ROBERT P. LIVINGSTON, Appellant, vs. RICHARD B. OGILVIE, Governor, et al., Appellees.
No. 42302.
Supreme Court of Illinois
July 10, 1969
Reversed in part and affirmed in part.
Opinion filed July 10, 1969.
PRICE, CUSHMAN, KECK & MAHIN, of Chicago, (JAMES T. OTIS and JOHN R. J. BAER, of counsel,) for appellant.
WILLIAM J. SCOTT, Attorney General, of Springfield, (FRANK J. MCGARR, Assistant Attorney General, of counsel,) for appellees.
WILBUR S. LEGG, of Chicago, for the Chicago Bar Association, amicus curiae.
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 nonpartisan 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
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.
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
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
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
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
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
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
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
We hold that the office holders covered by
Thus, those persons who have the qualifications for senator under the first two sentences of
While the employment or office aspects of membership in the constitutional convention could be debated at length, we think it is sufficient to point out that such membership does not meet the constitutional definition of an office.
Furthermore, the records of the Constitutional Convention which drafted the present constitution indicate that the members did not intend membership in a future constitutional convention to be incompatible with the offices covered in
However, officeholders covered by this provision, including members of the General Assembly, were sitting in this Constitutional Convention and sat in prior conventions. There was sentiment in the 1869-70 Convention to adhere to the policy of the constitution of 1848 which contained no qualifications for delegates. See Debates and Proceedings for the Illinois Constitutional Convention, 1869-70, 1309-1312 (Springfield 1870).
As finally adopted the above italicized portion of the proposed resolution indicates that the convention of 1869-70 did not consider the position of delegate to a future constitutional convention to be incompatible with the offices covered by
“* * * The right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of the law. And the rule that provisions imposing disqualifications should be strictly construed is applicable to those which prohibit dual office holding. They should not be extended by implications beyond the office or offices expressed or to persons not clearly within their meaning. In other words, they should be construed in favor of eligibility.
“The prohibition against one person holding more than one office at the same time has reference to officers, as distinguished from positions in the public service that do not rise to the dignity of offices.” 42 Am. Jur., Public Officers, sec. 61.
We hold that the offices covered by the last two sentences of
The provision that “Judges shall * * * not * * * hold any other office or position of profit under * * * this State * * *” (emphasis added) is broad enough to make the office of judge incompatible with the position of delegate. The fact that section 9 of the Act provides that public officials shall receive no compensation for their convention services while they remain public officials does not make such membership, which is a position of profit, not a position of profit. Under the authority of cases previously cited a judge is eligible to become a delegate but if he becomes a delegate he vacates his office as judge.
It is argued that section 5 of the Act violates
To support his interpretation of the “in the same man-
Defendants and amicus curiae both take the position that “in the same manner” means that the delegates shall be elected in the same manner as the constitution provides for the election of senators. They concede that the Act does not comply with all the statutory provisions for the election of senators but they argue that the Act does comply with all the constitutional provisions for the election of senators. Amicus suggests that the prohibition against partisan participation was a recognition by the legislature of the generally adverse experience of prior constitutional conventions organized and conducted along party lines. See Tomei, “Con Con at the Crossroads: Convention of the Parties or of the People?” 50 Chicago Bar Record 113 (Dec. 1968).
Plaintiff argues that the elimination of the party primary nominating process is a major deviation from existing election practices. Party primaries are not, of course, a constitutional prerequisite to the election of candidates to public office. People ex rel. Lindstrand v. Emmerson, 333 Ill. 606; People ex rel. Baird v. Small, 335 Ill 283; Foreen v. Stratton, 9 Ill.2d 618; Telcser v. Holzman, 31 Ill.2d 332.
Plaintiff also contends that because partisan participation and political party designations are provided in the Election Code for senator they must also be used for the election of delegates. We are of the opinion that “in the same manner” means only that the election provisions shall be based on the basic constitutional requirements. Other jurisdictions have so held. (Baker v. Moorhead, 103 Neb. 811, 174 N.W. 430; In re Opinion of the Justices, 76 N.H. 586, 79 Atl. 29.) Under our holding the legislature need not, in the Act calling the convention, provide for partisan participation and the use of political party designation in the election of delegates.
It is next argued that under the fourteenth amendment to the Federal constitution all persons of this State are entitled to equal representation in the constitutional convention and that section 2 of the Act will deny this right. It provides: “The Convention shall consist of 116 members. Two members shall be elected in and from each provisional state senatorial district provided by the Illinois Supreme Court in its decision in People ex rel. Engel v. Kerner, 33 Ill.2d 11.” Plaintiff asserts that under the recent Supreme Court cases of Kirkpatrick v. Preisler, 394 U.S. 165, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969), the provisional State senatorial districts established in Kerner contain unacceptable population variances and that to elect delegates from these districts will violate the principle of equal representation for equal numbers of persons.
The Supreme Court has not passed directly on the question of whether the “one man, one vote” or “equal representation for equal numbers of persons” principle is applicable to the election of delegates to a State constitutional convention where, as here, the only authority of the delegates is to propose amendments to be submitted to a vote of the people of the State at large. This issue was presented to the Supreme Court of Tennessee in West v. Carr, 212 Tenn. 367, 370 S.W.2d 469 (1963), and to the Supreme Court of Pennsylvania in Stander v. Kelly, 433 Pa. 406, 250 A.2d 474 (1969), and each of those courts held that the one-man, one-vote principle does not apply.
In West it was argued that ”Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), held unconstitutional Tennessee‘s Act of 1901, which apportioned members in its House of Representatives upon the same basis as this 1962 Act apportions delegates to the constitutional convention; that membership in the convention is as important as membership in the House; and that an apportionment which is void as to one must be void as to the other.” (370 S.W.2d 469, 472.) In rejecting this argument, which is essentially that advanced by plaintiff in this case, the Tennessee court stated: “* * * neither the delegates nor the convention can take any final action, but are strictly limited to the subjects specified in the call, and as to them, can only make proposals which can have no effect unless and until they are ratified in another election, by a vote of the people of the State at large, where every qualified voter will be entitled to vote and every vote given the same weight.” (370 S.W.2d 469, 474.) It is worthy of note that on the same day the Supreme Court denied the petition for writ of
In Stander the Pennsylvania court rejected the argument here advanced by stating: “The function of the Constitutional Convention was to propose and recommend to the electorate of Pennsylvania changes and alterations in the existing State Constitution. The Convention had no lawmaking powers of any kind. * * * The approval or disapproval of the Constitutional Convention‘s proposed amendments in April, 1968, was submitted to the electorate of Pennsylvania solely on a statewide basis, which is the purest form of ‘one man, one vote‘. If the convention which submitted the proposals did not represent all of the voters of the State equally, this defect was clearly cured by the approval of the voters at the April 28, 1968, statewide election.” 250 A. 2d 474.
Neither State v. Gore, 150 W.Va. 71, 143 S.E.2d 791, nor State v. State Canvassing Board, 78 N. Mex. 682, 437 P.2d 143, cited by plaintiff, support his contention. Gore was decided on the basis of a specific provision in the West Virginia constitution; State Canvassing Board involved the weight to be given each elector‘s vote when a proposed constitutional amendment was submitted to the people of the State at large for its adoption or rejection.
We are of the opinion that the one-man, one-vote principle is not applicable to the election of members to a constitutional convention where the only authority of the members is to propose amendments to be submitted to a vote of the people of the State at large. West v. Carr, 212 Tenn. 367, 370 S.W.2d 469, cert den. 378 U.S. 557, 84 S. Ct. 1908 (1964); Stander v. Kelly, 433 Pa. 406, 250 A. 2d 474, cert. den. Lindsay v. Kelley, 395 U.S. 827, 23 L. Ed. 2d 738, 89 S. Ct. 2130 (1969).
There is no problem in eliminating certain officers as ineligible to qualify as delegates and elimination of the oath. Section 17 of the Act provides for severability. “If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section unconstitutional unless it can be said that the General Assembly would not have passed the statute with the invalid portion eliminated.” (People ex rel. Adamowski v. Wilson, 20 Ill.2d 568, 582.) The valid and invalid provisions may even be contained in the same sentence. McDougall v. Lueder, 389 Ill. 141; People ex rel. Holland Coal Co. v. Isaacs, 22 Ill.2d 477.
The General Assembly had the mandate of the people to call a constitutional convention pursuant to the requirements of
The judgment of the circuit court of Sangamon County is affirmed insofar as it permits members of the General Assembly to be delegates; and it is affirmed insofar as it
Affirmed in part and reversed in part.
Mr. JUSTICE SCHAEFER and Mr. JUSTICE WARD, dissenting:
We concur in the judgment of the court insofar as it relates to the non-partisan election of delegates, the oath, and to the one-man-one-vote issue. But we do not agree with the decision of the court on the question of the eligibility of members of the constitutional convention.
One of the constitutional provisions that states the
It is at once apparent that no person who holds one of the offices enumerated in the third sentence of
The effect of the constitutional qualifications upon membership in a constitutional convention does not mean that the officers mentioned in
The opinion of the majority fails to discuss the third sentence of
In our view it is unnecessary to look beyond the provisions of the constitution that have been discussed in order to dispose of the question of eligibility to have a seat in the convention. But since the court has gone further, we think it is appropriate to state that in our opinion a member of a constitutional convention holds a public office within the meaning of
Finally, there is the problem of separability. Strong arguments can be advanced in support of the desirability of including as members of a constitutional convention those persons who are experienced in the executive, legislative and judicial branches of the State government. It seems clear that these are the policy considerations that prompted the legislature to adopt the “except” clause of section 3 of the statute. But we are aware of no considerations of policy which would argue in favor of permitting members of the