Holsman v. Campbell Realty Co. 371 Ill. 614; City of Springfield v. Kable, 372 Ill. 455; and Shilvock v. Retirement Board, 375 Ill. 68.

The Appellate Court apparently relied upon the affidavit of plaintiff's attorney, for its order recites: "constitutional questions are involved in the decision of the case, as per affidavit filed herein," etc. Neither the pleadings, judgment, nor affidavit is sufficient to give us jurisdiction upon the ground that a constitutional question is involved in the case.

The cause is accordingly transferred back to the Appellate Court for the First District for action upon the merits.

Cause transferred.

THE PEOPLE v. LIPSKY