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Livingston v. Ogilvie

OPINION FILED JULY 10, 1969.

ROBERT P. LIVINGSTON, APPELLANT,

v.

RICHARD B. OGILVIE, GOVERNOR, ET AL., APPELLEES.



APPEAL from the Circuit Court of Sangamon County; the Hon. PAUL C. VERTICCHIO, Judge, presiding.

MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:

This is a taxpayer's declaratory judgment action challenging the constitutionality of Public Act 76-40, which provides for a constitutional convention and makes appropriations for its conduct. The Governor and certain other State and political officers constituting the State Electoral Board are parties defendant. The circuit court of Sangamon County entered judgment on plaintiff's motion for judgment on the pleadings, denied plaintiff's prayer for an injunction restraining implementation of the Act and found it constitutional in all respects except a provision permitting certain public officials to serve as members (delegates) of the constitutional convention. Plaintiff appeals from the judgment, except as to the public-official holding, and defendants cross-appeal on that point.

The principal issues presented on this appeal have been narrowed to the scope of the power of the General Assembly, particularly with respect to qualifications of delegates, whether they can be nominated and elected on a non-partisan basis, and whether the election of delegates from the provisional State senatorial districts fixed by this court in People ex rel. Engle v. Kerner 33 Ill.2d 11, is unconstitutional under the one-man, one-vote doctrine.

Section 3 of the Act provides: "The qualifications of members shall be the same as that of members of the Senate, except that any person who otherwise qualifies but is a member of the General Assembly or holds any other elective or appointive office under the Constitution or laws of this State may also serve as a member of the Convention."

Section 1 of article XIV of the constitution reads in part: "Whenever two-thirds of the members of each house of the general assembly shall, by a vote entered upon the journals thereof, concur that a convention is necessary to revise, alter or amend the constitution, the question shall be submitted to the electors at the next general election. If a majority voting at the election vote for a convention, the general assembly shall, at the next session, provide for a convention, to consist of double the number of members of the senate, to be elected in the same manner, at the same places, and in the same districts. * * * The qualification of members shall be the same as that of members of the senate, and vacancies occurring shall be filed in the manner provided for filling vacancies in the general assembly."

Plaintiff contends that this constitutional grant is a limitation on the power of the General Assembly to fix any qualification of delegates and that neither members of the General Assembly nor public officials can constitutionally serve. On the other hand, defendants point out that there is no provision for exclusion of members of the General Assembly or public officials whatsoever, and that section 3 of the Act is a legislative clarification of the constitutional qualification provisions.

A strong presumption of constitutional validity attaches to legislature enactments. Board of Library Directors v. City of Lake Forest, 17 Ill.2d 277, and cases therein cited.

Section 3 of article IV of the constitution provides: "No person shall be a senator who shall not have attained the age of twenty-five years, or a representative who shall not have attained the age of twenty-one years. No person shall be a senator or representative who shall not be a citizen of the United States, and who shall not have been for five years a resident of this state, and for two years next preceding his election a resident within the territory forming the district from which he is elected. No judge or clerk of any court, secretary of state, attorney general, state's attorney, recorder, sheriff, or collector of public revenue, member of either house of congress, or person holding any lucrative office under the United States or this state, or any foreign government, shall have a seat in the general assembly: Provided, that appointments in the militia and the office of notary public and justice of the peace, shall not be considered lucrative. Nor shall any person holding any office of honor or profit under any foreign government, or under the government of the United States, (except postmasters whose annual compensation does not exceed the sum of $300,) hold any office of honor or profit under the authority of this state."

There is no question that the age, citizenship and residency qualifications for senator contained in the first two sentences of section 3 are qualifications for delegates under article XIV. The question is whether the last two sentences of section 3 of article IV constitute a qualification for senator.

Section 25 of article II of the constitution of 1818 provided: "No judge of any court of law or equity, secretary of state, attorney-general, attorney for the state, register, clerk of any court of record, sheriff or collector, member of either house of congress, or person holding any lucrative office under the United States or this state, (provided that appointments in the militia, postmasters or justices of the peace shall not be considered lucrative offices,) shall have a seat in the general assembly: nor shall any person holding an office of honor or profit under the government of the United States, hold any office of honor or profit under the authority of this state." (Rev. Laws of 1833, pp. 37, 38.) This identical provision became section 29 of article III of the constitution of 1848 and with minor changes is now the last two sentences of section 3 of article IV of the constitution of 1870.

Dickson v. People ex rel. Brown, 17 Ill. 191, involved a director of the Illinois Institution for the Education of the Deaf and Dumb who later accepted appointment as a United States Marshal. The court treated the provision in question (then section 29 of article III of the constitution of 1848) as a prohibition against holding incompatible offices by the same person at the same time. The court found the offices to be incompatible under the constitutional prohibition and held that Dickson had vacated his office of director by accepting the office of United States Marshal.

In People ex rel. Myers v. Haas, 145 Ill. App. 283, a State senator was later elected clerk of the municipal court of Chicago. The court found that the two offices were incompatible under section 3 of article IV and held that acceptance of the office of clerk was an ipso facto resignation of the office of senator.

In Fekete v. City of East St. Louis, 315 Ill. 58, the city attorney of East St. Louis later accepted a commission in the United States Army. The court found these offices incompatible under section 3 of article IV and held that his acceptance of the commission was a constructive resignation of his office of city attorney.

In People ex rel. Cromer v. Village of Maywood, 381 Ill. 337, cert. den. 218 U.S. 783, this court again held that acceptance of a second incompatible office automatically vacates the first office and described the constitutional prohibition against simultaneously holding incompatible offices as self-executing.

The rationale of these holdings is that the last two sentences of section 3 of article IV are merely a prohibition against holding two offices at the same time as described therein and is not a bar to eligibility for senator. Mechem supports that conclusion. His example of a provision which requires only vacation of the first office upon acceptance of another incompatible office is almost identical to section 3 of article IV. "Where the Constitution provides that no person holding any lucrative office under the State, shall be a member of the general assembly, one who accepts an election to the assembly while holding the office of circuit judge vacates the latter office * * *." Mechem, Public Offices and Officers, sec 431 (3rd ed. 1890.)

In discussing provisions which bar eligibility, Mechem states: "Thus, as in the Constitution of California, it is sometimes declared that `No person holding any lucrative office under the United States or any other power shall be eligible to any civil office of profit under this State;' or, as in Indiana `that no person elected to any judicial office shall, during the term for which he was elected, be eligible to any office of trust or profit under the state, other than a judicial one' * * *" Mechem, Public Offices and Officers, sec. 76 (3rd ed 1890).

We hold that the office holders covered by section 3 of article IV are not ineligible for the office of senator and consequently are not ineligible as delegates unless made ineligible by some other provision of the constitution. ...


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