"members" will refer only to members of the General Assembly.

2. Ill. Const., art. XIV, § 1.

3. State senators must be United States citizens, must have attained the age of 25, and must have been residents for 5 years of the State and for the 2 years next preceding the election of the district from which they are elected. Ill. Const., art. IV, 3.

4. Persons convicted of bribery, perjury or other infamous crimes, and collectors or holders of public monies who have not made an accounting as required by law, are ineligible for the General Assembly or any office of profit or trust in the State. Ill. Const., art. IV, 4.

5. Five cases decided on this point have divided in their holdings, two holding that the delegates were officers, (Fufe v. Mosher, 112 N.W. 725 (Mich., 1907); Kederick v. Heintzleman, 132 F. Supp. 582 (D. Alaska, 1955)), and three holding that they did not hold an office created by state law or the constitution (State v. Rogers, 70 So. 863 (La., 1916); State v. Doyle, 70 So. 322 (La., 1915); Board of Commissioners V. Attorney General, 229 A. 2d 388, dissent, 230 A. 2d 61 (Md., 1967)). In each case the circumstances and constitutional provisions involved differed in material respects from the Illinois Constitution of 1870 and from the present call of a convention strictly in accordance with Article XIV, Section 1 of that constitution. Although in the Convention of 1869-70 former Justice Skinner had argued that delegates were not officers required to take an oath because their position had no continuing nature as attested by the failure to provide any means of filling vacancies in the convention (Debates and Proceedings of the Illinois Constitutional Convention, 1869-70, 31-32 (Springfield 1870)), the convention silenced such argument for the future by providing in Article XIV, Section 1, specifically for both a delegate's oath and the filling of vacancies in the convention. The prin cipal difficulty in finding delegates to be officers lies in the definition of "office" as distinct from "employment" in Article V, Section 24 of the 1870 Constitution. The delegate's position meets three of the four characteristics of office prescribed in this section, but does not continue for a fixed time or during the pleasure of the appointing power. This section has been construed in Me Kinley v. City of Chicago, 291 Ill. App. 571, 593 (1st Dist., 1937), rev'd on other grounds, 369 Ill. 268 (1938), in which the court emphasized the following as characteristics of office: (1) derivation of title to the position directly from the people as distinguished from a subordinate government official or agency; (2) the independent nature of the duties of an office; and (3) tenure for a period declared by law. Again the delegate's position resembles an office more nearly than an employment in deriving title directly from the people and in having independent duties, but it has no fixed term since the convention may sit for as long as it finds it necessary to complete its work.

6. " 3. No person shall be a Senator who shall not have attained the age of twenty-five years, or a Representative who shall no have attained the age of twenty-one years. No person shall be a Senator or a 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 offices of notary public and justice of the peace, shall not be considered lu erative. 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 dass hot exceed the sum of three hundred dollars)

hold any office of honor or profit under the authority of this State."

7.

4. No person who has been, or hereaf.cr shall be convicted of bribery, perjury or other infamous crime, nor any person who has been or may be a collector or holder of public moneys, who shall not have accounted for and paid over, according to law, all such moneys due from hin, shall be eligible to the General Assembly, or to any office of profit or trust in this State.'

8. Debates and Proceedings of the Illinois Constitutional Convention, 1869-70, 7-49 (Springfield 1870), hereinafter called the 1869-70 Debates. 9. Id. at 76.

14. It has been suggested that the qualifica tions incorporated from Article IV, Sections 3 and 4, into Article XIV, Section 1, were restricted to the age, residence and citizenship requirements for statu senators. In Sections 3 and 4, however, there is no distinction between these charac.eristics and the remaining ones specified in those sections which would warrant such a limited view of the qualifications of a state senator. Furthermore, it has been held that the disqualifying characteristics of Article IV, Section 4, have been held to be qualifications of which the members of the General Assembly are the judge under Article IV, Section 9. Reif v. Barrett, 355 Ill. 104, 125-129 (1934). It would appear that characteristics which are qualifications under Article IV, Section 9, must also be qualifications under Article XIV, Section 1, since nothing in the constitution or the debates indicates any difference in the usage of the word "qualifications" in the two sections. See also Bond v. Floyd, 385 U.S. 116, 128-129 (1966), in which the Georgia constitution's dual office prohibition was listed as a qualification for a seat in the Georgia assembly.

15.

People ex rel. Myers v. Hans, 145 Ill. App. 283 (1st Dist. 1908) (municipal court clerk); 1921-22 Rep. Atty-Gen. 83 (member of county board of supervisors); 1917-18 Rep. Atty-Gen. 755 (circuit court judge): 1914 Rep. Atty-Gen. 1175, 1177 (mayor, member of county board of supervisors).

16. Book v. State Ofice Building Commission, 149 N.E. 2d 273, 289 (Ind. 1958). An office to which compensation is attached by law does not cease being "lucrative" because the holder thereof waives his salary. Howard County Metropolitan Commission v. Westphal, 193 A.2d 56, 60 (Md. 1963). Cf. Hetrick v. County Commissioners of Anne Arundel County, 159 A.2d 642, 645 (Md. 1960): Commonwealth ex rel. McCreary v. Major, 22 A.2d 686, 690 (Pa. 1941). However, any office for which compensation is not fixed by constitu tion, statute, or ordinance would not be a "lucrative office" and thus would not fall within the prohibition of Article IV, Section 3.

17. People ex rel. Cromer v. Village of Maywood, 381 Ill. 337, cert. den., 318 U.S. 783 (1943) (police magistrate_and_captain in U.S. Army); Fekete v. City of East St. Louis, 315 Ill. 58 (1924) (city attorney and captain in U.S. Ariny) People ex rel. Johnson v. Blake, 144 Ill. App. 246 (2d Dist. 1924) (village trustee and postmaster receiving salary of over $300 annu ally); Packingham v. Harper, 66 Ill. App. 96 (2d Dist. 1896) (town collector and postmaster); 1917-18 Rep. Atty-Gen. 757, 800, 811 (lieutenantgovernor or state's attorney and any commission in U.S. Army): 1915 Rep. Atty-Gen. 785, 786, 788, 791 (congressman and state's attorney; postmaster and town clerk); 1914 Rep. Atty-Gen. 1161 (mayor and assistant postmaster: county judge and postmaster). In the Village of Maywood case, the court stated:

"The offices of captain in the United States Army and of police magistrate of the village of Maywood are both positions of profit and honor." 881 Ill. at 842.

At that time an army captain was paid $340 per month and the police magistrate $200 per month.

18. The posts of president of a village whose affairs were managed by a village manager, deputy coroner of Cook County, deputy bailiff and deputy clerk of the Municipal Court of Chicago were distinguished by the Court in Capuzi from a judge or clerk of any court, secretary of state, attorneygeneral, state's attorney, recorder, sheriff, collector of public revenue, and congressman which are enumerated in Article IV, Section 3. Cf. Saxby v. Sonnemann, 318 Ill. 600 (1925), in which the court held that a member of the General Assembly could not simultaneously be a Deputy AttorneyGeneral to enforce the prohibition era's Search and Seizure Act without violating the separation of powers requirements in Article III, but did not consider Article IV, Section 3.

19. But ef. People v. Capuzi, 20 Ill. 2d 486 (1960), where the court stated, in an argument not necessary to its conclusion, that the doctrine of eiusdem generis applied to delimit the scope of the term "any lucrative office" to the kinds of offices previously enumerated in Article IV, Section 3. In distinguishing the relatively minor ministerial offices there involved from "any lucrative office," the court expressly relied on characteristics of "office" under Article V. Section 24 which earlier had been articulated in McKinley v. City of Chicago. 291 Ill. App 571 (1st Dist. 1937), rev'd on other grounds, 369 Ill. 268 (1938). 20. 1869-70 Debates at 958. 21. Id. at 1387.

22. Board of Supervisors v. Attorney-General, 229 A.2d 388; dissent, 230 A.2d 61 (Md. 1967); In re Opinion of the Justices, 21 A.2d 267 (R.I. 1941): Pitts v. Chilton County, 173 So. 94 (Ala. App. 1937), cert. den., 173 So. 95 (Ala. 1937).

23. See Howard County Metropolitan Commision v. Westphal, 193 A.2d 56, 60 (Md. 1963). C. Hetrick v. County Commissioners of Anne Arundel County, 159 A.2d 642, 645 (Md. 1960): Commonwealth ex rel. McCreary v. Major, 22 A.2d 686, 690 (Pa. 1941).

24. Seo Legislative Reference Bureau, Constitutional Convention in Illinois, p. 57 (Springfield: 1918).

25. The qualification in the third sentence of Articlo IV, Section 3 literally says that no person holding a lucrative office under the United States, a foreign government, or this State at the time he is to take his seat in the General Assembly shall have the seat. Thus a person could hold lucrative office up to the time he was to take his seat and still take his seat if his prior office terminated immediately prior to his taking his seat. By implication also, a person who has a seat in the General Assembly and acquires another lucra. tive office must give up his seat in the General Assembly, because he then can no longer "have" i. It appears doubtful that the members of the Convention of 1869-70 had any subtle intention beyond covering these two basic situations, particularly in view of the history of this sentence set forth earlier. In other words, a member could hold one seat in the House or Senate but no other lucrative office. Attempts to distill a further implication from the sentence that a seat in the General Assembly is not a "lucrative office" within the meaning of Article IV. Section 3. appear to bo in direct conflict with the frequent assertions of a contrary opinion by the delegates to the 186970 Convention.

These conceptual difficulties of the Legislative Reference Bureau in 1918 apparently did not dissuade the Attorney-General in 1919 from issu ing his opinion that members of the General Assembly could not simultaneously be delegates to the constitutional convention and members of the General Assembly. Opinion of the General, March 1, 1919 (unpublished, but Attorneyferred to in Smith Hurd Ill. Stats. Ann., Const., Art. XIV, §1, annotation).

re

It is not possible to tell whether the unpublished Attorney-General's Opinion in 1919, holding that members of the General Assembly could not simultaneously serve as convention delegates was premised on the conclusion that General Assemblymen hold "lucrative office" so as to invoke the qualification provision of Article XIV, Section 1,

or

on the conclusion that convention delegates hold "lucrative office" so as to invoke the dur prohibition of Article IV, Section 3.

26. People ex rel. Johnson v. Blake, 144 III. App. 246 (2d Dist. 1908), where a village postmaster was elected village president. The case was decided on affidavits, and the court reversed a judgment for the defendant-office holder because of a conflict in the affidavits as to whether the defendant came within the $300 annual compen sation exemption specified in the Constitution.

27. People ex rel. Myers v. Haas, 145 Ill. App. 283 (1st Dist. 1908).

28. People ex rel. Cromer v. Village of May. wood, 381 Ill. 337 (1942), cert. den., 218 US 783 (1943) (police magistrate who accepted com mission as an officer in U.S. Army); Fekete V. City of East St. Louis, 315 Ill. 58 (1924) (city attorney who accepted commission as an officer in U.S. Army); Dickson v. People ex rel. Brown, 17 I. 191 (1855) (director of State institute for deaf and dumb who was appointed U.S. Marshal) Packingham v. Harper, 66 Ill. App. 96 (2d Dist. 1896) (town collector who was ap pointed U.S. postmaster).

29. People ex rel. Cromer v. Village of May wood, 381 Ill. 337 (1942), cert. den., 318 US 783 (1943) (police magistrate who accepted commission as an officer in the US. Army): People e. rel. Myers v. Haas, 145 Ill. App. 283 (1st Dist. 1908) (State senator who was elected Municipal Court Clerk).

30. People v. Capuzi, 20 Ill. 2d 486 (1960) (honorary village president and minor ministerial officials who were elected to the General Assembly): People ex rel. White v. Butler, 393 Ill. 395 (1946) (county judge who was inducted into the U.S. Army as a private); People ex rel. Johnson v. Blake, 144 Ill. App. 246 (2d Dist. 1908) (postmaster who was elected village president).

31. Compare People ex rel. White v. Butler, 393 I. 395 (1946) (withholding of compensa tion improper, but award of writ of mandamus reversed because the form of action was improper), with Fekete v. City of East St. Louis, 315 I 58 (1924) (withholding of compensation held proper: judgment for defendant in action of assumpsit affirmed).

32. In a number of cases, courts have declined to pass on whether a person was duly elected to the legislature because of the customary constitutional provision that each house of the legislature shall be the judge of the election and qualifications of its members. Annotation, 107 A.L.R. 205, at 209-219. In one of the early cases (People ex rel. Drake v. Mahaney, 3 Mich. 481, 492-3 (1865)), Judge Cooley enunciated the rule of judicial abstinence as necessary to protect the integrity of the legislature against attack after tho legislature had adjourned. Reif v. Barrett, 355 I 104, 126-129 (1934) presents a similar ruling by the Illinois Supreme Court.

The Hans case, however, presents the question. not of the propriety of the election or original qualification to take a seat in the legislature, but of the occurrence of a vacancy by operation of law after ዜ legislator has taken position

incompatible with retention of his seat in the legislature. In this situation, the Delaware Supreme Court has refused to adjudicate an attempt to compel the legislature to declare the seat vacant and order an election to fill the vacancy. State V. Corley. 172 Atl. 415. 420 (1934). Corley was followed in In re Opinion Of the Justices, 47 So. 2d 586 (Ala. 1950), which was decided under constitutional provisions substan tially different from those of both Delaware and Illinois. The Illinois Constitution, unlike the Delaware Constitution, does not invest the General Assembly with the power to determine when it has vacancies and to order elections. The only constitutional provision on the subject is Article IV. Section 2, which empowers the Governor to call elections to fill legislative vacancies. Thus, Corley would not be inconsistent with Пaas.

In State v. Gilmore, 20 Kan. 551 (1878), however, the court refused to hear a suit to declare a legislative seal vacant because the member had

been publicly intoxicated in violation of law. Rely. ing only on the customary constitutional language as to determination of a legislator's election and qualifications, the court held that this exclusive power continued in the legislature throughout the session and extended to a determination whether a vacancy existed. The court relied on Judge Cooley's reasoning in Mahaney that such exclusive jurisdiction in the legislature was necessary to protect its integrity. This position appears untenable when the constitution empowers the gov. ernor rather than the legislature to fill vacancies, thereby showing an intention to distribute the power to act when vacancies occur among other branches of the government.

In State v. Shumate, 113 S.W.2d 381 (1938) the court, in the face of a powerful dissent, stated that it would not review the Tennessee House of Representatives' actual determination that a meinber had not vacated his seat even though he admitted that he had taken office as a judge and the court's majority stated that it would have declared the prior office vacant in any other situation. Here the Constitution did empower the Governor to order elections to fill vacancies in the General Assembly, and this case would appear, at least where the legislature has acted arbitrarily, to be contrary to Haas.

On the other hand in State ex rel. Leland v. Mason, 56 N.E. 468 (Ohio, 1900) the Ohio Supreme Court determined that a member of the

Ohio house of representatives who had after his election to the house accepted a federal judgeship had vacated his seat in the Ohio legislature and was enti led to no further pay. The representative contended that the court was without jurisdiction to make this determination, because the house of representatives had not done so itself. The court replied:

"We cannot assent to this proposition. The sections cited are to be construed with Section 4 of the same article which provides that 'no person holding office under the authority of the United States... shall be eligible to, or have a seat in, the general assembly.' It is the duty of the court to give force to this mandate of the constitution, and, though the general assembly does not act, the court cannot evade the duty."

See also State ex rel. McMillan v. Sadler, 58 Pac. 284, 289 (Nev., 1899) in which the court upheld the election of a new state senator to fill a vacancy created by the acceptance of the office of federal paymaster by the prior incumbent. In this case the legislature had taken no action and the election to fill the vacancy had been ordered by the governor. Cf. State ex rel. Gettles V. Gillen, 148 N.E. 86, 88 (Ohio, 1925).

Thus in the absence of a decision by the legis Inture, the weight of authority under constitutional provisions like those in the Illinois Constitution appears to support the decision in Haas.