The Attorney General in 1916 held that it is a matter of serious doubt. whether the Governor has the power to determine that there is a vacancy in the General Assembly because of the lack of qualifications of an incumbent. The basis for this holding is that section 9 of article 4 of the constitution provides that each house shall be the judge of the qualifications of its members. The case presented to the Attorney General was as follows: A senator was elected judge of the municipal court of Chicago, qualified and entered upon his duties. Section 3 of article 4 of the constitution provides that no judge of any court shall be a member of the General Assembly. The question was whether or not the Governor could determine that this senator, having entered upon his duties as a judge of a court, was, under section 3 of article 4, no longer eligible to sit in the Senate, that his office was vacant, and that a special election should be called to fill the vacancy. The Attorney General expressed a serious doubt as to whether or not such action on the part of the Governor would not be in contravention to section 9 of article 4, which gives each house the right to determine the qualifications of its members.31 (See discussion article 4, section 9.)

Section 3. 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 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 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 three hundred dollars) hold any office of honor or profit under the authority of this State.

Qualifications of members of the General Assembly. The General Assembly has no power to add to the qualifications of the members of that body as fixed by the constitution. For example, the constitution provides that no person shall be a member of the General Assembly who shall not have been for two years next preceding his election, a resident of the territory forming the district from which he is elected. The primary election act of 1905 provided that "in senatorial districts consisting of two counties, no more than two persons of the same political party shall be nominated from any one county This provision was held void on the ground that, by requiring candidates to come from particular counties of the senatorial district, the provision of the constitution which provides only for residence within the senatorial district was violated.32

The question whether or not a member of the General Assembly may hold certain other offices in the state has never been presented to the Su

81 Report Attorney General 1916, p. 135.

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

34

preme Court but has been passed on in one appellate court decision and in several opinions of the Attorney General. It has been held that a member of the General Assembly cannot hold the office of judge of the circuit court, or clerk of the municipal court, or mayor of a city, or delegate to a constitutional convention, or member of the board of supervisors.33 He must resign from one or the other. If a member of the General Assembly shall qualify and enter upon the duties of an office incompatible with his office as a member of the General Assembly, he will be deemed to have resigned his seat in the General Assembly. It has also been held by the Attorney General that a justice of the peace may not, during his term of office, hold a seat in the General Assembly.3 This holding would seem to be erroneous for the reason that the above section of the constitution expressly provides that the office of justice of the peace shall not be considered a lucrative office such as will bar membership in the General Assembly. In the opinion of the Attorney General an appointment in the militia of the state does not render the appointee ineligible as a member of the General Assembly; and a member of the state central committee, because his office is political and not governmental, may have a seat in the General Assembly.37 (See discussion article 4, section 2.)

36

Office under foreign or United States government. A person who holds an office of honor or profit under the government of the United States, is not eligible as a director of the Illinois Institution for the deaf and dumb, a private corporation created by an act of the General Assembly in 1839.38 Under a decision of the appellate court a postmaster receiving a salary of more than $300 per year, cannot hold the office of member of the board of trustees of a village." In the opinion of the Attorney General a state's attorney cannot hold the office of member of Congress, and neither a postmaster receiving a salary of more than $300 per year, nor a railway mail clerk, may hold the office of town clerk.40 Acceptance of a commission in the army of the United States by the Lieutenant Governor or a state's attorney would, in the view of the Attorney General, operate to vacate their offices.41

Section 4. No person who has been, or hereafter 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 him, shall be eligible to the General Assembly, or to any office of profit or trust in this State.

A person is not a defaulter or guilty of withholding public funds unless he has been adjudged guilty by a court or a competent authority. Until there has been a finding by a court, or other legal authority, that a person is a defaulter he may, if duly elected or appointed and otherwise qualified, hold a public office.42

33 Report Attorney General 1917-18, p. 755; People v Haas, 145 Ill. App. 283 (1908); Report Attorney General 1914, p. 1175; Opinion of Attorney General, March 1, 1919; Report Attorney General 1914, p. 1177.

34 People v Haas, 145 Ill. App. 283 (1908). 35 Report Attorney General 1914, p. 1173.

36 Report Attorney General 1916, p. 285.

37 Report Attorney General, 1916, p. 933.

38 Dickson v People, 17 Ill. 191 (1855).

39 People v Blake, 144 Ill. App. 246 (1908).

40 Report Attorney General 1915, pp. 785, 786, 788, 791; 1914, p. 1162.

41 Report Attorney General 1917-18, pp. 757, 800, 811.

Section 5. Members of the General Assembly, before they enter upon their official duties, shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Illinois, and will faithfully discharge the duties of Senator (or Representative) according to the best of my ability; and that I have not, knowingly or intentionally, paid or contributed anything, or made any promise in the nature of a bribe, to directly or indirectly influence any vote at the election at which I was chosen to fill the said office, and have not accepted, nor will I accept or receive directly or indirectly, any money or other valuable thing, from any corporation, company or person, for any vote or influence I may give or withhold on any bill, resolution or appropriation, or for any other official act." This oath shall be administered by a judge of the supreme or circuit court in the hall of the house to which the member is elected, and the Secretary of State shall record and file the oath subscribed by each member. Any member who shall refuse to take the oath herein prescribed shall forfeit his office, and every member who shall be convicted of having sworn falsely to or of violating, his said oath, shall forfeit his office. and be disqualified thereafter from holding any office of profit or trust in this State.

(See article 5, section 25.)

Section 6. The General Assembly shall apportion the State every ten years, beginning with the year one thousand eight hundred and seventy-one, by dividing the population of the State, as ascertained by the federal census, by the number fifty-one, and the quotient shall be the ratio of representation in the Senate. The State shall be divided into fifty-one senatorial districts, each of which shall elect one senator, whose term of office shall be four years. The Senators elected in the year of our Lord one thousand eight hundred and seventy-two, in districts bearing odd numbers, shall vacate their offices at the end of two years, and those elected in districts bearing even numbers, at the end of four years; and vacancies occurring by the expiration of term shall be filled by the election of senators for the full term. Senatorial districts shall be formed of contiguous and compact territory, bounded by county lines, and contain as nearly as practicable an equal number of inhabitants; but no district shall contain less than four-fifths of the senatorial ratio. Counties containing not less than the ratio and three-fourths, may be divided into separate districts, and shall be entitled to two Senators, and to one additional senator for each number of inhabitants equal to the ratio, contained by such counties in excess of twice the number of said ratio.

The question whether the constitutional requirements with reference to compactness of territory and equality of population in senatorial districts have been applied at all, is one which the courts may finally determine. If it is clear that an apportionment act of the General Assembly does not take into consideration those requirements, the act will be held void. On the other hand, if it is apparent that those requirements were taken into consideration, the act will be held valid even though the nearest practicable approximation to perfect compactness of territory and equality of population has not been attained. Accordingly, an act which observed the senatorial ratio required by the constitution, but which provided for some senatorial districts having a population of 25,000 more than others, was sustained because the court was of the opinion that the requirements of compactness of territory and equality of population had not been completely ignored.43 (See discussion article 6, section 5, sub-heading, "Changes in Supreme Court districts").

The General Assembly can make but one apportionment in each ten year period following a Federal census, but more than one apportionment may be made in a period of ten years. For example there was a Federal census in 1890. In 1893, the General Assembly passed an apportionment act. In 1898, the General Assembly passed another apportionment act. This act was held void because, in the opinion of the Supreme Court, the General Assembly, under this section, can apportion but once in each ten year period after a census, and having apportioned the state in 1893, it could not do so again in 1898.44 In 1900, there was another census, and in 1901 the General Assembly passed an apportionment act. It was contended that the act of 1901 was void, because it was passed less than ten years after the adoption of the act of 1893, but the act of 1901 was upheld.45

There has been no apportionment since 1901, although the constitution expressly provides that the state shall be apportioned every ten years. (See Constitutional Convention Bulletin No. 8).

Sections 7 and 8. The House of Representatives shall consist of three times the number of the members of the Senate, and the term of office shall be two years. Three representatives shall be elected in each Senatorial district at the general election in the year of our Lord one thousand eight hundred and seventy-two, and every two years thereafter. In all elections of representatives aforesaid, each qualified voter may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same, or equal parts thereof, among the candidates, as he shall see fit; and the candidates highest in votes shall be declared elected.1o 43 People v Thompson, 155 Ill. 451, (1895); see, also, People v Carlock 198 Ill. 150 (1902).

44 People v Hutchinson, 172 Ill. 486 (1898).

45 People v Carlock, 198 Ill. 150 (1902).

46 Under the terms of section 12 of the schedule, original sections 7 and 8 of this article were to be eliminated if the section relating to minority representation, which was submitted to a separate vote, was adopted by the voters. The separate section was adopted and accordingly replaced original sections 7 and 8, which were as follows:

REPRESENTATIVE.

"Section 7. The population of the State, as ascertained by the Federal census, shall be divided by the number one hundred and fifty-three, and the quotient shall be the ratio of representation in the House of Representatives. Every county or district shall be entitled to one representative, when its population is three-fifths of the ratio; if any county has less than three-fifths of the ratio, it shall be attached to the adjoining county having the least population, to which no other county has for the same reason been attached, and the two

In general. The provisions of the constitution relating to minority representation give the voter the right to cast three votes for one candidate for representative in the General Assembly, one vote for each of three candidates, one and one-half votes for each of two candidates, or one vote for one candidate and two votes for another.47

In People v Nelson, it was contended that since the constitution expressly provided for cumulative voting in only two instances, (article 4, sections 7, 8; article 11, section 3) this was, in effect, a denial of power to the General Assembly to provide for cumulative voting in any other kind of an election. The court, however, refused to uphold the contention, and sustained an act, of the General Assembly providing for cumulative voting in elections for drainage trustees.

Primary elections. The principal difficulty with reference to the provisions relating to minority representation has arisen in connection with the primary election laws. The primary election law of 1906 provided for the nomination in the primary election of only one candidate for representative in the General Assembly by each political party. If a political party desired to place more than one candidate in the field, the other candidate or candidates could be nominated only by convention: The act of 1906 was held void on the ground that it was in conflict with sections 7 and 8 of article 4. "The right to nominate candidates for representative in the General Assembly is as important a right to the voter as the right to vote for said candidates after they are nominated and is of the same character, and if the constitution, as it does, confers upon the voter the right to vote for one, two or three candidates for representative in the General Assembly, any primary election law, to be valid, which provides for the nomination of candidates for representative in the General Assembly, must give the voter the right to participate in the selection of all candidates of his party for representative in the General Assembly which are to be nominated by his party."49

The primary election act of 1908 authorized the senatorial committee of each political party to determine the number of candidates of its party to be nominated in its district for representative in the General Assembly and provided that the voter could cast one vote for each of as many candidates as were to be nominated in accordance with the determination of the senatorial committee. If the committee determined upon one candidate, the voter could vote for only one candidate. If the committee decided to have two candidates, the voter could cast one vote each for two candidates. This act was held void because it deprived the voter of his right to cumulate his votes.50

not less than the ratio and three-fifths, shall be entitled to two representatives, and for each additional number of inhabitants, equal to the ratio, one representative. Counties having over two hundred thousand inhabitants may be divided into districts, each entitled to not less than three nor more than five representatives. After the year one thousand eight hundred and eighty, the whole population shall be divided by the number one hundred and fifty-nine, and the quotient shall be the ratio of representation in the House of Representatives for the ensuing ten years, and six additional representatives shall be added for every five hundred thousand increase of population at each decennial census thereafter. and be apportioned in the same manner as above provided. "Section 8. When a county or district shall have a fraction of population above what shall entitle it to one representative, or more, according to the provisions of the foregoing section, amounting to one-fifth of the ratio, it shall be entitled to one additional representative in the fifth term of each decennial period; when such fraction is two-fifths of the ratio, it shall be entitled to an additional representative in the fourth and fifth terms of said periods; when the fraction is three-fifths of the ratio, it shall be entitled to an additional representative in the first, second and third terms, respectively; when the fraction is four-fifths of the ratio, it shall be entitled to an additional representative in the first, second, third and fourth terms, respectively." 47 People v Taylor, 257 Ill. 192 (1913).

48 133 Ill. 565 (1890).

49 Rouse v Thompson, 228 Ill. 522 (1907). 50 People v Strassheim, 240 Ill. 279 (1909).