THE ILLINOIS CONSTITUTION: AN ANNOTATED and COMPARATIVE ANALYSIS by George D. Braden and Rubin G. Cohn Prepared for ILLINOIS CONSTITUTION STUDY COMMISSION INSTITUTE OF GOVERNMENT AND PUBLIC AFFAIRS • UNIVERSITY OF ILLINOIS LI B RAR.Y OF THL UN 1VLR51TY Of ILLINOIS 342.7731 B727i IHS The person charging this material is re- sponsible for its return to the library from which it was withdrawn on or before the Latest Date stamped below. Theft, mutilation, and underlining of books are reasons for disciplinary action and may result in dismissal from the University. To renew call Telephone Center, 333-8400 UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN II.LINOIS XIISTOmCAt 8URVBT L161— O-1096 THE ILLINOIS CONSTITUTION: AN ANNOTATED and COMPARATIVE ANALYSIS THE ILLINOIS CONSTITUTION: AN ANNOTATED and COMPARATIVE ANALYSIS by George D. Braden and Rubin G. Cohn Prepared for ILLINOIS CONSTITUTION STUDY COMMISSION Thomas G. Lyons, Chairman Terrel E. Clarke, Co-Chairman INSTITUTE OF GOVERNMENT AND PUBLIC AFFAIRS UNIVERSITY OF ILLINOIS • URBANA October, 1969 "WJmt Illinois thinks today the Union will think tomorrow." From an editorial in the London Times, January 13, 1870. quoted by Delegate Joseph Medill in the 1870 Constitutional Convention. (Debates, p. 564.) © 1969 by the Board of Trustees of the University of lUinois Library of Congress Catalog Card No. 72-628188. Manufactured in the United States of America by RCS Press Incorporated, Chicago, Illinois 60607. iv CHAIRMAN Thomas G. Lyons 38 South Dearborn Street Chicago 60603 CO-CHAIRMAN Terrel E. Clarke 4070 Central Avenue Western Springs 60558 SECRETARY A Louis Ancel . Ill West Washington Street Chicago 60602 - ASSISTANT SECRETARY Robert G. Day 2601 North Kingston Drive Peoria 61604 MEMBERS From the Senate W. Russell Arrington Albert E. Bennett Terrel E. Clarke Robert Coulson Alan J. Dixon James H. Donnewald Robert J. McCarthy Cecil A. Partee From the House William K. Cavanagh Eugenia S. Chapman Robert G. Day Gene L. Hoffman James G. Krause Daniel M. Pierce Jack E.Walker Edward A. Warman ^==J<^. /YyUy^ ^)d^CU-i^l^ STATE OF ILLINOIS / CONSTITUTION STUDY COMMISSION September 160 North LtStllaStrMt Room 1315 Chicago, Illinois 60601 1969 To the Members Illinois Constitutional Convention The Illinois Constitution Study Commission was created by the General Assembly to undertake preparatory work to expedite the operation and organization of the Illinois ConstitutionEil Convention. One project that the Commission decided to undertake through its contract with the Institute of Government and Public Affairs of the University of Illinois, Urbana, was an annotation of the Illinois Constitution of I8TO , somewhat similar to that prepared for the 1920 Constitutional Convention. The Institute, with the concurrence of the Commission, engaged George D. Braden of the New York Bar, and Professor Rubin G. Cohn of the University of Illinois College of Law, to undertake the project. The General Electric Company graciously granted Mr. Braden a leave of absence from his position in New York City. Based on the experiences in other states, the project was broadened to include comparative material on constitutions of other states. We feel that this impressive and comprehensive manuscript will be of invaluable help to the members of the Convention. It should answer most of the questions of the members as they proceed with their work of preparing a draft of a constitution for submission to the voters. Appointed by the Governor Louis Ancel David Davis Jordan Jay Hillman Alice Ihrig Thomas G. Lyons Dawn Clark Netsch James T. Otis Elbert S. Smith William D. Stiehl Samuel W. Witwer Staff Institute of Government and Public Affairs, University of Illinois Samuel K. Gove, Director Executive Secretary Mrs. Helen Dennis Although this was a Commission" project , the two authors take responsibility for the manuscript. In the Preface, they discuss the division of responsibility between themselves. The Commission is proud to make THE ILLINOIS CONSTITUTION: AN ANNOTATED AND COMPARATIVE ANALYSIS available to the Convention members . Thomas G. Lyons, Chairman Terrel E. Clarke, Co-Chairman ^ PREFACE The lUmo'is Const'itut'ion: An Annotated and Compara- tive Analysis^ has been prepared to assist the members of the 1969-70 Illinois Constitutional Convention in their most difficult task of drafting a Constitution to be submitted to the voters of Illinois. During the course of the Convention, the members will require a great deal of historical, legal, and comparative information about the present Constitution. The purpose of this volume is to present as much of this information as possible in a readily usable format. Our approach has been to provide an analysis .of each section of the 1870 Constitution. Thus, for each section, there is a history of its development through past Illinois Constitutions; an explanation of its meaning, relying, in par- ticular, on judicial interpretations; a comparison with similar provisions in the constitutions of other states; and, lastly, such comment as each of us has considered appropriate. We sincerely hope that these section analyses will constitute a definitive reference work for the Convention members and research staff. An annotated Constitution was prepared for the 1920 Illinois Constitutional Convention by the Illinois Legislative Reference Bureau. It was primarily a summary analysis and digest of the decisions interpreting the constitutional pro- visions. This volume, in contrast, concentrates upon the pri- mary decisions which define the essence of the provisions under analysis. Thus, although it updates the 1920 Annota- tion, its format and substance give stronger emphasis to the synthesis and understanding of basic principles. In the process of preparing this work, we reviewed the pertinent literature, and relied heavily on appropriate legal Vll documents and state and federal court decisions. Considerable attention was also given to the published debates and journals of earlier Constitutional Conventions. The principal basis for the comparative analysis was the Index Digest of State Cofi- st'itut'i072s and the Constitutions of tJie United States^ National and State^ both published by the Legislative Drafting Re- search Fund of Columbia University. The Model State Con- stitutioii and other documents by the National Municipal League as part of its State Constitutional Studies Project were valuable research tools. Since this analysis is keyed to the several sections and articles of the 1870 Constitution as amended, some topics freqently found in other state constitutions either are not discussed or are referred to relatively briefly in an appropriate Comparative A?ialysis or Comment. Topics not mentioned at all, such as primary elections and civil service, most stu- dents of state constitutions would agree, are not essential constitutional material. Illinois, of course, has its share of nonessential material, such as Article XIII on warehouses, and just as we suggest the desirability of abandoning such material, so we suggest not adding nonessentials that other states, for one reason or another, have adopted. Abbreviations Used In order to provide a document that could be readily used by laymen, the normal footnoting of legal and other publications has been omitted. Instead, citations appear in parentheses. Many works thus cited are referred to by ab- breviations, as follows: P.N.C. — State of Illinois, The Proposed New Constitution of Illinois (1922). C.A.M.C. — Citizens Research Council of Michigan, A Comparative Analysis of the Michigan Constitution (1961). VIU LS.L. — Illinois Commission on the Organization of the General Assembly, Improving the State Legislature (1967). Index — Legislative Drafting Research Fund of Columbia Univ., Index Digest of State Constitutions ( 2d ed. 1959). Bulletins — Legislative Reference Bureau, Constitutiofial Conve7ition Bulletins ( 1920). Annotations - — Legislative Reference Bureau, Constitution of the State of Illinois^ Annotated (1919). Model State Constitution — National Municipal League, Model State Constitution (6th ed. rev. 1968). Debates — State of Illinois, Debates and Proceedings of the Constitutional Co?ivention (1870). Journal — State of Illinois, Journal of the Constitutional Conventio?i ig2o-ig22 (1922). Proceedings — State of Illinois, Proceedings of the Con- stitutional Convention ( 1922). Division of Respo?isibility Early in the study, we made this a "joint and several" enterprise. For purposes of research and writing, the Consti- tution was parceled out article by article, and in a few in- stances, section by section. Drafts were exchanged for comment and criticism, and each of us takes this occasion to express deep appreciation to the other for such comment and criticism, but in the end, ultimate responsibility for the final product is as follows: Mr. Braden: Articles I, III, IV, V, VII, and X through XIV in toto; Sections 15, 16, and 20 of Article II; Sections 4 and 5 of Article VIII ; Sections 7,11, and 1 3 of Article IX ; and the Separate Section on Convict Labor. Mr. Cohn: Article VI in toto; Article II, except for Sections 15, 16, and 20; Article VIII, except for Sections 4 IX and 5j Article IX, except for Sections 7, 11, and 13; and Separate Sections, except for the Section on Convict Labor. We included the 1 870 Schedule and the Schedules to the 1954 and 1962 Amendments. Schedules are transitional pro- visions which, if the drafters stick to the rules, soon become obsolete. We would observe that constitution-drafters have a tendency to overwrite a schedule. For example, Sections 1, 2, 3, 5 and 6, and possibly Section 4, of the Schedule to the 1870 Constitution could have been compressed into one short section. It also seems fair to suggest that the ex- tensive details on the procedure for adoption as set forth in Sections 8 through 1 2 of the 1 870 Schedule are not necessary. Notwithstanding the theoretical status of a constitutional convention as a body creating an entirely new government, it seems permissible to rely on all existing laws for purposes of the referendum on adoption. All that a convention has to do is explain what to vote on and when to vote. The headings of sections used in this volume generally follow those used by the Secretary of State in his publication of the Constitution. In many cases these have been inserted for editorial convenience and are not part of the Constitu- tion. In a few instances the headings have been modified in this volume for the sake of uniformity. A cknowledgements As in any study of this magnitude, many persons helped at various stages of its preparation and we should like to acknowledge this assistance. At the outset, we should like to thank the Constitution Study Commission, and its chairman, Thomas G. Lyons, and co-chairman. Senator Terrel E. Clarke, for making the project possible. The commission assisted us in ways too numerous to mention. Professor Cohn acknowledges the invaluable contributions of Mrs. Susan Wolff. Mrs. Wolff, a member of the Indiana Bar, prepared Sections 1, 2 and 3 of Article \TII; all of Article IX except Sections 7, 11, and 13 j and the Separate Sections on Canals, Municipal Subscriptions, and the Illinois Central Railroad. Her drafts were critiqued, edited and ap- proved by Professor Cohn, but the major credit for their preparation belongs to Mrs. Wolff. Professor Cohn also acknowledges the fine assistance he had from Mr. Barry R. Miller in the closing phases of the project. Mr. Miller, a senior in the University of Illinois College of Law, provided general research assistance includ- ing the indexing of the material. Glenn F. Seidenfeld, then a senior in the College of Law, assisted Professor Cohn in the early stages of the project. Professor Cohn especially wishes to express his apprecia- tion to Mrs. Rosemary Tucker, of the secretarial staff of the University of Illinois College of Law, whose typing skill miraculously deciphered reams of his undecipherable hand- writing. Mr. Braden acknowledges the assistance of Mr. Robert G. Granda, of the Illinois Legislative Council, who provided valuable historical material concerning the Governor's veto power; the valuable criticism of Mr. William J. D. Boyd, of the National Municipal League, who reviewed the manu- script on Sections 6, 7 and 8 of Article IV; and the most helpful critical review of the manuscript of Article X by Professor Clyde Snider of the University of Illinois. Mr. Braden wishes particularly to acknowledge the assist- ance of his secretarial assistant, Mary Jane Van Voast, who performed excellent clerical support. Together, we wish especially to recognize the assistance of the staff of the Institute of Government and Public Affairs of the University of Illinois. The Institute, the publisher of this volume, through its director. Professor Samuel K. Gove, alternated between wielding a whip to spur us on and holding our hands through difficult periods — xi figuratively speaking, that is — in order to bring this study- to completion. In particular, we wish to acknowledge the assistance of Assistant Professor Joseph P. Pisciotte and the Institute secretarial staff. W t are most grateful to Mr. Anthony Edelblut of the RCS Press for his able technical assistance and for the constant attention he paid to the many details involved in printing a volume of this nature, Ronald Day of the University of Illinois Press rendered valuable technical advice in preparing the manuscript for publication. Mrs. X'^irginia Speers provided excellent editorial assistance in the concluding work on this project. In conclusion, we again hope that this volume provides considerable assistance to the members of the 1969 Constitu- tional Convention. If so, our efforts will be well rewarded. George D. Braden* Rubin G. Cohn xn BIOGRAPHICAL DATA George D. Braden, a graduate of Swarthmore College and the Yale Law School, was a law clerk for Justice Sherman Minton when he was a judge in the Seventh Circuit and for Judge Charles E. Clark of the United States Court of Appeals for the Second Circuit. After military service, he taught Constitutional Law at the Yale Law School. In 1949-50, he served as Project Director on the Constitution for the Commission on Govern- ment Organization of the State of Connecticut. Following a period of private law practice, he joined the General Electric Company. In 1967, on leave from General Electric, he served as Executive Director of the Committee on the Legislatine of the New York Constitutional Conven- tion. He is the author of numerous articles on constitutional law, the most significant of which is "The Search for Objectivity in Constitutional Law," 57 Yale Law Journal 571 (1948). Rubin G. Cohn received both his undergraduate and law degrees from the University of Illinois. From 1935 through 1944, he was employed as a legislative draftsman in the Illinois Legislative Reference Bureau. From January, 1945, until September, 1949, when he joined the faculty of the University of Illinois College of Law, he practiced law in Chicago. Pro- fessor Cohn was one of the principal draftsmen of Illinois' new Constitu- tional Judicial Article. He has served as legislative consultant and drafts- man for agencies of state and local governments in Illinois. Professor Cohn's major teaching areas are Legislation and Administrative Law. He has written on Home Rule for Municipal Government, Constitutional Limitations on Taxing in Illinois, The Legislative Process in Illinois, and The Rights of Employees under Public Retirement Systems, as well as other subjects. He has also served, and continues to do so, on a number of state and professional commissions and committees concerned with state and local governmental problems. xui TABLE OF CONTENTS PREAMBLE 1 ARTICLE I - BOUNDARIES 3 ARTICLE II -BILL OF RIGHTS 5 Sect Sect Section Sect Section Section ion on Section Sect Section Section I. 9 3. 4. 5. on 6. 7. 8. 9. 10. Section II. Section 12. Section 13. Section 14. Section 15. Section 16. Section 17. Section 18. Section 19. Section 20. Inherent and Inalienable Rights 8 Due Process of Law 9 Religious Freedom 15 Freedom of Speech 18 Trial by Jury 24 Searches and Seizures 27 Bail and Habeas Corpus 32 Indictment 34 Rights after Indictment 38 Self-incrimination and Double Jeopardy 43 Limitation of Penalties after Conviction 50 Imprisonment for Debt 54 Right of Eminent Domain 56 Ex Post Facto Laws and Impairing Contracts 65 Subordination of Military Power 76 Quartering of Soldiers 76 Right to Assemble and Petition 79 Free Elections 83 Right to Remedy and Justice 89 Fundamental Principles 97 ARTICLE III -DISTRIBUTION OF POWERS. 99 ARTICLE IV - LEGISLATIVE DEPARTMENT Ill Section Section Section Section Section 1. 2. 3. 4. 5. General Assembly Ill Election — Vacancies 117 Eligibility and Oath 120 Disqualification for Crimes 127 Oath of Office 129 Senatorial Apportionment Section 6. State Senators 131 Section 7. Representatives 1 36 Section 8. Redistricting 141 XV Section 9. Section 10. Section 11. Section 12. Section LS. Section 14. Section 15. Section 16. Section 17. Section 18. Section 19. Section 20. Section 21. Section 22. Section 23. Section 24. Section 25. Section 26. Section 27. Section 28. Section 29. Section 30. Section 31. Section 32. Section 33. Section 34. ARTICLE V- Section 1. Section 9 Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10. Section 11. Section 12. Section 13. Section 14. TABLE OF CONTENTS (Continued) Organi/aiion Procedure 145 Open Sessions — Adjournments — Journals 152 Enacting Clause 155 Origin ot Bills 156 Passage ot Bills 160 Privileges of Members 173 Restrictions on Members 176 Appropriations 178 Treasury Warrants — Duty ot Auditor 181 Apj:)ropriations for State Expenditures 185 Unauthorized Compensation and Payments Prohibited 194 Assumption of Debts Prohibited 197 Compensation of Members 200 Special Legislation Prohibited 203 Release of Nonstate Debts Prohibited 226 Impeachment 228 State Contracts 230 Suit Against State Prohibited 231 Lotteries Prohibited 234 Extension of Term of Otfice Proliibited 236 Protection of Miners 237 Establishing Roads and Cartways 239 Drains and Ditches 241 Homestead and Exemption Laws 244 State House Expenditures 245 Special Laws for City of Chicago 246 EXECUTIVE DEPARTMENT 253 Officers — Terms 253 Treasurer 260 Election and Terms of Office 262 Canvass of Election Returns — Contests 264 Elective State Officers — Eligibility 267 Governor — Supreme Executive Power 270 Governor — Powers and Duties 273 Special Sessions 275 Adjournment of House in Case of Disagreement. . . .278 Appointments 280 Vacancies — Temporary Appointments 283 Removal from Office by Governor 285 Pardons 287 Governor — Commander-in-Chief of Militia 290 XVI TABLE OF CONTENTS (Continued) Section 15. Impeachment of Officers 292 Section 16. Approval or Veto of Bills 293 Section 17. Lieutenant Governor as Acting Governor 303 Section 18. Presidern of the Senate 308 Section 19. Acting Governor — Successions 310 Section 20. Financial Report of State Officers — Vacancies 313 Section 21. Report of State Officers — Departments — Judges. . .315 Section 22. State Seal 318 Section 23. Fees and Salaries 319 Section 24. Definition of "Office" 322 Section 25. Oath of Office 323 ARTICLE VI - JUDICIAL DEPARTMENT 327 Section 1 . Courts 329 Section 2. Administration 332 Section 3. Judicial Districts 334 Supreme Court Section 4. Organization 336 Section 5. Jurisdiction 339 Appellate Court Section 6. Organization 343 Section 7. Jurisdiction 345 Circuit Courts Section 8. Judicial Circuits 349 Section 9. Jurisdiction 353 Selection and Tenure Section 10. Election or Selection 355 Section 11. Retention in Office 359 Section 12. Appointment of Magistrates 361 Section 1 3. General Election 364 Section 14. Terms of Office 365 Section 15. Eligibility for Office 367 General Section f 6. Prohibited Activities 369 Section 17. Judicial Salaries and Expenses 371 Section 18. Retirement, Suspension and Removal 373 Section 19. Judicial Conference 376 Section 20. Cierks of Courts 377 State's Attorneys Section 21. Selection — Salary 379 XVII TABLE OF CONTENTS (Continued) ARTICLE Vll - SUFI- RACK 381 Section I . Qualifications loi Voting 381 Section 2. Ballots Required 390 Section 3. Freedom Ironi Arrest — Military Duty 391 Section 4. Losing Voting Residence 392 Section 5. Military Ser\ ice — Residence 393 Section 6. Qualifications lor Civil or Military Office 391 Section 7. Infamous Crime — Loss of Franchise 397 ARTICLE VIII - EDUCATION 399 Section 1 . Free Schools » 399 Section 2. School Property and Funds 402 Section 3. Public Funds lor Sectarian Purjjoses Forijidden. . . .104 Section 4. School Officers not to be Interested in School Contracts 409 Section 5. County Superintendent of Schools 410 ARTICLE IX -REVENUE 413 Section 1. Taxation of Property — Occupations — Privileges. .413 Section 2. Enlarging Tax Base 413 Section 3. Tax Exemptions 435 Section 4. Sale of Real Property for Tax Delinquency 447 Section 5. Redemption from Tax Sale 449 Section 6. Release from Taxation Forbidden 454 Section 7. State Taxes Paid into State Treasury 457 Section 8. County Tax Limit 458 Section 9. Local Municipal Impro\ements 460 Section 10. Municipal Taxation .' 469 Section 11. Municipal Officers — Default — Compensation 474 Section 12. Limitation of .Municipal Indebtedness — Debt Retirement 478 Section 13. World's Columbian Exposition 488 ARTICLE X - COUNTIES 489 Section 1. New Counties 489 Section 2. Division of Counties — Referendum 491 Section 3. Counties — Territory Added or Taken 492 Section 4. Removal of Coimty Seats 494 Section 5. Counties under Township Organization 496 Section 6. Counties not under Township Organization 499 Section 7. Cook County Government 501 Section 8. County Officers — Term of Office 504 xvui TABLE OF CONTENTS (Continued) Section 9. Salaries of Officers — Cook County 507 Section 10. Salaries of Officers — Other Counties 509 Section 1 1. Fees of County and Township Officers 511 Section 12. Regulation of Fees by General Laws 512 Section 13. Reports by Fee Officers 513 ARTICLE XI - CORPORATIONS 515 Section 1. Organization of Corporations 515 Section 2. Revocation of Certain Special Charters 516 Section 3. Election of Directors 517 Section 4. Street Railroads 519 Section 5. State Banks Forbidden — Bank Laws — Referendum 520 Section 6. Liability of Bank Stockholders 522 Section 7. Specie Payment — Bank Reports 524 Section 8. Requirements of General Banking Law 525 Section 9. Railroad Corporations 526 Section 10. Railroads — Personal Property 528 Section 1 1. Railroad Consolidation 529 Section 12. Railways as Public Highways — Regulation of Rates 530 Section 13. Railroads — Stock — Bonds 531 Section 14. Railroads — Eminent Domain 532 Section 15. Regulation of Freight and Passenger Rates 534 ARTICLE XII - MILITIA 537 Section 1. Membership 537 Section 2. Organization — Equipment — Discipline 539 Section 3. Officers 540 Section 4. Freedom from Arrest 541 Section 5. Preservation of Records 542 Section 6. Conscientious Objectors 543 ARTICLE XIII - WAREHOUSES 545 Section 1. Public Warehouses 545 Section 2. Warehouses — Grain — Reports 548 Section 3. Right to Examine Property 550 Section 4. Grain Shipments — Weighing — Liability of Carrier 551 Section 5. Railroads — Delivery of Grain 552 Section 6. Warehouse Receipts 553 Section 7. Inspection of Grain 555 XIX TABLE OF CONTENTS (Continued) ARTICLE XIV -AMENDMENTS TO THE CONSTITUTION. .557 Section 1. Constitutional Convention 557 Section 2. (Constitutional Anienchnents Proposed by Legislature 565 SECTIONS SEPARATELY SUBMITTED 573 Illinois Central Railroad 573 Municipal Subscriptions to Railroads or Private Corporations. . .576 Canal 577 Convict Labor 578 SCHEDULES 581 Schedule - Year 1870 . .' 581 Schedule - Year 1954 588 Schedule - Year 1962 588 TABLE OF CASES 593 LIST OF SECONDARY SOURCES CITED 607 INDEX 609 XX Constitution of the State of Illinois PREAMBLE We, the people of the State of Illinois — grateful to Almighty God for the civil, political and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations — in order to form a more perfect government, establish justice, insure domestic tranquility, provide for the com- mon defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity; do ordain and establish this Constitution for the State of Illinois. History The Constitution of 1818 contained an untitled introductory para- graph which was essentially a combination of a preamble and a statement of boundaries. The preamble section of the paragraph stated that the "People of the Illinois Territory," through their convention representa- tives, agreed to form the State of Illinois pursuant to relevant sections in the United States Constitution, the Ordinance of 1787 and the Con- gressional Enabling Act which atithorized such action. Many of the phrases foimd in the Preamble to the U.S. Constitution ("in Order . . . to establish Jtistice, . . . promote the general Welfare") were inckided in Ithis introdtictory paragraph. , The Constittition of 1848 was the first Illinois Constitution to contain a^ separate paragraph specifically entitled "Preamble." Unlike the 1818 Constitution, the 1848 Preamble makes explicit reference to God; then it follows with practically the same language as the U.S. Constitution's preamble. The Preamble in the 1870 Constitution, with a few minor changes in punctuation and spelling, is exactly the same as the 1848 Preamble. l^he Preamble in the proposed 1922 Constitution made no significant changes although there were some alterations in wording and punctua- tion. Comment Preambles are now a common feature of written constitutions. All states but two have preambles to their constitutions and most of them follow the general form and wording of the Preamble to the U.S. Consti- tution. Generally, a preamble is intended to be a broad statement of purpose of the document which follows, and can be a guide to the inten- tion of the constituent assembly which drew up the docimient. Preambles have never evoked much political controversy and, strictly speaking, are not operative parts of a constitution. 1 Article I BOUNDARIES The boundaries and jurisdiction of the State shall be as follows, to-wit: Beginning at the mouth of the Wabash river; thence up the same, and with the line of Indiana, to the northwest corner of said State; thence east, with the line of the same State, to the middle of Lake Michigan; thence north along the middle of said lake, to north latitude forty-two degrees and thirty minutes; thence west to the middle of the Mississippi river, and thence down along the middle of that river to its confluence with the Ohio river, and thence up the latter river, along its northwestern shore, to the place of beginning: Provided, that this State shall exercise such jurisdiction upon the Ohio river, as she is now entitled to, or such as may hereafter be agreed upon by this State and the State of Kentucky. History The Congressional Enabling Act of April 18, 1818, authorized the "inhabitants ot the territory ot lUinois ... to form for themselves a con- stitution and state government, and to assume stich name at they deem proper." (ch. 67, 3 Stat. 428.) The Enabling Act set forth the boundaries of the new state and retjuired the first Constitutional Convention to accept tliem. The 1818 Convention did this by setting forth and rati- fying the botindaries in the Preamble. The 1848 Constitution put the boundaries in a separate Article, added the words "and jurisdiction" at the beginning and added the proviso concerning the Ohio River. The 1870 Convention made no changes. The proposed 1922 Constitution omitted Article I, presumably as a result of the essay by Urban A. Lavery disctissed below. Explanation Mr. Lavery was the Chief Legislative Draftsman for the 1920-22 Con- vention. Before the Convention completed its work he wrote an essay (Lavery, "The Boundaries Article of the Illinois Constitution," 16 111. L. Rev. 361 (1922)) in which he pointed otit that the northern boundary between Illinois and Wisconsin was first officially surveyed between October, 1831, and January, 1833, and that the survey was inaccurate. 'Tn summary it may be said . . . that the line begins on the west about three-quarters of a mile too far north in Wisconsin, and finally comes 4 Art. I out on Lake Michigan about the same distance too tar south in Illinois." {Id. at 365.) In other words, the present line recognized by Illinois and Wisconsin is not in fact "north latitude torty-two degrees and thirty minutes." (There is also a surveyed l)()undary between Indiana and Illinois north from the point where the Wabash River ceases to be the boundary, but no question appears to have arisen about it.) In the same article, Lavery pointed out that "and jurisdiction" was added in 1848, and that this turns out to be erroneous. For example, in 1904 in the case of Wedding v. Meyler (192 U.S. 573 (1904)), the United States Supreme Court said that Illinois and Kentucky have concurrent jurisdiction over the Ohio River notwithstanding the language of the Enabling Act which placed all of the Ohio River in Kentucky. Lavery also pointed out that in all other cases of a river boundary — with Indiana, Iowa and Missouri — the applicable Act of Congress provided for con- current jurisdiction over the river. (Lavery, supra at .868.) In Jewell t'. Carpentier (22 111. 2d 445 (1961)), an ingenious argument was offered to the effect that because Article I defined the "boundaries and jurisdiction" of the state, an Illinois driver's license could not be suspended on the basis of an accident occurring in Indiana. The Supreme Court gave the arginnent short shrift. In fact, the argument could have been made ecpially well in the absence of the word "jurisdiction" in Article I and equally well in the absence of a Boundaries Article. The problem in the case was whether Illinois could exercise jurisdiction inside its own boundaries in the manner in which it acted. Comparative Analysis Slightly more than half of the state constitutions contain ciefinitions or descriptions of their territory. Neither the Constitution of the United States nor those of any of the original 13 colonies contains a boundary description or definition. Comment In view of the fact that the description of the northern boundary is not the boundary long recognized by Illinois and Wisconsin, it would seem advisable to omit the Boundaries Article. It is questionable in any event whether the Article serves any constitutional purpose. Any boundary dispute would involve another state and any resolution of the dispute would have to be by agreement of the states, ratified by Congress, or by litigation. In any such litigation, the controlling documents would be Congressional Enabling Acts and other external sources, not the Illinois Constitution. In the case of the boundary with Wisconsin, the United States Supreme Court would undoubtedly accept the actual boundary as recognized for almost 140 years. Article II BILL OF RIGHTS Introductory and Preliminary Comment A bill ot rights in state constitution, as in the United States Con- stitution, seeks to define rights and liberties so fundamental to a free society as to remain invulnerable or only partly subject to governmental authority. Mindlul of a history of governmental tyranny, unchecked by enforceable restraints, which had trampled rights of conscience, religion, speech, and assembly, and which had denied procedural fairness, pri- marily to persons accused of crime, the framers of state constitutions deliberately sought to assure a political structure in which governmental power to impair or prejudice these rights would be minimal or non- existent. The bill of rights is such an effort. It is an historical fact that ratification of the Federal Constitution by the states was conditioned upon an early submission to and ratification by the states of amendments establishing limitations upon the powers of the newly created national government. These limitations, constitu- ting the first ten amendments to the Federal Constitution, and poj>ularly known as the Bill of Rights, were ratified in 1791, when Virginia became the eleventh state to approve them. In many respects they parallel, some- times almost in verbatim form, the bill of rights provisions of the several states, a not-surprising fact as some of the states, before the adoption of the Federal Constitution, had adopted their own constitutions and formu- lated their own bills of rights. It is of course the accepted generality that the federal Bill of Rights operates as a limitation upon the powers of the federal government and not upon the powers of state government, whereas state bills of rights operate as limitations only upon the powers of state government. This generality, firm and true through most of our constitutional history, has been severely modified by United States Supreme Court decisional law, mostly within the past two decades, which holds that many provisions of the federal Bill of Rights operate as limitations upon the power of state governments as a consecjuence of their "incorporation" into the due process clause of the Fourteenth Amendment of the Constitution of the United States which expressly prohibits states from enacting laws which 6 Art. II dc|Jiive any person ot lile, liberty or j^roperty \\ithout due process oi law. The consequences oi this rule oi incorporation, without regard to the merits of the constitutional controversies it has provoked, have been momentous. Action in areas within a state's bill (jI lights which is held by the state court to be permissible exercises ot governmental power may now be in- validated as a violation ol the comparable provision in the federal Bill of Rights as incorjjorated into the Fourteenth Amendment. A ready examj^lc is the upholding by the Illinois Supreme Court of the so-called "released time" religious instruction in the public schools against a challenge that it violated the religious freedom guarantees of Article II, Section .H, of the Illinois Constitution and the reversal of this decision by the United States Supreme Court (People ex rel. McCollum v. Board of Educ, 396 111. 11 (1947), rex/d 333 U.S. 203 (1948)) on the ground that it violated the "establishment" clause of the First Amendment ot the Constitution of the United States as that clause was now incorporated into the Four- teenth Amendment. The normal effect of the incorporation doctrine, where relevant, is to expand the protective scope of the right or liberty alleged to be infringed by making applicable to the states through the Fourteenth Amendment the frecjuently greater limitations upon the exer- cise of federal governmental power encompassed within the federal Bill of Rights. A measure of this effect can be gathered by recalling recent federal decisions involving state criminal prosecutions, including noteworthy decisions dealing with right to counsel, limitations upon powers of arrest, the use of confessions, right to speedy arraigmiient after arrest, and the application of procedural due process requirements to juvenile court proceedings. On the other side of the coin is the principle that a state court holding which invalidates governmental action because of a violation of a state bill of rights provision takes precedence over a United States Supreme Court decision that the state action does not violate the due process guarantee of the Fourteenth Amendment. Again, illustratively, the United States Supreme Court sustained a state statute (in fact, in this case, a state constitutional provision) against a Fourteenth Amendment due process challenge which revived a cause of action which had been barred by the running of the statute of limitations. (Chase Sec. Corp. v. Donaldson, 325 U.S. 304 (1945); Campbell v. Holt, 115 I'.S. 620 (1885).) The essence ot the holding was that a right to a defense arising from the bar of a statute of limitations was not "property" within the meaning of the Four- teenth Amendment. Illinois, however, in Board of Education v. Blodgrtt (155 111. 441 (1895)), held that a revival of a barred cause of action did indeed deprive a defendant of property without due process of law in vio- Art. II 7 lation of Article II, Section 2, ot tlie Constitution ot Illinois. The Illinois decision prevails, since the United States Supreme Court will not normally substitute its judgment ior that ot the highest state appellate court on issues ol interpretation ot state constitutional provisions where the effect of the decision is to impose a limitation on the power of state government. The question may properly be asked whether there is any purpose in retaining provisions in a state bill of rights which have been "pre-empted" by the incorporation doctrine so as to become federally prescribed limi- tations upon the exercise of state power. The most persuasive case, it is submitted, favors retention in the constitution of the state. Part of the rationale for this conclusion has been developed in the above discussion of the primacy of state court interpretations of state constitutional limi- tations. Of course, where the incorporation doctrine prevails, state pro- visions must yield and cannot be given precedence even by state constitu- tional amendments which offend the federal standards. The customary invalidation of state action, however, involves a state provision which is not, on its face, violative of federal standards but which has been inter- preted by tlie state coiat in a way which offends the federally protected right. Here the retention of the provision is desirable, not only for the reason already noted, but also because there is nothing immutable about judicial interpretations of the Federal Constitution. The "incorporation" doctrine itself may conceivably be modified or abandoned in all or parti- cular existing applications by judicial re-evaluation. If this occurs, the parallel state provisions take on new vitality. It woidd appear, therefore, to be the course of good judgment not to discard existing state constitu- tional guarantees simply because the incorporation doctrine bears heavily upon their meaning and application. A final preliminary observation is in order. Several of the provisions in the Illinois bill of rights, notably but not exclusively the due process provision in Section 2, have been the subject of "massive" judicial analysis. It would be a futile if not impossible task to analyze all or most of these decisions, nor does such a coinse of action seem desirable tor the purposes of this document. Some of the principles are models of legal abstractions and conceptual generalities which simply defy incisive analysis or defi- nition. "Due process," for example, comprehends a myriad of concepts and subconcepts, pregnant with ambiguity, and extremely difficult of consistent definition and application. The decisions, many of which are not susceptible to rational reconciliation, reflect the accuracy of this assessment. Accordingly, the legal analysis of this Article, perhaps to a degree greater than those of other Articles, will seek to distill the essence of the judicial interpretations, and will deal only with such cases as contribute importantly to an understanding of that essence. Federal deci- 8 Art. II, § 1 sions arising out oi tlie "incorporation" dodrinc will be noted because ol their impact upon and relevance to the particular provision under consideration. Inherent and Inalienable Rights Sec. 1. All UKii arc Ijy iialurc free and iiulependent, and have certain inherciil and inalienable rights — among these are liie, liberty and tlie pursuit of happiness. To secure these rights and the protection ol proijerty, govern- ments are instituted among men, deriving their just powers Irom the consent of the governed. History The 1818 and 1848 Constitutions contained identical provisions to the effect that the great and essential principles of liberty and free government require the recognition and unalterable establishment of the principles that all men are f^orn equally free and independent, and have certain inherent and indefeasible rights, among which are the en- joyment and defense of life and liberty, and of acquiring, possessing and protecting property and reputation, and of pursuing their own happi- ness; that all power is inherent in the people, and that all free govern- ments are founded on the authority of the people and instituted for their peace, safety and happiness. The 1922 Convention proposal adopted the 1870 provisions, incorpo- rating, however, the provisions of Section 20 of Article II. (See History, Sec. 20, inlra, p. 97.) Explanation The section, a substantially abridged version of the 1818 and 1848 declarations, is an almost verbatim statement of the fundamental prin- ciples contained in the second paragraph of the Declaration of Inde- pendence. It is not generally considered, of itself, an operative constitu- tional limitation upon the exercise of governmental powers. Rather, it is considered supplemental to and implicitly within the guarantees of Section 2 which preclude the state from depriving persons of life, liberty and property without due process of law. 1 here is thus little purpose in treating this section as an independent source of constitutional law. Instead the Explanatiofi under Section 2 will deal with the relevant concepts under the due process principle. Comparative Analysis Approximately three-fifths of the state constitutions contain provisions to the effect that all men are equal, free and independent. Approxi- mately four-fifths of the state constitutions similarly provide that all men have inalienable rights to life, liberty and the pursuit of happiness. All Art. II, § 2 9 ot the state constitutions provide in some torm that government derives its just powers from the consent ot the governed. The Model State Con- stitution contains no similar provision. (National Municipal League, Model State Constitution (6th ed. rev. 1968) [hereinafter cited as Model State Constitution].) Comment Although the section expresses values of an essentially political nature and of itself has little or no operative legal effect, it comes from consti- tutional ancestry of unimpeachable and impeccable credentials. It is not easy to suggest that fundamental conceptions expressed in the Declar- ation of Independence are expendable in the reshaping of constitutional charters. Nor is it necessary to do so. Constitutional tradition justifies the expression of the basic values of a free society as a preface to the more detailed provisions which follow. It is true that there is considerable argument over the value of pro- visions like this section and Section 20. (Infra, p. 97.) On the one hand, some will argue that the statements are pieties that are not specific enough for courts to use in protecting the rights of the people. On the other hand, some argue that the basic American theory of limited gov- ernment includes, in addition to the explicit limitations set forth in a bill of rights, a sort of residual limitation that implicitly reserves to the people fundamental rights of freedom not otherwise spelled out. It does not seem necessary to try to resolve this argument. For one thing, both Section 1 and Section 20, as noted, express sentiments that are acceptable to all. Moreover, under our system of judicial review, courts will strike down legislation or administrative action that they believe contrary to fundamental rights, and they will do so in the name of some constitutional provision. Removal of Sections 1 and 20 would not de- crease the power of the courts. In sum, this section (and Section 20) may be of value and are certainly not harmful in any respect. Due Process of Law Sec. 2. No person shall be deprived ot life, liberty or property, without due process of law. History The 1818 and 1848 Constitutions contained the historic Magna Charta declaration that "no freeman shall be . . . deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land." The present provision retains the essence of this principle but substitutes "due process of law" for the last clause. The 1920 Convention proposal retained the 1870 provision without 10 Art. II, § 2 change. An ellon to add clauses in lorni precisely the same as the privi- leges and innnunities and ecjual jirotection clauses ol the Fourteenth Amendment oi the Constitution ot the rniicd States was unsuccesslul, presumably because the Fointeenth Amendment secured those piecise guarantees to the people ol this state. Explanation in ihe Inlroductojy and Prelimin(ny Comtnenl on this Article the point was made that due process as a legal concept cannot be defined in incisive and precise terms and that an analysis ol the legion oi deci- sions interpreting this fundamental guarantee would be impossible and indeed unnecessary. The breadth ol this historic limitation upon gov- ernmental power is vast, encompassing almost unlimitetl areas ol gov- ernmental impact upon individual (or corporate) rights and privileges. At the outset, it might be instructive to note that the due process guarantee is not and was not intended to insulate individuals irom all forms of governmental action which interfered with or dei:)rived them of their lives, liberty or property. This proposition is, of course, elemen- tary. In a society governed by the rule of law, a society in which govern- ments are the servants and not the masters of men, deriving "their just powers from the consent of the governed," the inherent, inalienable and fundamental rights of individuals must of necessity yield to the para- mount interest of society. This notion is obviously implicit in the due process clause. If we recast its language as a grant rather than a limita- tion of power, it would read "a person may be deprived of his life, liberty or property, but only through the application of due process of law." The import of this principle, thus phrased, may produce an initial psychological shock, but its truth should be obvious with but a little reflection. The state can and does constitutionally deprive a person of his life if he commits a capital offense, and his liberty, through im- prisonment, if he is convicted of a criminal offense. The whole criminal code of the state, and the hundreds of additional statutes which provide sanctions of imprisonment for violation, involves the state precisely in depriving a person of his life or liberty. The same principle justifies denying to a person the right to use his property as he desires. If [ones wants to build a rendering plant in an area zoned for residential use, he cannot do so. If he maintains his prop- erty in a way which creates a nuisance or a threat to public health or safety, the state may compel him to abate th.e nuisance at a consideral)le cost to him. The state may condemn one's property for highway or other legitimate governmental purposes. In a host of other ways, the state may legitimately qualify or circumscribe a person's asserted right to own, possess and use his property in accordance with his exclusive aspirations. Art. II, § 2 11 Other illustrations readily suggest themselves. One cannot practice medicine or any phase of the healing arts, or engage in business as a plumber, banker, funeral director, common carrier, real estate broker, agent or salesman, and a host of other business activities, without secur- ing a license based on demonstrated competence, frequently conditioned upon successful completion of a prescribed educational curriculum. The state may deny a license, or having granted it, may suspend or revoke it for violation of the regulatory statute, or the rules adopted pursuant thereto. These are extraordinary powers which control or limit one's property or liberty, and the existence of this power is conceded if there is a public interest, paramount to the individual "right," which demands or justifies the exercise of such power, and if such exercise conforms to due process standards. Commonly the power of the state so to act is de- fined as "police power," a designation which currently may carry other connotations, but which in the traditional context of the due process clause means that none of the rights constitutionally guaranteed to the people may be exercised without regard to the rights of others, and that when it is necessary to protect an important societal interest — e.g., public health, safety, morals or the catchall, conmion welfare — the rights of indi- viduals must yield to the paramount public interest. Yet in all of this the critical limitation, due process of law is of the essence, and no exercise of governmental power, admittedly within its competence as an abstraction, will be countenanced if it denies due process to the person affected. In this connection, it is important to note that due process of law was originally conceived of as a procedural guar- antee only; that is, before property or liberty or life was taken or im- paired, certain procedural steps deemed fundamental as a matter of fair play, and essential as a check upon unfettered, or irresponsible or arbi- trary, governmental action, had to be afforded. These procedural re- quirements normally included notice and right to a fair hearing before an impartial tribunal. The character of the notice and hearing may vary with the nature of the proceeding, e.g., criminal, civil or administrative, but the essential requirement of compliance with due process applies to all agencies and instrumentalities exercising governmental power, whether they be within the legislative, judicial or executive departments of government. The limited procedural concept of due process gave way, however, to the principle that due process operates as a limitation on the power of government, primarily but not exclusively the legislature, to enact laws which were deemed substantively, and not as a matter of procedure, to be oppressive, arbitrary or unreasonable. It is in this aspect of due process that the awesome power of judicial review, the power of a court 12 Art. II, § 2 to declare an act of the legislature unconstitutional, has had the greatest impact in limiting or prohibiting incursions upon indi\ ithial rights. For a number ot years many state courts, acting perhaps more out of a sense of power than responsibility, declared state enactments to be sub- stantively beyond the legislative power and thus a violation of due process. In more recent times, the courts have become sensitive to the necessity of permitting legislative judgment a greater latitude in meet- ing the problems l)esetting society. This attitude, coupled with a keener perception that judicial restraint is essential to the preservation of a proper balance of governmental power, has led to a substantial decrease in the number of laws held unconstitutional by due process standards. This is especially true in matters of economic regulation, and in the licensing of trades, professions and other activities. The protection of "property" against deprivation without due process has become a much less significant concept than in the past. Liberty, however, seems to re- main a top-level priority under due process, especially in the administra- tion and enforcement of criminal laws. As a final general observation, it is not unusual for a court to declare an infringement ot a specific constitutional procedural right, such as the right of trial by jury, a violation also of the state's due process guar- antee. Frequently the decisions do not designate \\ith the clarity one expects in judicial analysis the particular constitutional grounds relied upon to invalidate a statute. On occasion, more than one constitutional limitation on governmental power may rationally be applied to a judg- ment of invalidity. In these cases it is not unusual for the court to apply rather indiscriminately the due process clause as the rationale of decision. It is a favorite catchall because its flexibility, ambiguity and adapta- bility permit a reasonable exercise of judicial discretion. This analysis thus far has dealt with general principles or so-called "black letter" law. The difficulty with this kind of law is that it is of minimum instructional value. Law unrelated to facts is frequently barren and meaningless. Thus to put some substance into the due process clause, brief reference will now be made to some laws or governmental action which have been declared invalid as a violation of the due process clause by the Illinois supreme and appellate courts. These cases are selected only because they highlight the exceptions to an otherwise general pat- tern of upholding of laws, and thus, hopefully, provide a sharper insight into the limits of governmental power under the due process clause. No particular pattern of subject matter, or of procedural or substantive issues, is employed in these cases. They are simph illustrative of the principle. Cox V. Cox (400 111. 291 (1948)) invalidated a law which authorized Art. II, § 2 13 the confiscation and summary destruction of fish nets not being used tor an illegal purpose at the time of confiscation. The inherent lawful nature of the property, unlike "contraband" or other basically danger- ous articles, unquestionably swayed the Court against a power summarily to destroy. In People v. Weiner (271 111. 74 (1915)), a statute prohibiting the sale of secondhand mattresses was held to be unreasonable, since whatever health hazards they possessed could be removed by sterilization. The state's options of regulation or prohibition will sometimes be assessed in terms of reasonableness. People V. Doe (334 111. 555 (1922)) held invalid a law which in effect required cemeteries to use headstones furnished free by the United States Government, because it unreasonably deprived cemeteries of their right to use their own property as they saw fit. The law had no discern- ible relation to public welfare, health, safety or morals. In City of Chicago x>. Drake Hotel Company (274 111. 408 (1916)), an ordinance prohibiting public dancing in restaurants was held invalid as sweeping too broadly in the public morality arena. In Figura i>. Cummins (4 111. 2d 44 (1954)), the trade of processing metal springs by homeworkers was held not a proper subject for the exer- cise of the police power absent a showing that such trade endangered the public health, safety, morals or welfare. In Marr v. Marr (43 111. App. 2d 25 (19t33)), an action by a wife for divorce, defended by the husband on grounds of desertion and adultery, the Court's refusal to permit testimony by children of the marriage, and by a witness who allegedly was living with the wife, was held to be a denial of due process to the husband. (Note — judicial rather than legislative action). In People v. Alterie (356 111. 307 (1934)), an amendment to the Vagran- cy Act, which declared as a vagabond any person reputed to be an habitual violator of criminal laws, was held invalid under the due process clause because of vagueness and arbitrariness. ■In People v. Savage (5 111. 2d 296 (1955)), a private investigation by the Court in a criminal case was held to violate the defendant's rights to a public and open trial and was, as well, a denial of due process. (Note— judicial action. Note also combined particular grounds and due process.) In People v. Thompson (36 111. 2d 332 (1967)), erroneous instruction to the jury which prejudiced the defendant was held to be a denial of due process. (Note — judicial action.) In People v. Love (39 111. 2d 436 (1968)), the denial of right to a 14 Art. II, §2 speedy trial was also held lo be a denial ol due process. (Note— Iwo con- stitutional guarantees.) In People v. Brown (39 111. 2d .H()7 (I9(i8)), it was held that the right ol appeal in a criminal case was not per se ot constitutional dimension but that a dismissal of an appeal was subject to due process and equal pro- tection guarantees of the federal and state constitutions. In this case the dismissal of an ajjpeal from a conviction for jjandering was vacated when the dismissal was the result of the defendant's attorney's failure to prosecute the appeal. The rule that a client is bound by the acts or omis- sions of his attorney is not to f^e applied in criminal cases wlien the at- torney's failure to act prejudices the subtantive rights of liis client. In People v. De Simone (9 111. 2d 522 (1956)), it was held that the right of a defendant in a criminal case to counsel is not satisfied by the for- mality of appointment of an attorney by the court, since the right em- braces effective representation; and where the representation is of such low caliber as to amount to no representation or to reduce the trial to a farce, the defendant has been denied due process. (Note— two guarantees: right to counsel— due process.) It lias been noted that the due process guarantee is applicable to ad- ministrative as well as judicial proceedings. However, due process of law has frec^uently been held not necessarily to mean .judicial proceedings, and an administrative proceeding from which may result sanctions administratively imposed will constitute due process if procedural stand- ards of fairness are met. {E.g., Sheldon v. Hoyne, 261 111. 222 (1913).) The due process clause appears to have received judicial treatment substantially comparable to that in other states. Apart from some federal extensions through the incorporation principle (see Introductory and Preliminary Comment, supra, p. 5), the course of judicial interpretation and application seems quite normal and unexceptional. Comparative Analysis Twenty-seven state constitutions contain the same provision while four others contain similar provisions. The remaining states provide, as in Section 1 above, that all men have inalienable rights to life, liberty, the pursuit of happiness and property. The Model State Constitution contains the same provision but adds that no person shall be "denied the equal protection of the laws, nor be denied the enjoyment of his civil rights or be discriminated against in the exercise thereof because of race, national origin, religion or ancestry." (art. I, § 1.02.) Comment Any suggestion that a new Constitution delete or tamper with this section would in all probability be viewed as subversive. It is too funda- mental and too deeply embedded in constitutional and political history Art. II, § 3 15 to tamper with. A suggestion deserving of serious consideration, how- ever, is that a provision concerning equal protection of laws could be in- corporated into this section. (See Comynent, Art. IV, Sec. 22, infra, p. 225.) Religious Freedom Sec. 3. The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomi- nation or mode of worship. History The 1818 and 1848 Constitutions contained identical provisions on religious freedom. They expressed (1) man's natural and indefeasible right to worship God according to his conscience; (2) a limitation on governmental power to the effect that no person could be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; (3) a denial that human authority can in any case control or interfere with rights of conscience; (4) a principle that no preference shall be given by law to any religious establishments or modes of worship; and (5) a prohibition against the requirement of a religious test as a qualification to any office or public trust. The religious test prohibition of the prior Constitutions was dropped in 1870 in favor of the broader provision, "no person shall be denied any civil or political right ... on account of his religious opinions," which was intended to insure also that "no person shall be incompetent to be a wit- ness, on account of his religious opinions." (State of Illinois, Debates and Proceedings of the Constitutional Convention 1563 (1870) [hereinafter cited as Debates]). The clause in the present Constitution, "but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirma- tions, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State," was added to establish that the broad provision substituted for the religious test provision did not prohibit an oath or affirmation and to insure that certain practices (nude religious ceremonies, child sacrifices, and interruption of the Sabbath were ex- amples given) would not be construed as being within the lawful exercise of religious freedom. An additional restriction against polygamy, directed at the Mormons, was not adopted. The 1922 Convention proposal carried forward the 1870 provisions, including an amendment, adopted after a ^oor fight, to the effect that 16 Art. II, § 3 the reading in the pubHc schools of selections ironi the Old or New Testaments, without comment, should never be held to conflict with the Constitution. Explanation The length and detail oi the current provisions are in marked con- trast to the religious freedom guarantee in the First Amendment of the Constitution of the United States which starkly declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The simplicity of the federal principle has not, however, added to its clarity. What constitutes an "establishment of religion" or a prohibition on the free exercise thereof, as these limi- tations are applied to state action through incorporation into the Four- teenth Amendment, have proved to be troublesome cjuestions. It is not likely that any of the specific limitations of this section go beyond the more general First Amendment's proscription on govern- mental power. That is, it is almost a legal certainty that a denial of a civil or j^olitical right on account of religious opinions would be held an unpermissible infringement under the Fourteenth Amendment if sought to be applied by a state which did not have the specific Illinois limitation. Nor is it likely that the provisions of this section which pre- serve the state's power to require oaths or affirmations, and which do not, in the name of religious freedom, excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, would be held to conflict with First ar^d Fourteenth Amendment limitations on state power. One can hardly suppose that human sacrifice or sexual debauchery would be sanctioned by federal doctrine. Indeed, in Cleveland v. United States (329 U.S. 14 (1946)), a criminal conviction of Mormons under the federal Mann Act for transporting plural wives across state lines was sustained by the United States Supreme Court, notwithstanding that polygamy, as pointed out in the minority opinion, was a ctiltural in- stitution deeply rooted in tlie religious beliefs of the societies in which it appears. The point is that though the state seems to have spelled out areas of permissible governmental interference with religious practices and rights of conscience which on the surface appear to be proscribed by the categorical First Amendment denial of any legislative power, the kinds of interferences which would be held valid under state law would in all probability be held valid under federal interpretations of the Fourteenth Amendment, and conversely, the kinds of infringements held to be beyond state power under Section 3 would in all probability be held invalid under the Fourteenth Amendment. In recent years, the most significant decisions respecting religious free- dom have concerned laws and practices in the public schools. Since the Art. II, §3 17 Explanation and Analysis of Article VIII, Section 3 {infra, pp. 405-8) deal with the relationship between education and religion in extenso, in- volving the same decisional law as is applicable here, no effort will be made to duplicate that discussion. In areas other than education, some of the state decisional law is instructive but some of it may, under present theory, be deemed question- able. Religious freedom, like all other constitutional liberties and rights, is relative and may have to yield to state action which can be justified as within permissible concepts of police power. In People ex rel. Wallace V. Labrenz (411 111. 618 (1952)), the Illinois Supreme Court held valid a law which interfered with the religious beliefs and practices of parents who sought to prevent blood transfusions believed medically necessary to save their child's life. To be compared with this, however, is In re Estate of Brooks (32 111. 2d 361 (1965)), a more recent Illinois Supreme Court decision, in which the Court held that the appointment of a con- servator for an adidt woman, and authorization for him to consent to transfusions for her, without notice to her and her husband who had religious scruples against such transfusions, violated their constitutional rights of religious freedom where they had notified their doctor and hospital of their beliefs and had executed documents releasing the doctor and hospital from civil liability. The Labrenz case was distinguished on the grounds that a minor was there involved, whereas in Estate of Brooks an adult insisted upon a religious belief under circiimstances (no minor children) in which the state's abridgement of her religious beliefs served no legitimate state interest. Of perhaps questionable validity today is Reichxvald v. Catholic Bishop of Chicago (258 111. 44 (1913)) which held that the building of chapels on county poor farms was not a violation of the prohibition relating to compulsory support of a place of worship. People ex rel. Bernat v. Bicek (405 111. 510 (1950)) involved a statutory provision authorizing a judicial officer in divorce proceedings to invite representatives of religious denominations of the contending parties to a conference for the purpose of effecting a reconciliation. This was held to be a denial of religious freedom and due process of law. And in Hronek v. People (134 111. 139 (1890)) the Court quite predictably held that any civil or political right, privilege or capacity enjoyed by citizens generally could not be denied because of religious belief. Comparative Analysis All state constitutions provide substantially similar provisions for free exercise of religion and religious worship. Eight states similarly provide that no preference shall be given by law to any religious denom- ination and the remaining states provide that the states may neither 18 Art. II, § 4 establish nor support religious denominations. The Model State Constitu- tion adopts the First Amendment formulation that "No law shall be en- acted respecting an establishment ot religion, or prohibiting the tree exer- cise thereof...." (art. 1, § 1.01.) Comment It is a question of judgment whether the detailed statement ot limi- tations and power respecting religious freedom is to be preferred over the First Amendment or the suggested provision of the Model State Constitution. As noted, despite the categorical nature of the First Amend- ment provision, a measure of reserved governmental power has been recognized. On the other hand, the present formulation in Section 3 does have the merit of defining with a fair degree of certainty the essential principles of religious freedom while expressing the principle of a reserved governmental power to protect the public interest. A judgment of preference for the Illinois statement is certainly supportable in prin- ciple. It is noted, however, that the Commentary in the Model State Con- stitution quite bluntly rejects the necessity of a provision prohibiting denial of the enjoyment of civil rights, because the "protection of 'civil rights' has been subsumed in both federal and state courts under due process and equal protection . . . ." (Model State Constitution 30.) Perhaps the correct assessment is that it is dangerous to meddle, even with good intentions, with traditional bill of rights guarantees of religious freedom. The effort usually generates passionate and conflicting reactions. It may therefore be the better part of wisdom to retain the existing language unless the making of a substantial change is deemed essential. Freedom of Speech Sec. 4. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justi- fiable ends, shall be a sufficient defense. History With the exception of several minor and insignificant style changes, the 1818 and 1848 Constitutions contained identical provisions. They provided that (1) the printing presses shall be free to every person who examines the proceedings of the General Assembly or any branch of government, and that no law may ever restrain this right; (2) the free communication of thoughts and opinions is one of the invaluable rights of man, and that every citizen may freely speak, write or print on every subject, being reponsible for the abuse of that liberty; and (3) in prose- cutions for the publication of papers investigating the official conduct Art. M, § 4 19 of officers or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and (4) in all indictments for libels, the jury shall have the right of determining both the law and the fact, under the direction of the court as in other cases. The 1870 section eliminated the printing press provision; adopted without substantive change and almost verbatim the provision respecting the rights of citizens to speak, write and publish freely; broadened the provisions respecting libels to cover all trials, civil and criminal, without limitation to public officials; retained truth as a defense in libel actions, but added significantly "when published with good motives and for justi- fiable ends"; and deleted the provision giving the jury the right to deter- mine issues of law and fact in libel cases. This section was reported out of the Bill of Rights Committee in substantially its present form. It was adopted with little debate or discussion and with no explanation for the changes effected in the 1848 provisions. The 1922 Convention proposal retained the 1870 provisions, making only stylistic nonsubstantive changes. Explanation It is somewhat absurd to suggest priorities among the fundamental rights and liberties protected against impairment by a bill of rights; yet among these rights a strong case can be made for freedom of speech and press as the most basic of all rights, without which there could be no truly free society. The decisions, federal and state, frequently reflect this view, though like all other rights, freedom of speech and press is not absolute. Because of its absolutely central role, speech or press cannot be punished or censored unless utterance or publication presents a clear and present danger to society (the classic Holmesian principle) or unless it is "shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest." (Terminiello v. Chicago, 337 U.S. 1, 4 (1949).) Freedom is the rule and restraint is the exception. So the courts have said or implied in many cases. But the exceptions which allow govern- mental sanctions are by no means minimal. Speech which incites to violence or crime, or which slanders or libels, or which is coupled with unlawful conduct, or which is obscene, is subject to punishment or other governmental sanctions. Press is not limited to newspapers, but includes periodicals, pamphlets, and every other sort of publication that affords a vehicle of information (Montgomery Ward & Co. v. United Employees, 330 111. App. 49 (1946)); it embraces published matter whether circulated with or without charge (City of Blue Island v. Kozul, 379 111. 511 (1942)); and it guarantees the 20 Art. II, § 4 right to publish, circulate, distribute and make known, and not merely the right to speak and write (Village ol South Holland v. Stein, 373 111. 472 (1940)). Curiously, motion pictures were not recognized as speech or press within the protection ol the First and Fourteenth Amendments (the doctrine of incorj)oration applies the restraints of the First Amendment of the Constitution of the United States to the states through the Four- teenth Amendment) until 1952 when the United States Supreme Court so held in Joseph Bitrstyn, Inc. v. Wilson (313 U.S. 195 (1952)). A 1915 decision, reflecting the novelty of the medium, had held motion pictures a business jjure and simple, having no comnumicative values within the protection of the First Amendment. (Mutual Film (Jorp. v. Industrial Comm'n, 236 U.S. 230 (1915).) The nature of the governmental power exerted in respect to speech or press is an all-important factor in determining the validity of the power. As a general proposition, criminal punishment by fine or im- prisonment for nonprotected speech or press is acceptable. This may be called after-the-fact punishment, whereby the actor is not initially censored by prior restraints, but, as in other cases of "criminal offenses, is prosecuted for speech deemed unlawful. The critical inquiry, of course, is whether the speech is indeed constitutionally protected against any form of punishment. Speech which simply stirs people to anger, or invites public dispute or brings about a condition of unrest, absent the factors previously noted, is not subject to any form of governmental sanction. (Terminiello v. Chicago, 337 U.S. 1 (1949).) In Pickering v. Board of Education (391 U.S. 563 (1968)), a decision of the Illinois Supreme Court which sustained the administrative dismissal of a school teacher for publishing letters in newspapers critical of the Board of Education was reversed as a violation of the free speech and press guarantee.* On the other hand, speech or press which may be subjected to after- the-fact criminal punishment may not, except in the area of obscenity in motion pictures, be made the subject of a prior restraint which clas- sically involves governmental consent as a precondition to publication, normally through administrative licensing. This form of sanction is censorship in its most suspect form in a free society, and its current limitation to obscenity in motion pictures is understandable. A form of jjrior restraint applied to newspapers — injunction to suppress as a nuisance the publication of newspapers devoted to defamatory, scan- dalous and scurrilous attacks upon public officials — was stricken as an infringement upon freedom of the press in the landmark case of Near v. Minnesota ex rel. Olson (283 U.S. 697 (1931)). Not until 1961, in Times Art. II, § 4 21 Film Corp v. City of Chicago (365 U.S. 43 (1961)), did the United States Supreme Court concede the constitutional validity oi prior restraint in its purest form, when it upheld the Chicago motion picture censor- ship ordinance against a broadside attack which asserted a total absence of governmental power to require administrative approval as a condition to publication. Earlier, in 1957, the same Court converted prior dicta into law by holding for the first time that obscenity was not protected expression within the First and Fourteenth Amenchnents, and sustained both state and federal criminal after-the-fact punishment for the publi- cation of obscene printed materials. (Roth v. United States, 354 U.S. 476 (1957).) Also in 1957, the Court in Kingsley Books, Inc. v. Broivn (354 U.S. 436 (1957)) had sustained a form of prior restraint by in- junction similar to that outlawed in Near v. Minnesota as applied to ob- scene publications. Distingushing Near v. Minnesota, the Court held in Kingsley that it was dealing with constitutionally unprotected obscenity and with a limited restraint on publication of a particular book pend- ing judicial determination of obscenity, as contrasted with the Near restraint on future publications of the newspaper. Illinois, of course, under its own constitutional guarantee of free speech and press, could outlaw prior restraints on the publication of motion pictures if it so desired. As a matter of history, however, Illinois anticipated Roth, Kingsley and Times Film by holding (1) that obscenity was not protected expression within Section 4 of Article II of the state Constitution or the First and Fourteenth Amendments of the Federal Constitution, and (2) that an administrative licensing scheme for motion pictures was a permissible constitutional restraint on liberty of press. (ACLU V. City of Chicago, 3 111. 2d 334 (1954).) Notwithstanding the federal validation of an administrative licensing scheme for motion pictures, the United States Supreme Court, sensitive to this extraordinary and potentially dangerous governmental power, has severely circumscribed this power by insistence upon procedural safeguards which require an expedited administrative and judicial proc- ess and which keeps to a minimum the degree of prior restraint. Thus in Freedman v. Maryland (380 U.S. 51 (1965)), the Court prescribed the standards for a valid prior restraint on the publication of motion pic- tures which (1) imposed upon the administrative censor the burden of proving that the film is obscene, (2) limited administrative restraint prior to judicial determination to an undefined brief and minimum period, and (3) assured a prompt and final judicial determination. The City of Chicago rewrote its censorship ordinance to meet the Freedman standards and in Ciisack v. Teitel Film Corporation (38 111. 22 Art. II, § 4 2d 53 (1967)) the state Supreme Court sustained the ordinance which permitted a 50- to 57-day period for the administrative determination and required an expedited judicial procedure. The United States Supreme Court reversed on the ground that the ordinance tailed to meet the Freedman standards for an expedited administrative and judicial process which would assure a mniimum of prior restraint. (Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968).) Prior restraints through the administrative licensing mechanism in areas other than motion pictures, and on grounds other than obscenity, have not been attempted in Illinois, nor is it likely that if attempted they will be sustained. On the other hand, there is a significant develop- ing law which recognizes governmental power to curb speech associated with demonstrations and the use of public places which interferes ^\•ith the rights of others. In City of Chicago v. Gregory (39 111. 2d 47 (1968)), a conviction under a disorderly conduct statute was sustained against civil rights marchers whose peaceful conduct aroused potentially danger- ous adverse reaction by a hostile crowd of onlookers. The civil rights marchers had refused police suggestions to leave the area, based on the police judgment that violence would otherwise be unavoidable. The United States Supreme Court reversed in a decision which did not find it necessary to reach the constitutional issue concerning the marchers' rights to free speech and to assemble. (Gregory v. City of Chicago, 394 U.S. Ill (1969).) In City of Chicago v. Joyce (38 111. 2d 368 (1967)), a conviction for disorderly conduct was upheld against a First Amendment challenge, the Court holding that the defendant's conduct in sitting on sidewalks, block- ing entrance to the city hall, and obstructing pedestrian traffic, had no con- nection with any constitutionally protected fieedoms. These Illinois decisions appear to be more than amply supported in recent federal decisional law. Of particular importance are Cameron v. Johnson (390 U.S. 611 (1968)) sustaining a Mississippi statute prohibit- ing picketing or parading which obstructs or unreasonably interferes with ingress or egress to or from the courthouse; Cox x'. Louisiana (379 U.S. 536 (1965)) which upheld convictions of civil rights marchers for "obstructing public passages," where the demonstrators, in peaceful fashion, marched from the state capitol to the courthouse grounds where they prayed, sang and listened to speeches; and Adderly v. Florida (385 U.S. 39 (1966)) sustaining a state conviction for trespass, against a First Amendment challenge, as to a group of student demonstrators who entered jail grounds to protest arrests based on segregation ordinances Art. II, § 4 23 and who, without violence or disorder, temporarily blocked a driveway to the jail entrance not normally used by the public. Illinois has followed the prevailing rule that speech which is an integral part of unlawful conduct is not constitutionally protected ex- pression. (Chicago Real Estate Bd. v. City of Chicago, 36 111. 2d 530 (1967) sustaining an ordinance proscribing the distribution by real estate brokers of printed matter which was aimed at block-busting and panic selling.) In the important area of picketing as a form of speech, Illinois has held that picketing cannot be dogmatically equated with constitu- tionally protected speech and may be curtailed where it is conducted for purposes unlawful under state laws or policies. (Board of Educ. v. Redding, 32 111. 2d 567 (1965).) In contrast, note should be taken of Food Employees Local 590 v. Logan Valley Plaza, Inc. (391 U.S. 308 (1968)) which validated as a First Amendment freedom peaceful picketing of a shopping center located on wholly owned private grounds, the Court equating the center, under the conditions of its operation, to a business area located within the city. The Court relied principally on a comparable holding relating to a "company town" (private property), holding that the streets and other public places in the company town were proper places for the exercise of speech under the aegis of the First and Fourteenth Amendments. (Marsh V. Alabama, 326 U.S. 501 (1946).) In summation it must again be stressed that this analysis is not exhaus- tive. Its purpose is to inform of the basic meaning and application of the constitutional provision under discussion by reference to and de- scription of the more important federal and state decisional law. Comparative Analysis All the states guarantee freedom of speech but four do not have a con- stitutional provision guaranteeing freedom of press. Thirty-five other states have a provision regarding libel. Of these, 21 provide similarly that truth, when published with good motives, is a defense; 13 establish that truth "may be given in evidence" without specifying its effect; and one provides simply that truth is a justification. The Model State Con- stitution adopts the federal First Amendment language that "no law shall be enacted . . . abridging the freedom of speech or of the press . . . ." (art. I, §1.01.) Comment That portion of Section 4 which deals with speech and press is funda- mental to a state constitution which seeks to preserve these indispensable liberties. The last clause which deals with trials for libel and truth as a defense, when published with good motives and for justifiable ends, is 24 Art. II, § 5 somewhat more diflicuk to assess as a constitutional principle, it was not discussed in the Explanation because it has not been productive of liti- gation or law which varies from its jjlain meaning. Perhaps truth alone, without regard to the difficult burden of establishing good motives and justifiable ends, should be suthcient for defense in civil or criminal libel suits. An imjiortant consideration may be that many states do not con- sider the provision, or variations thereof, worthy of constitutional status. Trial by Jury Sec. 5. The right of trial by jury as heretofore enjoyed, siiall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less tlian twelve men, may be authorized by law. History The 1818 Constitution stated only that the right of trial by jury shall remain inviolate. To this provision the 1818 Constitution added that the right extends to all cases at law, without regard to the amount in con- troversy. The present constitutional provision introduced the phrase "as heretofore enjoyed" as well as the clause permitting the legislature to authorize a jury of fewer than 12 men in civil cases before justices of the peace. Deleted as unnecessary was the 1848 provision making the right to a jury trial applicable to all cases, without regard to the amount in controversy. The 1922 Convention proposal suggested a radical revision of the 1870 provision. It retained the opening phrase but removed the words "as heretofore enjoyed," the debates noting this to be necessary to the remainder of the proposal which (1) authorized waiver of a jury trial except in capital cases, (2) expressly qualified women to serve as jurors, and (3) authorized the General Assembly to provide by Igiw for juries of fewer than 12 men and nonunanimous verdicts in all civil cases. Explanation Although this section applies to civil and criminal proceedings, the discussion here is limited to civil cases. For the discussion of jury trials in criminal cases see Section 9 of this Article. {Infra, pp. 41-2.) The trial by jury guarantee is, in common understanding, a fundamen- tal and incontestable political policy in free society. The public con- sensus that one has the inalienable right to be tried by a jury of his peers in civil as well as criminal cases probably remains quite firm. In other democratic societies, however, and in England particularly, the right to trial by jury has virtually gone by the boards in all but criminal cases. As a practical matter, however, the sweeping nature of this guarantee, modified by the ambiguous phrase "as heretofore enjoyed" (a phrase which has resulted in a welter of confusing and irreconcilable interpreta- Art. II, §5 25 tions by the Illinois Supreme Court) has not prevented the legislature from devising and the courts from sustaining legal mechanisms for the trial and determination of facts by agencies other than juries. Perhaps the most striking example is the Workmen's Compensation Act which established an administrative mechanism for the determination of com- pensation claims. Initially the law, which substituted a statutory claim for employment-related injuries for the common law action available to employees, was effective only as to employers and employees who elected to accept its provisions. This elective feature saved the act from a serious constitutional challenge that it deprived employers of the right to a trial by jury "as heretofore enjoyed." (Chicago Rys. v. Industrial Bd., 276 111. 112 (1916); Deibeikis v. Link-Belt Co., 2j6\ 111. 454 (1914).) A few years later, however, the law was made mandatorily applicable, without election, to certain defined hazardous employments. Employers claimed this deprived them of their common law right to a jury trial. The Court disagreed and employed an ingenious rationale to sustain the new administrative scheme. It held that the right to a trial by jury was guar- anteed only in those causes of action recognized by law. Since the original cause of action was destroyed or merged into a new statutory remedy, the "incidental" right of trial by jury had nothing left upon which to operate. (Grand Trunk Ry. v. Industial Comm'n, 291 111. 167 (1919).) Lost somewhere in this analysis was a right "as heretofore en- joyed" which was to remain inviolate. The realistic analysis is that common law principles of tort liability in the master-servant relation- ship were no longer appropriate in an industrial society in which the incidence of employment injuries and deaths was soaring to unprece- dented heights, and that a process, more adaptable and sympathetic to the new concepts of liability, was essential as a substitute for judicial determinations. The Court rose to the occasion by finding a constitutional rationale. In like manner the administrative process which licenses and regu- lates professions and business activities, and denies or grants licenses, and suspends, revokes or refuses to renew licenses, all without a jury, has been sustained because the right to a jury in these kinds of cases was not "heretofore enjoyed." The rationale makes much more sense than in the Workmen's Compensation case, but even here the administrative deter- mination of fact, a function supposedly peculiarly within the province of a jury, can have devastating consequences to the person aggrieved by the administrative judgment. Numerous other exceptions are also recognized. Thus the constitu- tional guarantee does not apply to cases in equity as distinguished from cases in law, as, for example, mortgage foreclosure, specific performance 26 Art. II, § 5 of contracLs, and injunction cases. Nor does it apply to special statutory proceedings such as a proceeding to conniiit ior mental illness. (People V. Niesman, 35() 111. 322 (1934).) Ot course a jury trial may be provided by statute in these and other types ot cases in wliich the constitutional guarantee is inaj)j)licable, but this would be simply a matter of legis- lative grace. It should again be noted that the phrase "as heretofore enjoyed" has caused some trouble but the lav,' is fairly well crystallized now to the effect that it means both the right as it existed at common law and as it had come to be at the time of the adoption of the Constitution. A special problem arises in respect to the provision concerning juries of fewer than 12 persons in civil actions before justices of the peace. Under the new Judicial Article (Article VI) there are no justices of the peace. The magistrates of the circuit courts are not the lineal or constitutional descendants of the justices of the peace. Although the magistrates by law have been assigned substantially the same kinds of civil and quasi- criminal cases previously handled by justices of the peace, they are full- fledged judicial officers of the circuit court. The provision authorizing a jury of fewer than 12 men has not been construed judicially. Its con- stitutional status is quite uncertain, although the General Assembly has authorized a jury of six, unless either party recjuests a jury of 12, in all cases where the damage claim does not exceed $10,000. (111. Rev. Stat, ch. 110, §64 (2) (Supp. 1968).) There appears to be no particular purpose in analyzing the hundreds of judicial decisions which deal with collateral aspects of the right, such as waiver of jury, selection of jury, the functions of the jury, the role of appellate courts in reviewing fact determinations, and numerous other aspects incident to the application and meaning of the right. The central point is that these principles must for the most part be left to judicial determination in the interpretation of the basic constitutional guaran- tee. There is no basis for any judgment that these decisions have seri- ously misconceived the essential purpose of the guarantee. Comparative Analysis All state constitutions provide that the right of trial by jury is to remain inviolate, but only seven provide that the right is to remain inviolate "as heretofore enjoyed." Approximately one-fifth of the states authorize juries of fewer than 12 in courts not of record such as the justices of the j)cace courts. The present Illinois Judicial Article (VI) has abolished all courts not of record. The Model State Constitution provides that "[i]n prosecu- tions for felony, the accused shall enjoy the right of trial by an impartial jury of the county [or other appropriate political sidDdivision of the state] Art. II, § 6 27 wherein the crime shall have been committed, or of another county, if a change of venue has been granted." (art. I, §1.06.) Comment The guarantee of this section, as applied to civil cases, may perhaps be less compelling in principle than when last adopted in 1870. Given its evolutionary development, particularly in England where jury trials in civil cases are virtually a thing of the past, and the probability that the administrative process may in some additional instances be an appropri- ate substitute for the judicial process, the need for a hard look at this section may be indicated. The principle is, however, too important to be lightly treated, and no modification should be accepted which dilutes its political and psychological value. In short, there are difficult policy choices here which cannot be resolved easily. For the reasons noted, the provision for juries of fewer than 12 must also be evaluated in terms of its utility or need under the new Judicial Article. Searches and Seizures Sec. 6. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized. History The 1818 Constitutional provision, re-adopted without change in 1848, provided that (1) people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures, and (2) general warrants authorizing search of suspected places without evidence of the fact committed, or seizure of any person not named whose offenses are not particularly described and supported by evidence, are dangerous to liberty and "ought not to be granted." The 1870 provision substituted "effects" for "possessions," introduced specifically the probable cause and affidavit requirements for issuance of warrants, and mandated that warrants par- ticularly describe the place to be searched, and the person or things to be seized, eliminating the somewhat innocuous and ambiguous phrase that general warrants "ought not to be granted." The present section was drafted almost entirely in committee. No ex- planation, then, is recorded in the Debates for the changes made in the section as it existed in the 1818 and 1848 Constitutions. The Convention as a whole added to the committee recommendation only that a warrant must be "supported by affidavit" — reflecting concern about the practice of permitting the issuance of a warrant on the basis of oral evidence alone. Several delegates noted that a permanent record 28 Art. II, § 6 of the evidence should be made, and apparently the Convention agreed. The 1870 provision is almost an exact statement of the Fourth Amend- ment of the Constitution of the United States, the only difference in fact being the word "affidavit" in lieu of the federal requirement of "oath or afhrmation" to support the warrant. The difference is not substantive. The 1922 Convention proposal retained the 1870 provision unchanged. Explanation This gieat bulwark against governmental abuse of power had its origin in the practice which prevailed in the .\merican colonies and in England of issuing so-called 'Avrits of assistance' to revenue officers, empowering them in their discretion, to search suspected places for smuggled goods, and a similar practice of issuance of general warrants for searching pri- vate houses for the discovery and seizure of books and papers that might be used to convict their owner of libel. The issuance of general warrants for indiscriminate search and seizure originated in the Star Chamber. To the colonists these practices were an abhorrent and indefensible in- vasion of privacv, and a tyrannous exercise of governmental power totally incompatible ^\ith fundamental principles of individual liberty. The history is quite clear that the Fourth Amendment to the United States Constitution, the direct lineal ancestor of Section 6 of Article II of the Constitution of Illinois, was designed to prevent these feared and hated governmental infringements upon freedom. The framers of the Constitution of the United States recognized, however, that the protec- tion of individual rights, as in other instances, must yield to a superior public interest. In the just administration and enforcement of criminal laws, governmental seizure of papers and effects, or of persons, if con- trolled by reasonable safeguards, is an indispensable need in a civilized and ordered society. The apprehension, prosecution and punishment of criminals require a governmental power to seize and search. The problem again is one of balance. The amendment sought to secure that balance by a categorical denunciation of unreasonable searches and seizures, and by recognizing the leffitimacv of searches and seizures authorized bv warrants (1) based on probable cause and supported by affidavit, and (2) particularly de- scribing the place to be searched and the persons or things to be seized. In this wav the evils of the open-ended, indiscriminate writs of assistance and general warrants were to be ended, while preserving the public interest in the administration and enforcement of its criminal laws. The first and perhaps most important point of emphasis, therefore, is that the constitutional principle prohibits only unreasonable searches and seizures, and that a reasonable search or seizure, based upon a proper warrant, is constitutionally permissible. In addition, this provi- Art. II, §6 29 sion has been construed in most states, including Illinois, as not abridg- ing the common law poAver of search and seizure Avithout ^varrant in cases where (1) voluntary consent to a search of the person or premises is secured, and (2) where the search and seizure are incident to a valid arrest. The second important point is that warrants must be issued by a judicial officer, the interposition between the government and the indi- vidual of an impartial magistrate being central to a reasonable searcli and seizure, and that the warrant may not issue except upon probable cause being established. Probable cause is not proof of guilt but more approximately a showing that a reasonable ground for suspicion, suffi- ciently strong to warrant a cautious man to believe that the accused is guilty of the offense, exists. (People v. York, 29 111. 2d 68 (1963); People V. Dolgin, 415 111. 434 (1953).) The decisions interpreting this section are legion. Quite understand- ably, defendants in criminal actions are quick to insist upon one or more violations of the standards. Among the most common are the insufficiency of the complaint and the absence of probable cause for the issuance of a warrant, the insufficiency of the affidavit, the insufficiency of the warrant (failure to describe with particularity the place to be searched and the persons or things to be seized), the search and seizure not being incident to a valid arrest, the invalidit\ of the search, and the inadmissibility of evidence unlawfully seized. Most of these questions raise issues of law which, however, are critically dependent upon the facts. A review of the cases dealing with the reasonableness or unreasonableness of search and seizure, with or without warrant, and the myriad of other issues generated by searches and seizures and the proceedings incident thereto, would not be sufficiently instructive to justify the enormous effort necessary to a detailed treatment. Suffice it to say at this point, however, that the Illinois judicial interpretations of this provision are markedly similar for the most part to the federal and state decisional la^v which interpret similar or identical constitutional provisions. This Explanation would be deficient, hoAvever, if it did not deal with several recent federal decisions which have a direct and important bearing upon the meaning and application of the Illinois provision. Mapp X'. Ohio (367 U.S. 643 (1961)) held that the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized were applicable to state criminal trials under the due process clause of the Fourteenth Amendment. (Herewith our old friend — the incorporation doctrine.) The decision reversed Wolf v. Colorado (338 U.S. 25 (1949)). The central though not exclusive importance of the Mapp reversal of Wolf was 30 Art. II, §6 its efiect upon the issue oi the admissibility oi evidence which had been illegally seized. The tcdeial nde, established in Weeks xl United States (232 U.S. 383 (1914)), was that evidence seized in violation of the Fourth Amendment was inadmissible in ledcral court criminal prosecu- tions. Most states interpreting their own constitiuional search and seizure provisions retused to accept the Weeks principle in state prose- cution tor a state crime. Illinois was among the minority ot states that followed the Weeks rule. {See City of (Chicago v. Lord, 7 111. 2d 379 (1956); People v. Touhy, 361 111. 332 (1935).) Illinois prior to Mapp could have reversed its decisional law to make unlawfully seized evidence admissible in state prosecutions, and indeed might have done so in the light of current and aggravated tensions which have substantially in- creased the problems of law enforcement. It can not do so so long as Mopp remains the definitive law. The total implications of the Mapp rule on other aspects of the Fourth Amendment are not certain. Whether federal law will take precedence over state law in the many procedural and substantive issues which derive from probable cause, arrest, reasonable and unreasonable searches and seizures, and related issues, is not certain, but in the critical area of admissibility of evidence unlawfully seized, and its crucial relation- ship to proof of guilt or innocence of the defendant, the rule is now Mapp. The effect of Mapp on state and municipal efforts to control and prevent health and safety hazards may be devastating. In Frank v. Maryland (359 U.S. 360 (1959)), a Baltimore City Code provision author- ized municipal health inspectors, without a warrant, to demand entry to any house, cellar or enclosure if they had cause to suspect that a nuisance existed. A refusal subjected the owner or occupant to a §20 fine or penalty for each refusal. The ordinance, in a 5-4 decision was sus- tained against a Fourteenth Amendment due process challenge (Mapp's incorporation doctrine re Fourth Amendment was two years distant), but Fourth Amendment policy considerations were uppermost in both the majority and minority opinions as they weighed the interest of privacy of the home against a strong governmental argument that pro- tection of the public health in modern urban conditions simply made unrealistic and unreasonable a warrant requirement for inspection. One year later the Court, by an equally divided vote, sustained a warrantless municipal health inspection ordinance applicable to private homes which did not require "cause to suspect that a nuisance exists" (the Frank ordinance). (Ohio ex rel. Eaton v. Price, 364 U.S. 263 (I960).) But in Camara v. Municipal Court (387 U.S. 523 (1967)), the Court, in Art. 11, §6 31 a 6-3 decision, reversed Frank, holding that warrantless periodic routine area health inspections of homes violated Fourth and Fourteenth Amend- ment proscriptions against unreasonable searches and seizures. In a companion case, See v. City of Seattle (387 U.S. 541 (1967)), a fire inspec- tion ordinance authorizing the same kind of inspection for commercial and industrial buildings was invalidated on the grounds relied upon in Camara. In both Camara and See, the Court recognized the grave nature of the public health problem in densely populated urban areas and, in an effort to partially alleviate the anguish of municipal health officials who claimed that protection of the public health was impossible under stand- ard Fourth Amendment procedures, suggested that a warrant procedure could be devised in which the probable cause criteria need not be the same as was required for the issuance of warrants in criminal cases. The effect of Camara and See, based as it now is upon the Mapp in- corporation doctrine, is to impose substantial! curbs upon municipal health protection measures which had become fairly regularized. And, as in the Mapp case, the states are powerless to adopt a different rule. It is not to be inferred that Mapp, Camara, See and other decisions imposing federally determined limitations upon states are arbitrary, irra- tional or even unreasonable federal intrusions upon state powers. This may be and indeed is a hotly debated issue, even within the Court itself. The important point is that such decisions, for as long as they are not themselves overruled or modified by the United States Supreme Court, or by amendment of the United States Constitution, provide new dimen- sions in the philosophy of federalism and state powers. Comparative Analysis A similar provision is contained in all state constitutions. As noted, the federal provision is also the same. The Model State Constitution contains the same provision but adds the following: "The right of the people to be secure against unreasonable interception of of telephone, telegraph and other electronic means of communication . . . shall not be violated, and no orders and warrants for such interceptions shall issue but upon cause . . . that evidence of crime may be thus obtairied, and particularly identifying the means of communication and the person or persons whose com- munications are to be intercepted. "Evidence obtained in violation of this section shall not be admissible in any court against any person." (art. I, § 1.03.) Comment Every consideration of policy suggests that this principle be retained in the Illinois Constitution. A contrary conclusion is certainly not com- 32 Art. II, §7 pellcd simply because the Mapp decision applies the federal Fourth Amendment guarantees to the states through the Fourteenth Amend- ment. (See Preliminary and Inlrodiutory Coinineut to this article, supra, p. 5.) Such frustrations as may be caused in some parts ot the body politic by Mapp, Camara and other decisions imposing new limitations upon state owners are surely not shared by other segments who view the decisions as great milestones in the continuing struggle of people against governmental power. In any event, there is nothing that can be done in a convention to change the new constitutional interpretations. As to whether the state should add limitations beyond those which presently are embraced within the state and federal amendments, such as the proposal in the Model State Constitution, this issue presents subtle and difficult policy problems. The genius of generalized con- stitutional principles is that they protect fundamental individual rights in respect to which a broad public consensus exists, while permitting ffexibility and adaptation as the dynamics of a changing society may require. The moment specifics are added to the great gen- eral principles, a whole host of new or related issues will command the support of different constituencies hoping to enshrine their particu- lar ideals into constitutional concepts. This is not to say that new par- ticular limitations upon state governmental power are unnecessary. The problem is to define those which are worthy of constitutional status, and to prevent the inclusion of new limitations which time will prove to be impractical or unwise. Bail and Habeas Corpus Sec. 7. All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great: and the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. History This section, except for minor grammatical changes, is the same as the provisions of the 1818 and 1848 Constitutions. The 1922 Convention proposal suggested that the section read as follows: "Excessive bail shall not be required. The privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion or invasion the public safety may require it." Curiously, the proposal when first offered was withdrawn, partly be- cause of opposition to the principle that bail was to be discretionary with the court in all cases, and partly because it permitted bail for persons charged with capital offenses on grounds more liberal than the existing Art. II, §7 33 provision. It was revived and adopted after the rejection of another amendment whicli retained the existing language of the present Consti- tution, but added a discretionary power of the court to refuse bail to a person previously convicted of a crime. Explanation The section is self-explanatory and has been productive of little liti- gation. It reflects the humane philosophy that persons accused of crime should not be made to languish in the dungeon pending trial. Bail is a matter of right except for capital offenses, where the proof is evident or the presumption great. Of course if the accused cannot meet the bail as set by the court, he must make the best of it. The amount of the bail, though discretionary with the court, must be reasonable. In a prepos- terous abuse of judicial discretion, the setting of $50,000 bail on a vagrancy charge, the trial judge was reversed despite his insistence that his discretion was properly exercised in view of the defendant's past criminal record. (People ex rel. Sammons v. Snow, 340 111. 464 (1930).) Judicial discretion in fixing bail must take into account the state's interest in assuring the defendant's appearance for trial. (People ex rel. Gendron v. Ingram, 34 111. 2d 623 (1966).) In this case, the "sufficient sureties" provision of this section was held not to be violated by a statute which liberalized procedures for release on bail. The statute (111. Rev. Stat. ch. 38, §§110-2, 110-7, 110-8 (1967)) destroyed the harsh and fre- quently odious bail bondsman's racket by providing the following options: (1) the execution of a personal bond without security, the condi- tion of performance being the promise to appear at the date set for trial; (2) the execution of a personal bail bond in a fixed amount coupled with a cash deposit of 10 per cent of the bail set by the court; (3) the execution of a personal bond in a fixed amount and the deposit of cash or securities equal to the amount so set, or the transfer as security of unencumbered real estate equal to twice the amount of the bail. The guarantee that the writ of habeas corpus shall not be suspended except in the extraordinary instances noted has produced no problems of interpretation or application. Comparative Analysis ' Twenty-three state constitutions contain the same provision relating to bail while those of the remaining states contain variations thereon. Every other state provides that "excessive" bail is prohibited. The United States Constitution provides that "[ejxcessive bail shall not be required . . . ." (U.S. Const, amend. VIII.) All the state constitutions contain simi- lar provisions relating to habeas corpus. The United States Constitution 34 . Art. II, § 8 in Article 1, Section 9 (not in Bill ot Rights), is precisely the same as the Illinois provision on habeas corpus. The Model State Constitution contains similar provisions relating to bail and habeas corpus. Comment A number of states leave the matter of bail in all cases to the discretion of the court rather than mandating it as a constitutional right available to a person accused of crime. The current concern with "lawlessness" has prompted some discussion that the right to bail be re-evaluated as a constitutional principle. It should be noted that the United States has not transferred the federal provision into the Fourteenth Amendment through the incorporation doctrine. Since denial of bail will work, as it has in the past, to the disadvantage of the poor, often with rank injus- tice, It would be well to consider most cautiously any proposal which would diminish the existing right. The habeas corpus provision is standard state and federal constitu- tional doctrine. No reasons are suggested which justify its repeal or modification. Indictment Sec. 8. No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the jienitentiary, in cases of impeach- ment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases. History The 1818 Constitution made no express reference to grand juries but clearly implied their constitutional necessity by providing that no person "for any indictable offense" shall be proceeded against criminally by information. The term "indictable offense" was not defined. Presum- ably the common law had established the general distinctions between crimes of a serious nature punishable by death or imprisonment in the penitentiary, e.g., felonies, and criminal offenses of lesser gravity, e.g., misdemeanors for which the punishment was either by fine only, or fine and imprisonment in penal institutions other than the penitentiary, e.g., county jails, workhouses, etc., for a term generally less than one year, or by both such fine and imprisonment. In a curious, almost unintelligi- ble form, the 1818 provision excepted from the "indictable offense" cate- gory "cases arising in the land or naval forces, or the militia when in actual service, in time of war or public danger, by leave of the courts for oppression or misdemeanor in office." Whether the phrase "by leave Art. II, § 8 35 of the courts" was tied to the antecedent or succeeding clauses, or stood by itself as a grant of unlimited discretionary power to foreclose grand jury action for indictable offenses was only one of the interpretive diffi- culties raised by this language. Fortunately the occasion to test these ambiguities does not seem to have arisen, or if it did, it apparently did not reach the Supreme Court. The 1848 Constitution was somewhat of an improvement in clarity, though it seemed substantially to change the 1818 philosophy of permit- ting a wide range of nonindictable offenses. Introducing the first express constitutional reference to "grand jury," it mandated a general applica- tion of the grand jury indictment for any "criminal offense," excepting impeachment, the military and militia cases designated in 1818, and "in cases cognizable by justices of the peace." A proviso prohibited such justices from trying any person, except as a court of inquiry, for any offense punishable with "imprisonment or death, or fine above $100." The scope of this alteration of the 1818 provision was also uncertain. It seemed to exclude grand jury involvement in misdemeanors by the gen- eral exception of "cases cognizable by justices of the peace," but whether in fact this was so was made uncertain by the reference to misdemeanors punishable by a fine of more than $100. Again the ambiguities apparently caused no complications. The 1870 provision is a marked improvement in the elimniation of the ambiguities of the 1818 and 1848 provisions, but its major substan- tive contribution was in its authorization of the General Assembly to abolish the , grand jury "in all cases." A great deal of criticism directed at the grand jury system was voiced during the Convention, causing ex- tensive debate. It was argued on the one hand that the grand jury system was outmoded, overly expensive, secretive, irresponsible, cruel, and un- just, and on the other hand that the system was necessary, traditional, and effective. In the end, after considering several compromises, it was decided to defer the decision to the legislature which could provide substitute systems, test them, and replace them, if necessary. The 1870 provision retained the exceptions for impeachment and the military and militia cases. In excluding the indictment requirement for criminal offenses in which the punishment was by fine only, or non- penitentiary imprisonment, the framers were drawing for the first time a fairly clear distinction between felonies and misdemeanors as estab- lished by law. The 1922 Convention proposal offered several innovations. It read as follows: "No person shall be held to answer for a capital offense unless on indictment of a grand jury. Offenses which may be punished by imprisonment in the penitentiary may be prosecuted by indictment or on information filed by the 36 Art. II, § 8 attorney general or by a state's attorney. No such information shall be filed by a state's attorney exccjn by leave granted, citlicr in term time or in vacation, by a judge of a court of record having jurisdiction of the offense, after a showing of probable cause. All other offenses may be prosecuted as provided by law." As ciralted by the Committee on the Bill of Rights, this section in the 1922 Convention proposal apparently froze the grant! jiny system into the Constitution. It provided no authority in the General Assembly to abolish it. An attempt to grant this authority failed in part because it was telt that abolition might endanger the liberties of accused persons. It was pointed out, as well, that the legislature had not seen fit to act on the existing authorization, and that this could reflect a legislative judg- ment of the value of the grand jury. One delegate, however, expressed the thought that legislative inaction was due to an attorney general's opinion that "the legislature had no right to abolish the grand jury in any case unless it abolished it in all . . . ." Explanation The grand jury indictment procedure derives from the Magna Charta, as do most of the limitations upon governmental power expressed in the Bill of Rights. In construing a comparable provision of the Massachu- setts Constitution, Chief Justice Shaw, in Joucs x>. Robbins (74 Mass. (8 Gray) 329, 344 (1857)), expressed the most frequently cited rationale for this provision. "The right of individual citizens to be secure from an open and public ac- cusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment antl indictment of a grand jury, in cases of high offenses [sic], is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prose- cutions, and as one of the ancient immunities and privileges of English liberty." Among the more important of its related objectives was to limit a person's jeopardy to offenses charged by a group of his fellow citizens acting independently of either the prosecuting attorney or judge (Stirone V. United States, 361 U.S. 212 (I960)), and to give a citizen the oppor- tunity to have the benefit of a charge specifying with reasonable cer- tainty the statute violated and wherein it was violated. (Conklin v. Cozart, 158 F. 2d 676 (1946), cert, denied, 332 U.S. 801 (1947).) The federal Bill of Rights grand jury requirement appears as the first clause of the Fifth Amendment of the Constitution of the United States (applicable to "capital, or otherwise infamous crime"). However, unlike other procedural rights in criminal cases secured to the accused by that section, the grand jury guarantee has not been incorporated into the due process clause of the Fourteenth Amendment as a federal limita- tion upon state power. Hurtado v. Califomia (1 10 U.S. 516 (1884)) estab- Art. II, §8 37 lished the nonapplication of the Fourteenth Amendment and no subse- quent United States Supreme Court decision has disturbed it. (See Mor- ford V. Hocker, 394 F.2d 169 (9th Cir. 1968).) State decisional law, there- fore, remains supreme in its area. The Constitution of Illinois does not define a grand jury. Its com- position and procedure are left to statute and the common law. (People ex rel. Ferrill v. Graydon, 333 111. 429 (1928).) Important decisional law establishes that this section draws the line between felonies punishable by imprisonment in the penitentiary which must be prosecuted by in- dictment, and misdemeanors, by information (Brewster v. People, 183 111. 143 (1899)); and that if any offense is punishable by fine only, or imprisonment other than in a penitentiary only, or by both such fine and imprisonment, it requires only complaint by information to prose- cute. It is not at all clear whether the legislature may expand the grand jury indictment process to include misdemeanors. Given customary rules of constitutional and statutory interpretation, there appears to be nothing in this section which operates as a limitation upon legislative power to do so. The legislature has not seen fit to pursue this policy; thus there is no decisional law on this subject. The fact that a criminal offense provides for fine or imprisonment in other than the penitentiary (thus establishing it as a misdemeanor) does not, however, empower the legislature to authorize prosecution by the information route where a conviction called for the additional punish- ment of loss of civil rights. (People v. Russell, 245 111. 268 (1910).) However, where a conviction for drunken driving, then a misdemeanor, was prosecuted by information, the fact that a conviction authorized revocation of the license, in addition to fine or imprisonment, did not convert the offense into an indictable one, revocation being considered an incident of the regulatory power and not a punishment. (People v. Kobylak, 383 111. 432 (1943).) In respect to the constitutional grant to abolish the grand jury "in all cases," the Supreme Court has held that the power can be exercised in a selective class of cases and that abolition of the grand jury in less than all criminal offenses is not a violation of this provision. (People ex. rel. Latimer v. Randolph, 13 111. 2d 552 (1958).) Finally it is important to note that the institution of criminal prose- cution by the "information" route involves the formal presentation of a charge by the state's attorney or other appropriate prosecuting official to a court. The secrecy, confidentiality, and other procedural incidents of grand jury deliberation which results either in a "true bill," in effect a determination that probable cause has been established upon which prosecution may follow, or a "no true bill," are not applicable to the 38 Art. II, § 9 information process. The difference derives from the presumed distinc- tion in tlie gravity of felonies and misdemeanors and the consequent need of assuring greater secrecy in the felony-grand jury cases. Comparative Analysis Only 25 states have constitutional provisions for indictment by grand jury and in nine of these authorization is given to the legislature to dis- pense with the requirement or to limit the offenses to which it is aj^pli- cable. Prosecution by information is permitted in the other states. Only Texas provides similarly that an indictment must be returned for all criminal cases, suljject to the exceptions in the Illinois Constitution. The Fifth Amendment to the United States Constitution provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jmy, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . ." The Model State Constitution contains no comparable provision. Comment There appears to be something basically contradictory in the inclu- sion of a grand jui^ indictment procedure in specified cases as a funda- mental liberty deserving of constitutional status irt a Bill of Rights, and the coupling of this requirement with legislative authority to abolish the grand jury in all cases. Given its historical context and the reasons customarily given in support of its status as a fundamental liberty, the power of legislative abolition seems to be "a most ingenious paradox." On the other hand, the fact that the legislatme has not moved to dis- pense with this requirement in any significant way suggests that the guar- antee is firmly fixed in political consciousness as a basic protection against abuse of governmental power. It is not possible to gauge its relationship to proper and effective law enforcement, but if it makes more diffi- cult a casual or arbitrary approach to the administration of criminal justice, this very fact may justify its constitutional status. The assess- ment of the guarantee, and the legislative power to abolish it is indeed most difficult. It is not likely that any rationale behind any change in the existing provision will secure a substantial consensus. This is, of course, a most speculative judgment. Rights after Indictment Sec. 9. In all criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation, and to have a copy thereof; to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a Art. II, § 9 39 speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. History The 1818 Constitution provided that in all criminal prosecutions the accused had a right to be heard by himself and counsel; to demand the nature and cause of the accusation; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his favor; and to have a speedy public trial by an impartial jury of the vicin- age. The final provision was to the effect that the accused shall not be compelled to give evidence against himself. The 1848 Constitution changed the 1818 provisions only in respect to the locale of the jury. Instead of an impartial jury of the vicinage, the new provision required a jury "of the county or district wherein the offense shall have been committed, which county or district shall have been previously ascertained by law." The current provisions of the 1870 Constitution, nonsubstantive style changes aside, retained the 1848 section intact except (1) in respect to the locale of the jury wherein the jury was required to be drawn from the county or district in which the offense "is alleged to have been" (in- stead of "was") committed, and the deletion of the last clause pertaining to the county or district having previously been ascertained by law, and (2) in removing the self-incrimination provision and transferring it to Article II, Section 10. The 1922 Convention proposal retained the 1870 provisions intact after defeating an amendment which would have added, as a final sen- tence, an authorization to the legislature to provide for the taking of depositions of nonresident witnesses, other than in homicide cases, by the state or the accused, to be used for or against the accused. Explanation The critical relevance of federal decisional law in respect to the often- mentioned incorporation doctrine requires at the outset that it be noted that the following comparable guarantees of the Sixth Amendment of the Constitution of the United States have been applied to the states through the Fourteenth Amendment: (1) the right to counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); (2) the right to a speedy trial (Klopfer V. North Carolina, 386 U.S. 213 (1967)); (3) the right to a public trial (In re Oliver, 333 U.S. 257 (1948)); (4) the right to confrontation of opposing witnesses (Pointer v. Texas, 380 U.S. 400 (1965)); (5) the right to com- pulsory process for obtaining witnesses (Washington v. Texas, 388 U.S. 14, (1967)); and (6) the right to an impartial jury (Witherspoon v. State of IlHnois, 391 U.S. 391 U.S. 510 (1968)).' 40 Art. II, § 9 To the extent that these federal decisions circumscribe state power beyond the limitations adjudged by the state courts to be within the scope ot the state guarantees, the state is powerless to react. What re- mains of state power in these areas of incorporation of specific federal Bill of Rights provisions into the Fourteenth Amendment is essentially the discretion to impose additional limitations uj^on governmental power. This it may do by constitutional amendment, by legislation or by judicial interpretation of the existing state constitutional provisions. These considerations are of course important to the Convention. Re- duced to its essence, it means that a constitutional change cannot be proposed which negates the Gideon v. Wainwright principle of right to counsel in criminal cases, but that tlic constitutional right to counsel may be extended to civil or administrative proceedings. As in other general guarantees in Article II, the state decisions inter- preting the complex of rights of an accused after indictment or informa- tion are legion. Many of these, in whole or in part, have been superseded or modified by the application of the new federal law. Many others already approximated the standards imported by federal decisions into the comparable federal Sixth Amendment provisions. To attempt a sub- stantial collation, synthesis or analysis of hundreds of state and federal decisions in these areas seems pointless. Guideline principles can be offered simply to sharpen understanding. Beyond this, a review of several of the recent decisions establishing new conceptions of some of the guar- antees will be helpful. Taking the specific rights in the order of statement in this section, the right to appear embraces the right to be present at every stage of the trial (People v. Smith, 6 111. 2d 414 (1955)), but does not extend to the right to be present for argument in a post-trial motion People v. Berry, 37 111. 2d 329 (1967)). The right to defend in person permits a defendant to conduct his own case if he so desires, and w-aives the otherwise available right to counsel. (People v. Robinson, 27 111. 2d 289 (1963).) The right to counsel ex- tends to all critical stages in the criminal prosecution, beginning with the "accusatory stage," including the interrogation phase, and extending into the trial phases. The definitive rules are expressed primarily in Escohedo v. Illinois (378 U.S. 478 (1964)) and Miranda v. Arizojia (384 U.S. 436 (1966)). The right to demand the nature and cause of the accusation runs to the critical issue of notice. The offense and the salient factors associating the accused with it must be described with that particularity which en- ables him to prepare his defense. (People v. Williams, 30 111. 2d 125 (1963).) Art. II, § 9 41 The right to meet the luitnesses face to face is designed to assure the critical right of cross examination without which the guarantee of a fair trial could be a mockery. (People v. Ferguson, 410 111. 87 (1951).) In Smith V. lUinois (390 U.S. 129 (1968)), there is a strong hint that the right of confrontation may be violated where the prosecution fails to disclose the identity of an informer who testifies under an assumed name with the consequence that it deprives the defendant of testimony which could have been significant on the issue of the informer's credibility. The right to compel the attendance of witnesses in behalf of the accused, if denied or substantially impaired, will deny the accused the fair trial to which he is entitled. (People v. Wilson, 24 111. 2d 425 (1962).) The right to a speedy, public trial means a trial without vnidue delay. The period may be relative and delays occasioned by the defendant's conduct cannot be asserted as a violation of the right. (People v. Jones, 33 111. 2d 357 (1965); People v. Bryarly, 23 111. 2d 313 (1961); People v. Utterback, 385 111. 239 (1944).) The public trial requirement is vio- lated only by a blanket exclusion of members of the public. (People v. Dronso, 83 111. App. 2d 59 (1967).) The right to an impartial jury trial means generally a jury made up of persons prepared to exercise their personal judgment, favoring neither the prosecution nor the accused, standing indifferent to both, and guided only by the law and the evidence. (People v. Hobbs, 35 111. 2d 263 (1966).) The right to be tried in the county or district in which the offense is alleged to have been committed incorporates the common law right to be tried by jurors familiar with the locale and the accused. (Buckrice v. People, 110 111. 29 (1884).) The right includes the right to seek a change of venue, a recognition of the accused's privilege of waiver. Numerous subtleties, modifications, exceptions, variations and cir- cumlocutions surround these basic general interpretations. We leave them untouched as unnecessary to this explanation. Several recent decisions must be noted, however. Witherspoon v. Illi- nois (391 U.S. 510 (1968)) establishes the important principle that a statute authorizing unlimited challenges for cause for jurors who express general conscientious scruples against the death penalty substantially affects the fairness and impartiality of the jury by virtually assuring a psychologically attuned "hanging jury" in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States. In Duncan v. Louisiana (391 U.S. 145 (1968)), the Sixth and Four- teenth Amendments were held to require a jury trial for "serious offenses," and a state statute defining a simple battery as a misdemeanor for which a two-year sentence of imprisonment was authorized, without trial by 42 Art. II, § 9 jury, was a violation of these guarantees. And in Bloom t'. Illinois (391 U.S. 194 (1968)), the Court, reversing hallowed precedent, applied the jury trial requirement and '"serious offense" concept of Duncan to a conviction for criminal contempt of a court. In United States v. Jackson (390 U.S. 570 (1968)), the provision of the Federal Kidnapping Act, in- terpreted to subject the accused to a death sentence only if he demanded a jury, a risk not assimied if he pleaded guilty or waived a jury trial, was held to impair the Sixth Amendment guarantee of a jury trial. This holding would apply, of course, to state statutes similarly construed, through application of the incorporation doctrine. Comparative Analysis All state constitutions provide for right to counsel in criminal prosecu- tions. Forty-four states provide a right to know the charge, while 21 provide also that the accused be given a copy of the charge. Forty-four states provide that the accused has the right to be confronted by wit- nesses against him. Forty states provide that the accused has the right to compulsory process to obtain witnesses in his favor. Forty-four states also provide a right to a speedy and public trial. (In relation to the re- quirement of jury trial, see Comparative Atialysis under Sec. 5 of this article.) The Sixth Amendment of the Constitution of the United States contains provisions virtually identical with this Section 9. The Model State Constitution makes comparable provisions for rights of accused persons. Comment No attempt has been made to explain the political and legal philoso- phy behind the fundamental post-indictment rights guaranteed by this amendment. The rights are so basic, so well known, so intuitively under- stood as indispensable to a free society, that any explanation of their supporting rationale would be an affront to the Convention delegates. What then does an analyst suggest as to the merit of such provisions? The only sensible response that this analyst can suggest is that the amend- ment should be left untouched, with its meaning and application subject to the normal process of judicial interpretation, leaving to the wisdom of that department the responsibility of assuring that these limitations on governmental power are not abused. It is confidently suggested that this judicial responsibility has thus far been exercised in a manner which vindicates this delegation to the judicial department. Any attempt to enlarge or diminish these familiar and time-honored guarantees could be productive of harm and confusion. Again the cautionary observation is made that this conclusion is subjective. Others may reasonably disa- gree with it. Art. II, § 10 43 Self-incrimination and Double Jeopardy Sec. 10. No person shall l)c compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense. History The 1818 and 1848 Constitutions included the prohibition against self-incrimination in the sections dealing with post-indictment rights of the accused in criminal trials. (See History, Sec. 9, supra, p. 39.) Each Con- tution carried an identical double jeopardy prohibition in a separate section. The 1870 Constitution combined these two provisions with minor and nonsubstantive language changes. The 1922 Convention pro- posal recommended the 1870 provision without change. Explanation Self-incrimination Again as a preliminary observation, it is important to note that the federal Sixth Amendment right to be free of compelled self-incrimina- tion has been incorporated into the Fourteenth Amendment's due process guarantee as a specific limitation upon state power. (Malloy v. Hogan, 378 U.S. 1 (1964).) To this extent the Convention's power to dilute the guarantee as interpreted by federal standards is abridged. Of course, the state's authority to expand upon these limitations, beyond the federal standards, should it so desire, remains inviolate. The right against forced self-incrimination has its origins in Twelftii Century efforts of the Church to seek incriminating evidence concerning secular and religious misconduct, thus provoking the concern and hos- tility of the kings. The practice of that and succeeding centuries, both religious and secular, however, sanctioned the use of torture to make suspected persons give evidence against themselves, upon the basis of which conviction and punishment would follow. The infamous Star Chamber, and its use of corporal punishment to compel a person to establish his guilt, extended well into the Seventeenth Century, when in a celebrated case, the House of Conniions ruled illegal a Star Chamber sen- tence which had severely punished a person for refusing to incriminate himself. Thus was born the rule, first phrased in terms of "no one should be required to accuse himself," that a person may not be com- pelled in any criminal case to give evidence against himself. The prin- ciple became a part of the common law and constitutional tradition in the colonies and their successor original states, and by their insistence was incorporated into the federal Bill of Rights as well as in the state constitutional provisions. The history and initial objectives of the provision seemed fairly clear. As important as society's interest was in convicting and punishing per- 44 Art. II, § 10 sons accused ot crime, that interest could not, in the light of history, justify compelled self-accusation of crime. The protection against self-incrimi- nation came to be viewed as a truly fundamental liberty. In the course of litigation, subtleties, nuances and shadings of mean- ing were developed which went far beyond the initial simplistic Star Chamber-torture-self-accusation syndrome. 7 he abiding conviction that the rule was an indispensable attribute of freedom led to a rejection of what seemed to be the plain and unambiguous limitation of the privi- lege to criminal cases. Because any governmental inquiries, investigations or proceedings could lead to the disclosure of evidence which might thereafter be used in a criminal prosecution, the privilege was extended to legislative investigations (Watkins v. United States, 354 U.S. 178 (1957)) and in fact to any proceedings, criminal, civil, administrative, judicial, investigative, or adjudicatory, whenever an answer to an in- quiry might tend to subject the person to criminal responsibility (Brown V. United States, 356 U.S. 148 (1958); United States v. Goldsmith, 272 F. Supp. 924 (E.D. N.Y. 1967)). Moreover, the privilege is not limited to the defendant in a criminal or civil case or the principal subject of an administrative or legislative investigation; it may, as well, be claimed by any witness to any such proceeding. The normal connotation of the phrase "to be a witness against himself" reasonably suggests a privilege to refuse to give a truthful answer the substance of which would support a conviction under a criminal statute. It has been interpreted far beyond that meaning, however, so as to permit a person to refuse to answer any question which might furnish "a link in the chain of evidence" re- quired to sustain a criminal prosecution. (Blau v. United States, 340 U.S. 159 (1950).) So complex has the law of self-incrimination become, that in the words of one very competent observer: "[T]he law and the lawyers despite end- less litigation over the privilege have never made up their minds just what it is supposed to do or just whom it is intended to protect." (Kal- ven, "Invoking the Fifth Amendment: Some Legal and Impractical Con- siderations," 9 Bull. Atom. Sciences 181, 182 (1953).) Despite this devastating professional appraisal, it may still be desir- able to suggest some of the more important applications and nonappli- cations of the rule. Escobedo v. Illinois (378 U.S. 478 (1964)) relied upon the privilege against self-incrimination as the constitutional foun- dation of a person to have counsel during the post-arrest police interroga- tion stage. That decision, and the guidelines which followed in Miranda V. Arizona (384 U.S. 436 (1966)), have left many law enforcement officers in a state of shock from which they are just beginning to emerge. If the mandated Miranda advice and warnings are not given to the person in Art. II, § 10 45 custody, e.g., that he has a right to remain silent, and that any statement he makes may be used as evidence against him, the clear impact of the decision is that no statement, even if voluntarily offered, may be used against the accused by the prosecution. In a less liberal vein the Supreme Court has held that the privilege concerns only evidence given by a person which is testimonial or com- municative in nature, and that it does not apply to a withdrawal of blood from the accused and the admission in evidence of the analysis thereof (Schmerber v. California, 384 U.S. 757 (1966)); to a compelled post-indictment police lineup inspection (United States v. Wade, 388 U.S. 218 (1967)); to the taking and use of a handwriting sample of the accused (Gilbert v. California, 388 U.S. 263 (1967)); or to the taking of fingerprints (United States v. Braverman, 376 F. 2d 249 (2d Cir. 1967), cert, denied, 389 U.S. 885 (1967).) In a remarkable denial of the privilege, Shapiro x>. United States (335 U.S. 1 (1948)) applied the "rec|uired records" doctrine to a businessman who produced his records, after claiming the privilege, and was thereafter convicted on the basis of his own evidence. The relevant statutory im- munity provision under these circumstances was held not to apply to business records required by law to be kept, which records were held not to be within the scope of the privilege against self-incrimination. How- ever, in Marchctti v. United States (390 U.S. 39 (1968)) and in Haynes ik United States (390 U.S. 85 (1968)), some of the sting may have been taken out of Shapiro, which ^vas distinguished but not overruled. In those cases the registration provisions of the federal wagering tax statutes and the National Firearms Act, respectively, were held to violate the privilege against self-incrimination. These latter decisions were almost predictable after Albertson v. Subversive Activities Control Board (382 U.S. 70 (1965)) which held invalid, under the privilege, orders of the board requiring named individuals, found by the board to be mem- bers of the Commimist Party, to file registration statements acknowledg- ing such membership, the effect of which could be to subject them to criminal prosecution under federal statutes. Of particular interest is Griffin v. California (380 U.S. 609 (1965)) which held that a prosecutor's comment on the accused's refusal to testify, or an instruction that the jury may consider the defendant's si- lence in weighing the evidence, violated the defendant's privilege against self-incrimination. The Illinois posture on this issue under the state constitutional provision appears to be the same as the federal rule. Indeed, in most issues arising out of the state and federal constitutional guarantees, prior to Malloy v. Hogan (378 U.S. 1 (1964)) applying the federal self-incrimination provision to the states, the holdings were more 46 Art. II, § 10 parallel than disparate. Thus, both state and iederal decisions generally agreed iliai in the absence ol claim ot privilege it is \\ai\ed; that the privilege is personal and docs not aj^ply to corporate records which may incriminate corporate officers; that physical examinations oi the person, including other evidence ot a nontestimonial nature, are not within the privilege: and that statutes granting innnunity lor compelled testi- mony do not violate the guarantee il the scope ot the immunity is as broad as the protective umbrella of the privilege. These examples do not exhaust the areas ot concurrence. The relationship ot the guarantees against unreasonatjle search and seizure and selt-incriminaiion is immediately apparent. Evidence un- lawfully seized, if permitted to be used, can obviously involve self-in- crimination. The decisions suggest that the two guarantees, though not identical, have an area of overlap. {See People v. Kalpak, 10 111. 2d 411 (1957); People v. Perry, 1 111. 2d 482 (1953).) Again as in the explanations under other sections of the Article, the purpose has been to inform generally, and not in an exhaustive and critical way, of the meaning, scope and aj^plication of the provision in its more common and important contexts. Many of the procedural com- plexities with which the decisions abound, primarily in respect to ^\•hen the privilege may be claimed and the scope of judicial power or discre- tion in assessing the legitimacy of the claim of privilege, have not been dealt with. Though important, they are essentially collateral to an analysis of the principal objectives of the provision. Double Jeopardy In Palko V. Connecticut (302 U.S. 319 (1937)), the United States Supreme Court held that the state could appeal and secure a new trial of an accused it had cliarged with first degree murder, but convicted, in a jury trial, of second degree murder. Against the defendant's claim that the Fourteenth Amendment of the Constitution of the United States incorpo- rated the federal Fifth Amendment requirement that no person "be sub- ject for the same offense to be twice put in jeopardy of life or limb," the response was negative. The decision further held that the due process guarantee of the Fourteenth Amendment Avould be applied in state cases involving jeopardy only when the jeopardy subjected a defendant to "a hardship so acute and shocking that our polity will not endure it." (Id. at 328.) On June 23, 1969, in Benton v. Maryland (395 U.S. 784 (1959)), the Supreme Court overruled Palko and applied the incorporation doc- trine to a situation in which the state was successful in securing a convic- tion on a burglary coimt after the accused was acquitted of larceny. The conviction was subsequently set aside on appeal on a wholly different con- Art. II, § 10 47 stitiitional principle and the accused was thereupon retried on both the burglary and larceny counts. His constitutional challenge of a retrial, on due process grounds, oi the larceny charge was rejected by the trial court and conviction loUowcd on both the burglary and larceny charges. The Supreme Court of the United States coidd have ruled that a subse- quent retrial and conviction of an offense which had earlier resulted in an acquittal subjected the defendant, on due process grounds, to "a hardship so acute and shocking that out polity will not endure it." In a clear rejection of this obvious approach to the resolution of jeopardy issues under the Fourteenth Amendment, it chose instead to follow the trend of its own decisional expansion of the incorporation doctrine. The double jeopardy principle, on its face, seems disarmingly clear and simple. In fact it is Cjuite complex and abstract, and has given rise to conflicting and troublesome issues of law and policy. The meaning of "jeopardy" and the "same offense" is hardly crystal clear. The facts of the Benton case present the issue in its most simplistic form, a retrial after an acquittal for what is clearly the same offense. The problem is rarely posed, however, in such obvious terms. Some of the most difficult problems arise out of the dual sovereignty concept of federalism, wherein the federal and state governments seek and secure convictions against the same person for separately defined state and federal offenses, involv- ing the same facts and conduct. Other serious problems arise where multiple prosecutions ensue for what is essentially the same criminal act, e.g., robbing five persons, prosecution related to three of the victims resulting in acquittal, followed by a prosecution based on robbery of the fourth victim. In this not too inicommon instance of selective and multi- ple prosecutions arising out of the same criminal offense, the United States Supreme Comt, in Hoag v. New Jersey (356 U.S. 464 (1958)), sustained the conviction as within the permissible latitude of the states' power to administer their own systems of justice. An even more dramatic illustra- tion of this latitude is C'nicci v. Illinois (356 U.S. 571 (1958)) where the defendant, charged with the killing of his wife and three children, was prosecuted in separate trials involving different victims, the state seeking most earnestly to secure the death penalty. In the first two trials the defendant was convicted but received sentences of imprisonment. In the third trial the state finally secured the death penalty. The same evidence involving all fom- deaths was introduced in each of the trials. The United States Supreme Court, in a 5-4 decision, iq^held the murder con- viction, holding that the state could i:)roceed either by a multiple-count indictment in a single trial, or by separate trials. Hoag and Ciiicei antedated Benton's incorporation rule and were decided only on due process grounds. Whether Benton will have a significant effect on this 48 Art. II, § 10 and other issues ol tl(nil)le jeopardy is, oi course, questionable at this point. On the federalism matter, the issue is e\en more sensitive. The dual sovereignty concept and the reluctance ol the lederal coints to impede, except on the most compelling ol grounds, the right ol a state to prose- cute lor an offense for which a prosecution has already occurred under a federal criminal statute, suggests that lirulo)! will not be applied to such cases. The dual sovereignty concej^t received its first recognition in Moore V. Illinois (55 U.S. (M How.) 1 :^ (1852)), wherein the Clourt said: "Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punish- ment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of botli. . . . That either or bolli may (if they see fit) punish such offender, cannot be doubted. Yet it cannot truly be averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of wliich he is justly punish- able." (Id. at 20.) This principle was reaffirmed in two major decisions, both involving Illinois. The first was Bartkus v. Illinois (355 U.S. 281 (1958)). The facts were as follows: defendant was tried for robbery in the federal district court under the Federal Bank Robbery Statute and acquitted. Shortly thereafter Illinois indicted and tried the defendant for the same offense under the state robbery statute. He was convicted and the conviction was affirmed by the Illinois Supreme Coiut, Avith the Court relying heavily on the Moore rationale of dual sovereignty. (People v. Bartkus, 7 111. 2d 138 (1955).) The United States Supreme Court affirmed the conviction. The second case is Abbate v. United States (359 U.S. 187 (1959)), de- cided at the same term as Bartkus. The facts were different; Abbate was separately tried and convicted first in the federal district court and then in the state court for defined lederal and state criminal offenses arising out of the same conduct, 'v^ereas in Bartkus a state conviction followed a federal acqtdttal. The Supreme Court sustained the state conviction in an 8-1 decision, refusing to yield on either due process or doidjle jeopardy grounds from its prior holdings. It may be that the argument most persuasive to the Court was the government's contention that a reversal of the dual sovereignty principle could lead to a race by the defendant (or tlie state) to the state courts for a conviction with a nomi- al punishment which would then immunize the defendant from federal prosecution and a potentially more severe punishment. Whatever the merits of these decisions, the dual sovereignty rule seems firmly entrenched at the moment and, as indicated, is probably not endangered by the Benton rule of incorporation of the federal Art. II, § 10 49 jeopardy provision into the Fourteenth Amendment. In Illinois, the principle of dual sovereignty is applied to multiple prosecutions under state statutes and local ordinances. In Robbins v. People (95 111. 175 (1880)), it was held in a decision which seems valid today that the same act may be an offense against the state and a municipality and may be punished under both. In the more mundane areas of conflict, Illinois has held, among other decisions, that a statute which provides increased penalties for second or subsequent criminal offenses does not violate the state's double jeopardy guarantee (People v. Manning, 397 111. 358 (1947)); that aquittal of an offense operates as an acquittal and as a bar as to all lesser included offenses on which a conviction coidd have been secured on the iijdictment charging the higher offense (People v. Harrison, 395 111. 463 (1946)); that the right is a personal privilege which may be waived (People v. Scales, 18 111. 2d 283 (I960)); and that acquittal bars any appeal (People v. Miner, 144 111. 308 (1893)). Illinois decisions dealing with collateral issues such as the time when jeopardy attaches, the stage at which in a criminal proceeding the pro- cedure establishes a bar to further prosecution, problems of waiver, and others, need not be analyzed in this already too lengthy explanation. Suffice it to say, in conclusion, that the areas of uncertainty are many, and that the Benton decision will in all probability increase the uncertainty. Comparative Analysis All state constitutions contain comparable provisions relating to the right against self-incrimination. Seven states have no constitutional provision on double jeopardy. The Model State Constitution contains similar provisions. The Fifth Amendment of the Constitution of the United States provides, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a w'itness against himself . . . ." Comment Self-incrimination It may come as a surprise that much respectable authority exists for the proposition that this provision, as interpreted, goes far beyond appro- priate notions of its proper meaning, and that legitimate state interests in arriving at the truth in criminal and other proceedings are being thwarted in ill-conceived efforts to protect individual freedoms. Jeremy Bentham, an acknowledged giant among legal philosophers, asserted that not only was there no justification for the privilege, but that it also operated as an illogical and indefensible obstruction to justice. The 50 Art. II, §11 pre-eminent Dean Wigmore in his famous treatise on evidence (J. Wig- more, VIll Wigmore on Evidence §§2250-2284 (19(il)) denigrated the reasons most irequently offered in defense of the rule and believed firmly that it was too frequently abused to the detriment of the adminis- tration of justice and the public. He concluded, however, that on bal- ance the retention of the rule was probably more desirable than its abolition. Justice Walter V. Schacfer of the Illinois Suj^reme Court, one of the nation's most distinguished jurists, has severely criticized the moral and ethical lountlations of the privilege and particularly its application to police interrogation procedures as defined in the Escobedo and Miranda decisions, and to virtually total prohibitions upon the right of a prosecutor in a criminal case to comment upon the failure of a defendant to take the stand. (Schaefer, "Police Interrogation and the Privilege Against Self-incrimination," Gl Nw. L. Rev. 50(i (1966).) There is, however, no lack of defenders of the privilege in its total or partial meanings and applications. The mere statement of the privilege seems to evoke a most passionate defense that it is a fundamental and inviolate freedom against the threat of arbitrary governmental power. Given the psychological consensus that it commands, it would seem almost heretical to suggest that it be tampered with in any form. In the last analysis it seems well to agree witli Dean Wigmore that its retention will be less harmful than its abolition. Rather than suggest constitu- tional amendment, it would appear preferable to leave to the courts and the legislature the further development and evolution of the prin- ciple, in the hope, perhaps well founded, that by this approach the appropriate accommodation of public and private rights will eventually be achieved. Double Jeopardy As with the privilege against self-incrimination, the double jeopardy rule is deeply embedded in constitutional doctrine. It enjoys in its doctrinal meaning a greater acceptance in principle among legal scholars than does the privilege against self-incrimination. Despite its many un- certainties it surely deserves constitutional status, again with the thought that the normal evolutionary processes of the law will better assure its effective implementation than any effort to engraft particular emphasis or limitations upon the existing constitutional language. Limitation of Penalties after Conviction Sec. 11. All penalties shall be proportioned to the nature of the offense; and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person be transported out of the Slate lor any offense committed within the same. Art. II, §11 51 History Each of the three clauses of tliis section were parts of separate sections, identically worded, in the 1818 and 1848 Constitutions. The section providing for proportioning jjenalties to the offense added the benevo- lent thought that it is "the true design of all punishment ... to reform, not to exterminate mankind." The 1818 and 1848 provisions, absent the philosophical observation, were consolidated into the present section. The 1922 Convention proposal retained the present version except for minor stylistic language changes. Explanation Penalties to be proporlioned to the nature of the offense This provision, it has been plausibly suggested, is the lineal descend- ant of that clause of the Eighth Amendment of the Constitution of the United States which forbids cruel and unusual pimishment. In terms, it is quite clear that the whole of the Eighth Amendment dealing with excessive bail, fines and cruel and unusual punishment is based precisely on the tenth Section of the historic English Bill of Rights of 1689 which established the decisive victory of the people, through Parliament, over the monarchy. In O'Neil V. Vermont (144 U.S. 323 (1892)), the Supreme Court refused to apply this clause of the Eighth Amendment, through the principle of incorporation into the Fourteenth Amendment, as a limitation upon state power, leaving undisturbed an unusually severe state sentence. In Louisiana ex rel. Francis v. Resweber (329 U.S. 459 (1947)), the Court assumed without deciding that the Eighth Amendment was ap- plicable to the states through the due process clause of the Fourteenth Amendment, but denied that a second try at electrocution of the accused (the first having gone awry) was cruel and unusual punishment. In Robinson v. California (370 U.S. 660 (1962)), however, the Supreme Court invalidated that portion of a California statute which made it a criminal offense to "be addicted to the use of narcotics" as a denial of due process under the Fourteenth Amendment, but in another reference clearly implied that the Eighth Amendment prohibition was applicable to the states. Addiction was distinguished from use as being a nonpunishable status offense, comparable to an illness. The Court refused to extend the Robinson principle in Powell v. Texas (392 U.S. 514 (1968)) where a state criminal offense of "public intoxication" was held to apply to use and not to status. State decisional law views the clause as directed to the law-making body. Judicial self-restraint in second-guessing the legislature has led the Illinois Supreme Court to the general position that an objection to a penalty established by the lawmakers will not be sustained unless it is 52 Art. II, § 1 1 cruel and degrading punishnieni unknown to the common law, or so Avholly disproportionate as to shock the moral sense. (People v. Elliott, 272 111. 592 (1916).) Whether this general proposition woidd today sustain a punishment imposing some of the extreme physical tortuies known to the common law is highly doubtiul, but in terms ot capital punishment oi imprison- ment the authority ol the state is most expansively construed. Illus- tratively, the tollowing piniishments have been held not to violate this clause of the state Constitiuion: the death sentence lor nuucler, including such sentence on a plea of guilty (People v. Chesnas, 325 111. 361 (1927)); a sentence of one year to life for armed robbery where the fruits of the crime were but twenty-five cents (People v. \Villiams, 4 111. 2d 440 (1954)); a sentence of 199 years for muider wliich effectively precluded the possibility of parole (People v. Grant, 385 111. 61 (1943); life imprison- ment for aiding in rape (People \. Mundro, 326 111. 324 (1927)); a sen- tence of five to 14 years for forgery where the defendant obtained but $45 (People v. Haynes, 73 111. App. 2d 85 (1966)): sentences within the in- determinate limits fixed by law (People v. Calcaterra, 33 111. 2d 541 (1965)); and increased penalties for subsequent offenses under the Habit- ual Criminal Act (Kelly v. People, 115 111. 583 (1886)). In contrast, the Court has invalidated an act which made it a criminal offense to be under the influence of or addicted to the use of narcotic drugs. (People v. Davis, 27 HI. 2d 57 (1963).) The Illinois Supreme Court relied on the drug addiction decision in Robinson <'. California (supra, p. 51) but ciaiously made no mention of the relevance of this sec- tion of the state Constitution. Earlier and somewhat surprisingly the Court held that *a statute prohibiting freight rate discriminations and providing for the forfeitine of all franchises as a penalty for violation offended this clause, as the penalty would in some cases amoimt to a fine of millions of dollars. (Chicago &: A. R.R. v. People e\ rel. Koerner, 67 111. 11 (1873).) The "somewhat surprisingly" reference is used because the revocation of licenses which frequently involves the death of a professional career and the loss of great investments and potential earnings is uni- formly sustained as not involving "punishment" in a constitutional sense. In Hayes Freight Lines, Inc. xk Castle (2 111. 2d 58 (1954)), the Court sustained authorized suspensions of operating privileges of certificated motor carriers for repeated violations of weight and load limitations. (See the extended treatment of the Chicago & A. R.R. Co. case, infra, pp. 367-8.) Corruption of blood and forfeiture of estate This clause of the section has no verbatim counterpart in the United States Constitution. Article 3, Section 3, clause 2, of that Consti- Art. II, § n 53 tution which provides that no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted, is obviously much more limited in scope. Illinois decisional law is sparse but illuminating. In Wall v. Pfanscfniiidt (265 111. 180 (1914)), the Court held that an heir who murdered the intestate did not lose his rights of inheritance under the laws of intestacy and strongly suggested that a contrary holding might involve an unconstitutional forfeiture of estate under this section. Welsh v. James (408 111. 18 (1950)) reached the same result with the same hint in sustaining the common law right of survivor- ship of a joint tenant who murdered his co-tenant. Both decisions in respect to the forfeiture issue were rejected and reversed, however, in Bradley v. Fox (7 111. 2d 106 (1955)), involving the survivorship rights of a murderer of his joint tenant. The forfeiture provision was also held inapplicable in Collins v. Metropolitan Life Insurance Co. (232 111. 37 (1907)), where on public policy grounds the Court adopted the prevail- ing view that a beneficiary who murders his insured loses his claim to insurance benefits. Transportation out of the state for any offense committed within the state Historically, banishment or exile from the realm was an accepted form of punishment. The legislature has heeded the admonition against the imposition of this particularly cruel form of punishment, thus obviating any decisional law. Comparative Analysis Approximately half the states provide that penalties shall be propor- tioned to the nature of the offense. Twenty-one states also provide that no conviction shall work corruption of blood or forfeiture of estate. Fifteen other states provide that no person shall be transported out of the state for any offense committed within the same. The Model State Constitution makes no similar provision. The Eighth Amendment of the United States Constitution forbids cruel and unusual punishments; the Article 3, Section 3, clause 2, reference in the Constitution of the United States to forfeiture and corruption is not relevant, and there is no provision comparable to the prohibition on banishment. Comment The "punishment shall fit the crime" provision, despite the wide lati- tude it reserves to the legislature, appears, nevertheless to be worthy of retention. It is at least a reminder to the legislative body that it is not completely uninhibited in defining punishment. In all probability, in view of the widespread and generally successful state efforts to abolish capital punishment, efforts will be made to establish a constitutional ban 54 Art. II, § 12 on the death penalty. The issue has been extremely sensitive in recent Illinois legislative sessions and efforts to provide experimental mora- toriimis on capital punishment, though receiving substantial support, have tailed of passage. Whether the issue shoidd be left to legislative judgment rather than being raised to constitutional status depends initially on the resolution of the basic policy issue. It is not possible to provide purely objective guidelines on this important issue. As to corruption of blood and forfeiture of estate, these provisions ap- pear to be anachronistic. It is difficult to envision a legislative body pro- viding now for either of these ancient sanctions. If such a law were to be enacted, the reasonable probability is that it would be stricken under the state and federal due process guarantees. The same observations apply to the banishment clause. The Convention may well wish to con- sider seriously the abolition of these clauses. Imprisonment for Debt Set. 12. No person shall be imprisoned lor debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law; or in cases where there is strong presumption of fraud. History The current section is a verbatim restatement of the identical pro- visions in the 1818 and 1848 Constitutions. The 1922 Convention proposal retained this provision in essentially the same language. Explanation Imprisonment for debt arising from contract, where the failure of payment was untainted by fraud or concealment of assets and was due simply to economic inability, was one of the horrors of the common law. This section was designed to remedy the injustice by making wrong- ful refusal or fraud, instead of mere inability to pay the debt, the stand- ard for imprisonment. To imprison for debt it is necessary to establish that the debtor is wrongfully refusing to deliver up his estate in satis- faction of the debt, or that he was guilty of fraud in contracting the debt or in avoiding the payment of it. (Huntington v. Metzger, 158 111. 272 (1895).) The term "debt" means an obligation in the proper and popular sense, involving a debtor-creditor relationship, and, with few exceptions, debts which arise out of contract. (Cox v. Rice, 375 111. 357 (1940); In re Blacklidge, 359 111. 482 (1935); People v. Zito, 237 111. 434 (1908).) Accordingly, the ban on imprisonment does not apply to imprisonments incident to and arising from the commission of an intentional or mali- cious tort. (Lipman v. Goebel, 357 111. 315 (1934); Shatz v. Paul, 7 111. Art. II, § 12 55 App. 2d 223 (1935).) Nor is imprisonment barred where the "debt" is in the nature of a penalty imposed tor violation of a penal law of the state (People v. Zito, 237 111. 434 (1908)) or for penalties for violations of municipal ordinances or for fines and costs in criminal proceedings (City of Chicago v. Morell, 247 111. 383 (1910)). Continuing the logic, the failure to pay alimony and a consequent commitment for contempt is not imprisonment for a debt; the rationale is that the imprisonment is for disobeying a binding command of the court. (Mesirow v. Mesirow, 346 111. 219 (1931); Barclay v. Barclay, 184 111. 375 (1900).) The distinction which justifies imprisonment for failure to abide by decrees for the payment of money in alimony decrees has been applied to other orders classified as equitable in nature (Tudor v. Firebaugh, 364 111. 283 (1936); First Nat'l Bank & Trust Co. v. Desaro, 43 111. App. 2d 153 (1963)); but other decisions have evidenced a judicial reluctance to enforce contempt orders by imprisonment unless the failure to pay money is based on fraud or a willful defiance of the court (Blake v. People, 80 111. 11 (1875); LaRue v. LaRue, 341 111. App. 411 (1950); Meaden v. W. J. Anderson Corp. 301 111. App. 390 (1939)). Federal decisional law is sparse on this issue. This section has no counterpart in the Constitution of the United States. Any issue of unconstitutional imprisonment for debt would surely invoke the due process guarantee of the Fifth Amendment or the cruel and unusual punishment provision of the Eighth Amendment. Comparative Analysis Thirteen states prohibit imprisonment for debt in all cases. Three other states make an exception where the debtor refuses to deliver his estate for the benefit of his creditors as required by law, and 24 others except cases where there is fraud or a strong presumption thereof. There is no similar provision in the Model State Constitution, nor is there any comparable provision in the Constitution of the United States. Comment The section has not been the subject of much critical professional analysis nor, for that matter, has it engendered much litigation. In its basic policy of barring imprisonment for honest failure to pay con- tractual debts, the section expresses a desirable limitation upon state power. Some question may exist as to a policy which permits imprison- ment for nonpayment of alimony or other types of equitable decrees. Whether it is possible to single out particular additional areas deserving of constitutional protection for nonpayment of debts or other obliga- tions is most speculative. It is difficult to suggest whether this section is worthy of retention or in what manner this section should be amended. 56 Art. II, § 13 In all likelihood the due process guarantee ot the state Constitution or the state requirement that punishment siiall be proportional to the offense would today invalidate imprisonment lor debt where no traud or eva- sion Avas present. The variation in state constitutional provisions and the absence of a comparable provision in the Model State Constitution strongly suggest that the section may no longer be necessary as a distinct constitutional principle. Right of Eminent Domain Sec. 13. Private property sliall not be taken or (huiuiged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. 1 lie lee of land taken for railroad tracks, without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken. History The 1818 and 1848 antecedent provisions were identical. They stated "nor shall any man's proj^erty be taken or applied to public use without the consent of his representatives in the General Assembly, nor without just compensation being made to him." The 1870 revision (1) substi- tuted the words "or damaged" for "or applied"; (2) deleted the provi- sion requiring the consent of the person's representatives in the General Assembly; (3) added the provision requiring jury determination of the compensation where compensation was to be paid by someone other than the state; and (4) added the final sentence preserving the fee of land taken for railroad tracks in the landowner. It is clear that the words "or damaged" were inserted to overcome deci- sions under the 1818 and 1848 Constitutions interpreting "taken or applied" provisions to the effect that compensation was allowed only when property was physically taken. Mere damage to property as a result of state action which did not involve a physical taking was not com- pensable under the just compensation provision. The deletion of the provision "without the consent of his representa- tives in the General Assembly" was without explanation in the 1870 pro- ceedings. The addition of the provision requiring jury determination of compensation in nonstate action was apparently intended to elimi- nate administrative abuse of discretion in determining "just compensa- tion." The provision for retention of the fee in land taken for railroad tracks was also designed to prevent takings for railroad purposes, aban- donment of the original purpose, and subsequent use for a different purpose. The proposed 1922 Constitution deleted the provision concerning the fee and provided simply that: "Private property shall not be taken or Art. II, § 13 57 damaged for public use without just compensation which, when not made by the state, shall be ascertained by a jury." Explanation Eminent domain is the power ol the state to take private pioperty for public use. The power is normally exercised through a so-called con- demnation action. The power is said to be inherent in all sovereignties, existing independently of constitutions or statutes. (Sanitary Dist. v. Manasse, 380 III. 27 (1942).) One commentator has gone so far as to suggest, without supporting authority, that "[wjithout constitutional or statutory restriction, each of us holds his property subject to the right of the state to take it without any compensation." (Righeimer, "The Law of Eminent Domain," 43 111. Bar J. 206 (1954).) The point is prob- ably overstated. Agreed that many decisions hold or suggest that the power of eminent domain is an inherent power of sovereignty, and that its existence does not depend on constitutional or statutory grant, it is at least very questionable that the power is as unlimited as suggested. Due process guarantees, as well as limits upon the exercise of the police power, would surely be adequate today, without express limitations upon the power of eminent domain, to foreclose the state from taking private property for a public use without payment of just compensation. How- ever, the question is basically academic, since all state constitutions and the United States Constitution (Amendment V) forbid such taking. In- deed, the Fifth Amendment prohibition has been held to apply to the states through incorporation into the Fourteenth Amendment due process guarantee. (Chicago B. & Q R.R. v. Chicago, 166 U.S. 226 (1897).) Perhaps the first point to be made is that there is an interrelationship, possibly even a conflict in realistic if not legal terms, between eminent domain and the police power of the state. A taking or damaging of prop- erty which is an incident of and referable to a governmental purpose to protect the public health, safety, morals or welfare is not within the terms of the constitutional eminent domain provision which mandates just compensation. (State Bank & Trust Co. v. Village of Wilmette, 358 111. 311 (1934).) The distinction between compensable takings for a public use and noncompensable takings or damages which are a conse- quence of the police power have been recognized and applied in many cases. As good an elucidation of this distinction as any is expressed in Chicago ir Nortlnvestern Railway v. Illinois Commerce Commission (326 111. 625 (1927)), wherein it is noted that regulations under the police power to promote and safeguard the health, safety, morals or general welfare of the public which govern and restrict the use of property do not constitute a taking or damaging for which compensation is required; that police regulations of this nature may destroy the use and value of 58 Art. II, § 13 property and, in cases of necessity, may even destroy the property itsell when its continued existence constitutes a menace to the public; that police legislation is directed against property and the uses ot property which are considered harmlul to society and that it operates by prohibit- ing the use, or by destroying the property; and that no such elements enter into a taking under the power oi eminent domain which is simply the appropriation of property or the use of property for public purposes. Most of what is stated in that case is dicta, but it does reflect with fair accuracy the general status of the law. Zoning laws restrict the uses to which an owner may wish to devote his property. Building codes im- pose construction requirements ^vhich effect substantial economic bur- dens, as do laws which restrict the height of buildings or set lot line dimensions. Property which is a nuisance and a threat to public health or safety may be taken or destroyed. These and other instances of non- compensable police power takings illustrate the jjoint. On the other hand, it has been held that the police power is itself sub- ject to the constitutional restraints of due process and just compensation. (Forbes v. Hubbard, 348 III. 166 (1932) (zoning ordinance restriction held an unconstitutional taking); City of Chicago v. Ledercr, 247 111. 584 (1916) (ordinance purporting to be a police measine restricting the right to erect a driveway across a public sidewalk subject to just compensation requirement); Klever Shampay Karpet Kleaners v. City of Chicago, 238 111. App. 291 (1925) (invalidating an ordinance requiring a dry cleaner's benzine room to be located at least 50 feet from any other building).) The courts are obviously torn between competing constitutional values and the decisions reflect the dilemma. The limits of police power can- not be defined or applied with logical precision. What are the criteria, beyond the instinctive or visceral predilections of judges, which deter- mine that an enactment, purporting to be an exercise of the police power, is or is not reasonably designed to remedy the evils which the legislature has determined to be a threat to an important public interest? When, in short, does a taking or damaging transcend police power limi- tations and become a taking of private property for public use without compensation or a deprivation of property in violation of due process? These are difficult questions which pose the interrelationship (and con- flict) between the power of eminent domain and the police power. Nor are they answered by the generalities above detailed which purport to define the difference between these powers. For despite the grandiose judicial pronouncements covering the scope of noncompensable police power takings or damagings, the decisions, as we shall see, tend rather stibstantially to favor the property owner over the state, and to assert the eminent domain-just compensation principle as the paramount value. Art. II, § 13 59 The issue is not novel. It was discussed in sharply divergent views by Justices Holmes and Brandeis in Pennsylvania Coal Company v. Mahon (260 U.S. 393 (1922)), in which a statute making it unlawful to conduct coal-mining operations in such a way "as to cause the caving in, collapse or subsidence" of public and private buildings was held to exceed the police power and to impair the company's conceded contract right to mine for coal beneath the complainant's home, free from liability for any damage which might be occasioned thereby. It was evident that Jus- tice Holmes, speaking for himself and seven of his colleagues, was sorely tried. "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change . . . ." [Id. at 413.) Some values must yield to the police power "[b]ut obviously the implied limitation must have its limits, or the contract and due process clauses are gone." {Id. at 413.) "When it [the police power] reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sus- tain the act." {Id. at 413.) The resolution of the issue depends upon the particular facts. No general rule is determinative; one of the critical factors is the extent of the diminution; another is the extent of the pub- lic interest which the act seeks to protect. "The protection of private property in the Fifth Amendment presupposes that it is wanted for pub- lic use, but provides that it shall not be taken for such use without com- pensation. A similar assumption is made in the decisions under the Fourteenth Amendment. . . . When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But this cannot be accomplished this way under the Constitution of the United States." {Id. at 415.) The general rule, said Justice Holmes, is that while property may be regulated to a certain extent, if regulation goes too far it will be recog- nized as a taking. This to him was such a case: "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." {Id. at 416.) Justice Brandeis in dissent reacted with vigor. "Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here imposed is merely the prohibition of a noxious use. The property so restricted remains in the possession of the owner. The State does not appropriate it or make any 60 Art. II, § 13 use of it. The State merely prevents the owner from making a use whicli inter- feres with the paramount rights of the public." {Id. at 417.) As to Justice Holmes' position that condemnation is available and appropriate, Justice Brandeis replied: "Nor is a restriction imposed through exercise of the police power inappro- priate as a means, merely because the same might be effected through exercise of the power of eminent domain, or otherwise at public expense. Every restriction upon the height of buildings might be secured through accjuiring by eminent domain the right of each owner to build above the limiting height: but it is settled tliat the State need not resort to that power." {Id. at 418.) The purpose — protection of public safety — being legitimate, it need not be purchased on the market. "If by mining anthracite coal the owner would necessarily unloose poisonous gases, I suppose no one would doubt the power of the State to prevent the mining, without buying his coal fields. And why may not the State, likewise, without paying compensation, prohibit one from digging so deep or excavating so near the surface, as to expose the community to like dangers? In the latter case, as in the former, carrying on the business would be a public nuisance." {Id. at 418-19.) References to this case have been extensive because the issue is sharply illumined and the respective protagonists so pre-eminent. Yet, in the final analysis, what do these conflicting decisions establish other than that each position is persuasive and logically compelling, and supported on strong legal and j^ublic policy grounds? To Justice Holmes, the police power must yield to private property and contractual rights when the occasion or necessity for a taking without compensation is not convinc- ingly evident. Conceding the existence of a valid pid^lic purpose, if government has the option of taking without compensation under the police power or taking with compensation under its power of eminent domain, the equities demand that the property owner be compensated. Justice Brandeis "zeroes in" instead on the governmental interest to pro- tect the public health, safety, morals and general welfare. Fearing that this inherent and essential power will be diluted to the detriment of society if encumbered by a compensation requirement whenever property rights are taken, damaged or impaired, he opts for the supremacy of the police power. The decisions, federal and state, reflect one or the other of these major premises, but without any observable synthesis which establishes clear- cut guidelines of application. In fact, there is sometimes a bewildering confusion even on the basic premises. How does one evaluate the sweep- ing pronouncement in Dube xl City of Chicago (7 111. 2d 313 (1955)) that constitutional declarations that private property shall not be taken Art. II, § 13 61 for public use without just compensation or due process are always subordinated to interests ot public welfare as expressed through the exer- cise of the police power, with the statement in Heimgaertner v. Benja- min Electric Manufacturing Company (6 111. 2d 152 (1955)) that the police power, while paramount to the rights of the individual, is still re- strained by the fundamental principles of justice connoted by the phrase, due process of law, and that it cannot override the natural demands of justice, nor disregard the constitutional guarantees in respect to the taking of private property, due process and equal protection of laws? There may be consistency in these views based on implicit or unex- pressed premises, but it requires an act of faith to find that harmony. Among the decisions supporting the police power supremacy thesis are Mugler v. Kansas (123 U.S. 623 (1887)), denying compensation for the greatly diminished value of a brewery business by a state law impos- ing prohibition, and Village of Euclid v. Ambler Realty Company (272 U.S. 365 (1926)), sustaining a building restriction alleged to reduce the value of the complainant's property. (See also Welch v. Swasey 214 U.S. 91 (1909); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Reinman V. City of Little Rock, 237 U.S. 171 (1915); and Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917), for comparable holdings on build- ing construction and open-area requirements in building and zoning laws.) St. Regis Paper Company v. United States (1 10 Ct. CI. 271 (1948), cert, denied, 335 U.S. 815 (1948)) sustained as a noncompensable act, under the war powers, an order requiring the closing of a mine, and Omnia Commercial Company x>. United States (261 U.S. 502 (1923)) sus- tained the government's requisition of a steel company's entire produc- tion for 1918, the effect of which was, in each case, to nullify contractual rights. (See generally, United States ex rel. TVA v. Powelson, 319 U.S. 266 (1943); Oro Fino Consol. Mine Inc. v. United States, 1 18 Ct. CI. 18 (1950).) Takings under war powers are not, however, authorized constitutional exceptions to the Fifth Amendment Just Compensation Clause, and other decisions require the payment of compensation where the effect of the governmental exercise of power is characterized as a taking instead of a regulation. (Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931).) Again the reconciliation of the decisions is frequently nothing more than an exercise in futility. One gets the uneasy feeling that the Court is applying preconceived labels, e.g., "police power," "taking," "regulation," from which the inevitable conclusion follows. The results may be just or equitable in the given case, depending upon how one views the original label; the compelling logic and unity of legal concept which the analyst hopes to find, however, are frequently missing. The decisions which support the compensable compensation doctrine 62 Art. II, § 13 are legion. A rather dramatic holding is United States r'. Causby (328 U.S. 256 (1946)), in which flights ot military aircraft over private prop- erty at snch low altitudes as to substantially interfere with the owner's use and enjoyment w^as held to be a taking re(juiring compensation. (Cf. Town & Country Motor Hotel, Inc. v. United States, 180 Ct. CI. 563 (1967).) In a more mundane setting, property rights affected by land acquisitions for highway pmposes have l)ecn held to be within the pro- tection of the eminent domain jjrovision. Typically illustrative is Creasy V. Stevens (160 F. Supp. 404) (VV.D. Pa. 1958), rex)'d on other grounds sub nom Martin v. Creasy, 360 U.S. 219 (1959)), holding that the right of access to a public highway is a protected property right for which compensation must be paid. (See also United States v. Gossler, 60 F. Supp. 971 (Ore. 1945), holding that an easement in land, the fee simple of which was condemned, was also a compensable right.) Beyond the generalities and the philosophy, certain broad principles do emerge. Since a taking must be for a public use, the courts do have the ultimate review of whether a public use is in fact involved, but the legislative determination is accorded great deference and is rarely upset. (United States ex rel. TVA v. Welch, 327 U.S. 546 (1946); Poole V. City of Kankakee, 406 111. 521 (1950).) Property which is subject to condemnation and the taking of which is compensable extends to every kind of property, tangible and intangible, and all rights and interests therein. (City of Edwardsville v. County of Madison, 251 111. 265 (1911); United States v. Finn, 127 F. Supp. 158 (S.D. Cal. 1954).) The United States may condemn private lands in the states (Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885)) as well as property owned by the state (United States v. South Dakota, 212 F. 2d 14 (8th Cir. 1954)). Similarly, the state may condemn property already devoted to a public use. (People v. Illinois Toll Highway Comm'n, 3 111. 2d 218 (1954).) The power may be delegated to municipalities, political sub- divisions, governmental instrumentalities, and to private corporations operating as public utilities, subject of course to the public use standard and compensation requirement. (Central 111. Pub. Serv. Co. v. Vollen- tine, 319 111. 66 (1925); Village of Depue v. Banschbach, 273 111. 574 (1916).) What constitutes "just compensation" is in particular cases a difficult problem. The general rule that just compensation is to be measured by the property's fair cash market value for its highest and best use at the time the condemnation petition is filed (Illinois Cities Water Co. V. City of Mt. Vernon, 11 111. 2d 547 (1957)) may be adequate for tangi- ble property, but wJiere the determination of value concerns the taking or damage of intangible interests, or consequential damages, the problem Art. II, § 13 63 is most complex. Decisional principles in this area are not very helpful. (Useful readings include G. Schmutz, Condemnation Appraisal Hand- book (1963); Dolan, "Consequential Damages in Federal Condemna- tion," 35 Va. L. Rev. 1059 (1949); "Methods of Establishing 'Just Compensation' in Eminent Domain Proceedings in Illinois: A Sym- posium," 1957 U. 111. L.F. 289.) In this connection, the rule that just compensation is that which places the owner of property in as good a position financially after the property is taken and improvement made as he was prior thereto (De- partment of Pub. Works & Bldgs. v. Oberlaender, 92 111. App. 2d 174 (1968)) is a comforting assurance but hardly a principle of meaningful certainty. A "taking" for which compensation must be paid offers few con- ceptual difficulties. What constitutes compensable "damage" is quite another story. Again the decisions are legion, confusing and sometimes seemingly contradictory. Structural damage to a building caused by re- moval of lateral support resulting from the construction of a public improvement in an adjoining street was held compensable damage. (Kane v. City of Chicago, 392 111. 172 (1945).) Obstruction of light and air and interference with free access to the street and view occasioned by the construction of elevated railways and other structures have also been held to be damage in a constitutional sense. (Aldis v. Union Elev. R.R., 203 111. 567 (1903): Field v. Barhng, 149 111. 556 (1894).) Noise, smoke, cinders and vibrations caused by the operation of trains were held to be compensable damages in Calumet ir Chicago Canal & Dock Company v. Morawetz (195 111. 398 (1902)), Illinois Central Railroad v. Turner (194 111. 575 (1902)), and Chicago North Shore Street Railway V. Payne (192 111. 239 (1901)), but were held noncompensable in the absence of a showing that the damage was special to the claimants as distinguished from a damage suffered by the public generally (Illinois Central R.R. v. Trustees of Schools, 212 111. 406 (1904); Aldrich v. Metropolitan West Side Elev. R.R., 195 111. 456 (1902)). In several cases it has been said that a claim for inconvenience, expense or loss of business occasioned to property owners by the temporary ob- struction of a street and interference with rights of access because of the construction of a public improvement does not involve damage in a constitutional sense. (Chicago Flour Co. v. City of Chicago, 243 111. 268 (1909); Lefkovitz v. City c"^ Chicago, 258 111. 23 (1908).) But in Barnard V. City of Chicago (27'J 111. 27 (1915)), it was held that an owner of property whose rights of access and egress were obstructed by improve- ments in a street was entitled to compensation for damages. No mention was made of the Chicago Flour case, the holding being quite categorical 64 Art II, § 13 that such temporary obstructions constituted damage within the mean- ing of this section. Yet in Department of Public Woiks ir Buildings x>. Maddox (21 111. 2d 489 (19(jl)), the Chicago Flour rule ot noncompensa- bility was reaffirmed. The requirement that compensation be determined by a jury does not apply to a taking by the state, but statutory provisions have made jury trial applicable to the state upon request of either party. (111. Rev. Stat. ch. 47, §1 (1967).) In nonstate proceedings the jury trial require- ment was held violated by a statute which authorized commissioners in lieu of a jury, in the sense recognized by the C^onstitution, to determine compensation. (Juvinall v. Jamesburg Drainage Dist., 204 111. 106 (1903).) Notwithstanding what appears to be words of mandate in the constitutional provision, it has been held that the language imports only a privilege which may be waived by the parties. (Chicago, M. Sc St. P. Ry. v. Hock, 118 III. 587 (1886).) Indeed in the Juvinall case above, it was stated that a waiver of the right to a jury trial will be implied if a specific objection to trial without jury is not raised. Illinois, for highway acquisitions and for land acquisitions for the Weston, Illinois, Atomic facilities, has enacted the so-called "quick tak- ing" procedure. (See 111. Rev. Stat. ch. 47, §2.1 (Supp. 1968).) Under this statute the taking, possession and use of private property by the state, prior to the fixing and payment of compensation, a procedure condemned in earlier decisions, has been sustained against eminent domain, due process and other challenges. (Department of Pub. Works & Bldgs. v. Butler Co., 13 111. 2d 520 (1958).) Comparative Analysis Nearly all states have some form of constitutional provision for the exercise of eminent domain. Only 20 states other than Illinois require compensation for both "taking" and "damaging." All others cover only a "taking." Some 37 states require the payment of a "just" amount, all others requiring "adequate," "reasonable" or a similar standard. Only 16 other states, however, provide for a jury determination of the amount of compensation, and foin- ot these provide a commission determination as an alternative. Only two other states establish that the fee in lands taken for railroad tracks remains in the owner. The Fifth Amendment of the United States Constitution provides: "[n]or shall private property be taken for public use, without just com- pensation." The Model State Constitution contains no eminent domain provision. Comment The long explanation is not an indication that the section requires change. The importance of the subject and its relationship to the due Art. II, § 14 65 process clause and to the police power concept were deemed to justify extended treatment in order to achieve a proper understanding of this provision. The many uncertainties, ambiguities and contradictions in the decisional law reflect only the extremely difficult task of reconciling competing constitutional values. Whatever may be one's feelings about particular applications of this section, there is little or no basis for dis- turbing the general principle concerning just compensation for taking or damaging of property. Caution should be the watchword in respect to any proposals which may seek to change the present language. It is not likely that new principles of constitutional significance can be de- fined in this area. Suggested changes are more likely to reflect attitudes concerning particular decisions in respect to which there may be some unhappiness. To tamper with the traditional language of this section may be productive of much harm. On the jury trial requirement, given the nature of the issue that the jury must determine, one could reasonably argue that a jury is frequently less qualified than the court to evaluate economic data and to arrive at a proper determination of just compensation. This conclusion seems borne out by the absence of a jury requirement when the state is the condemnor. Nevertheless, the tradition of a jury trial is so deeply rooted that its retention may be deemed politically, if not practically, necessary. The provision concerning railroad tracks seems at this point in his- tory to be unnecessary. It is not likely that new railroads or additions to existing railroads are the wave of the future. If indeed a problem should arise, no reason exists why this provision, if deemed important, cannot be legislatively prescribed. Ex Post Facto Laws and Impairing Contracts Sec. 14. No ex post faclo law, or law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities, shall be passed. History The 1818 Constitution provided that "No ex post facto law, nor any other law impairing the validity of contracts, shall ever be made, and no conviction shall work corruption of blood or forfeiture of estate." The 1848 Constitutional provision deleted the word "other" in the first clause, because of the inapt connotation that an ex post facto law meant exclusively or substantially a law which impaired contracts. In other respects the 1848 provision was precisely the same as its 1818 source. The 1870 constitutional provision retained the 1848 ex post facto and contract impairment clauses with only a minor nonsubstantive language 66 Art. II, § 14 change but made two major alterations: it deleted the clause pertaining to corruption ot blood and forfeiture of estate and transferred it into Section 1 1 of this Article, and added the present final clause imposing a limitation on the passage of any law making any irrevocable grant of special privileges or immunities. This clause appears to parallel in pur- pose, -if not in scope, the prohibition in Article IV, Section 22, against the passage of special and local laws "granting to any corporation, asso- ciation or individual any special or exclusive privilege, immunity or franchise whatever." The 1870 Debates disclose no explanation of the relationsip between this provision and the provision in Article IV, Sec- tion 22. Section 14 was adopted as reported from committee without any debate. After extensive debate, with no reference to Article II, Section 14, Section 22, of Article IV was adopted. The 1922 Convention proposal offered the 1870 provision without change. The United States Constitution in Article I, Section 10 (not in Bill of Rights), imposes a number of limitations upon states, including a denial of power to "pass any . . . ex post facto Law, or Law impairing the Obligation of Contracts . . . ." Article I, Section 9, of the Constitution of the United States prohibits Congress from enacting an ex post facto law. There is no reference in the Constitution of the United States rela- tive to the power of Congress to enact laws impairing the obligation of contracts. Explanation This section deals with three distinct though not necessarily disparate limitations on legislative powder, namely, (1) ex post facto laws, (2) laws which impair the obligation of contracts, and (3) laws which make irre- vocable grants of special privileges and immunities. As noted, the United States Constitutional provision (art. I, §10) imposes upon states the ex post facto and contract impairment limitations, thus making it un- necessary for the federal courts to apply these limitations to states through the Fourteenth Amendment due process clause. Each of the three limi- tations of this section of the Constitution of Illinois will be treated separately. Ex Post Facto Laws In Calderv. Bull (3 U.S. (3 Ball.) 386 (1798)), Justice Chase defined ex post facto as limited to legislation which (1) makes criminal and punish- able an act innocent when done; (2) aggravates a crime, or makes it greater than it was when committed; (3) increases the punishment for a crime and applies the increase to crimes committed before the enactment of the law; and (4) alters the legal rules of evidence so that testimony in- Art. II, § 14 67 sufficient to convict for the offense when committed would be sufficient as to that particular offense and accused person. With but minor and infrequent modifications, these rules have formed the basis for the construction and application of the federal and state constitutional provisions forbidding ex post facto laws. The principle applies only to criminal laws. Thus, in Harisiades v. SJiaughnessy, 342 U.S. 580 (1952), it was held that deportation, though a severe sanction, is a civil proceeding to which the ex post facta ban is inapplicable, and in Jeiuell V. Carpenter, 22 111. 2d 445 (1961), it was held that the provision has no applicability to civil financial responsibility requirements of the Motor Vehicle Law. Occasionally the principle is blurred by nondis- criminating rejection of the ex post facto principle on grounds unrelated to the noncriminal natine of tlie law. [See People ex rel. Nabstedt v. Barger, 3 111. 2d 511 (1954), upholding a law permitting the adoption of children of parents who had prior to the law been adjudged mentally ill. The clear inference of the decision is that the law is not ex post facto because a parent's right or interest in his children is not an absolute vested property right. See also Trustees of Schools v. Batdorf, 6 111. 2d 486 (1955), sustaining a law terminating certain interests in land after 50 years, in which it appears that an ex post facto challenge was rejected, not because the law was noncriminal in nature, but because the rights affected were mere expectancies of a nonvested character.) The Barger and Batdorf cases suggest an important corollary to the principle that ex post facto applies only to criminal laws, namely that retroactive noncriminal laws may be valid though affecting property rights, if such rights are not deemed vested. In addition to Batdorf, see McNeer v. McNeer (142 111. 388 (1892)), right of dower; Wood v. Chase (327 111. 9 (1927)) and Jennings v. Capen (321 111. 291 (1926)), terminat- ing right of life tenant and remainderman to destroy contingent remain- ders; and Butterfield v. Sawyer (187 111. 598 (1900)), enlarging contingent remainder class of heirs by statute defining adopted children as heirs. {See also J. Scurlock, Retroactive Legislation Affecting Interests in Land (1954).) What constitutes a "vested right," however, is a most vexatious legal problem. It is not an incorrect assessment, viewing the contradictory and irreconciliable decisions across the nation, or even within a single state, to suggest that "vested" right is simply indefinable in meaningful conceptual terms. {See Smith, "Retroactive Laws and Vested Rights," 5 Tex. L. Rev. 231 (1927).) The problem of retroactivity, however, apart from the ex post facto context, is not within the scope of this section. Insofar as retroactivity is relevant to the contract clause of this section, it will be considered under that heading. There have been relatively few decisions involving a classic ex post 68 Art. II, § 14 facto law. It is not very likely that legislatures today would enact statutes making criminal and punishable conduct which was innocent when conunitted. This kind of ra^\' power passed from the realm ot reason- able legislative possibility years ago. Even without a specific ex post facto ban, such a law today woidd most likely be held to violate state and federal due process guarantees. Such ex post facto issues as do occa- sionally arise involve tangential aspects of the problem. For example, habitual criminal laws which punish an offense more severely if the offender has previously been convicted of the same or other criminal offenses have frequently been challengd as ex post facto in that the punishment is related to the prior criminal offense. The general liold- ing is that such laws do not violate the ex post facto prohibition, it being within the power of the state to provide increased punishment for recidi- vists. In People v. Turner (396 111. 221 (1947)), the statute was sustained even though the prior conviction was for an offense not mentioned in the Habitual Criminal Act initially. {See also People v. Manning, 897 111. 358 (1947), sustaining habitual criminal statutes where proof of prior convictions was given to the jury before a determination of guilt or innocence on the offense being prosecuted.) Where the criminal offense occurred prior to the enactment of the statute defining the conduct as an offense or increasing the punishment therefor, the statutes will not be considered ex post facto if the offense is continuing in nature. Thus in Leyvas v. United States (371 F. 2d 714 (9th Cir. 1967)), a statute increasing the penalty with respect to a criminal conspiracy which began prior to but continued beyond the effective date of the statute was held not ex post facto. (See also People V. Jones, 329 HI. App. 503 (1946), sustaining an act providing a penalty for permitting an abandoned oil well to remain unplugged as applied to an abandonment prior to the passage of the statute, since the gravamen of the offense was permitting the well to remain unplugged.) Although there are no Illinois decisions on the point, it has long been held that the clause applies only to legislative and not judicial acts which might otherwise be deemed to have ex post facto attributes. (Frank v. Mangum, 237 U.S. 309 (1915).) Thus in a specific application it was held in United States ex rel. Almeida X'. Rundle (255 F. Supp. 936 (E.D. Pa. 1966)) that if an aspect of the felony murder rule under which the defendant was convicted w-as the result of a judicial construction ot the murder statute made for the first time in that case, such judicial action would not involve the application of the ex post facto principle. However, in Bouie v. City of Columbia (378 U.S. 347 (1964)), the Court stated that the fundamental principle that the criminal statute must have existed when the conduct in issvie occurred must apply to bar Art. II, § 14 69 retroactive criminal prohibitions emanating from courts as well as from legislatures. In that case the state court applied a 1961 construction of a criminal statute to conduct taking place in 1960 and at that time not within the statute. Due process was the ground of invalidation, but the Court equated the ex post facto ban on legislative action to judicial action having the same retroactive consequences as a statute. Impairment of Contracts As in the case of ex post facto, legislative action challenged as an im- pairment of the obligation of contracts must run the gauntlet, not only of this state constitutional limitation, but also of the specific limitation on state power contained in Article I, Section 10, of the Constitution of the United States. Because of this, a brief treatment of the history and of several decisions defining the limitations of the federal clause may be helpful. Chief Justice Marshall, in Ogden v. Saunders (25 U.S. (12 Wheat.) 212 (1827)), best expressed the historical origin of the clause and its purpose: "The power of changing the relative situation of debtor and creditor, of inter- fering with contracts, a power which comes home to every man, touches the in- terest of all, and controls the conduct of every individual in those things which he supposes to be proper for his own exclusive management, had been used to such an excess by the state legislatures, as to break in upon the ordinary inter- course of society, and destroy all confidence between man and man. This mischief had become so great, so alarming, as not only to impair commercial intercourse, and threaten the existence of credit, but to sap the morals of the people, and destroy the sanctity of private faith. To guard against the continuance of the evil, was an object of deep interest with all the truly wise, as well as the virtuous, of this great community, and was one of the important benefits expected from a reform of government." {Id. at 354-55.) The evil against which the great Chief Justice was inveighing was the practice in some states in the period following the Revolution and prior to the adoption of the Constitution of granting relief to debtors who had incurred contractual obligations during this period of eco- nomic dislocation and hardship, and who were hard pressed to meet their debts. The state laws took several forms but most common were measures suspending the collection of debts, remitting or suspending the collection of taxes, and providing for delays in legal enforcement proceedings. As is almost predictable, the reasons which had occasioned the con- stitutional principle were soon expanded to embrace state legislative action within the generic scope of the language. The first United States Supreme Court invalidation of a state law for impairment of the obligation of contracts was Fletcher v. Peck (10 U.S. (6 Cranch) 87 70 Art. II, § 14 (1810)). This decision, ironically, held invalid a 1796 Georgia law- repealing an unconscionable 1795 statute which had conveyed millions of acres of land, for what turned out to be a price of less tlian two cents per acre, to a group of land speculators. The 1795 grant was held to be a contract, the obligation of which could not, as against subsequent innocent purchasers not implicated in the original state conveyance, be impaired. Given the 1796 repeal, it is not likely that subsequent grantees could meet bona fide purchaser-for-value standards. There had been, however, a great number of conveyances since 1795 and 15 years had elapsed when the Supreme Court rendered its decision. A contrary hold- ing would surely have thrown many land titles in doubt, generating extended litigation and great uncertainty in the ownership of property interests. The famous Dartmouth College case (Trustees of Dartmouth College V. Woodward, 17 U.S. (4 Wheat.) 518 (1819)) established the con- tractual inviolability of Dartmouth's original royal charter against a New Hampshire statutory attempt to provide what it believed to be a more democratic charter. In the same year came Sturges xk Crownin- shield (17 U.S. (4 Wheat.) 122 (1819)) invalidating a New York statute which apparently had the effect of discharging some classes of insolvent debtors from their debts. In 1843, a period of serious economic depres- sion, Illinois enacted a mortgage relief law, extending the period for redemption from foreclosure, and prohibiting foreclosure sales unless two-thirds of the value of the property, as determined by an appraisal, was bid. The act was held invalid under the federal contract impairment clause. (Bronson v. Kinzie, 42 U.S. (1 How.) 311 (1843).) These and other early landmark decisions established the central core of the great principle which they were expounding. As in other consti- tutional areas, however, great principles are rarely immunized from exceptions which carry their own constitutional justification. Thus, in time, the relative, nonabsolute nature of the right against impairment began to emerge in the federal and state decisional law\ Among the iden- tifiable exceptions is the exercise of the right of eminent domain. This right, inherent in the concept of political sovereignty, needing no consti- tutional grant to authorize its exercise and subject only to constitutionally expressed limits on its exercise, is not restrained by the existence of a contract. (City of Cincinnati v. Louisville &: N.R.R., 222 U.S. 390 (1912).) Contract rights, holds Illinois, like all property rights, are subject to eminent domain and the state may, for public use and by making com- pensation therefor, impair and destroy rights granted by charter from the state. (Metropolitan City Ry. v. Chicago West Division Ry., 87 111. 317 (1877).) Art. II, § 14 71 Another recognized exception concerns the ever present, formidable police power concept. Generally phrased in terms of the inability of the legislature to bargain away the public health, morals or safety, the principle has permitted the exercise of legislative power which clearly interfered with, abridged or in some cases abolished contract rights. Thus in Chicago Life Insurance Company v. Auditor of Public Accounts (101 111. 82 (1881), aff'd, 113 U.S. 574 (1885)), the state was held to have power to provide for the dissolution of an insurance company where its financial condition made its continued acceptance of risks improper. (See also Yates v. People ex rel. Anderson, 207 111. 316 (1904) (termina- tion of legal existence of insurance company if it fails to transact business for one year).) A number of Illinois decisions recognize the con- tractual nature of special railroad charters validly issued prior to the 1870 Constitution but sustain safety regulations affecting such rights. (City of Chicago v. Illinois Commerce Comm'n ex rel. Chicago & W. Ind. R.R., 356 111. 501 (1934); State Public Util. Comm'n ex rel. Quincy R.R. V. City of Quincy, 290 111. 360 (1919); Venner v. Chicago City R.R., 246 111. 170 (1910).) Perhaps the best general summation of the relation- ship of police power to contract rights in the railroad cases is contained in City of Chicago v. O'Connell (278 111. 591 (1917)). In that case the state regulatory commission's order for the improvement of a street rail- way service was held validly to supersede part of the contract between the city and the railroad. The court drew a distinction between contrac tual provisions relating to matters other than those affecting the public safety, welfare, comfort and convenience, such as the division of net receipts and an option of purchase in the city, which were immunized from impairment, and legitimate police measures to which contractual provisions must yield. The rule is broadly applicable to all contract rights, and the character of the contracting parties — whether individual, corporate, governmental, or a combination of these — is immaterial. A number of "impairments" have been legitimized by what the Supreme Court of the United States has characterized as the "continuing and dominant protective power" of the state in respect to its economic interests. (Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934).) Conceptually distinguishable from the police power, though at times the distinction seems quite fuzzy, this category of permissible impair- ments reflects the balancing concept which underlies so much of consti- tutional interpretation, pursuant to which individual rights are meas- ured against the public interest, and governmental action is sustained or invalidated by a judgment which defines the superior value. One of the earliest and most important decisions in this area was Proprietors of the Charles River Bridge v. Proprietors of the Warren 72 Art. II, § 14 Bridge (36 U.S. (II Pet.) 420 (1837)) in which the United States Supreme Court sustained, against a challenge of contract impairment, a state enact- ment establishing a toll-free bridge (after a short period of authorized toll charges) which would substantially diminish the value of a toll bridge authorized by a prior charter. The basic holding was that the first charter did not create an exclusive j^rivilege, but the broader impli- cations of a reserved state power to control its economic destiny were the important constitutional legacy. Earlier than Charles River Bridge, in 1827, the United States Supreme Court, which in 1819 had invalidated the New York Insolvent Debtors Law in St urges x>. Crowinsheld {supra, p. 70), took another look at the issue and sustained a state insolvency law discharging contract obligations as to contracts executed after the passage of the law. (Odgen v. Saunders, 25 U.S. (12 Wheat.) 213 (1827).) Therein was born the important principle that a law in effect at the time the contract is made becomes an implied condition of the obligation. Under these circumstances, the contract clause has no apjjlication. The principle has been widely adopted in the states. In Illinois, an illustrative case is Bossert v. Grariary Creek Union Drain- age District (307 111. 425 (1923)) holding invalid an amendment author- izing the abolition of drainage districts on petition as applied to districts with contract obligations, but valid as to districts organized after the effective date of the law. {See also Schewe v. Glenn, 302 111. 462 (1922); Deneen v. Deneen, 293 III. 454 (1920); Burdick v. People, 149 111. 600 (1894).) Of more than passing interest is Home Building ir Loan Asso- ciation V. Blaisdell (290 U.S. 398 (1934)) in which a Minnesota law providing temporary relief from mortgage obligations was sustained as a valid emergency economic measure. It will be recalled that in Bronson V. Kinzie {supra, p. 70), a similar Illinois statute, also the progeny of an economic depression, was invalidated. Although the Court in Home Building & Loan Association strove mightily to distinguish the cases, the fact is that the distinctions were insubstantial and that new concep- tions of the state's powers to protect vital economic interests had evolved. Rate regulatory laws are another instance of permissible "impairment" of contract rights, thougji here the decisions are not always clear as to whether the police power or the power to protect the state's vital eco- nomic interests is the controlling rationale. In any event, it has been held that rates of public utilities can be changed as an integral part of the regulatory scheme and that such changes do not violate the prohi- bition on impairment of the obligation of contracts. {See Hoyne v. Chicago &: O.P. Elev. R.R., 294 111. 413 (1920); State Pub. Util. Comm'n ex rel. Quincy Ry. v. City of Quincy, 290 111. 360 (1919); Railroad Comm'n Cases, 116 U.S. 331 (1886).) Of course rates established by law Art. II, § 14 73 may be confiscatory and a violation of due process, but that issue is not the same as the contract impairment clause under consideration. The state's power of taxation is another illustration of reserved state power, the exercise of which may validly impair contract rights. Thus, in Wabash Eastern Railway i>. Commissioners of East Lake Fork Special Drainage District (134 111. 384 (1890)), a lien for property assessments which was given statutory precedence over liens of existing encumbrances was valid though it had a clear effect on existing contract rights between individuals. A word of caution is necessary, however. Tax laws normally need not take account of their effect on contract rights. It would be intolerable if private contracts could delimit or proscribe the govern- mental taxing power. But there may be instances where rights arising under state or municipal contracts may be invalidly impaired under the contract clause by subsequent governmental action. Such a case, appar- ently, is People ex rel. Broiune v. Chicago ir Easter?! Illinois Railroad (300 111. 467 (1921)), which held that the legislature may not reduce a tax rate to a point where the revenues produced will be inadequate to meet the obligations of bonds issued under a statute authorizing the extension of a tax to pay the principal and interest on the bonds. This explanation has emphasized the exceptions to the state's power to impair the obligation of contracts. This should not be taken to mean that the clause has no vitality. Quite to the contrary, contract impair- ments not involving the state's police power, the exercise of eminent domain, or the regulation of economic interests superior on a balancing test to individual rights, are stricken, if not frequently, at least not uncommonly. Illustrative are Murray v. Village of Skokie (379 111. 112 (1942)), invalidating an ordinance which impaired the obligation to holders of special assessment bonds; Bardens v. Board of Trustees (22 111. 2d 56 (1961)), invalidating an amendment affecting rights to a public annuity; and Jensen v. Wilcox Lumber Co. (295 111. 294 (1920)), giving preference to a lien under the Garagekeeper's Lien Law over a chattel mortgage of prior origin. Interlaced with the problem of contract impairments are sub-issues of vested rights, retroactivity of application, and differences between laws affecting remedies only and those which affect the obligation of the con- tract to which the remedy relates. It is simply not possible, within the limits of this analysis, to deal with these as separate phases of the problem. Nor is it necessary to do so, as they would add little to the basic principles which have been discussed. We leave this subject noting an important rule of general application that the contract clause is a limitation on action of a legislative nature only and has no relevance to judicial deci- 74 Art. II, § 14 sions which may affect contract rights. (Prall v. Burckhartt, 299 111. 19 (1921); Thomson v. Thomson, 293 111. 584 (1920).) Irrevocable Grants of Special Prhnleges and Immunities In the History of this section {supra, p. 66) it was suggested that this clause of Section 14 seems to parallel in prnpose, if not in scope, the prohibition in Article IV, Section 22, against the passage of special or local laws "granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever." The Debates of the 1870 Convention throw no light upon the relationship of these provisions to each other. One proposed amendment sought to limit the prohibition in this Section 14 to special laws. The argument was directed almost exclusively to the point that corporate investment capital, especially in the railroad field, would wither away unless the limitation on the making of irrevocable grants of special privileges or immunities was limited to special laws. The logic and persuasiveness of the argument were apparently lost on the members. Nothing was said as to the provision in Article IV, Section 22, nor indeed as to the provi- sions of Article XI, particularly Section 1 thereof, which prohibited the creation of corporations or the extension or change of corporate charters by special laws. Insofar as the provisions of this section do so interrelate, a reading of the Histo)-y and Explanation of the designated provisions in Article IV, Section 22 {infra, pp. 153-4), and Article XI {infra, pp. 515-6) is desirable. The annotations under this section are few and in some instances erroneous or irrelevant. The decisions of importance establish, not always with precision and clarity, that the creation of municipal corpo- rations to perform a special public service, the effect of Avhich may be to create a monopoly, does not necessarily violate the ban on the making of an irrevocable grant of special privileges or immunities. (People ex rel. Gutknecht v. Chicago Regional Port Dist., 4 111. 2d 363 (1954); People v. Chicago transit Authority, 392 111. 77 (1945).) There are limitations in these cases that municipal corporations are not ^\•ithin the excluded, class of grantees since they must of necessity, in the exercise of govern- mental power, be granted monopolistic privileges or immunities. (For further discussion of this problem, see Art. IV, Sec. 20, infra, p. 197.) They also intimate that in fact the grants are not exclusive or monopolistic since the use of the public streets or other facilities, which are the sub- ject of the giant, is not restricted to the particular grantee. Grants to a private corporation in the nature of privileges and im- munities have been sustained on grounds that the grants are not exclusive or monopolistic since other corporations may imder the challenged law qualify for a similar grant ( People ex rel. Shallberg v. Central Union Tel. Art. II, § 14 75 Co., 232 111. 260 (1908)), or that the grant is not irrevocable since the grantee's legal tenure is limited or the grant itself is terminable (People V. City of Chicago, 349 111. 304 (1932)). Indeed in People v. City of Chicago, the Supreme Court embraced a broad concept of permissible grants to private corporations imder this section, stating: "[Ejven if the act [statute amending general corporation act authorizing muni- cipalities over 500,000 population to create local transportation companies] could be said to foster a monopoly in one company doing a local transportation business in a given metropolitan area, it would not necessarily be invalid. While the public policy of this State formerly encouraged competition among public utility companies and forbade monopolies, it is now recognized by the State that under proper regulations a monopoly in this field is preferable to unrestricted com- petition, and an act which permits such a monopoly is free from constitutional objections." {Id. at 326.) Whether this pronouncement is based on the reserved power of the state to protect its vital economic interests (see supra, p. 54, impairment of contracts) or on a police power concept, is not clear. The statement does suggest qualifying limits but the sweep of the rule seems materially to negate, at least in the public utility field, the unqualified ban in this section on the power of the legislature to pass laws making irrevoca- ble grants of privileges or immunities. Comparative Analysis Thirty-seven other state constittitions expressly prohibit ex post facto laws. Thirty-six other states prohibit the making of laws impairing the obligation of contracts. Some 21 other states prohibit irrevocable grants of special privileges or immunities. Article I, Section 10, of the Constitution of the United States prohibits states from enacting ex post facto laws and laws impairing the obligation of contracts. Article I, Section 9, imposes the ex post facto ban upon the Congress. The Model State Constitution has no similar provisions. Comment The ex post facto and contract impairment clauses are considered among the more important limitations upon state power. The presence in the United States Constitution of an identical ban has not persuaded very many states to omit these limitations in their constitutions. (See Comparative Analysis.) Although federal limitations may be urged as making comparable state provisions superfluous, there may nevertheless be a substantial residual legal utility in the coexistence of such provi- sions. For political and psychological reasons as well, it may be inapt to propose the elimination of these clauses. Assurances of equivalent pro- tection against abuse of power under the federal clauses, or under the state due process provisions, may not be suificiently persuasive to many 76 Art. II, §§15, 16 people. The retention of these clauses may, thereiore, be wise, though an argument can be made to the contrary. The clause prohibiting the grant ol irrevocable privileges or inunimi- ties is somewhat more difficult to assess. The relationship of this clause to the Article IV, Section 22, ban on special or local laws granting special privileges, franchises or immunities, and to the Article XI limitation on the creation of corporations by special law, as noted, is obscure, and the decisions do not add much clarity. The clause generally expresses an appropriate constitutional limitation which seems worthy of retention. If retained, it should be integrated with the related provisions which have been noted. In this connection, the suggestion in the Counncnl to Article IV, .Section 22 {infra, pp- 225-6), appears to be an appropriate solution. Subordination of Military Power Sec. 15. The military shall be in strict subordination to the civil power. History This section, as well as Section 16 concerning quartering of soldiers, first appeared in the 1848 Constitution. The proposed 1922 Constitution combined this section with the section on cpiartering soldiers. Explanation This self-evident proposition is a fundamental principle of American democratic government. Comparative Analysis The fundamental nature of this principle of subordination of mili- tary power is demonstrated by the fact that every one of the 50 states except New York has a comparable provision. The United States Con- stitution does not have one, but the principle underlies the provisions that the President is Commander in Chief of the armed forces and that Congress shall not appropriate money to support an army for a period longer than two years. The Model State Constitution is silent on the subject. Comment See Comment under Article XII. (Infra, pp. 538-9.) Quartering of Soldiers Sec. 16. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war except in the manner prescribed by law. History As noted above, this section and Section 15 first appeared in the Art. M, § 16 77 1848 Constitution. Also, as noted, the proposed 1922 Constitution com- bined the two sections. The combined section differed in one substantive respect from the 1870 Constitution. The words "in any house without the consent of the owner" were changed to "on a householder without his consent." The official explanation stated that the revision was "to require the consent of the occupant of a house, the word 'householder' being substituted for the word 'owner.' " (State of Illinois, The Proposed New Constitution of Illinois 24 (1922) [hereinafter cited as P.N.C.].) Explanation This section is not only self-explanatory; it is so rooted in our tradi- tions that there appears never to have been any litigation in Illinois invoking the provision. With one irrelevant exception, this is also true of the equivalent Third Amendment of the United States Constitution. Comparative Analysis Section 16 is almost an exact duplicate of the Third Amendment of the United States Constitution. Most of the states have a similar provi- sion, and one state, Kansas, has a provision similar to the change recom- mended in the proposed 1922 Constitution. Four states, including the two newest, Alaska and Hawaii, call for the consent of the owner or occupant. The Model State Constitution is silent on the subject. Comment It is instructive to speculate on the significance of the change from "owner" to "householder" proposed in 1922 and the formulation "owner or occupant" used in the recent constitutions of Alaska and Hawaii. It is reasonable to assume that there was no special significance in the use of the word "owner" in the constitutions adopted at the end of the Eight- eenth Century. It is doubtful that the drafters were consciously deciding that in nonowner-occupied houses, the power of consent to quartering rested with the landlord and not the tenant. The evil to be prohibited was involuntary and presumably unpaid-for billeting of soldiers in private residences. If a lawsuit had arisen about 1800 in which a tenant sued military personnel for trespass, it seems likely that by one means or another a court would have held that permission of the owner was no defense. If, however, a situation arose under the 1922 proposal where a tenant had consented to quartering but the owner objected, it would be diffi- cult for a court to get around the constitutional language. The language in the Alaskan and Hawaiian provisions seems even more questionable, for it permits either the landlord or the tenant to consent, notwithstand- ing the other's objection. From all this, some might argue that the language should be changed to require consent of the owner and the occupant. 78 Art. II, § 16 The point of this speculation is to suggest t^\o rules ol constitution- drafting. One is tliat, when adopting a provision embodying a funda- mental principle, it is advisable to use simple language that can easily be construed to cover all situations that fall within the spirit of the principle. The second rule is that it is not advisable to tamper with the historic language of fundamental provisions. For example, the foregoing discussion concerning different language in the Tw'enticth Century coidd be the basis for an argument that the changed quartering provision did not cover apartment buildings. The argument would build on the theory that drafters who covered "occupants" in place of or in addition to "owners" in recognition of the realities of the Twentieth Century but did not change the word "house" must have meant to exclude the equally im- portant Twentieth Century reality of apartment buildings. It is also instructive to consider the comment made concerning the Michigan quartering provision in the comparative analysis of the Mich- igan Constitution: "Because of the provision in the United States Consti- tution, the necessity for this provision within the state constitution is tjuestionable." (Citizens Research Covmcil of Michigan, A Comparative Analysis of the Michigan Constitution at 11-17 (1961) [hereinafter cited as C.A.M.C.].) The premise of this comment is piobably correct even though there has been no pronouncement by the United States Supreme Court making the Third Amendment applicable to the states. But even assuming such applicability, it does not follow that the substantially identical provision in the Illinois Constitution is superfluous. It is true that if the United States Supreme Court forbids state action as unconsti- tutional under the United States Constitution, no Illinois court can uphold such action. But it is equally true that if the Illinois courts forbid state action as unconstitutional under .the Illinois Constitution, such action remains unconstitutional in Illinois notwithstanding any number of pronouncements by the United States Supreme Court that such action would not be unconstitutional under the United States Constitution. (Such a pronouncement would not be made in a case aris- ing out of Illinois, for the United States Supreme Court will not review a case decided on an adequate state ground. The situation would have to arise from another state with a state constitutional provision identical with the Illinois and United States provisions where the courts of that state upheld the state action and the United States Supreme Court agreed with the state interpretation of the Third Amendment.) In short, the people of Illinois may reinforce their liberties for themselves by pre- serving constitutional restrictions that also appear in the United States Constitution against the day when the United States courts might be less solicitous of those liberties than the courts of Illinois. Art. II, § 17 79 Right to Assemble and Petition Sec. 17. The people have the right to assemble in a peaceable manner to con- sult for the common good, to make known their opinions to their representatives, and to apply for redress of grievances. History The 1818 and 1848 Constitutions stated "[t]hat the people have a right to assemble together in a peaceable manner to consult for their common good, to instruct their Representatives, and to apply to the General Assembly for redress of grievances." The 1870 proposal was in the form ultimately adopted. Without debate the earlier provision refer- ring to application to the General Assembly for redress of grievances was changed to delete entirely the reference to the General Assembly. One can only speculate that the Convention believed the right to be too narrowly stated or that the reference to the General Assembly was re- dundant. Whatever the reason, the 1870 provision is clearly more ex- pansive than the earlier provisions in defining the right to petition for redress of grievances. The 1922 Convention proposal retained the 1870 provision un- changed. Explanation The Annotated Constitution of the State of Illinois, prepared by the Legislative Reference Bureau for the guidance of the Constitutional Convention which convened in 1919 (hereinafter cited as Annota- tions), contained not a single judicial citation under this section. Perhaps this was an editorial lapse. If so, it was not a serious one, for the fact probably was that litigants and courts alike were not attuned as they are today to the issues implicit in these liberties. The great and continuing social convulsions in recent years have generated gov- ernmental restraints which have jarred the sensitivities of many civil libertarians, resulting in the invocation of the Bill of Rights to a degree undreamed of in past generations. The process has been sub- stantially aided by the United States Supreme Court's establishment and steady expansion of the "incorporation" doctrine. The comparable guarantees of the First Amendment of the Constitution of the United States, applied to the states through the Fourteenth Amendment due process clause, and the states' own constitutional pronouncements of protected liberties, have been the subject of much litigation in recent years. Because the rights of peaceable assembly and petition are frequently intermeshed with rights of speech, it is not. always feasible or possible to establish distinct categories in the decisions. Thus, the explanation of the free speech guarantee of Section 4 of this Article provides analysis of some decisions which are as relevant to the guarantees of assembly 80 Art. II, § 17 and petition for the redress of grievances. (Supxi, pp. 19-23.) Nonetheless, some additional analysis is appropriate here, as the Supreme Court of the United States continues to draw distinctions between "pure speech" and "speech plus" which involves the communication ol ideas by conduct such as patrolling, marching and picketing on streets and highways, or assembling in public places for purposes ol protest against governmental action. Hague x>. CIO (307 U.S. 496 (1939)), though recognizing that the privilege of persons to use the streets and parks for conniiiuiication of views was not absolute, registered in strongest terms the predominance of the privilege and the narrow and limited areas of permissible govern- mental restraint. Edwards v. South Carolina (372 U.S. 229 (1963)) was the first case which raised the broad Hague principle in the context of a civil rights demonstration. In that case, a group of Negroes marched to the statehouse and walked through the capitol carrying placards pro- testing segregation. When ordered by the police to leave, they refused. In peaceful fashion they sang, clapped hands, stamped their feet, and one person made a speech. Although a group of several hundred white persons gathered and showed signs of hostility, there was no violence or disorder. The Negroes were arrested and chaiged with breach of peace. The state convictions were reversed by the United States Supreme Court. Justice Stewart, who wrote the Court's opinion, did not deal directly with the issue of whether the persons had a constitutional right to use the capitol grounds for a demonstration. But in the course of the opinion which invalidated the convictions on Fourteenth Amendment due process grounds of vagueness of the statute, he said that the demonstra- tion was a clear exercise of "petitioners' constitutionally protected rights of free speech, free assembly, and freedom to petition for the redress of their grievances." {Id. at 235.) This pronouncement was generally con- strued to mean that the Hague principle, assumed to express a consti- tutional right to use public open places for public assemblies, was being reaffirmed. Shortly thereafter, in Cox v. Louisiana (379 U.S. 536 (1965)), involving another peaceful student demonstration and a march from the state capitol to the courthouse, the Court, though reversing convic- tions of an ordinance for "obstructing public passages" because of un- equal application, sustained the ordinance and for the first time indicated a deviation from the assumed Hague and Edxuards principle of a consti- tutional right to peaceful use of open public places. Justice Black, how- ever, tackled the constitutional issue directly. Viewing the First and Fourteenth Amendments as removing from the federal and state gov- ernments "all power to restrict freedom of speech, press and assembly where people have a right to be for such purposes" (emphasis added), he Art. II, § 17 81 went on to say that this "does not mean, however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property." {Id. at 578.) This he followed with a categorical statement that government could impose a ban on most forms of assembly in public open places provided it did so without discrimination. The impact of violence in the streets was beginning to show in the decisions. In Adderly v. Florida (385 U.S. 39 (1966)), Justice Black's doc- trine prevailed, the Court sustaining convictions, under a trespass statute, of a group of student demonstrators who entered jail grounds to protest prior arrests and municipal segregation practices. There was no violence or disorder; only some evidence that a driveway, not normally used by the public, had been temporarily blocked to vehicular traffic. The holding was clear: the arrest and conviction under the statute did not violate First Amendment rights of speech, press, assembly or petition. (See also Cameron v. Johnson, 390 U.S. 611 (1968), validating a state law punish- ing unlawful obstruction of public facilities.) The course of federal decision is hardly a total retreat, however. In Shuttlesivortli v. City of Birmingham (394 U.S. 147 (1969)), a conviction for a peaceful march conducted without securing a permit from the local authorities was reversed on grounds that First Amendment rights of assembly and speech could not be curtailed by a prior restraint exercis- able by an open-ended delegation of discretionary power to grant or deny a permit for reasons lelated to the city's needs to regulate the flow of traffic. The government's right, indeed duty, to keep the streets open and available for movement, was conceded, but the exercise of the power could be justified only on narrowly drawn criteria. In this decision, the Court was asserting principles established in other cases which generally condemned state action authorizing prior restraints or too broadly and prematurely applying state power to curtail speech and assembly. Federal law invalidating state action in First Amendment cases is of course binding upon the states. Federal decisions, however, which sus- tain state restraints upon First Amendment freedoms do not prevent the states from taking a contrary view. The state courts or legislatures may recognize the need for limitations upon governmental power beyond those which federal rules have defined. It is not a common occurrence, however, for states to impose shackles upon their powers beyond those clearly mandated by federal decisions or their own constitutions. More often than not in this age the states seek to impose restraints upon speech, assembly, and petition for redress of grievances where the conduct is deemed inimical or dangerous to public safety. Such a case was City of Chicago V. Gregory (39 111. 2d 41 (1968)) where the Supreme Court sus- 82 Art. II, § 17 tained a conviction, under a disorderly conduct ordinance, oi a group ot demonstrators who were niarcliing in peaceable and orderly fashion around the Mayor's home protesting the retention ot the city's Superin- tendent of Schools. When the marchers were surrounded by a crowd of counter demonstrators, the police, fearing violence, requested the march- ers to leave, offering to provide an escort. Tlie demonstrators refused and the arrests followed. The state court construction of the disorderly con- duct ordinance did not include refusal to obey a police order to disperse. A unanimous state court distinguished federal decisions reversing state or local convictions of peaceful demonstrators on factual grounds establish- ing the existence or nonexistence of violence or disorder, or the immi- nence of such conditions. The United States Supreme Court reversed, avoiding the sensitive constitutional issue of whether disorder created or threatened by other persons can justify a restraint upon otherwise consti- tutionally protected conduct. The prevailing opinion was based simply on the premise that there was no evidence in the record that the defendants' conduct was disorderly. Since the conviction was for disorderly conduct, an offense neither defined nor interpreted to include refusal to obey a police order, the conviction could not stand. In the course of its brief decision the Court stated that "[pjetitioners' march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment." (Gregory v. City of Chicago, 394 U.S. 111. 112 (1969), citing Shuttleworth and other cases.) In another conviction for disorderly conduct and obstructing a side- walk, the Supreme Court of Illinois saw no unconstitutional interference with rights of assembly and petition where the defendant, with others, sat or knelt before the city hall entrance. (City of Chicago v. Joyce, 38 111. 2d 368 (1967).) The Court was quite blunt: "These rights do not mean that everybody wanting to express an opinion may plant themselves [sic] in any public place at any time and engage in exhor- tations and protest without regard to the inconvenience and harm it causes to the public." {Id. at 371.) The decision is probably sustainable on federal criteria. In an uncom- mon application of the guarantee of speech and peaceful assembly, it was held in Centennial Laundry Company r/. West Side Organization (34 111. 2d 257 (1966)) that a temporary injunction, directed against peaceful picketing in protest of allegedly discriminatory hiring prac- tices, was so broad in scope as to offend the constitutional guarantees in question. In Landry ?/. Daley (280 F. Supp. 938 (N.D. 111. 1968)), a state criminal statute defining "mob action" as the assembly of two or more persons to do an "unlawful act'" was invalidated on First Amendment grounds of Art. II, § 18 83 suppression of peaceful assembly and on Fourteenth Amendment due process grounds of vagueness. Section 17 of Article II of the Constitution of Illinois was not mentioned. The provisions of this section were considered in a civil tort action in Ariingt07i Heights National Bank v. Arlington Heights Federal Savings ir Loan Association (37 111. 2d 546 (1967)). The gravamen of the offense was that defendant had unlawfully induced the governing authorities of a village to breach its contract with plaintiff for the vacation of a street. Defendant had appeared before the Village Board to urge that the street not be vacated. Its defense was based on its constitutional right to petition government for a redress of grievances under the state and federal guar- antees. The Court held that the right asserted was not absolute, but that its conditional nature nevertheless required a showing of actual malice to sustain a tort action, a burden which was not sustained by the plaintiff. An earlier decision imder this section is probably valid on federal standards. It held that a statutory prohibition against soliciting campaign contributions from employees in the city civil service did not violate the right of assembly guaranteed by this section. (People v. Murray, 307 111. 349 (1923).) Comparable federal provisions have been sustained. Perhaps less likely to meet federal standards of permissible governmental restraint is Coughlin v. Chicago Park District (364 111. 90 (1936)), which too broadly suggests a constitutional power in a municipal corporation to deny a park facility for a political gathering. Few of the later pronounce- ments of even-handed nondiscriminatory treatment under narrowly drawn standards seem to be implicit in this decision. Comparative Analysis All other state constitutions make similar provisions for the right to assemble and petition. The Constitution of the United States carries a comparable provision in the First Amendment. The Model State Consti- tution has a similar provision. Comment As so frequently said before, the existence of a comparable limitation in the United States Constitution should not be deemed a justification for the elimination of the state guarantee. They are not parallel in scope, since the state may establish limitations upon its powers that federal courts may justify under federal standards. The fundamental nature of the rights expressed in this section would seem to mandate its retention. Free Elections Sec. 18. All elections shall be free and equal. History This section appeared in both the 1818 and 1848 Constitutions. A 84 Art. II, § 18 resolution subniitted to the 1870 Convention prox ided that "all elec- tions, whether by the people or the legislature, shall be iree and volun- tary," followed by a lengthy series ot prohibitions in the nature ot a Cor- rupt Practices Act. The Committee on the l>ill ol Rights, however, with- out comment, submitted the section in its present torni. It was adopted by the Convention, without debate or explanation, alter a bit of whimsy by a delegate who inquired whether the section meant that the number of votes on each side had to be ecjual. The 1922 Convention proposal retained the 1870 provision unchanged. Explanation The section received its first significant construction in People ex rel. Grinnell x>. Hoffman (116 111. 587 (1886)). Its definition ol free and ec|ual elections has been frequently cited: "Elections are free, where the voters are subjected to no intimidation or im- proper influence, and where every voter is allowed to cast his ballot as his own judgment and conscience dictate. Elections are equal, when the vote of every elector is equal, in its influence upon the result, to the vote of every other elector, — when each ballot is as eff:ective as every other ballot." {Id. at 599.) This definition of "equal" elections is remarkably similar to the "one man-one vote" principle pronounced some three-quarters of a century later by the United States Supreme Court. The fact that the shock of the federal decision is still felt in many states attests only to the gap between the pretension and the reality. The above-quoted definition of free and equal elections was reiterated most recently in Thompson x'. Conti (,^9 111. 2d 160 (1968)) wiiere it was used to invalidate a township election under this section and the Fourteenth Amendment of the Constitution of the United States, the election being conducted in a town meeting under conditions approximating a controlled election in a totalitarian state. The section has had several other commendable applications in void- ing state action limiting the freedom and equality of elections. Thus in People ex rel. Breckon v. Board of Election Commissioners (221 111. 9 (1906)), a provision of the 1905 Primary Election Law requiring candi- dates for a certain office to pay a filing fee was held to be an unwarranted restriction upon the right to seek elective office. Although the decision speaks in terms of an arbitrary fee bearing no relation to the services for filing the petition or to the expenses of the election, the import is clear that the right to run for office cannot be conditioned upon monetary exactions. The same decision invalidated other provisions of the Primary Act on Article IV, Section 22, grounds of special or local laws, an ap- proach which not too uncommonly overlaps into the free and equal election provisions of this Section 18. Art. II, § 18 85 In a more pedestrian context, Emery v. Hennessy (331 111. 296 (1928)) condemned an election as violating the free and equal guarantees where the true electors were not separated from the false, where the safety of the ballots was not secured and where other gross irregularities and frauds were committed in the conduct of the election. Although this section was not expressly mentioned, the decision referred generally to the violation of the free and equal election guarantees. People ex rel. Phillips v. Strassheim (240 111. 279 (1909)) invalidated the Primary Election Law of 1908 because of several provisions which were construed to deny to c|ualified voters in one part of the state the right to vote in primary elections, while voters with the same residence qualifications were permitted to vote in the remainder of the state. A specific ground of decision was Article VII, Section 1, of the Consti- tution of Illinois, but the Court also relied upon and adopted language from Rouse v. Thompson (228 111. 522 (1907)) which, in invalidating the 1906 Primary Election Law on somewhat similar grounds of dis- crimination, referred to the destruction of the freedom and equality of elections guarantees secured to the people by their fundamental law, an obvious reference to Article II, Section 18. Primary Election Laws were still fair game for the constitutional axe when in Mc Alpine v. Dimich (326 111. 240 (1927)) and in People v. Fox (294 111. 263 (1920)) the 1910 and 1919 Primary Election Laws, re- spectively, were invalidated as denying free and equal elections because the party nomination machiaery gave disproportionate voting strength in the selection of candidates to the voters in small wards and districts. Free and equal elections may be denied in proceedings antecedent to elections. Thus in Larvenette v. Elliott (412 111. 523 (1952)), an election statute which limited a circulator of a nominating petition for a candi- date for state office to the county in which the circulator resided, but authorized circulators of petitions for other offices comprising more than one county to solicit signatures in all such counties, was invalidated on Article IV, Section 22, grounds of special legislation arising from an unreasonable classification. The act had been challenged on the free and equal grounds of Article II, Section 18, but the decision was silent as to that issue, though it appears to be as relevant as, if not more so than, the Article IV, Section 22, challenge. Article IV, Section 22, was also the basis for the invalidation of the Hospital Authorities Act of 1947, although again the free and equal guarantee of Article II, Section 18, seems more appropriate. (Grennan v. Sheldon, 401 111. 351 (1948).) In this case a provision which required a separate affirmative majority of the votes cast within the corporate limits of a municipality and within the area of the proposed Hospital Authority 86 Art. II, § 18 District outside the city was held to be an unreasonable classification. However, in People xk Francis (40 III. 2d 201 (1968)), a similar provision applicable to a referendum on the establishment oi a Public Junior College District was sustained. The Court strained mightily to distinguish Grenuan but in the end simply overruled the broad holding that the re- quirement of separate city-rural majorities violated either this section or the equal protection guarantee of the Fourteenth Amendment of the Constitution of the United States. Francis may have been mortally stricken, however, by Moore v. Ogihne (394 U.S. 814 (1969)) which invalidated a section of the Illinois Election Law that recjuired petitions for the nominations of candidates for a new political party to be signed by at least 25,000 qualified voters, including 200 qualified voters from each of at least 50 counties. The law was held to violate the due process and equal protection clauses of tlie Four- teenth Amendment. Given the uneven population distribution in Illi- nois, namely 93.4 per cent of the state's registered voters resident in the 49 most populous counties, the statutory requirement of 200 voters from each of at least 50 counties gave to the electors in the 53 counties having 6.6 per cent of the state's registered voters a disproportionate voting strength in violation of the "one man-one vote" principle. The decision overruled MacDoiigall v. Green (335 U.S. 281 (1948)) involving the same statute. The free and equal guarantee of this section was not men- tioned in Moore. The great early decisions under this section, as may already have be- come evident, dealt with the Primary Election Laws. Political parties, striving both for statutory recognition as a legal entity, and for control of the nomination process through the party machinery, were inclined to embody procedures which gave precedence to party control over the electoral rights of their members. This raised the critical issue of whether primary elections, a mechanism unknown at the time of the 1870 Con- vention, were elections within the meaning of the free and equal guar- antees of this section. The issue was settled in People ex rel. Breckon xi. Election Commissioners (221 111. 9 (1906)), which held without reservation that a primary election was an election within the meaning of Article II, Section 18, of the Constitution of Illinois, and that the rights of electors at primary elections were the same as those constitutionally granted to electors at regular (or general) elections. This principle was reaffirmed in Rouse v. Thompson (228 111. 522 (1907)), People ex rel. Phillips x'. Strassheiyn (240 111. 279 (1909)), People x>. Fox (294 111. 263 (1920)), and Mc Alpine v. Dimick (326 111. 240 (1927)). In the course of these deci- sions the Primary Election Laws of 1905, 1906, 1910, 1912 and 1919 were invalidated for infringements of the free election guarantee in primary Art. II, § 18 87 elections. Some of the outlawed provisions have already been noted, but the most perverse issue involved the statutory authority delegated to party committees to limit the number of candidates for the office of representative in the General Assembly. This authority was related di- rectly to the minority representation provision (Article IV, Sections 7 and 8, prior to 1954 amendments), the purpose of which was to assure to the minority political party, through the cumulative voting authoriza- tion, the election in each senatorial district of at least one of the three representatives to be elected. If a party member could be limited in a primary election to voting for fewer than three candidates of his party for that office, his rights would not be equivalent to those of an elector at a general election to vote for three candidates. The issue had been directly and indirectly raised in several of the early cases cited, and resolved against the authority of a party, or its committee, to so limit the rights of its members. Finally, in People ex rel. Lindstrand v. Emmerson (333 III. 606 (1929)) the issue was again raised in a challenge to the 1927 Primary Election Law. The provision authorizing the senatorial com- mittee to fix and determine the number of candidates to be nominated by its party at the primary election for representative in the General Assembly had resulted in a committee designation of two candidates. The petitioner in a mandamus action to compel certification of his nomination had received the third-highest number of votes for the office. In rejecting the petitioner's challenge, the Court was forced to rethink the long-standing rule that primary elections were elections within the meaning of the free and equal guarantees. Recognizing that minority representation simply could not be guaranteed if party electors at a pri- mary election had the constitutional right to vote for three candidates for the office, the Court overruled its prior decisions and held that a primary "is an election only in a qualified sense." {Id. at 622.) In that sense the statutory provision permitting the party committee to determine the number of such candidates, and the action of the committee limiting the number of party nominees to two, though three candidates would ultimately be elected to office, did not offend the free and equal guaran- tees of this section. The Emmerson decision gave the political parties the flexibility needed to insure minority representation. In no other way does it affect or re- verse prior holdings respecting concepts of freedom and equality for party members in respect to party structure, organization and adminis- tration of elections. In this connection^ however, it should be noted again that uniformity in the administering of the election machinery is not mandated under the "equal" requirement of this section if the system is not discriminatory in respect to basic electoral rights. This principle, 88 Art. II, § 18 first stated in People ex rel. Grinnell v. Hofftnan (166 111. 587 (1886)) to sustain an election law applicable only to such cities, villages and towns as adopted it by referendum, has been reaffirmed in People ex rel. Mayes v. Wariek (241 111. 529 (1909)) and does not appear to be subject to serious constitutional challenge today. This explanation would be incomplete if it did not treat the extra- ordinary at-large election of members of the Illinois General Assembly in 1964, an election occasioned by the failure of the constitutional processes to produce a required redistricting bill. The legislation estab- lishing the procedures for this election provided for party convention nomination of not more than two-thirds of the total number of seats in the House of Representatives, and suspension of cumulative voting rights for this election. The legislation in toto was sustained in People ex rel. Daniels v. Carpentier (30 111. 2d 590 (1964)). The cumulative voting provision was held to be applicable, by constitutional intendment, only to regular district elections, and the at-large state-wide election was held consistent with the "one man-one vote" concept. In fact, the Court stated: "In our view, it would be difficult to envision a system of nomi- nation and election that is in closer harmony with the Federal 'one man- one vote' concept." (Id. at 596.) The act was sustained as establishing a free and equal election under this section and as conformable as well to the Fourteenth Amendment requirements. One other problem should be noted. Legislation frequently authorizes submission of proposals to the people for their approval or rejection. Article II, Section 18, has been construed to prohibit the General Assem- bly or other governmental units from prescribing a form of ballot which combines two or more separate unrelated propositions into a single question. A voter under these circumstances has no true freedom of choice. Although a number of elections based on allegedly unlawful combination ballots have been challenged, the Illinois Supreme Court has been generous in validating the elections. Customarily the Court has found that the propositions, though appearing to be separate and un- related, were in fact single and germane. Illustrative is Voss xk Chicago Park District (392 111. 429 (1946)) where a ballot for a $24,000,000 bond issue for the acquisition, improvement, completing, ornamenting and protecting of land and buildings, and for rebuilding all types of per- manent improvements and construction necessary to render park prop- erty usable for enjoyment as a public park, was held valid against a challenge that it joined in one proposition a number of distinct, separate and unrelated purposes. Only occasionally is a contrary result reached. (See, e.g., O'Connor v. High School Bd. of Educ, 288 111. 240 (1919).) Art. II, § 19 89 Comparative Analysis All other state constitutions have comparable provisions for free elec- tions. Only 13 other states, however, require "equal" elections. Three states provide that voters shall have equal rights. The Model State Con- stitution by implication calls for free elections in its Suffrage Article, quoted elsewhere. (See iufra, p. 388.) There is no comparable provision in the United States Constitution. Comment In all probability the equal protection clause of the Fourteenth Amendment of the Constitution of the United States would guarantee all the rights protected against state impairment under this section. The state guarantees, however, have a long and honored tradition. They have been recognized and protected specifically in a number of decisions. The specifics of the guarantees will probably commend themselves more readily to voter acceptance than the more vague protections of due process and equal protection. All states carry similar provisions tor free elections. The Convention must weigh the benefits of a simply stated and generally understood constitutional right against the cold logic which may argue for a change. To this analyst, retention of the present section seems preferable. Right to Remedy and Justice Sec. 19. Every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation: he ought to obtain, by law, right and justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay. History Except for minor and nonsubstantive language variations, this sec- tion appeared in identical form in the 1818 and 1848 Constitutions. In that form it was offered to the 1870 Convention with an accompanying statement by its sponsor that it was a fundamental and abiding constitu- tional principle, expressing indisputable objectives which sorely needed implementation. Noting that many people, especially the poor, were victims of unconscionable delays in securing remedies in the courts for their wrongs, and implying that justice indeed could be purchased by the affltient, the sponsor virtually accused the legal profession of being the malefactors in this sorry drama of democracy subverted. Noting also that there were some 50-60 lawyers who were convention delegates, he added, "I am not saying anything against lawyers. They are just as good as laboring men, if they behave as well, if they are honest." Nothing further appears until the vote on adoption when a delegate stated: "This section is also in the present Constitution. It is declaratory of rights, not of 90 Art. II, § 19 powers." After the defeat of a proposed amendment which would have substituted "shall" for the words "ought to," the section in its present form was adopted. The record contains nothing to indicate that the 50-60 lawyers reacted to the slur upon their profession and the administra- tion of justice. Explanation The Illinois courts have never been quite sure what to do with this section. The 1870 Convention member's explanation that the section "is declaratory of rights, not of powers" is hardly a source of inspiration as to its meaning. The uncertainty is evident in the judicial jjronouncements. The Fourth District Appellate Court in 1950 stated that "this reference to the Constitution [Article II, Section 19] is more of a statement of phil- osophy than a rule which can be used to solve cases . . . ." (Welch v. Davis, 342 111. App. 69, 77 (1950).) One year earlier the First District Appellate Court categorically stated that this section "is a clear mandate to the courts, that wherever the legislature has failed to provide a remedy, the courts must." (Skelly Oil Co. v. Universal Oil Prod. Co., 338 111. App. 79, 84 (1949).) Yet in 1963 another division of the First District Appellate Court denied relief on both contract and tort theories to an infant illegiti- mate child who sought recovery against his alleged father, deferring to the legislature in this novel case the determination of whether a cause of action should be created for "wrongful life." (Zepeda v. Zepeda, 41 111. App. 2d 240 (1963).) The constitutional sting had been taken out of this case when the Supreme Court of Illinois transferred the appeal to the appellate court, refusing to accept the case on the constitutional chal- lenges based on this section and the Fourteenth Amendment of the Con- stitution of the United States. Lastly (though hardly the only remaining judicial observation on the point) the Supreme Court, in Heckendorn v. First Natioiml Bank (19 111. 2d 190 (I960)), in sustaining a statute which barred husbands and wives from suing each other for a tort to the person committed during coverture (the statute was an immediate legislative response to and rejection of the decision in Brandt v. Keller (413 111. 503 (1952)) interpreting the statute as repealing the common law .im- munity), held that Article II, Section 19, was not violated since that sec- tion "enunciates a basic policy of jurisprudence that serves both to preserve the rights recognized by the conmion law and to permit the fashioning of new remedies to meet changing conditions." (Heckendorn V. First Nat'l Bank, 19 III. 2d 190, 194 (I960).) The decision continues, "However, this policy expression does not authorize us to create a cause of action unknown to the common law in the face of an express statu- tory prohibition." {Id. at 194.) It is difficult to reconcile the language in this case. If the provision permits the fashioning of new remedies, the with- Art. II, § 19 91 drawal therefrom of discretion to establish a cause of action unknown to the common law leaves little room for judicial creativeness. A statu- tory bar to a particular remedy should be critically measured against the constitutional policy of this section and the due process guarantees of the state and federal constitutions, rather than being casually accepted as a reasonable exercise of police power and a rational determination of the public policy of the state. One contrasts the analysis in the Heckendorn case, affirmed in Wartell V. Formiisa (34 111. 2d 57 (1966)), with Molitor v. Knneland Community Unit District (18 111. 2d 11 (1959)), wherein the Court reversed a long- settled judicial rule of school district immunity from tort liability. Although the case involved no statutory bar as in Heckendorn, and though the grounds of reversal were solely "public policy" unrelated to constitutional guarantees, the Court fashioned a remedy where none ex- isted at common law. Indeed, in a series of decisions which followed Moli- tor, the Court held invalid under the Article IV, Section 22, prohibition against a grant of special privilege and immunities by special or local law, several laws, enacted in direct response to Molitor, which granted total or partial immunity from tort liability to certain types of municipal corporations. (Haymes v. Catholic Bishop, 41 111. 2d 336 (1968) (limited liability of nonprofit private schools); Treece v. Shawnee Community Unit School Dist., 39 111. 2d 136 (1968) (limited liability for public school districts); Hutchings v. Kraject, 34 111. 2d 379 (1966) (total immunity of counties); Harvey v. Clyde Park Dist., 32 111. 2d 60 (1964) (total immunity of park districts).) Although Article II, Section 19, was urged in Harvey, the first of these challenges, that section was not, in that case nor in any of the subsequent cases, the constitutional basis of invalidation, the Court preferring to go the route of unreasonable classification creating a local or special law in violation of Article IV, Section 22. This approach was in fact dictated by the Court's analysis in Harvey which virtually invited the legislature to preserve the principle of sovereign immunity for municipal government by classifications based on functions rather than the type of the municipal government. The legislature obliged in 1965 by enacting the Local Governmental and Governmental Employees Tort Immunity Act. (111. Rev. Stat. ch. 85, §§1-101 to 10-101 (1967).) The net effect may be a substantial diminution of the ringing policy declara- tion of Article II, Section 19, that "every person ought to find a certain remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation." To this may be added the state's constitutionally established sovereign immunity (Art. IV, Sec. 26) which also diminishes the force of Article II, Section 19, though the creation of the Court of Claims mechanism for defined claims against the state and certain other state instrumentalities has to some extent alleviated 92 Art. II, § 19 the harshness of the immunity principle. (See Explanation, Art. IV, Sec. 26, infra, pp. 232-3.) This section has had its moments of constitutional significance and they have not l)een of a minor character. Notwithstanding general judi- cial pronouncements that "no person has any vested right in any rule of law entitling him to insist that it shall remain unchanged for his benefit; . . . that no constitutional right is necessarily violated by chang- ing or abolishing a remedy available at common law. . . ." (Grassc v. Dealer's Transp. Co., 412 111. 179, 190 (1952)), some legislative attempts to change or abolish common law remedies have outraged the judicial conscience and have been invalidated under this section. Thus in Heck V. Schupp (394 III. 296 (1946)), a 1935 statute (Law of .May 4, 1935, ch. 38 [1935], Illinois Laws 716) which sought to outlaw civil causes of action for alienation of affections, criminal conversation and breach of contract to marry, based on an expressed policy that such actions were conducive to extortion and blackmail, was held to violate this section. The Court said: "It requires no more than a cursory examination to discover that the act under consideration here tends to put a premium on the violation ol the moral hiw, making those who violate the law a privileged class, free to pursue a course of conduct without fear of punishment even to the extent of a suit for damages. The contract of marriage has always been known in the law as a contract in- volving civil rights just as other contracts involve such rights, and no reason appears why. under section 19 of article II of our constitution, such rights should not have their day in court." (Id. at 299-300.) The decision then held that members of a family and the state have a right to protect Jihe family relationship and that to tie the hands of injured members of the family who seek to vindicate that right by jjur- siung actions of criminal conversation or alienation of affections would be "not only clearly in conflict with section 19 of article II of our State constitution, but . . . contrary to all sense of justice." (Id. at 300.) The state's interest in outlawing such actions was summarily dismissed as inadequate, a somewhat remarkable substitution of judicial wisdom for legislative judgment in an area of public policy. A few months earlier, in Daily !>. Parker (61 F. Supp. 701 (N.D. 111. 1945)), the same Illinois statute was also declared in violation of Section 19 of Article II of the Constitution of Illinois, thus constituting no bar to the filing of an action in a federal district court for alienation of affections. It is of more than passing interest that in 1947 the Illinois General Assembly, presumably in response to the Heck and Daily decisions, en- acted several statutes limiting recovery in civil actions for breach of con- tract to marry (111. Rev. Stat. ch. 89, §26 (1967)), alienation of affections Art. II, § 19 93 (111. Rev. Stat. ch. 68, §35 (1967)), and criminal conversation (111. Rev. Stat. ch. 68, §§42-44 (1967)) to actual damages (outlawing recovery of punitive, exemplary, vindictive or aggravated damages). The statutes ex- pressly forbade the consideration of the wealth or position of defendant, the plaintiff's mental anguish, any injury to plaintiff's feelings, shame, humiliation, sorrow or mortification suffered by plaintiff, defamation or injury to the good name of the plaintiff or his spouse, or dishonor to the plaintiff's family resulting from the tort, as elements of damage. Black- mail and extortion were the expressed public policy premises underlying these statutes. In Smith v. Hill (12 111. 2d 588 (1958)) the statute was sustained as to actions for breach of promise to marry, and in Siegall i'. Solomon (19 111. 2d 145 (I960)) as to alienation of affections. In both cases it was urged that a holding of validity would clearly circumvent Heck and Daily and Section 19 of Article II. The Court sustained the laws, drawing a distinction between abolition of a common law remedy and limitation of damages recoverable. In Siegall, the Court held further that a marriage contract was not a contract within the meaning of the contract impairment clause of the federal and state constitutions. Somewhere be- tween Heck V. Schupp and the SmitJi and Siegall cases, the Court's sense of outrage was mollified by a statute which virtually, though not tech- nically, served the same "immoral" objectives as the invalid 1935 statute. A somewhat similar legislative-judicial conflict involving legislation seeking to curb the alarming increase in divorce and separate mainte- nance cases occurred in 1953 and 1955. The 1953 law required as a con- dition precedent to the filing of an action in divorce, separate mainte- nance or annulment of marriage, the filing by the plaintiff of a "state- ment of intention" to institute the action. It precluded the institution of the actual suit for a period of 60 days after the filing of the statement of intention. During this "waiting period," voluntary informal conferences were to be held between the parties, with the judge participating, for the purpose of trying to effect a reconciliation of the parties. In People ex rel. Christiansen v. Connell (2 111. 2d 332 (1954)), the act was declared invalid under this section of the Constitution of Illinois as denying the plaintiff a right of access to the courts. In 1955, the legislature reacted by passing a law which provided that actions for divorce should be commenced by filing a praecipe for summons "but prohibiting the filing of the complaint and entry of a decree for a period of 60 days from the date the summons was served or the last day of publication of notice." The purpose of the 60-day period was to provide a mechanism for reconciliation of the parties, but the 1955 statute omitted all references to conciliation conferences involving judges, since provisions of that nature in the 1953 statute had also been invalidated as imposing nonjudicial duties upon the courts. In People ex rel. Doty v. 94 Art. II, § 19 Connell (9 111. 2d 390 (1956)), the 1955 statute was sustained since im- mediate access to the coints was secured by the filing ot the praecipe. The 60-day waiting period was not discussed in terms ol the Article II, Section 19, provision that the remedy shall be available "promptly and without delay." Instead it was analyzed against a due process challenge and sustained as a reasonable exercise ot the police power. This section has generated some additional liberal conceptions of wrongs lor which there should be remedies. In one ol the most tar-reach- ing applications ot this section, the Second District Appellate Court in Johnson i'. Luhman (330 111. App. 598 (1947)) sustained a cause of action by minor children against a woman who had alienated the affections of their father, depriving them of his support and society. Recognizing that the existence of such an action at common law was extremely doubtful, the Court, relying upon Daily v. Parker (152 F. 2d 174 (7th Cir. 1945)), followed the principle of that decision which expressed the conviction that "because such rights have not heretofore been recognized, is not a conclusive reason for denying them." (/d. at 177.) The Second District Appellate Coint stated: "It is the opinion of this court, however, that the frank recognition by the circuit court of appeals that the cause was without precedent, but that, never- theless, the common law was sufficiently flexible t6 protect what are presently regarded as family rights under our social standards and conceptions of the family unit, is more conducive to the development of unambiguous legal precepts, than if the court had invoked some legal fiction to accomplish what it deemed to be a desirable result." (Johnson v. Luhman, 330 111. App. 598, 603 (1947).) Great reliance was placed upon "the doctrine of justice embodied in the Illinois constitution." [Id. at 607.) Although not clear cut, the decision verges upon a holding that Section 19 of Article II permits or requires courts, in the discharge of their responsibility, to fashion remedies for wrongs for which the common law provided no redress. This bold approach, however, was not applied in Wallace v. Wallace (60 111. App. 2d 300 (1965)), wherein the Second Division of the First District Appel- late Court refused to invoke this section in behalf of an illegitimate child seeking rights -of visitation for his putative father so that the child's rights of companionship would be protected. Denying the existence of a common law cause of action, the Court cited Heckendorn v. First National Bank (19 111. 2d 190 (I960)) for the proposition that Section 19 of Article II "enunciates a basic policy of jurisprudence that serves both to preserve the rights recognized by the common law and to permit the fashioning of new remedies to meet changing conditions." The Court failed to explain why the objective of "fashioning new remedies" was in- apropos to this case other than in its reference to the action not being Art. II, § 19 95 recognized at common law, an obvious non-sequitur if the quoted refer- ence meant what it seems to say. Challenges to statutory remedies for wrongs or injuries not recognized by the common law have not been successful on the ground that the denial of a concurrent law remedy violates this section. The ground of challenge customarily is that the statutory remedy, in limiting the amount of recovery, or in other ways establishing conditions for recov- ery more restrictive than those normally applicable to a common law remedy, fails to provide the "certain remedy" that this section mandates. Thus in Zostautas v. St. Anthony De Padua Hospital (23 111. 2d 326 (1961)), the parents of a child, whose death allegedly occurred because of the negligence of a doctor and his attendants, sought to recover on a common law claim of breach of contract which, they insisted, was not barred, merged in or superseded by the Wrongful Death statutory remedy limiting the maximum monetary recovery. The knotty issue was whether the contract claim survived the death of the patient. In this issue the law was in a state of utter confusion and conflict in other jurisdictions, there being no precedent in Illinois. Against the parents' claim that a denial of a common law action would violate Section 19 of Article II, the Court held to the contrary, stating that since there was no common law remedy (in Illinois) and since the Wrongful Death Act provides, rather than abrogates such remedy, there was no violation of the constitutional provision. Relying on Knierim v. Izzo (22 III. 2d 73 (1961)), the Court stated; "we are not required by Section 19 of Article II of our constitution to recognize a remedy where the legislature has already created one, even though the statutory remedy be limited as to recoverable damages." (Zostautas v. St. Anthony De Padua Hosp., 23 111. 2d 326, 336 (1961).) To the same effect concerning this section is Cunningham v. Brown (22 111. 2d 23 (1961)) involving the statutory Dram Shop Act remedy, and Hall v. Gillins (13 111. 2d 26 (1958)) sus- taining the limited monetary recovery under the Wrongful Death Act. In all these cases the critical holding is that a statutory remedy which fills the void of a nonexistent common law remedy supports rather than violates the constitutional provision in question. In McDaniel v. Bullard (34 111. 2d 487 (1966)) and Welch v. Davis (410 111. 130 (1951)), the Court was able to avoid similar constitutional challenges by a liberal construction of the Wrongful Death Act, establish- ing in Welch a cause of action under that act for a beneficiary not liter- ally within its terms, and in McDaniel preserving the action after the death of the statutory beneficiary. The provision of this section to the effect that a person ought to ob- tain right and justice freely and without being obliged to purchase it 96 Art. II, § 19 has been productive of several decisions of interest. In Griffin v. Illinois (351 U. S. 12 (1956)), the United States Supreme Court held that a defendant could not be denied an appellate review of his conviction where his inability to secure the necessary transcript of proceedings was due to his destitute condition. Though the specific grounds of decision are the due process and equal protection clauses of the Fourteenth Amendment of the Constitution of the United States, the Court noted the relevance of Section 19 of Article II of the Illinois Constitution. Wilson 1'. McKenna (52 111. 43 (1869)) held invalid under the 1848 Constitution predecessor section, a statute requiring payment of taxes as a condition to questioning a tax title on the land in question, its effect being to require a person to purchase justice. To the same effect in respect to a statute requiring the payment of redemption money and interest as a condition to questioning the validity of a tax deed are Reed v. Tyler (56 111. 288 (1870)) and Senichka v. Lowe (74 111. 274 (1874)). On the other hand. City of Chicago v. Collin (302 111. 270 (1922)) sustained a statute which prohibited entry of a judgment involving title or interest in land until the party holding the tax deed was fully reim- bursed for his outlay, the Court distinguishing Wilson x'. McKenna and Reed v. Tyler on the ground that the statutes in those cases prohibited a resort to the courts to determine rights unless payment was made before the right was determined. In Williams i>. Gottschalk (231 III. 175 (1907)), a statutory provision requiring the payment of a prescribed jury fee as a condition to a trial by jury was held not to violate the right to trial by jury guaranteed by Aritcle II, Section 5, of the Constitution of Illinois. The "purchase" pro- vision of Section 19 of Article II was not mentioned. Of more relevance, however, is People ex rel. Flanagan xl McDonough (24 III. 2d 178 (1962)) where a Chicago ordinance increasing the jury demand fee from $12 to $100 for a twelve-man jury, and from $6 to $50 tor a six-man jury, was sustained against a number of constitutional challenges, in- cluding the "admonition of section 19 of article II . . . concerning the purchase of justice." (Id. at 181.) The standard practice of requiring the payment of taxes under protest as a condition to a suit seeking recovery of such taxes is sometimes chal- lenged but invariably dismissed as without merit. (Lakefront Realty Corp. v. Lorenz, 19 111. 2d 415 (I960).) Comparative Analysis Only the constitutions of Louisiana, Maine and Arizona contain com- parable provisions. 1*he Constitution of the United States has no such provision nor does the Model State Constitution. Art. II, § 20 97 Comment The section in style and tone appears to be a pious, homiletic pro- nouncement of incontestable verities. Yet, as shown, it has played an important role in several instances. In all likelihood, statutory provisions held invalid under this section could have been stricken under state or federal due process and equal protection guarantees. As noted in the Comparative Analysis, only three other states have a comparable provi- sion. It would indeed be astonishing to find that persons in states lacking this constitutional provision have suffered deprivations of rights as a con- sequence. Notwithstanding, the section does have historic, political and psychological significance. Since its abolition or change may be miscon- strued, it may be good constitutional policy to preserve it. Fundamental Principles Sec. 20. A frequent recurrence to the fundamental principles of civil govern- ment is absolutely necessary to preserve the blessings of liberty. History This section appeared in the 1818 Constitution and was unchanged in the 1848 Constitution. The proposed 1922 Constitution combined this section with Section 1. Explanation One commentator has included this section among several from dif- ferent state constitutions as examples of "Constitutional Sermons." (See R. Dishman, State Constitutions: The Shape of the Document 47-48 (1968).) He notes that in several states the constitution calls for counte- nance of or adherence to justice, moderation, temperance, industry, frugality, honesty, punctuality, and sincerity in some combination and, in addition, calls for frequent recurrence to fundamental principles. Four states, including Illinois, he notes, "are content merely to urge a 'frequent recurrence to fundamental principles' without specifying what these may be." (Id.) It is not surprising to find that the courts have not found this section particularly significant as a restriction on govern- mental action. In only two reported cases successfully attacking govern- mental action. Commissioners of Union Drainage District v. Smith (233 111. 417 (1908)) and Wice v. Chicago ir Northwestern 'Raihvay (193 111. 351 (1901)), does it appear that the Supreme Court referred to Section 20, but in neither case did the section control the decision. Comparative Analysis Four states — Arizona, North Carolina, Utah, and Wasliington — have substantially identical provisions. (Dishman apparently overlooked Utah.) 98 Art. II, § 20 Seven other states have similar but more extensive provisions. Neither the United States Constitution nor the Model State Contitution con- tains such a provision. Comment It is difficult to see what "right" is reserved by the people through this section ot the bill of rights: it is equally difficult to see any harm in preserving the section. It it is preserved, it could appropriately be combined with Section 1 as was proposed by the 1922 Convention. As pointed out in the Comment on Section 1 {supra, p. 9), there is respectable constitutional theory for a provision making it clear that under our system of limited government, the enumeration of specific rights reserved by the people does not exhaust their reserved rights. Section 20, if it serves any purpose, reinforces the social compact theory embodied in Section 1. Frequent reference has been made to the relationship between the Illinois bill of rights and the Bill of Rights in the Constitution of the United States. In addition, it has been noted that a number of provisions in the Illinois bill of rights are not included in the Model State Consti- tution. It will be instructive and of interest to the delegates to examine the Commentary to the Bill of Rights Article of the Model State Con- stitution which deals with these matters. (Model State Constitution 25.) Article III DISTRIBUTION OF POWERS The powers of the government of this State are divided into three distinct departments — the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted. History This Article, in two sections and with somewhat more flowery language, first appeared in the 1818 Constitution. It was carried over into the 1848 Constitution with the addition of the following concluding words: "and all acts in contravention of this section shall be void." (The "section" was the part of the present Article following the semicolon.) The Committee on the Bill of Rights of the 1870 Convention reported the Article as it now appears, but offered no explanation for the deletion of the words that had been added in 1848. The Article was accepted without debate or change. The proposed 1922 Constitution further shortened the pro- vision to read: "The legislative, executive and judicial departments shall be separate and no one of them shall exercise powers properly belonging to another." Explanation This Article is the Illinois version of the principle of the separation of powers. One of the earliest, and best, explanations of the principle was given by Chief Justice Wilson in the early case of Field v. People ex rel. McClernand: "This is a declaration of a fundamental principle; and although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connection or dependence, the one upon the other; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in which this maxim was under- stood by the authors of our government, and those of the general and State gov- ernments, is evidenced by the constitutions of all. In every one there is a theoret- ical or practical recognition of this maxim, and at the same time a blending and 99 100 Art. Ill admixture of different powers. This admixture in practice, so far as to give each department a constitutional control over the other, is considered, by the wisest statesmen, as essential in a free government, as a separation. This clause, then, is the broad theoretical line of demarcation, between the great departments of government." (3 111. 79, 83-84 (1839).) Although there have been a great many instances ot invocation of Article III in litigation and a great many jtidicial opinions concerning the Article, its absence probably would not have changed the course of litigation. Once a written constitution is adopted wherein there are created legislative, executive and judicial branches, the stage is set lor the delineation of the poAver of each and the interrelationships among them, and for the interdiction of encroachments of one upon another. An explicit statement of the principle of separation of powers adds little, if anything, to the process of delineation and interdiction. The statement of the attributes of the three great powers of government is deceptively simple. The legislative power is simply the power to make laws, to set down the rules governing the society. The executive power is simply the power to administer, to enforce, to execute those laws. The judicial power is simply the power to determine how a particular fact situation fits within the laws or rules of the society. In the Anglo-Saxon world, the judicial power also includes the administration of the great body of rules of private relationships known as the common law, a body of law that can be changed by either the judiciary or the legislature. In the United States, operating under written constitutions, the jtidicial power also includes the power to determine the legitimacy of the exer- cise of legislative and executive power. Althotigh each of the three branches of government can be described in a manner that makes each appear completely different from the others, there is in fact a great deal of overlapping. The Supreme Court once put it this way: "The legislative, executive and judicial powers are not to be kept so entirely separate and distinct as to have no connection or interdependence. In every constitution there is a blending and admixture of different powers. 'This ad- mixture, in practice, so far as to give each department a constitutional control over the others, is considered by the wisest statesmen as essential in a free govern- ment as a separation.' (Field v. People, 2 Scam. 79; Sherman ik People, 210 111. 552.) In Cooley on Torts that author says (p. 375): 'Official duties are supposed to be susceptible of classification under the three heads of legislative, executive and judicial, corresponding to the three departments of government bearing the same designations: but the classification cannot be very exact and there are many officers whose duties cannot properly, or at least exclusively, be arranged under either of these heads.' Certain administrative officers are frequently charged with duties that partake of the character of all three of the departments but which cannot be classed as belonging essentially to either. Administrative and executive officers are frequently called upon, in the performance of their duties. Art. Ill 101 to exercise judgment and discretion, to investigate, deliberate and decide, and yet it has been held that they do not exercise judicial power, within the meaning of the constitutional provision." (Illinois v. Illinois Cent. R.R., 246 111. 188, 230-31 (1910).) A great many of the cases that appear to be matters of violation of the principle of separation of powers are equally susceptible of invalidation under another constitutional principle. For example, the legislature may declare that a given fact is pri)na facte evidence of something (People V. Beck, 305 111. 593 (1922)) but may not declare that a given fact is conclusive evidence of something, because that is an invasion of the judi- cial power. (Carolene Prods. Co. v. McLaughlin, 365 111. 62 (1936).) The United States Supreme Court would say that such a conclusive pre- sumption is a denial of due process of law. (See Tot v. United States, 319 U.S. 463 (1943).) For purposes of an analysis of Article III, therefore, the discussion which follows will deal only with those instances that are solely matters of separation of powers. Legislative Encroachment: There have been relatively few instances of judicial findings of true legislative encroachment on either of the other two branches of government. This may be in part because of the unusual constitutional theory expounded by Chief Justice Wilson in the Field case quoted from at the beginning of this discussion. He said that the "constitution is a limitation upon the powers of the legislative depart- ment of the government; but it is to be regarded as a grant of powers to the other department[s]. Neither the executive nor the judiciary, there- fore, can exercise any authority or power, except such as is clearly granted by the Constitution." (Field v. People ex rel. McClernand, 3 111. 79, 81 (1839).) This is not the occasion for indulging in a discussion of political theory; suffice it to say that the Field theory increases the likelihood that legislative action will not be found to be an encroachment on the powers of the executive and judicial departments. (See Explanation of Sec. 1, Art. V, injra, pp. 254-7, for discussion of Field case.) The courts have protected their own power in several areas. They have made it clear that, although the legislature may generally prescribe the qualifications to practice professions and callings, only the judiciary may prescribe the qualifications for engaging in the practice of law. {In re Day, 181 111. 73 (1899).) The courts also assert the inherent power to define the practice of law, and any legislation making the unauthorized practice of law illegal and punishable is solely in aid of the judicial power. (People ex rel. Chicago Bar Ass'n v. Goodman, 366 111. 346 (1937).) The extent to which the legislature may control practice and procedure in the judicial system is not clear. Neither the Judicial Article as adopted in 1870 nor the current Article makes any reference to general judicial rule-making power, and if anyone were to take the Field theory seriously, 102 Art. Ill it could be argued that the absence of any such reference means that there is no judicial rule-making power. (As to how seriously the Field theor)' should be taken, see the Explanation of Sec. 1, Art. V, infra, pp. 254- 7.) Moreover, one of the enumerated cases of forbidden special legislation under Section 22 of Article IV is "regulating the practice in courts of justice," which implies that the legislature has the power so to regulate by general law. Whatever the basis in theory, the practice has been for the legislature to adopt comprehensive rules of practice and procedure. The Supreme Court has generally accepted this legislative practice, stating, however, that there could be no infringement of the judiciary's inherent powers. (Agran v. Checker Taxi Co., 412 111. 145 (1952).) But until very recently, the only infringement that the courts found and stopped were attempts by the legislatine to control the essence of the judicial process — the rendering of judgments. (See the Agran case, supra; People ex rel. Sprague v. Clark, 300 111. 583 (1921); People ex rel. Lafferty v. Owen, 286 111. 638 (1919).) In 1968, the Supreme Court held that its rule on admission to bail pending appeal from a sentence of imprisonment overrode a subsequent legislative amendment to the Code of Criminal Procedure that forbade bail in the case of conviction for felonies involving the use or threat of the use of force or violence. (People ex rel. Stamos v. Jones, 40 111, 2d 62 (1968).) The Court indicated, however, that it did not consider the various references to limited rule-making power in the new Judicial Article to represent any general revision of the relationship between the legislature and the judiciary as it existed under the old Judicial Article. Moreover, it is significant that serious constitutional issues of the right to bail would have had to be met if the Court had not been able to rely on a specific rule-making power granted to it under the new Article VI. (For a general discussion of judicial rule-making power, see infra, p. 327.) People V. Briiner (343 111. 146 (1931)) is primarily a case involving the nature of trial by jury under Section 5 of Article II (supra, pp. 24-7), but the case has a separation of powers side that should be mentioned. In a criminal trial, the defendant's attorney asked for an instruction to the jui-y that it was the judge of both the law and the facts. The in- struction was refused. On appeal following conviction, error was charged because a statute dating from 1827 stated that juries in criminal cases were judges of both the law and the facts. The Supreme Court first decided that trial by jury as guaranteed in the bill of rights was limited to permitting the jury to determine the facts. That disposed of the case, but the Court went further, perhaps because of the nagging fact that the statute had been around over 40 years when the Constitution was adopted in 1870. The Court said that interpreting the law was an inherently judi- Art. Ill 103 cial function that the legislature could not exercise. This, the Court ap- parently thought, would be the case if the 1827 statute were valid. An accurate characterization would seem to be that the statute was an in- valid attempt to delegate judicial power. But with such a characterization, the Court might have puzzled over who was receiving the delegation. The jury is part of the judicial process. Presumably, the Court meant that the legislature was trying to interfere with judicial power by denying to judges the exclusive right to interpret the law. All in all, the Bruner case is more confusing than enlightening on separation of powers. Legislative encroachment on the executive department, in the eyes of the judicial^ at least, has been minor. Again, this may be in part the result of the Field case discussed earlier. {Supra, p. 101.) It may also result in part from the fact that, by virtue of the long ballot, executive power is widely dispersed. (See discussion of Art. V, Sec. 1, injra, p. 256.) In any event, whatever the reason, there appear to have been only two areas of serious judicial concern over legislative encroachment on the executive department. One area dealt with the extent to which the civil service system could cover executive employees. In the case of People ex rel. Gullett V. McCulIough (245 111. 9 (1912)), it was argued that the Civil Service Law was invalid in that it limited the power of the elected state officers to choose their own employees and thus constituted legislative encroachment on the executive department. Three judges agreed with this argument and three did not. The seventh judge agreed with the argument in so far as the constitutional duties of the elected officers were concerned but not as to those duties which were imposed by statute. Four years later, a divided Court found that the Civil Service Law could cover em- ployees of the elected clerk of the Supreme Court. No distinction was made between constitutional and statutory duties of the clerk. (People ex rel. Vanderburg v. Brady, 275 111. 261 (1916).) This later case probably killed the peculiar distinction made by the "swing" judge in the earlier case. In any event, the current Personnel Code exempts from civil service all positions under the elected state officers other than the Governor, all employees of the Governor at the Executive Mansion and on his im- mediate personal staff, all positions under the Clerk of the Supreme Court, and all officers and employees of the courts. (111. Rev. Stat. ch. 127, §63bl04c (Supp. 1968).) The head of any of the exempted offices can, however, request extension of civil service to his employees. (§63bl04b (1967).) Thus, the present statutory schem£ is consistent with the argu- ment unsuccessfully advanced in the McCulIough case. An even stranger judicial finding of legislative encroachment on the executive department was the case of Fergus v. Russel (270 111. 304 104 Art. Ill (1915)), in which the Court ruled that an appropriation to the Insurance Superintendent tor legal purposes could not be used to employ attorneys. The ground was that the Attorney General constitutionally possessed the pow'ers which the English Attorney General had had at common law, that under English common law the Attorney General was tlie law officer oi the Crown, and that, therefore, the separation ot powers doctrine forbade any legislative shift of any of those powers to any other executive depart- ment. (For further discussion of this strange case, see infra, pp. 256-7.) As recently as 1956, the Supreme Court adhered to the position taken in the Russel case. (People ex rel. Castle v. Daniels, 8 111. 2d 43 (1956).) The characterization of the Russel case as "strange" is based solely upon the Court's unusual interpretation of Section 1 of Article V (see injra, })p. 256-7) and not on any theory that the legislature should be free to move executive powers around willy-nilly. The Auditor of Public Accounts, for example, has specific duties carefully spelled out in the Constitution and the Court has rightly said that there can be no legislative encroachment on those duties. (See People ex rel. State Bd. of Agr. v. Brady, 277 111. 124 (1917).) Executive Encroachment: So far as has appeared, there has been no executive encroachment on any other department except pursuant to a statute. If the statute purports to give legislative power to the executive, the question is one of whether or not the delegation is valid and not whether the executive is "encroaching" on the legislature. The problem of delegation of legislative power is discussed in connection with Section 1 of Article IV. (See infra, pp. 114-15.) A problem of vicarious encroachment does arise when the legislature attempts to give the executive adjudi- catory powers, for this can result in executive encroachment on the judi- cial power. It is not appropriate, however, to attempt to analyze the constitutional intricacies of this form of delegation at this time. For one thing, such an analysis would embody much of the stuff of which administrative law is made. For another thing, the delineation of the limits of administrative adjudicatory power is as much a matter of proce- dural due process of law as it is of separation of powers. As a general rule, delegation to administrators or agencies of the quasi- judicial power to adjudicate rights or to revoke privileges such as licenses is not invalid so long as there is an opportunity for judicial review of the administrative action. Such judicial review normally permits an aggrieved party to contest the fairness of the procedure used, the con- stitutionality of the substance of the regulatory statute and implementing rules and regulations, the correctness of the administrator's interpretation of the statute under which he operates, and whether or not his decision Art. Ill 105 was arbitrary. In short, ii the judiciary is given an adequate opportunity to review what has been done, the principle ot separation of powers — or due process of law, if you will — is generally satisfied. There are, of course, some judicial utterances at variance with this generalization, but this is inevitable, particularly in an area of law that was once novel and has grown in importance rather rapidly. For example, the Supreme Court once said that it woidd violate Article III and due process to require the judiciary to let an administrative adjudication stand if there were sub- stantial evidence to siqjport it, for such a requirement would preclude an independent judicial weighing of the evidence. (Commerce Comm'n ex rel. City of Bloomington v. Cleveland, G. C. k St. L. Ry., 309 111 165 (1923); Otis Elevator Co. v. Industrial Comm'n, 302 111. 90 (1922).) Shortly thereafter, the Court said that all it had really meant in the earlier cases was that the legislature could not tell courts hoio to weigh the evidence if it gave the courts jDOwer to weigh evidence. (Nega v. Chicago Rys., 317 111. 482 (1925).) Moreover, statutory language objected to in the City of Bloomington case is still on the statute books and the courts are following the legislative command to accept the administrative findings if they have substantial foundation in the evidence. (See Champaign County Tel. Co. v. Illinois Commerce Comm'n, 37 111. 2d 312 (1967).) Judicial Encroachment: In the nature of things, judicial "encroach- ment" on the legislative and executive branches is almost impossible. (This is not to deny that people make speeches and write articles, edit- orials and letters alleging that the judiciary is usurping the law-making function or unduly interfering with the executive function.) Since the judiciary has the last word in interpreting the Constitution, the form in which "judicial encroachment" normally manifests itself is a refusal by the judiciary to do something on the ground that to act would be an encroachment. For example, the Supreme Court invalidated a pro- vision of the divorce law that, in effect, recjuired the judge to be a mar- riage counselor, a nonjudicial function imposed on the judge. (People ex rel. Christiansen v. Connell, 2 111. 2d 332 (1954).) The Supreme Court will determine whether a public utility rate imposed directly by legis- lation or through the administrative process is confiscatory, but it will not determine what the rate should be, for that would be encroaching on the legislative function. (See Chicago, M. & St. P. Ry. v. State Pub. Util. Comm'n, 268 111. 49 (1915).) On at least two occasions when the legis- lature, instead of limiting judicial review of administrative action, tried to give an aggrieved party the right to a trial de novo, the Court refused to accept the power because to do so would encroach on the executive branch. (West End Sav. & Loan Ass'n v. Smith, 16 111. 2d 523 (1959); Borreson v. Department of Pub. Welfare, 368 111. 425 (1938).) 106 Art. Ill There is, however, a form of indirect judicial encroachment on the executive function. This occurs whenever the courts accept a legislative delegation to them of the power to appoint executive officials to political subdivisions. (See e.g., People ex rel. Lowe v. Marquette Nat'l Fire Ins. Co., 351 111. 516 (1933).) This indirect encroachment is a fairly flexible matter, for the courts can turn it on and off like a spigot, so to speak. The 1919 Annotation observed that the Supreme Court had made distinctions between permissible and not permissible delegations of powers of ap- pointment that the annotators found difficult to understand. (Annota- tions 70.) The courts recognize the significance of the principle of separation of powers by their consistent refusal to issue a writ of mandamus, a writ that commands action, directed to the Governor (People ex rel. Billings v. Bissell, 19 111. 229 1857)), to a board or commission of which the Governor is a member (People ex rel. Bruce v. Dunne, 258 111. 441 (1913)), or to a department which can act in the circumstances only with the Governor's approval (MacGregor v. Miller, 324 111. 113 (1926)). The courts will, however, issue such writs against executi\e officers, including constitutional officers, such as the Secretary of State, the Treasurer, and the Auditor of Public Accounts. (People ex rel. Sellers v. Brady, 262 111. 578 (1914); People ex rel. Akin v. Rose, 167 111. 147 (1897).) The rationale for this distinction appears to be that all duties of the Governor are executive, that is, discretionary, whereas other officers have ministerial duties, and mandamus will lie to compel a ministerial, that is, a non- discretionary, act. The courts will not issue writs of mandamus against the legislature, but, separation of powers apart, the reason therefor is simply impossibil- ity. In a civilized society, at least, there is no conceivable way to command the legislature to act, in general or in a specific manner. For a long time, this was part of the rationale by which the courts refused to meddle in the problem of redistrictmg legislative seats, notwithstanding a con- stitutional command to redistrict. (See Fergus v. Kinney, 333 111. 437' (1928); Fergus v. Marks, 321 111. 510 (1926).) Once the United States Supreme Court forced the issue (Baker v. Carr, 369 US 186 (1962)), the courts had to act, and since they still could not effectively mandamus the legislature, their only recourse was to do the job themselves, which was, of course, a nonjudicial act. (See discussion of Sec. 8, Art. IV, infra, pp. 142-3.) Permitted Encroachment: Article III ends with the words "except as hereinafter expressly directed or permitted." This clause is an un- necessary but cautious recognition that other parts of the Constitution Art. Ill 107 make exceptions to the strict separation of powers. The most notable of these are the Governor's veto power over legislation and the Senate's veto power over gubernatorial appointments. (Art. V, Sec. 16 and 10.) Lesser examples are the judicial power of each house to punish for contempt in its presence and of the Senate to try impeached officers. (Art. IV, Sec. 9 and 24). Many of these exceptions add to the system of checks and balances that is part of the purpose of separation of powers. The most interesting exception is one that is no\\' explicitly a dead letter and probably was implicitly dead from the day the 1870 Constitu- tion went into effect. Section 21 of Article V directs the Governor bien- nially to transmit various reports to the General Assembly, including "the reports of the Judges of the Supreme Court of defects in the Con- stitution and laws." Section 31 of Article VI, as it existed prior to the adoption of the new Judicial Article in 1962, provided that all judges of courts of record were to report in writing each year "to the judges of the Supreme Court, such defects and omissions in the law as their ex- perience may suggest; and the judges of the Supreme Court shall . . . report in writing to the Governor such defects and omissions in the Con- stition and laws as they may find to exist, together with appropriate forms of bills to cure such defects and omissions in the laws." (See Histoiy of Sec. 21, Art. V, infra, pp. 315-16, for the origin of this unusual pro- vision.) These provisions go far beyond the system of advisory opinions obtaining in a few states. Since the courts are the final interpreters of the laws, their advice to the Governor and General Assembly on the "defects and omissions in the laws" would carry great weight and would constitute a serious encroachment on the legislative branch. In 1909, Governor Charles S. Deneen sought to rely on these sections in obtaining advice from the Supreme Court, but the Court declined to give the requested advice. The problem arose out of the difficulty encountered by the legislature and the Governor in obtaining a valid primary law. A statute passed in 1905 was invalidated in 1906. (People ex rel. Breckon v. Board of Election Comm'rs, 221 111. 9 (1906).) At a special session in 1906, another act was passed which was promptly in- validated. (Rouse V. Thompson, 228 111. 522 (1907).) At a special ses- sion in 1908, a third primary law was enacted, but this too was in- validated. (People ex rel. Phillips v. Strassheim, 240 111. 279 (1909).) Pre- sumably in despair at having struck out, Governor Deneen wrote to the Supreme Court on July 14, 1909, reviewing the foregoing chronology and, on the authority of the quoted portion of Section 31, requesting the Supreme Court to draft a primary law that would be constitutional. On August 23, 1909, the Court politely declined to act. It observed that it was not set up in such a way that it could appropriately render ad- 108 Art. Ill visory opinions. Notwithstanding the language of Section 31, the Court stated that its duty was Hmited to pointing out omissions and detects in the ordinary course ot litigation. Thus ended a novel constitutional experiment in judicial "encroachment" on the legislative branch. (The correspondence is set out in 143 111. 9-41. It is reported that in March, 1919, "justice James H. Cartwright oi the Supreme Coint sent two com- munications, one his own, and the other that of Judge Charles .M. Thomson, of the Circuit Court of Cook County, to the Governor, in- dicating defects in the real estate and divorce statutes, together \\ith bills embodying suggested remedies. These the Governor forwarded to the General Assembly." See Annotations 180.) Diial Office Holding: Section 3 of Article IV, (infra, p. 120) prohibits dual office liolding under two circumstances: where one of the offices is that of legislator and where one of the offices is of honor or profit under the United States or a foreign country. On several occasions, the Attorney General has relied on Article III to extend the prohibition to dual offices not covered by Section 3. His reasoning was that it is a violation of separation of powers to hold two offices, one of which is in one of the three departments and the other in another department. For example, a mayor of a city could not also be a county judge. (1912 111. Att'y Gen. Rep. 1343.) The Attorney General also said that a justice of the peace could not also serve as an alderman, village trustee, or town clerk. (1916 111. Att'y Gen. Rep. 788; 1914 111. Att'y Gen. Rep. 1157; 1915 111. Att'y Gen. Rep. 789. He also ruled out combining justice of the peace and cir- cuit clerk (1915 III- Att'y Gen. Rep. 782), but the separation of powers argument is not particularly convincing in this instance.) On at least one occasion, the courts have used the same separation of powers argument. (People V. Bott, 261 111. App. 261 (1931) (police magistrate and town clerk imcompatible offices).) Article III has also been used as an additional argument in dual office holding situations that may fall afoul of Section 3 of Article IV. For example, the Attorney General ruled that a legislator could not be a probation officer. (1916 111. Att'y Gen. Rep. 931.) In the case of Saxby V. Sonnemann (318 111. 600 (1925)), the Supreme Court used Article III to prohibit a member of the General Assembly from serving as deputy or assistant to the Attorney General and from receiving any compensation therefor if his services involved exercise of executive powers. It may be that the Court did not rely on Section 3 of Article IV because of problems arising from the meaning of the word "office." (See discussion of People v. Capuzi, 20 111. 2d 486 (1960), mfra, pp. 122-3.) Comparative Analysis Four-fifths of the states specifically spell out the principle of separation Art. Ill 109 of powers, and approximately 30 of them also recognize the principle of checks and balances by an "except" clause similar to the one in Article III. Separation of powers with checks and balances obtains in all the other states, of course, even without a specific provision therefor. The same is true of the United States Constitution and the Model State Constitution, neither of which has an explicit provision comparable to Article III. Comment As noted at the beginning of the Explanation (supra, p. 99), Article III really is nothing more than an explicit statement of what is implicit in all American constitutions. Article III could easily be dropped without significant effect, but by the same token, it could be preserved without significant effect. If preserved, it ought to be simplified in language. The 1922 proposed language (quoted, supra, p. 99) is as good as any concise formulation. (See also Cominent under Sec. 1, Art. V, infra, pp. 258-9.) Article IV LEGISLATIVE DEPARTMENT General Assembly Sec. 1. The legislative power shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both to be elected by the people. History The 1818 and 1848 Constitutions used the words "authority of this State" in place of the word "power," but otherwise the section was the same as the present one. The section as proposed by the Committee on the Legislature of the 1870 Convention was unchanged. A delegate proposed to substitute "power" for "authority" in order to be consistent with Article III, and the applicable sections of the Executive and Judi- cial Articles. The Committee Chairman indicated that he preferred not to change existing language unless there was some overriding necessity for change and that he saw none. An extensive debate ensued on the relative merits of using "authority" or "power." In the end, the decision was to retain "authority." (Debates 497-500.) The change was apparently made by the Committee on Revision and Adjustment, evidently without objection. The proposed 1922 Constitution retained the section substan- tially unchanged. The words "both to be elected by the people" were dropped, but this is hardly a change of substance. Indeed, the deletion was proposed in 1870 and although the proposal was defeated, no strong arguments for retention were advanced. [Id.) Explanafion The Legislative Power: Under traditional constitutional theory, the basic "sovereign" power of the state resides in the legislature. From this it follows, again in theory, that there is no need to grant any power to the legislature. All that need be done is to place such limitations as are desired on the legislature's otherwise unlimited power. This is normally done by a bill of rights, which is the ultimate "sovereign" people's reser- vation of governmental power, and by distributing powers among the three branches of government with accompanying checks and balances. The 1818 Constitution was written in the traditional form. (The current 111 1 1 2 Art. IV, § 1 Constitution of Connecticut essentially dates also from 1818 and is like- wise in the traditional form.) In the last half of the Nineteenth Century, however, two lines of constitutional development altered the traditional forms of constitutions. One was the addition of further limitations on legislative powers. Examples in Illinois are Section 22 of this Article, prohibiting local and special legislation; Section 18, limiting the incur- ring of debt; provisions in Article XI concerning street railways, banks, and railroads; and some of the restrictions in Article IX on revenue. In general, these limitations were the direct result of abuse of the relatively unlimited legislative power under the early constitutions. It is important to note, however, that these additional limitations are not inconsistent with traditional constitutional theory. Rather, the people simply with- drew more power from the legislature than is normally withdrawn by a bill of rights. The other line of development in the late Nineteenth Century and well into the Twentieth Century was the great expansion of judicial invalidation of substantive legislation as in violation of bill of rights' limitations, particularly the prohibition against depriving any person of "life, liberty or property, without due process of law." (See Art. II, Sec. 2, supra, p. 9.) This is a long and complicated story in the political and judicial history of the United States which cannot be set forth at this point. Suffice it to say that, although in theory the courts were simply interpreting the limitations on the legislature imposed by the people in a bill of rights, the fact was that the course of decision tended to turn the legislature into a branch of government with only those powers that, so to speak, the courts graciously consented to recognize as having been granted. (See discussion of police power below.) The result in many states, including Illinois, was a tendency to place specific grants of power in the constitutions. Examples are Sections 29, 30 and 31 of this Article, two of which, Section 30 and Section 31 as amended in 1878, were the results of limiting court decisions. (See inpa, pp. 239 and 241.) The Police Power: By virtue of the judicial expansion of due process referred to above, there developed a theory that the legislature's power was, in effect, limited to legislating for the protection of the public health, safety, morals and welfare. This is commonly called the "police power." In a sense, the courts are dealing with two sides of a coin: If a matter is within the police power, it is not a deprivation of life, liberty or property without due process of law; or, if it is a deprivation, then it is not within the police power. This way of looking at the matter could be considered simply a matter of semantics, but the history of the development in- cluded a tendency on the part of the courts- to require the state to demon- strate that a given statute was in fact for the protection of the public Art. IV, § 1 113 health, safety, morals or welfare. For a good many years, the burden of jiroof tended to be on the goverment, a burden hardly consistent with the theory that the legislature has all power not withdrawn from it. More- over, judges who were unsympathetic to government meddling in the affairs of men might find it more difficult to be convinced that a given regulation was within the police power than would a judge who was sym- pathetic to government action. If courts found legislative regulation outside the police power, the only remedy, short of inducing the courts to change their minds, was to amend the constitution by granting the legislature the power to act. This was done in many states in such fields as workmen's compensation, mini- mum wages, public housing, and the like. That it was not done so fre- quently in Illinois may have been because of the difficulty of amending the Constitution or because of a somewhat less restrictive judicial atti- tude. This is fortunate for Illinois, for there is a built-in danger in the indiscriminate spelling out of affirmative legislative powers. The very fact of detailed powers reinforces the tendency to develop a theory of granted power, and even when the courts adhere to the traditional theory that the legislature has all power not withheld, there is a tendency to limit a specific grant by inferring that what was not granted was meant to be withheld. (For example, a court might infer that a grant of power to set maximum hours of labor for women and children denied legislative power to set maximum hours of labor for men.) Over the past thirty years or so, state courts, led by the United States Supreme Court, which drastically changed its interpretation of the due process clause of the Fourteenth Amendment, have substantially reversed their overall approach and today tend to uphold regulatory legislation as within the police power if there is any reasonable basis for regulation. The courts, in many instances, have not changed the language used in older cases, but they have in fact upheld regulatory legislation that would have been struck down half a century or so ago. The constitutional theory that the legislature has all power not withheld from it may never have been abandoned, but the course of judicial interpretation was incon- sistent with the traditional theory. The courts have moved so far in the recent past that, today, theory and practice tend to coincide. (For the significance of the foregoing, see Comment, infra, p. 116.) Classification: There are two technical meanings to "classification" in the delineation of legislative power: one is related to the problem of general versus special or local legislation, the other to due process and equal protection of the laws. There is, of course, no provision in the Illinois bill of rights comparable to the Fourteenth Amendment's equal protection clause which provides that no state shall "deny to any person 114 Art. IV, § 1 within its jurisdiction the equal protection of the laws." This created no difficulty in the days of expansive reading of the due process provision of Section 2 of Article II, and creates no difficulty today, for the require- ment for general legislation under Section 22 of Article IV affords a court an adequate basis for striking down arbitrary classification. The fact is that, with the exceptions of classifications for local government purposes and for tax purposes under the uniformity requirement of Section 1 of Article IX (infra, pp. 413), problems of classification in relation to the prohibition of special legislation and to the bill of rights' protection are essentially the same. For example, if the legislature restricts drivers' licenses to persons 18 years of age and over, an attack on the law as "special" fails because the classification is reasonable and a claim of denial of due process or, in the name of the Fourteenth Amendment, of equal protection fails, also because the classification is reasonable; but if the legislature were to deny drivers' licenses to baid-headed men, the legis- lation could be successfully attacked as special legislation since it would arbitrarily single out one group of the population or it could be attacked as a denial of due process or equal protection because the classification would be unreasonable. For purposes of determining the extent of the legislative power to classify, the key word is "reasonable." In any but the simplest of societies, it is inevitable that groups will be treated differently, and if there is to be a constitutional limitation on different treatment, the only criterion for judging the validity of differentiation is whether it is reasonable. In general, the history of judicial review of the legislature's power to classify is the same as the history of the police power. When courts were unsym- pathetic to legislative regulation of private affairs, it was more difficult to find "reasonable" classifications than it is today. (See Explanation of Sec. 22, infra, p. 206, for further discussion of the problem of reasonable classifications.) Delegation of Power: The legislative power may be vested in the Gen- eral Assembly, but the facts of life in this complex industrial society de- mand a flexibility of adjustment to different situations that is not avail- able to a legislature meeting for limited periods. The result has been the growth of what has sometimes been referred to as a "fourth" branch of government — the administrative agency. Whether independent, or quasi- independent, of the executive, or simply an administrator responsible to the executive, the administrative agency has been granted the legislative power to issue rules and regulations in furtherance of a policy determined by the legislature. This delegation of legislative power is limited by the separation of powers doctrine embodied in Article III. The courts are realistic enough to concede the need for some delegation of legislative Art. IV, § 1 115 power to administrators, but they recognize that the principle of separa- tion of powers and, for that matter, common sense, prohibit unhmited delegation. There are various ways in which the courts express the limits of per- missible delegation of legislative power. A court sometimes observes that, while the legislature may not delegate its general legislative authority, it may delegate to an administrative agency some legislative power so long as it does not invest the agency with arbitrary powers. (See Depart- ment of Pub. Works & Bldgs. v. Chicago Title & Trust Co., 408 111. 41 (1950).) Or a court may say that, while the legislature cannot delegate the power to make a law, it can delegate the power to determine the state of facts which makes the law operative. (See People ex rel. Adamowski V. Chicago Land Clearance Comm'n, 14 111. 2d 74 (1958).) Perhaps the best formulation of the nUe of delegation is that the legislature must so express the limits of its delegation that a court can tell whether the execu- tive has acted within those limits. Thus, a court will invalidate a delega- tion that is so vague that it is subject to arbitrary and capricious inter- pretation and application. (See People ex rel. Schoon v. Carpentier, 2 111. 2d 468 (1954).) There is also a general rule that legislative power may not be delegated to private groups. There appear to be only two Illinois cases that clearly follow this general rule. One case invalidated a statutory provision author- izing owners of 60 per cent of street frontage to change the name of a street. (People ex rel. Chicago Dryer Co. v. City of Chicago, 413 111. 315 (1952).) The other case was one of the ill-fated trio of primary cases dis- cussed under Article III. (Supra, p. 107.) In Rouse v. Thompsoti (228 111. 522 (1907)), the Supreme Court found, in addition to other defects, an in- valid delegation to political party central committees. In some instances, an invalid delegation may become swallowed up in a broad invalidation under the due process clause or as "special" legislation under Section 22 of Article IV. (See Schroeder v. Binks, 415 111. 192 (1953) (statute giving master plumbers right to determine who may learn the plumbing trade held invalid).) In other instances, it may be that a judicial determination that a statute is not contrary to due process or "special" legislation may cause a court to brush off a delegation to private parties. (See Kinsey Distilling Sales Co. v. Foremost Liquor Stores, Inc., 15 111. 2d 182 (1958) (Fair Trade Act under which manufactiner can make law applicable to all by signing a contract with only one retailer held valid).) Referendum: A referendum is a limited form of delegation of legislative power, since it gives to someone else the determination of whether or not the law shall be operative. The Supreme Court has held that, except when required by the Constitution, the legislature may not submit gen- 116 Art. IV, § 1 eral legislation to relerenclum by the voters. (Peojjle ex rel. Thomson v. Barnett, 344 111. 62 (1931).) It is permissible, however, to provide lor local option whereby a law dealing with local matters does not become opera- tive in a given community imless accepted by the voters of the community. {Id.) Bicameralism: Section 1 lodges the legislative power of the state in a General Assembly consisting of two houses, a Senate and a House of Representatives. Thus, Section 1 commits the state to bicameralism. Comparative Analysis All states explicitly vest the legislative power in a legislature. In all states except Nebraska, the legislature consists of two houses, one of which is invariably called the senate, the other of which is usually called either the house of representatives or tlie assembly. The single house in Nebraska is called the senate. The Model State Constitution recommends a uni- cameral legislature. Comment Bicameralism: An essay on the pros and cons of unicameral and bi- cameral legislatines is not an apjjrojjriate part of this analysis, but it is appropriate to note that this is a subject which the Convention will want to consider. Grants of Power: In the Exphnialion (supra, p. 1 1 1), it was pointed out that, today, the courts really do accept the fact that legislatures have all power not denied to them by the Constitution. The importance of this to constitution-drafting is twofold. First, it is clear today that there is no need to make any grant of power to the legislature to deal with substan- tive police power matters. (It can also be asserted with confidence that the courts will not revert to the limited view of the police power that once prevailed.) Since there are dangers in unnecessarily granting un- necessary powers to the legislature, eveiy effort should be made to keep out any new grants and, if politically possible, to remove those presently in the Constitution. The foregoing applies equally to commands to the legislature to act on substantive matters. Apart from the fact that there is no way to force the legislature to carry out a command to legislate, the American tradition has been to limit the statement of the positive duties of government to the preamble. (There is one major exception to this tradition: a majority of the states make the provision of free public edu- cation a positive duty of government. See Art. VIII, Sec. 1, infra, pp. 399- 402.) If constitution-drafters leave the legislature free to cope with society's problems, people wiU see that tlie legislature acts. A constitutional com- mand adds precious little to the voter's persuasivenesss, but such a com- mand may encourage unnecessary litigation aftpr the legislature acts. Art. IV, § 2 117 If the decision is made to forgo unnecessary grants of power and commands to legislate on substantive matters, it will be appropriate to point out to everyone, and particularly to the courts, what that decision means. This should be done by a provision much like that of the Model State Constitution: "The enumeration in this constitution of specified powers and functions shall be construed neither as a grant nor as a limitation of the powers of state govern- ment but the state government shall have all of the powers not denied by this constitution or by or under the Constitution of the United States." (art. fl, §2.01.) Election — Vacancies Sec. 2. An election for members of the General Assembly shall be held on the Tuesday next after the first Monday in November, in the year of our Lord one thousand eight hundred and seventy, and every two years thereafter, in each county, at such places therein as may be provided by law. When vacancies occur in either house, the Governor, or person exercising the powers of Gov- ernor, shall issue writs of election to fill such vacancies. History This section is a combination without substantive change of two sec- tions in the 1848 Constitution. Except for holding elections in a different month, the 1818 Constitution sections were in substance the same as those of 1848. The proposed 1922 Constitution transferred the rules for stag- gered terms for senators from Section 6 of the 1870 Constitution to the second sentence to read: "Vacancies shall be filled by special elections equivalent of Section 2. The proposed Constitution also simplified the called by the governor." (art. Ill, §26.) Explanation This section serves two purposes. It provides that elections for sena- tors and representatives shall be held on the customary general election day in even-numbered years and provides that vacancies shall be filled at special elections called by the Governor. Notwithstanding the simple, straightforward nature of this section, two serious questions have arisen. One concerns whether or not the Governor may declare a vacancy when a legislator enters upon the duties of another office which, by virtue of Section 3 (infra, p. 120), he is forbidden to hold. An appellate court in 1908 said that the courts could determine the existence of such a vacancy (People ex rel. Myers v. Haas, 145 111. App. 283 (1908)), notwithstand- ing Section 9 (infra, p. 145), which provides that each house shall be the judge of the qualifications of its members; but in 1916, the Attorney General expressed doubt that the Governor could declare such a vacancy. (1916- in. Att'y Gen. Rep. 135.) 118 Art. IV, § 2 The second question concerned the discretion of the Governor in set- ting the day for an election to fill a vacancy. In 1923, sometime after adjournment of the General Assembly, a senator resigned his seat. Noth- ing was done about filling the vacancy because the General Election Law provided that no special election should be held unless the General Assem- bly was in session or unless there woidd be a session before the next gen- eral election. There were three general elections — November, 1923; June, 1924; and November, 1924 — before the next regular session. At the first of those elections, two votes for a W. G. Anderson were written in, and Anderson sought a writ of mandamus directing certification of election. In affirming a denial of the writ of mandamus, the Supreme Court held that, although only the Governor could issue a writ of election, a statute could prohibit him from calling an unnecessary special election. The Court further construed the statute to leave with the Governor the dis- cretion to choose which general election to use for filling the vacancy. (People ex rel. Anderson v. Czarnecki, 312 111. 271 (1924). See Comment beloAv concerning the Governor's discretion.) Comparative Analysis Time of Election: A fairly large number of states set the specific day for election of members of the legislature, a few states set the day but permit the legislature to change it, and two states simply provide that the date shall be set by law. About a third of the states evidently cover the matter in a general provision on elections, for the Index Digest has en- tries for time of election for the legislature for only 32 states. (Legislative Drafting Research Fund of Columbia University, Index Digest of State Constitutions 639- (2d ed. 1959) [hereinafter cited as Index].) The United States Constitution leaves the time of election to the several states but reserves to Congress power to act. The traditional first Tuesday after the first Monday in November was first adopted by Congress in 1845 as the day for presidential elections. (This presumably explains the adoption of that date in the 1848 Constitution.) Congress in 1872 set the same day for Congressional elections, effecti\e in 1876. The Model State Constitu- tion provides that the legislature shall be elected "at the regular election." This term is not defined. Presumably, it is covered in the Suffrage and Elections Article by the command to the legislature to "provide for . . . the administration of elections . . . ." Vacancies: Almost half the states provide for a special election to fill vacancies. In most of these instances the Governor has the power to choose the time of election. In several states the manner of filling vacancies is to be fixed by law. In a few states the vacancy is filled by appointment, usually by the Governor. In many of the appointment provisions, the appointing power is required to preserve the party alignment either by Art. IV, § 2 119 the terms of the provision or by accepting the recommendation of an appropriate party committee. The United States Constitution requires special elections to fill vacancies, but in the case of Senators permits a "temporary" appointment by the Governor pending an election. The Model State Constitution simply says that vacancies "shall be filled as provided by law." (art. IV, §4.06.) Comment The method of filling vacancies highlights one of the problems of con- stitution-drafting — the balancing of principle and flexibility. On the one hand, it can be argued that the people through their constitutional convention or by constitutional amendment should decide as a matter of constitutional principle whether vacancies in the legislature should be filled only by the same people who normally choose the senator or repre- sentative or should be filled in some other manner. On the other hand, it can be argued that the method should be left to the legislature in order to avoid the detail required to cover all contingencies — for example, a vacancy occurring within three months of the regular election for the office. The Czarnecki case, discussed above, is a case in point. The Court had no difficulty in accepting some statutory regulation of filling vacan- cies. The new Constitution of Michigan explicitly provides for such regu- lation. It states that the Governor shall issue writs of election to fill vacancies but also provides that "any such election shall be held in a manner prescribed by law." (art. V, §13.) The Illinois Commission on the Organization of the General Assem- bly recommended a constitutional change similar to the Michigan change just referred to. (Commission on the Organization of the General Assem- bly, Improving the State Legislature 9 (1967) [hereinafter cited as I.S.L.].) The commission noted that it is important to fill vacancies because of the constitutional requirement for passage of bills by a majority of those elected. The custom in Illinois has been to leave house seats vacant and to leave a senate seat vacant if the remainder of the term is less than two years. In 1969, however, there was a partial departure from ctistom in that special elections were called for one house and one senate vacancy. This whole business can be taken out of the realm of custom by the addition of the words "as provided by law" at the end of the last sentence. (See also Comment on Sec. 12, infra, p. 160.) It was noted above that the proposed 1922 Constitution simplified the language of Section 2. One of the changes proposed was the elimina- tion of the phrase "or person exercising the powers of Governor." This change exemplifies two important drafting principles: consistency in usage and avoidance of unnecessary wordage by a single definitive state- ment. The latter principle is presumably covered in the sections dealing 120 Art. IV, §3 with succession in power to act as Governor. (See Sees. 17 and 19 of Art. V, Infra, pp. 303 and 310.) If this is correct, then the phrase is unneces- sary. If it is unnecessary but is in fact used in one place and not in an- other, it can be argued that where not used only the Governor can exer- cise whatever power is involved. It follows that if the phrase is used any place, it must be used every place where a successor to the Governor may act. Presumably, the drafters of the proposed 1922 Constitution had these two principles in mind in simpHfying the vacancies provision. One further comment concerning the 1922 proposal is in order for those who are tempted to read too quickly. The proposed provision said that vacancies should be filled in "special elections." One quickly assumes that a "special" election is held at a time other than a "regular" or "general" election. Upon reflection, it is obvious that the inclusion on the ballot at a general election of candidates for an office that is not ordi- narily voted upon at that election is something "special." "Every election called to fill a vacancy is a special election, and the fact that it is held on the same day as the general election does not change its character." (People ex rel. Anderson v. Czarnecki 312 111. 271, 274 (1924).) Notwith- standing this sentence, the Court used the term "special election" through- out the rest of its opinion to mean an election held on a day other than a regular election day. Eligibility and Oath Sec. 3. No person shall be a Senator who shall not have attained the age of twenty-five years, or a Representative wlio 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 compen- sation does not exceed the sum of three hundred dollars) hold any office of honor or profit under the authority of this State. History Age, Residence and Citizenship: The 1818 Constitution required United States citizenship, one year's residence in the county or district, payment of a state or county tax, and a minimum age of 25 for senators and 21 for representatives. In the 1848 Constitution, state residence of Art. IV, § 3 121 three years was added and the minimum ages were raised to 30 and 25, respectively. The section — i.e., the first two sentences of Section 3 — as proposed in the 1870 Convention changed the minimum ages back to 25 and 21, respectively, and increased residence requirements to five years in the state and two years in the district. There was an extended debate on the subject of age, some delegates favoring 30 and 25 and some favoring 21 across the board. There was also a proposal to reduce the minimum state residence to three years. None of the several proposed amendments was accepted. The proposed 1922 Constitution retained the age, residence and citizenship requirements unchanged. Dual Office Holding: It is to be noted, first, that this part of the sec- tion covers dual office holding by members of the General Assembly and also generally covers dual office holding "under the authority of this State" where the second office is federal or foreign. Second, it is to be noted that, as to members of the General Assembly, there is a prohibition against dual office holding as to named offices and also in general. For purposes of clarity, the history of this part of the section will be traced separately as to each element. Named Offices: The long list of named offices which a legislator can- not also hold first appeared in the 1818 Constitution. The list differed from the current Constitution only by reference to an "attorney for the state" instead of "state's attorney" and by reference to a "register" instead of a "recorder." The latter was the only change made in the 1848 Con- stitution and the former, the only further change in 1870. The proposed 1922 Constitution dropped the list of named offices. Legislative Dual Office Holding: The 1818 prohibition against lucra- tive office holders also serving in the legislature did not mention foreign government office holders and, in addition to the militia and justices of the peace, excluded all postmasters from the definition of lucrative posi- tions, but did not exclude notaries public. The 1848 Constitution struck out the exception for postmasters but made no other change. The 1870 Convention added the foreign government office holder and the excep- tion for notaries public. The proposed 1922 Constitution prohibited a legislator from holding "any other lucrative public office or employment (except as a militia officer or justice of the peace)." (It is worth noting that the 1922 draftsmen were the first to put "other" in front of "lucra- tive.") The proposed 1922 language was the broadest legislative dual office holding prohibition in any of the. Constitutions. (Presumably, notaries public were not mentioned on the theory that they are not lucrative offices.) The office of justice of the peace was abolished by the 1 22 Art. IV, § 3 new Article VI adopted in 1962. (See Sees. 12 and 16 ol Art. VI, infra, pp. 361 and 368.) General Dual Office Holding: The 1818 and 1848 Constitutions differed from the present provisions only in omitting the $300-a-year postmaster exception and in not mentioning offices in foreign governments. In the proposed 1922 Constitution this provision was moved quite properly from the Legislative Article to an article on Public Servants. In the course of re-drafting, the words "of honor or profit" were dropped, but there is no indication that any change in substance was intended. Explanation Age, Residence and Citizenship: These qualifications are straight- forward and have created no problems of interpretation. The cjualifica- tions are exclusive, however, and the legislature cannot add to them. The 1905 Primary Election Act attempted to limit the number of candidates from a single county in a multiple-county district. This, the Supreme Court said, was an invalid extension of the residence qualification con- tained in Section 3. (People ex rel. Breckon v. Board of Election Comm'rs, 221 111. 9 (1906).) It may be noted in passing that this section does not require a legislator to be a registered voter and that Section 6 of Article VII (infra, p. 394) also requires him to be a United States citizen. Legislative Dual Office Holding: Until quite recently, the Supreme Court had never addressed itself to the dual office holding limitation on legislators. In 1960, in the case of People v. Capuzi (20 111. 2d 486 (I960)), the Court considered several instances of local government officials who also served in the legislature. The most difficult was the case of the presi- dent of the Village of Elmwood Park who received a salary and partici- pated in the municipal retirement fund. During legislative sessions he took a leave of absence but continued to receive retirement credit. The other legislators were all in appointive positions, namely: deputy county coroner, and chief deputy clerk, deputy clerk, and deputy bailiff of the Municipal Court of Chicago. All took oaths of office, posted bonds, parti- cipated in a retirement system, and took leaves of absence during legisla- tive sessions, but, unlike the village president, received no retirement credit. None of these in appointive positTons had civil service status or any specified term of "office." The Court held that none of the legislators held another "office." The Court's approach was to distinguish "offices" from other jobs, not so much in terms of the distinctions attempted in Section 24 of Article V (infra, p. 322), as in terms of the class deduced from the offices listed in Sec- tion 3. In other words, a position not listed is an "office" only if the posi- tion is of the same general nature as a judge, clerk of court, and so on through member of Congress. On this theory, the Court disposed of the Art. IV, § 3 1 23 cases by noting that the defendants held relatively minor local ministerial positions. The village presidency was held not to be an "office" because the executive power in the town was in the hands of the town manager and the presidency was largely honorary. The Court did not rule on whether any of the positions were "lucrative," but did note that no one drew double salaries and that only the village president earned double retirement credits. Prior to the Capnzi case, there had been a great many Attorney Gen- eral opinions on this issue, but in the light of that case, it seems inad- visable to rely on those opinions. In one lower court case it was held that a member of the legislature could not also serve as a clerk of the Municipal Court of Chicago, a decision consistent with Capnzi. (People ex rel. Myers v. Haas, 145 111. App. 283 (1908).) In Saxby v. Sonnemanri (318 111. 600 (1925), discussed siipra, p. 108), the Supreme Court held incompatible under Article III the offices of legislator and deputy to the Attorney General. In the Capnzi case, the Court distinguished Saxby on the ground that as deputy, the legislator exercised executive functions and observed that the Court in Saxby had implied that the result might have been different had the duties been ministerial only. General Dual Office Holding: As noted above in discussing the pro- posed 1922 Constitution, this part of Section 3 has nothing to do with the legislature and should be somewhere else in the Constitution. Indeed, the juxtaposition of these two provisions has probably created difficul- ties. A police magistrate who accepted a commission in the army argued that a magistrate was the same as a justice of the peace and that since a justice of the peace was not a "lucrative" office forbidden to legislators, so a position of "honor or profit" in the United States Army should not be inconsistent with the office of police magistrate. The Supreme Court would not accept the argument. (People ex rel. Cromer v. Village of Maywood, 381 111. 337 (1942). See also Fekete v. City of East St. Louis, 315 111. 58 (1924) (U. S. Army commission and city attorney positions incompatible).) This juxtaposition has also created confusion. In the case upholding the constitutionality of the Enabling Act for the 1970 Convention, the Supreme Court lumped the two types of dual office hold- ing together, leading, in the eyes of the dissenting judges, at least, to an erroneous analysis. (See Livingston v. Ogilvie, — 111.- 2d — (1969). The case is discussed in detail under Sec. 1 of Art. XIV, infra, pp. 559-61.) Once it is determined that two offices are incompatible, there is the question of precedence of offices. The general rule is that acceptance of the second office automatically vacates the first office. Illinois follows the general rule. (Livingston v. Ogilvie, — 111. 2d— (1969); People ex rel. Myers v. Haas, 145 111. App. 283 (1908).) 'nate House 13 38 1 1 1 3 23 5 1 — 1 — 7 — 2 2 124 Art. IV, § 3 Comparative Analysis Age: The minimum ages tor legislators, as ot May, 1967, can be sum- marized thus: Number of States Minimum Age 21* 22 24 25 26 27 30 No minimum *Nebraska's unicameral legislature has a minimum of 21. The United States Constitution sets a minimum of 25 for the House of Representatives and 30 for the Senate. The Model State Constitution leaves a blank space for age, but does recommend in its alternative pro- vision for a bicameral legislature that the minimum age requirement be the same for both houses. At least 18 states have the same minimum age for both houses. These are the 13 with a minimum of 21 for the Senate, Idaho (22), and four of the states with a 25-year minimum for the House. Citizenship: There appear to be only 26 states, including Illinois, that explicitly require legislators to be United States citizens. It is likely that most of the other states in fact require United States citizenship. In some states, for example, a legislator must be a voter and a voter must be a citizen. In some states, a legislator must be a citizen of the state and pre- sumably it is assumed that that means citizen of the United States. (See Comment on Sec. I of Art. XII concerning the Fourteenth Amendment citizenship fallacy, infra, p. 538.) The United States Constitution requires nine years' citizenship for Senators and seven for Representatives. The Model State Constitution requires legislators to be voters and requires voters to be "citizens." Residency: All states have a residency requirement, but not all consti- tutions spell it out in the section on qualifications of legislators. Con- necticut, for example, requires a legislator to be an elector (voter) re- siding in his district, but to be an elector he must have resided in a town (township) for at least six months. The following summary is limited to states with constitutional provisions on qualifications of legis- lators where the residency requirement is specified. Art. IV, §3 125 Residency in State Number of Years Number of States One 5 Two 4 (5)* Three 7 (1)* Four 1 (1)* Five (1)* Six (1)* Seven (1)* *In five states the residency requirement is two years for the lower house and longer for the upper house as indicated by the figures in parentheses. In North Carolina, a senator must have resided in the state two years, a representative one year. Residency in District Period Number of States 60 days 1 3 months 1 6 months 1 1 year 22 2 years 2 (1)* 4 years (1)* *In New Jersey — two years for lower house, four years for senate. In one state, New Hampshire, residency in the district is not required prior to time of election. The same is true in Massachusetts and Vermont as to the upper house only. Under the United States Constitution, as is well known from the case of the late Senator Robert F. Kennedy, residency is required only as of the time of election. The Model State Constitution requires a legislator to be a voter and a voter must have a minimum of three months' residence in the state and can be required by law to have a local residency of not exceeding three months. Dual Office Holding (Legislators): The variations in dual office hold- ing restrictions in the state constitutions are almost infinite. For example, no other state appears to single out a "recorder" as does Illinois, but Tennessee does single out a "register." Other singular dual offices noted are "receiver-general" in Massachusetts, and "sergeant" and "tax collector" in Virginia. For comparative purposes, a generalized tabulation by the Citizens Conference on State Legislatures will be used with the under- standing that, as exemplified above in connection with the Capuzi case (supra, p. 122), the precise constitutional language in each state may provide significant exceptions. The Citizens Conference summarizes dual office holding thus: 1 26 Art. IV, § 3 Foreign Employment: "12 prohibit legislators to hold a job with a foreign country." Federal Employment: "43 forbid legislators to hold a job with the national government." State Employment: "38 state that legislators shall hold no position under the state government." County Employment: "3 forbid legislators to hold a position with a county government." Municipal Employment: "3 ban legislators from employment by municipal- ities." (State Constitutional Provisions Affecting Legislatures 19-20 (May 1967)) In the Citizens Conference tabulation, Illinois is included under the first three categories but not under the last two. The United States Constitution provides: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." (art. I, § 6.) The Model State Constitution is silent on dual office holding. Dual Office Holding (General): About a dozen states prohibit state officers from holding offices, usually of trust or profit, under any foreign government. In several of these states, the prohibition also runs to any other state government. Approximately 18 states extend the same pro- hibition to United States offices, frequently with exceptions. The most common is for service in the National Guard. A few states exclude postmasters, but usually only those above a maximum compensation. Some 15 states prohibit, in greater or lesser degree, dual office holding within the state. The United States Constitution prohibits any office holder from ac- cepting any "present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state" without the consent of Congress. The Constitution also prohibits the President from receiving any emolu- ment from any state. The Model State Constitution is silent on the subject. Comment Age, Residency, Citizenship: In view of the fact that, under the United States Supreme Court's "one man-one vote" rule, regular redistricting will have to take place, consideration should be given to the problem of the legislator who finds that, after redistricting, his residence has been separated from the geographical area which he used to represent. If such a legislator wishes to run for re-election, he has at least one problem and possibly two. He has to run in a new district where he may not be well known and he may be faced with running against a legislator who Art. IV, § 4 1 27 has always been in the new district and is well known. In the proposed 1967 New York Constitution this eventuality was covered, though it must be conceded that the drafting problem was most complex. The proposed provision read as follows: "Every member of the legislature shall be at least twenty-one years old and eligible to vote in this state. He shall have been domiciled in the state for the three years preceding his election and for the twelve months preceding his election in his legislative district. If, however, any redistricting plan for senate or assembly has been certified pursuant to section two of this article since the last general election for the legislature, he shall have been domiciled for the twelve months preceding his election in a county in which all or part of the new district is located or in a county contiguous to such district if such district be composed of a whole county and all or parts of another county or counties." Dual Office Holding: This subject, as well as the related problem of conflict of interest, was strong in the minds of the delegates to the 1870 Convention. One of the results of this concern was a proliferation of different provisions. (In addition to Sec. 3, see Sees. 15 and 25 of this Art., infra, pp. 176 and 230; Sec. 5 of Art. V and Sec. 4 of Art. VIII, infra, pp. 267 and 409.) Consideration should be given to consolidating such provisions as are to be retained in one section or, if legislators are to be treated differently from other government officials, then in two sections. (For some policy considerations on this subject, see the Com- ment on Sec. 15, infra, p. 177-8.) Disqualification for Crimes Sec. 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. History The 1818 and 1848 Constitutions contained comparable provisions concerning paying over public moneys due, and contained provisions giving the legislature "full power to exclude from the privilege of . . . being elected any person convicted of bribery, perjury or any other in- famous crime." (The word "any" before "other" was omitted in 1848.) In the 1870 Convention, the proposal as originally offered changed the part concerning convicted persons from power to exclude by law to a command to the legislature to exclude. A delegate suggested that the Con- vention ought to make the decision and be done with it. Accordingly, an amendment was offered embodying the suggestion. (Debates 572.) The amendment was accepted and the Committee on Revision and Adjust- ment combined it with the proposed section on accounting for public 128 Art. IV, § 4 moneys. The drafters of the proposed 1922 Constitution created a new article called "Public Servants," one of the sections of which consisted of a simplified version of Section 4, the prohibition against dual office holding in Section 3 (supra, p. 119), and the nioneys-in-default part of Section 1 1 of Article IX (infra, p. 474). Explanation This straightforward section is designed to keep criminals out of. gov- ernment and, apparently, to use the obtaining of a government position as a collection device. The latter characterization may appear inappro- priate, but any broader characterization would imply some sort of crim- inal behavior and that would presumably be encompassed by the other half of the section. The Supreme Court has held, however, that there must be a proper determination, by a court or other competent author- ity, that the moneys are in fact in default. (Cawley v. People, 95 111. 249 (1880).) The Supreme Court has added two important glosses to this section. It has held that the courts, not the legislature, ultimately decide what is an "infamoi'is crime" for purposes of this section. (People ex rel. Keenan v. McGuane, 13 111. 2d 520 (1958). See also People ex rel. Ward V. Tomek, 54 111. App. 2d 197 (1964), where the crime was a misde- meanor, but, significantly, was a conspiracy to defraud a township.) In the Keenan case, the Supreme Court did not, of course, purport to have the legislative power of definition; the judicial decision is to be made "in the light of the common law as it existed when the Constitution was adopted in 1870." (Id. at 533.) In the same case, the Supreme Court added its second gloss by construing "conviction" to mean after trial and before disposition of any appeals. If this construction were to be applied literally, the disqualification upon conviction would remain, notwith- standing subsequent reversal. It can be argued, however, that a reversal — on the merits and not for a new trial — wipes out the conviction as if it never existed. In any event, this question is an open one. (See also the Explanation of Sec. 9, infra, p. 147, concerning judicial review of a decision by the legislature to seat a person alleged to be ineligible.) Comparative Analysis Conviction of Crime: Approximately 30 of the states have some consti- tutional disqualification for holding public office upon conviction of stated crimes. Only a half dozen or so have one as sweeping as in Illinois. In those states which limit the range of disqualifying crimes, the one most commonly included is bribery. A few states simply authorize the legislature to provide for disqualifications by law. In at least five states it is possible to have the disqualification removed either by pardon or by Art. IV, § 5 1 29 restoration of civil rights. Neither the United States Constitution nor the Model State Constitution contains any provision on this subject. Moneys in Default: About a third of the states have comparable pro- visions. Most of them cover all public offices, but a few are limited to eligibility to serve in the legislature. Neither the United States Con- stitution nor the Model State Constitution contains any provision on this subject. Comment It seems appropriate to note the permanence of the disqualification for infamous criminal behavior. There is no room for the concept of a single "payment of a debt to society" or for the concept of rehabilitation. In this connection, it is interesting that the comparable section as re- vised in the 1964 Michigan Constitution provides that the disqualifica- tion is limited to convictions "within the preceding 20 years." Oath of Office Sec. 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 withold on any bill, resolution or appropri- ation, 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. History The 1818 Constitution simply required that all public officers take an oath to support the United States and Illinois Constitutions and an oath of office. The Schedule of that Constitution provided that justices of the peace could administer oaths until the legislature otherwise directed. Both provisions were repeated in the 1848 Constitution and a new oath was added: against dueling. In the 1870 Convention, debate on this 130 Art. IV, § 5 section was extensive. The argument was over whether to strike from the proposed oath the words following "ability." The vehemence with which the longer oath was defended is some indication of the low repute in which legislators were then held. There were three different attempts to strike, but they all failed. The proposed 1922 Constitution left this section unchanged. Explanation In addition to providing for the customary oath of office, this section utilizes the oath-taking process to get at improper lobbying, special inter- est influences, bribery and other means of corrupting the legislative process. There has been no judicial interpretation of this section except to note that the word "forfeit" in tlie first part of the last sentence of the section means that an elected legislator has title to the office before taking the oath. (People ex rel. Douglas v. Barrett, 370 111. 464 (1939).) Comparative Analysis There are, of course, a great many minor variations in the oath re- quirements of the several states. The important point to note is that in only a few states does the oath include detailed disclaimers of improper influences. There appear to be three states — Nebraska, South Dakota and Wyoming — that cover both pre-election and in-office improper in- fluences and provide for disqualification from office. Two states — Missouri and West Virginia — speak only to improper influences in office and disqualification therefor. Three states — Montana, Oklahoma and Pennsylvania — cover both pre-election and in-office improper in- fluences but omit disqualification. Texas prohibits only pre-election chicanery. Of these nine states, all except Missouri, South Dakota and West Virginia include the detailed disclaimer in the general oath of office. (For further comparison of oaths of office see discussion of Sec. 25 of Art. V, infra, p. 323.) Comment It is traditional to require an oath of office. Oath-taking is a ritual of great solemnity and dignity, but it is debatable whether an oath serves any purpose other than ritual. It is not traditional to utilize an oath of office as either a device to ferret out previous wrong-doing or to exact a promise against future wrong-doing. Nor is it traditional to use viola- tion of an oath as the device for punishment of the wrong-doing. It was noted above that there is no reported judicial review of this section. Since it seems doubtful that no legislator has ever violated this oath of office, one can speculate as to the usefulness of this detailed disclaimer. Art. IV, § 6 131 SENATORIAL APPORTIONMENT State Senators Sec. 6. The General Assembly in 1955 shall redistrict the state for the purpose of electing state senators. There shall be fifty-eight senatorial districts. Cook county shall have twenty-four of the districts. These twenty-four districts shall be located as follows: Eighteen in the territory that is within the present corporate limits of the city of Chicago; and six in the territory that is in Cook county outside such corporate limits. The remaining one hundred and one counties of the state shall have thirty-four of the senatorial districts. All senatorial districts shall be formed of contiguous and compact territory. In their formation, area shall be the prime consideration. The senatorial districts shall be numbered one, two, three, and so forth, in- cluding fifty-eight. Each such district shall elect one senator, whose term of office shall be four years. Senators elected in districts bearing even numbers shall be elected in 1956 and every four years thereafter; and senators elected in districts bearing odd numbers shall be elected in 1958 and every four years thereafter. History The 1818 Constitution called for four-year staggered terms for sena- tors from districts fixed by the General Assembly and apportioned "ac- cording to the number of white inhabitants." The number of senators was "never to be less than one-third nor more than one-half of the num- ber of representatives." The 1848 Constitution continued four-year staggered terms, but fixed the number of senators at 25. Districts were to be "composed of contigu- ous territory bounded by county lines; . . . Provided, that cities and towns containing the requisite population [could] be erected into sepa- rate districts." Districts were to be "apportioned among the several counties according to the number of white inhabitants." A state census in 1855 and every tenth year thereafter was provided for, and redistrict- ing was to take place every five years following each state and federal census. There was also a technical direction for distribution of popula- tion in the case of an excess in a single county. The 1870 Convention included the classic debate over representation — whether representation should be solely on the basis of people, whether every county should have its own representation, whether the downstate areas needed protection against Cook County, and so on. A special twist was given to this problem by Joseph Medill, Chairman of the Committee on Electoral and Representative Reform, when he offered his plan for cumulative voting. Most of the debate centered on representation in the lower house, however, and will be discussed in the History of Section 7. {Inpa, p. 136.) The proposal for the Senate as originally offered was in substance much as Section 6 in the 1870 Constitution prior to adoption of the 1954 Amend- ment. There were to be 51 senators, elected for staggered four-year terms. 132 Art. IV, §6 from districts "formed of contiguous and compact territory, bounded by county lines," and containing, "as nearly as practicable, an equal num- ber of inhabitants." A certain amount of jjopulation flexibility was pro- vided for in a technical exception. (In the light of the one man-one vote requirement promidgated by the United States Supreme Court, it seems pointless to explain these technical provisions.) The General Assembly w^s to redistrict the state after each Federal Census. The only debate of significance was over a proposal to cut the size ot the Senate from 51 to 37. (There is no indication in the Convention de- bates where these magic numbers of 37 and 51 came from. For cumula- tive voting in the House, Mr. Medill, of course, had to have a number divisible by three, and the delegate who proposed 37 indicated that he was thinking of a lower house of 100 or 101. W^Iiether he also thought that 37 times 3 equals 101 is not known.) It should be noted that Mr. Medill's committee originally proposed cumulative voting for senators, which would have meant 17 districts electing three senators each. The decision to limit cumulative voting to the House of Representatives was made by Mr. Medill and his committee long after the original proposal had been filed with the Convention. It is fairly clear from the debates that a great many decisions on the representation problem were made off the floor, and the decision to leave the Senate with single-member districts may have been one of them. The senatorial districting provision of the proposed 1922 Constitution was one of several controversial products of the 1920-22 Convention. The number of senators was set at 57, of which 19 were allotted to Cook County and 38 to the rest of the state. Periodic districting was to be on the basis, not of population, but of persons voting for governor. The districting would be confined to realignment of the 19 districts inside Cook County and of the 38 districts outside. The last redistricting of the Senate called for under the original Sec- tion 6 took place in 1901. As the years passed, the under-representation of Cook County became more and more pronounced. And since repre- sentatives were elected from senatorial districts, under-representation was the same in both houses. After the 1922 Constitution was rejected, many proposed constitutional amendments on legislative apportionment and districting were offered in the General Assembly, but none passed. The first effort to succeed was the compromise proposal in 1953 that became Sections 6, 7 and 8 following approval in November, 1954. The com- promise was, of course, to make senatorial representation geographical and to limit population representation to the lower house. The United States Supreme Court changed all that and there is today no valid constitutional provision for senatorial districting. Art. IV, §6 133 Explanation In Germano v. Kerner (378 U.S. 560 (1964)), the United States Supreme Court made it clear that Section 6 is unconstitutional. After the 74th General Assembly adjourned without redistricting the Senate, the United States District Court for the Northern District of Illinois, where the Germano case had been instituted, and the Supreme Court of Illinois, which had retained jurisdiction over a like case in the state courts, co- operated in the development of a districting plan. In People ex rel. Engle V. Kerner (33 111. 2d 11 (1965)), this plan was promulgated with the in- struction that all 58 senators were to be elected lor four years in 1966 and in 1970. One of the things that fell by the wayside as a result of the one man- one vote requirement was the interesting argument that since Section 6 provides for a "one-shot" districting plan, the 1955 Act which created the senatorial districts became, in effect, a permanent part of the Con- stitution without following the amendment procedure. (See the majority and dissenting opinions in People ex rel Engle v. Kerner, 32 111. 2d 212 (1965).) Comparotive Analysis Size: It may come as a surprise to many to learn that only Minnesota (67) and Iowa (61) have more members in their Senates than has Illinois. Ten states, including Illinois, have between 50 and 59 members; 12 be- tween 40 and 49; 20 between 30 and 39; and six under 30. The foregoing refers to actual members as of May, 1967. Only 19 states, including Illinois, specify constitutionally the exact number of senators. The other states set maximums and minimums, or have other criteria for size. Min- nesota, for example, ties size of Senate to total population. Moreover, the one man-one vote rule is a monkey-wrench thrown into the districting system across the country and there may be instances where, with judicial sanction, the actual size of a Senate may not conform to the constitutional provision. Terms: Illinois is one of a large majority of 38 states setting four-year terms for the Senate. This includes unicameral Nebraska. The remain- ing 12 have two-year terms. Most of the four-year-term states stagger the elections as Illinois normally does. A few states have four-year terms for both houses. Apportionment: There is not much point in reviewing the constitu- tional methods of apportionment in the several states. Not only have the United States Supreme Court's rulings invalidated many provisions; states which, as formerly the case in Illinois, required districting on the basis of population frequently failed to redistrict after a decennial census. It may be noted, however, that in theory some states provided that ap- 1 34 Art. IV, § 6 portionment of both houses was to be by population, and that in states apportioning only one house by population, it was frequently the Senate that was to be so apportioned. As of the middle of 1967, 25 states chose their Senates from single-member districts. Of the remaining 25, only two, Florida and West Virginia, chose all senators from multi-member dis- tricts. The other 23 had a mixture of single- and multi-member districts, ranging from states where most members of the Senate are chosen from single-member districts to states where most are from multi-member districts. United States Constitution: The United States Constitution provides for two senators from each state, elected for six-year terms. Approxi- mately one-third of the Senate is elected every two years, and, of course, in each state the terms are staggered. (Thus, districts are multi-member, but, except on some occasions involving an unexpired term, elections are as if from single-member districts.) Article V further provides that no state may be deprived of its representation in the Senate without its consent. It is worth mentioning, perhaps, that the United States Senate has been used as an argument against the concept that both houses of a state legislature should be apportioned on a population basis. There is a theoretical and a practical answer to the argument. The theoretical answer is that the several states, as, in effect, sovereign nations following dissociation from England, banded together in a federation under their own terms. No local government within a state — county, city or town — can stand on any such theory. The practical answer is that in most states, tradition divides the two senators between the urban and rural areas, or between the "big city" and the rest of the state, or on some other geographic basis, and this has produced a senatorial cross-section that is much more complex than the urban /rural division that would normally obtain in a single state with geographic districting. Model State Constitution: The Model State Constitution recommends a unicameral legislature consisting of senators elected for two-year terms from single-member districts, with a constitutional maximum and mini- mum number of districts, but with the numbers left blank. An alterna- tive recommendation for a bicameral legislature provides for a number of senators not exceeding one-third the number of assemblymen, elected from single-member districts for six-year staggered terms. The Model's recommendation for districting is that each "district shall consist of compact and contiguous territory. All districts shall be so nearly equal in population that the population of the largest district shall not exceed that of the smallest district by more than — per cent. In deter- mining the population of each district, inmates of such public or private institutions as prisons or other places of correction, hospitals for the in- Art. IV, § 6 135 sane or other institutions housing persons who are disqualified from voting by law shall not be counted." (art. IV, §4.04.) Comment At the present time, apportionment and districting are so tightly con- trolled by the United States Supreme Court that there is little leeway in constructing constitutional rules for the guidance of those charged with reapportionment and redistricting following an official census. In the light of the United States Supreme Court's Kirkpatrick and Wells de- cisions, discussed under Section 7 {infra, p. 139), even the percentage variance in the Model State Constitution's provision quoted is not accept- able. (The next edition of the Model will undoubtedly reflect this latest constitutional command.) Nevertheless, there are two possibilities from recent constitutional con- vention experience which are worthy of consideration. One is the in- genious open-ended provision adopted by Connecticut in 1965. After specifying the maximum and minimum allowable number of senatorial and assembly districts, all of which shall be contiguous, and with no other specification except that a town (township or city in Illinois) shall not be divided other than to make two or more assembly districts wholly within the town, the Connecticut Constitution states: "The establish- ment of districts in the general assembly shall be consistent with federal constitutional standards." Thus, if the United States Supreme Court modifies its one man-one vote rule or if the United States Constitution is amended in some fashion that alters the rule, Connecticut, after the next decennial census following such modification or alteration, can take advantage thereof without an amendment of its constitution. In the same year, Tennessee adopted an amendment achieving the same end as in Connecticut but spelling out in some detail alternative criteria for dis- tricting. The other possibility worth considering is the proposed solution to the problem of gerrymandering offered in the vnisuccessful 1967 New York Constitution. The rubric, "compact, contiguous and as nearly equal in population as is practicable," has not prevented gerrymandering. Sug- gestions for inhibiting partisan gerrymandering have, in general, fol- lowed two lines: one is to use additional criteria, such as following natural geographic, political and social boundaries; the other is to pro- vide for a wholly independent commission to do the redistricting. The New York proposed solution was to include among the criteria for dis- tricting the flat statement: "Gerrymandering for any purpose is pro- hibited." This would have provided for judicial review of a districting plan where the claim was that, even though the districts were compact, 136 Art. IV, § 7 contiguous, and almost equal in population, the plan was in fact the re- sult of partisan gerrymandering. (Up to now the United States Supreme Court has not extended the equal protection rule to include gerryman- dering as such, except in the case of Gomillioti -o. Lightfoot, 364 U.S. 339 (1960), Avhich involved gerrymandering for strictly racial purposes.) Representatives Sec. 7. The General Assembly in 1955 and in 1963, and every ten years there- after, shall redistrict the state for the purpose of electing state representatives. There shall be fifty-nine representative districts. In the 1955 redistritting Cook County shall have thirty of the districts. These thirty districts shall be located as follows: Twenty-three in the territory that is within the present corporate limits of the City of Chicago; and seven in the territory that is in Cook Coimty outside such corporate limits. In the 1955 redistricting, the remaining one liun- dred and one counties of the state shall have twenty-nine of the representative districts. In redistricting subsequent to the I960 census, and thereafter, the fifty- nine representative districts shall be divided among (1) that part of Cook County that is within the present corporate limits of the City of Chicago, (2) that part of Cook County that is outside such corporate limits, and (3) the remaining one hundred and one counties of the state, as nearly as may be, as the population of each of these three divisions bears to the total population of the state. Representative districts shall be formed of contiguous and compact territory, and shall contain, as nearly as practicable, a population equal to the represent- ative ratio; outside of Cook county, such districts 'shall be bounded by county lines unless the population of any county entitles it to more than one represent- ative district. The representative ratio for the entire state shall be the quotient obtained by dividing the population of the state by fifty-nine. No representative district may contain less population than four-fifths of the representative ratio. Three representatives shall be elected in each representative district in 1956 and every two years thereafter. The term of office shall be two years. 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 dis- tribute the same, or equal parts thereof, among the candidates as he shall see fit; and the candidates highest in votes shall be declared elected. History The 1818 Constitution called lor two-year terms for representatives from districts fixed by the General Assembly and apportioned "accord- ing to the number of white inhabitants." The number of representatives was to be not "less than twenty-seven, nor more than thirty-six, until the number of inhabitants shall amount to 100,000." It was not stated what was to happen after the population passed 100,000. The 1848 Constitution continued two-year terms, but fixed the num- ber of representatives at 75, "until the population of the state shall amount to 1,000,000 souls, when five members may be added to the house, and five additional members lor every 500,000 inhabitants thereafter, until the whole number of representatives shall amount to 100; after Art. IV, § 7 1 37 which the number shall neither be increased nor diminished." Districts were to be "composed of contiguous territory bounded by county lines; . . . Provided, that cities and towns containing the requisite population may be erected into separate districts." Districts were to be "apportioned among the several counties according to the number of white inhabi- tants." It was further provided that not more than three representatives could be elected from a single district and that if more than one county comprised a district, all representatives for that district were to be elected by the entire district. The five-year redistricting requirement and the technical direction lor distribution of excess population applicable to senators (see History of Sec. 6, supra, p. 131) also applied to repre- sentative districts. One of the most extensive debates in the 1870 Convention concerned Sections 7 and 8 governing representative districts. The irony of it all was that the voters were given the alternative of accepting Mr. Medill's cumulative voting provision, described below, and they took it in pref- erence to the carefully worked out Sections 7 and 8. The debate over Sec- tions 7 and 8 was complex, partly because the sections themselves were complex, so much so that at one point the Convention recessed for sev- eral hours to permit the Committee on the Legislative Department to redraft one of the sections. The members of the committee had demon- strated on the floor that they themselves did not agree on the meaning of what they had drafted. But behind the debate lay the classic rural-urban, downstate-Cook County problem. Since the sections never went into effect, it suffices to note that most counties would have been entitled to representation and that population increases and shifts were partly to be compensated for by increasing the size of the House every ten years. (Un- der the formula, there would be at least 219 representatives today.) Joseph Medill was Chairman of the Committee on Electoral and Representative Reform and a member of the Committee on the Legisla- tive Department. He addressed himself to the problem of minority representation. His primary concern was not with rural-urban or down- state-Cook County problems, but with the peculiar historical accident that the northern half of the state was overwhelmingly Republican and the southern half was overwhelmingly Democratic. Mr. Medill's theory was that people who voted for the losing candidate ended up being un- represented, and that this was inconsistent with the democratic process as manifested in a traditional town meeting. His solution was the three- member district with the privilege of cumulative voting. (See Debates 560-64.) For reasons that do not appear in the Debates, the Committee Report was not acted upon by the Convention sitting in Committee of the Whole. 138 Art. IV, § 7 It was taken up by the Convention proper late in the session, at which time Mr. Medill offered a substitute that omitted the Senate from the minority representation plan. There was a minimum ot debate and the substitute was accepted and referred to the Committee on Revision and Adjustment. (Debates 1729.) It is reasonably clear that acceptance was on the assumption that minority representation would be referred to the voters as an alternative mode of representation in the lower house. (Id.) In the special election on the Constitution, there were nine separate votes, including one for or against the whole Constitution. The vote on minority representation was much closer than on any other question. The alternative Sections 7 and 8 provided that three representatives would be elected every two years in each senatorial district. Each voter had three votes which he could distribute as he wished. The proposed 1922 Constitution abolished multi-member districts and, perforce, cumulative voting. There were to be 153 representative districts, compact and contiguous but following county lines. Districts were to con- tain, as nearly as practicable, the same number of people who had voted for governor in the last preceding gubernatorial election, but there was a technical rule of distribution that gave a slight advantage to counties of lesser population. The compromise set of amendments proposed in 1953 and approved in November, 1954, preserved the principle of representation by popula- tion in the House of Representatives and multi-member districts with cumulative voting. Since the new basis of representation for the Senate was geographical, house districts could no longer be co-extensive with senate districts. The number of house districts w'as increased to 59 and the size of the House perforce became 177. Explanation Following the adoption of the 1954 Amendment, the 69th General Assembly adopted a districting plan of 59 three-member districts, 23 in Chicago, seven in the rest of Cook County, and 29 in the balance of the state. This apportionment among the three areas of the state was as directed in the amendment itself. After the 1960 Federal Census, the 73rd General Assembly attempted a new apportionment and districting plan as directed by Section 7, but the Governor vetoed it. In accordance with the requirements of Section 8 (iyifra, p. 141), a commission was appointed, but it failed to act within the time specified and the House of Representatives of the 74th General Assembly was elected at large. At a Special Session held in 1964 prior to the election, the legislature aban- doned cumulative voting for the election at large, but j^reserved minority representation by providing that no party could list more candidates Art. IV, § 7 1 39 than a number equal to two-thirds of the total membership of the House. (111. Rev. Stat. ch. 46, §8A-8 (1967).) The Supreme Court upheld the arrangement. (People ex rel. Daniels v. Carpentier, 30 III. 2d 590 (1964).) In 1965, the 74th General Assembly failed to apjDortion and district the lower house, but the commission appointed pursuant to Section 8 was successful. Under the plan now in operation, there are 21 Chicago dis- tricts, nine Cook County "ex-Chicago" districts, and 29 for the balance of the state. For the Chicago and Cook County districts, the commission used the senatorial district boundaries promulgated by the Supreme Court. (See Sec. 6, supra, p. 131.) The 1965 districting plan has not been challenged in the courts. The latest United States Supreme Court decisions on the one man-one vote requirement create two questions about the wording of Section 7. In Kirkpatrick v. Preisler (394 U.S. 526 (1969)), decided April 7, 1969, the Court clearly stated that the requirement of equality of population, "as nearly as practicable," from district to district is not met by adher- ence to some minimum plus or minus variance from what in Section 7 is called the "representative ratio." A good faith effort to attain mathe- matical equality is required, and this would not likely be attainable if the command to follow county lines outside of Cook County were to be followed. On the same day, the United States Supreme Court handed down Wells v. Rockefeller (394 U.S. 542 (1969)), in which it upset a Congressional redistricting plan principally because the legislature first carved seven "homogeneous" sections out of the state and then produced districts of almost identical population in each section, but ending up with substantial deviation among all the districts, including the ten (out of a state total of 41) which were not included in any of the seven "homo- geneous" sections. In the light of the Wells case, it seems unlikely that Illinois can continue to follow the two-step process of first apportioning 177 seats among Chicago, the balance of Cook County and the rest of the state, and then districting on a population basis in each area either according to the representative ratio, which is computed on a state-wide basis, or according to a representative ratio for each of the three segments. With reference to cumulative voting, it should be noted that in prac- tice the need for cumulating one's votes is frequently obviated because the majority party nominates only two candidates and the minority party one. (Compare the statutory scheme for the at-large election of 1964 referred to above.) Since the purpose of cumulative voting is to assure minority representation, such party nominating practice guarantees the minority representation originally envisioned by Mr. Medill. Unfortu- nately, such a practice effectively destroys the franchise of independent and minor minority party members and partially destroys the franchise 140 Art. IV, § 7 of the two major party members who cannot exercise any power except in their own party's primai"y. The practice was approved by the Supreme Court in People ex rel. Lindstrand v. Emmerson (333 111. 606 (1929)). The principle of minority representation requires multi-member dis- tricts, and presumably that is the only reason Illinois has them. But, as noted'in the Coynpnratwc Analysis below, many states have them, usually in a mix of single-member and multi-member districts. On July 28, 1969, a three-judge Federal District Court held unconstitutional the present multi-member districting scheme in Indiana. The Court said that multi- member districts are valid only if all districts have the same number of members. (Chavis v. Whitcomb, — F. Supp. — (S.D. Ind. 1969). See also Banzhaf, "Multi-Member Electoral Districts — Do They Violate the 'One Man, One Vote' Principle?" 75 Yale L.J. 1309 (1966).) Comparative Analysis Size: There are four states with a larger lower house than that of Illinois, and one state, Connecticut, which also has 177 members. Seven states have precisely 100 representatives, 19 states have fewer than 100, and 17 states have more than 100 but fewer than 177. Terms: All states except Alabama, Louisiana, Maryland, and Missis- sippi have two-year terms for representatives. Those four states have four-year terms for members of both houses. (Nebraska, of course, has no lower house.) Apportionment: For the reasons discussed under Section 6 (supra, p. 131), there is no reason to review apportionment among the several states. It should be noted, however, that 34 states have multi-member districts in the lower house. In three of those states, including Illinois, all districts are multi-member. In the other 31 states the lower house has both single- and multi-member districts, in varying arrangements from mostly single-member districts to mostly multi-member. No other state has cumulative voting. It should be noted, moreover, that in some states, the seats in a multi-member district are numbered so that Carp runs against Bass and Doe runs against Buck and a voter cannot "vote for two," but must choose between each pair. (This also obtains in some of the states with multi-member districts in the upper house.) United States Constitution: Representatives are apportioned among the several states on the basis of population with the provision that every state is entitled to at least one representative. (There are five states with only one representative.) Until the 1920 Census, Congress regularly in- creased the size of the House of Representatives as the country's popu- lation increased. Since then, the practice has been to retain the size of the House at 435 and to reapportion after each Census. Since 1930, reappor- Art. IV, § 8 141 tionment has been automatic under a permanent formula. Congress can, of course, change the present method at any time. Model State Constitution: The Model recommends a unicameral legislature, but provides akernative sections for a bicameral legislature. The bicameral recommendation is for a lower house of single-member districts with a constitutional maximum and minimum size, but without insertion of maximum and minimum numbers. Terms are set at two years. The recjuirement for districting is the same as for the unicameral senate. (See quotation, supra, p. 134.) Comment If the Convention decides to preserve cumulative voting, districts will presumably continue to have three members each. If cumulative voting is abandoned, it would be tempting Fate to go to a system of mixed single- and multi-member districts or all multi-member districts of un- etjual numbers. United States Supreme Court watchers are not likely to offer attractive odds that the Chavis case would be reversed. (See also Comment for Sec. 6, supra, p. 135.) Redistricting Sec. 8. In performing its duties under Sections 6 and 7 of this amendment, the General Assembly shall redistrict and reapportion in a single legislative en- actment. If, however, the regular session of the General Assembly in 1955 as to both senatorial and representative districts or in 1963, or any ten years there- after as to representative districts, fails by the first day of July to redistrict the state into such districts, then the redistricting shall be accomplished by a commission. Within thirty days after such first day of July, the state central committee of each of the two political parties, casting the highest votes for governor at the last preceding gubernatorial election, shall submit to the governor of the state a list of ten persons. Within thirty days thereafter, the governor shall appoint the commission of ten members, five from each list. If either of the state central committees fails to submit the list within the specified time, the governor, within the specified time, shall appoint five members of his own choice from the party of such committee. Each member of the committee shall receive 325.00 a day, but not more than $2,000 for his service. This commission shall redistrict the state into senatorial districts and into representative districts in the manner specified above. This commission shall file with the secretary of state a full statement of the numbers of the senatorial and representative districts and their boundaries. No such statement shall be valid unless approved by seven members of such commission. After such statement is filed, senators and representatives shall be elected according to the statement and the districts therein determined, until a re- districting and reapportionment are thereafter made by the General Assembly as provided in this amendment. If, however, the statement is not filed within four months after the commission is appointed it shall stand discharged. There- upon, all senators, scheduled for election at the next election for state senators, and all state representatives shall be nominated and elected at the next election from the state at large. Following such an election at large, the General Assembly at its next regular session shall perform the duties specified in this amendment. 142 Art. IV, § 8 But if such a General Assembly fails to perform these duties, tlien another com- mission, as specified in this Section 8, shall be ap])()inted in like manner, with like duties, and power, and with like effect; and so foriii until a valid senatorial and representative rcdistricting and reapportionment are secured in this 1950 decade and each decade thereafter. But there can be only one valid senatorial and representative redistricting and reapportionment during a particular decade. History This section was part of the amendment adopted in 1954. Tliere was nothing comparable in any of the earlier Constitutions. The proposed 1922 Constitution did have a provision for action in case the General Assembly failed to redistrict, as follows: "If the general assembly fails to make any such apportionment it shall be the duty of the secretary of state, the attorney general and the auditor of public accounts to meet at the office of the governor within ninety days after the ad- journment of the regular session of the year designated for that purpose and make an apportionment as provided in section twenty-three of this constitution." (art. Ill, § 24.) Explanation With one exception, nothing in Section 8 is affected by the one man- one vote reqtiirement. The exception is that Section 8 does not inchide senatorial redistricting after initial creation of senatorial districts. (See People ex rcl. Giannis v. Carpentier, 30 111. 2d 24 (1964).) Under the one man-one vote requirement, periodic redistricting of both houses will be necessary. In Williams v. Kerner (30 111. 2d 11 (1963)), the Supreme Court held that the Governor's power of veto was part of the legislative process involved in redistricting under Section 8. Comparative Analysis Traditionally, redistricting was confined to the legislature, and, tradi- tionally, the job did not get done. Even before the United States Supreme Court opened the door to judicial enforcement of redistricting, some states had begun to experiment with ways of accomplishing redistrict- ing in the face of obvious legislative reluctance to act. Indeed, Section 8 was adopted a good many years before the breakthrough in Baker v. Carr (369 U.S. 186 (1962)). Now, of course, as state after state under- takes the task of adopting new provisions to take the place of invalid ones, attention is given to including some method for carrying redistrict- ing forward if the legislature fails to act. There are at least seven states besides Illinois which provide for an alternative procedure for redistrict- ing. Another state, Colorado, used the sanction route of providing no compensation to legislators and ineligibility for reelection after a given period and until redistricting was accomplished. No other state appears to have an "election at large" sanction. Art. IV, § 8 1 43 The United States Supreme Court's redistricting rulings have also probably caused more states to take the route of by-passing the legislature and providing for initial redistricting by some nonlegislative agency. There are at least ten states that by-pass the legislature, several of which antedate the Supreme Court's rulings. In some states, the Governor is given the task, usually with an advisory group. In other states, there is a redistricting commission of designated elected officials, and in some states the commission is appointed, normally from lists submitted to the Governor. A goodly number of states specifically include a constitutional authorization for judicial review of any redistricting plan. The United States Constitution is silent as to the process of appor- tionment of seats in the House of Representatives. The current system, as noted earlier (supra, p. 140), is to redistribute the 435 seats auto- matically by statutory formula following the decennial census. The Model State Constitution recommends the appointment by the Governor of a board of cjualified voters to make redistricting recommendations which the Governor must publish but may change with appropriate explanations of the reasons for such changes. Original jurisdiction is conferred on the highest court for judicial review, including power to promulgate a revised plan, or an original plan if the Governor fails to act. Comment There are two key problems in considering who should redistrict. The first is whether the legislature should have a bite at the cherry at all. The second is whether the bite, first or second, should be antiseptic — i.e., nonpolitical and nonpartisan. The arguments in favor of by-passing the legislature are fairly persua- sive. Leaving aside for the moment the question of whether redistricting is essentially political, the special problem facing a legislature under- taking redistricting is the personal vested interest of the sitting mem- bers. One of the conclusions drawn from an analysis of the Illinois ex- perience in 1955 was expressed as follows: "Redistricting proposals that dislodge a minimum number of sitting members, irrespective of party, will be favored over proposals that do not take into ac- count the sitting members. There is no evidence that in the 1955 redistricting either party persisted in an attempt to improve the existing legislative strength of the party by a favorable redistricting scheme. On the other hand, neither party showed any disposition to give up any of its safe seats or sacrifice any of its sitting members. In short, if it had been possible to achieve a redistricting that would have satisfied the constitutional mandate without imperiling the seat of any member, such a plan would have had virtually unanimous support in the General Assembly. To the extent that future redistricting plans can approach this goal, they will meet a minimum of opposition. Neither party nor principle 144 Art. IV, § 8 nor region is more important tlian ;i legislator's colleagues." (G. Steiner and S. Gove, Legislative Politics in Illinois 117 (I960).) But districting is part ot tlie political process and it is argtiable whether it is appropriate to attempt to insulate districting Irom that process. One possibility is the use ot computers. This is a tricky business because, as everyone lamiliar with computers knows, the resuk produced is no better than the progranniied instructions. (In computer lingo, it's GIGO— gar- bage in, garbage out.) An abstract plan based on compactness, contiguity, equality ot population and nothing more coidd be led to a computer, but the result, outside ot Chicago, could be statewide slices from border to border, east and west or nortli and south. It tollows that a great deal of thought must go into the preparation of tlie program that is to be given to the computer. Such thought should be political, not in any narrow, partisan sense, but in the sense tliat tlie end sought is a system of fair representation in the political process of law-making. Some balance must be struck between the use of knowledge- able people who are likely to be highly partisan and nonpartisan people who are not likely to be knowledgeable in practical, political realities. It may very well be that the use of a computer could be the vehicle for striking the balance. If the districting plan is prepared by hand, so to speak, by a bipartisan group, there is a danger that it will engage in all sorts of trade-offs on the basis of assumed short-range partisan advan- tages. If the plan is prepared by hand by a nonpartisan group, there is a danger that the result may retlect hidden prejudices that may or may not be appropriate to the political process, or may produce a short-range chaotic situation because too many delicate political balances are up- set. But if the group charged with producing a districting plan has no more to do than prepare the rules that guide a computer, a bipartisan board or conmiission might be preferable. It is arguable, of course, that even the rules that guide a computer can be "rigged," so to speak. One rule, for example, could be that tlie maximum number of incumbents should be protected. But it is equally arguable that a nonpartisan groiq) might adopt a rule that the maximum number of incumbents should have their seats put in jeopardy. In sum, there are three propositions that can be set down for the guid- .ance of those who must decide who is to do the redistricting. First, for the reasons set out earlier, the legislature is not the appropriate agency. Second, there are many pros and cons for either bipartisan or non- partisan boards or commissions, and the choice may approach a toss-iqD. Third, in any event, no one need wander around with a lantern looking for perfection in the world of politics. Art. IV, § 9 1 45 Organization Procedure Sec. 9. The sessions of the General Assembly shall commence at twelve o'clock noon, on the Wednesday next after the first Monday in January, in the year next ensuing the election of members thereof, and at no other time, unless as provided by this Constitution. A majority of the members elected to each house shall constitute a quorum. Each house shall determine the rules of its proceedings,^ and be the judge of the election, returns and qualifications of its members; shall choose its own officers; and the Senate shall choose a temporary President to preside when the Lieutenant Governor shall not attend as President or shall act as governor. The Secretary of State shall call the House of Representatives to order at the opening of each new Assembly, and preside over it until a temporary presiding officer thereof shall have been chosen and shall have taken his seat. No member shall be expelled by either house, except by a vote of two-thirds of all the members elected to that house, and no member shall be twice expelled for the same offense. Each house may punish by imprisonment any person, not a member, who sliall be guilty of disrespect to the house by disorderly or contemptuous behavior in its presence. But no such imprisonment shall extend beyond twenty- four hours at one time, unless the person shall persist in such disorderly or con- temptuous behavior. History Sessions: The 1818 Constitution provided for biennial sessions in much the same language as in the first paragraph of Section 9. The only differ- ence was the beginning date of the first Monday in December. (The elec- tion for senators and representatives was on the first Monday in August.) The 1848 Constitution changed the meeting date to the first Monday in January. (Election Day became the first Tuesday after the first Monday in NoveiTiber under the 1848 Constitution.) The first paragraph of Section 9, offered to the 1870 Convention as a separate section, made the change to Wednesday after the first Monday and specified noon as the magic hour. A proposal was offered to strike the words following "thereof" and substitute the words "unless otherwise provided by law or by this Constitution." This was actually an amend- ment to a proposal to specify annual sessions which the proponent of annual sessions accepted at the end of the debate on the subject. The de- bate was spirited, but the final vote was only 16 for the amendinent with 33 against. (Debates 511-22.) The proposed 1922 Constitution made no change of substance. In 1963, by joint resolution, the General Assembly proposed an amend- ment to Section 9, providing for annual sessions, one of which was to be limited to budget matters. The first paragraph of the proposed amend- ment read: "The regular sessions of the General Assembly shall commence at 12 o'clock noon, on the Wednesday next after the first Monday in January, in each odd- numbered year; and on the first Monday in May of each even-numbered year. 146 Art. IV, §9 At its regular session in each even-numbered year, the General Assembly shall consider only appropriation bills for existing functions of the State for the succeeding fiscal year, revenue bills directly pertaining and restricted thereto, and bills, motions and resolutions pertaining to the functions of the General Assembly during such session; and shall consider no other matter." The balance of the proposed amendment was unchanged from the balance of Section 9 except for a technical adjustment to make it clear that the Secretary of State's duty to call the House of Representatives to order was limited to the sessions in odd-niunbered years. 7 he amendment was defeated at the general election in 19(jl. The amendment was favored by 63.1 per cent of those voting on the amendment, but the vote was a little over 108,000 short of a majority of those voting in the election. The provision for the Secretary of State to call the House of Repre- sentatives to order was added by the Committee on the Legislative De- partment. The debate on a motion to strike the provision reveals that the committee had two precedents in mind: One was the confusion that attended the organization of the 1870 Convention itself; the other was an occurrence in 1857 when, according to one delegate, "there was actually a fight between the officers of the late house of representatives and the new members." (Debates 525-27.) The proposed 1922 Constitution made one change in the organizational rubric. It was spelled out that the temporary presiding officer was to preside until a speaker was chosen. Quorum, Rules and Officers: The 1818 and 1848 Constitutions set a cjuorum at two-thirds of the members of each house, but provided that a smaller number coidd adjourn from day to day and could compel the attendance of absent members. In the 1870 Convention, the Committee on the Legislative Department proposed to set the quorum at a specific number of senators and a specific number of representatives, the nimiber in each house being approximately one-half of the membership. In the course of debate, it became clear that the proposed change was in part designed to avoid a situation that had arisen the year before in Indiana. There, to avoid ratification of the Fifteenth Amendment, all of the D'^tv- "•- cratic members of the legislature resigned and the remaining Repul 'ican members construed the quorum recjuirement to be two-thirds of the re- maining members. It was argued in the Convention that the words "a majority of the members elected" would avoid the Indiana example and the proposal was so amended. The change from two-thirds to a majority was based on previous experience in Illinois when members absented themselves to defeat a quorum. There was apparently no sentiment for retaining the higher requirement. No question was raised about the omission of the words authorizing a smaller number to adjourn and to compel attendance. The proposed 1922 Constitution made no substantive change in the quorum requirement. Art. IV, §9 147 All three Constitutions and the proposed 1922 Constitution provided that each house should determine the rules of its own proceedings and all provided that each house should judge the qualifications and elec- tions of its members. The 1870 Committee on the Legislative Department added "returns" to "qualifications and elections" and in the 1920-22 Convention, the Committee on Phraseology and Style took out "returns." In neither case was there an explanation for the change. All four documents provided that each house should choose its own officers, excepting, of course, the presiding officer of the Senate. The 1870 Convention neglected to state that the presiding officer of the House of Representatives is called the "Speaker," an omission noted in 1921 by the Committee on Phraseology and Style which 'put the Speaker back into the proposed 1922 Constitution. (There are, of course, references to the Speaker in the 1870 Constitution. See Sec. 13 of this Art. and Sec. 19 of Art. V, lufra, p. 160 and p. 310.) Sanctions: The 1818 Constitution provided that either house could "punish its members for disorderly behavior," including expulsion by a two-thirds' vote, but only once for the same offense. The 1848 Constitu- tion contained the foregoing and added "the reason for such expulsion shall be entered upon the journal, with the names of the members voting on the question." The provision as proposed to the 1870 Convention omitted both the reference to disorderly behavior and to a journal entry and changed the rec|uired vote from two-thirds to a "majority of all the members elected to that house." (In neither the 1818 nor the 1848 Consti- tution was it clear what the two-thirds' vote was measured by, though the 1848 journal entry language quoted above would imply that the measure was of those present and voting.) A delegate pointed out that the dele- tion of the journal entry requirement removed one of the two previous safeguards against abuse and moved that the required vote be made two- thirds. The amendment was accepted without debate. The proposed 1922 Constitution made no substantive change. Both the 1818 and 1848 Constitutions provided for sanctions against nonmembers, but limited their punishment to 24 hours. The pro- posed change now in Section 9 was objected to in the 1870 Convention. In reply, two delegates pointed out that without the change any un- cooperative witness could spend his 24 hours in jail and avoid ever having to testify. The proposed 1922 Constitution made no substantive change. Explanation Few questions have arisen in connection with this section. In 1935, the legislature appropriated an amount equal to a biennial salary to the widow of a veteran legislator who had died after the election but before the legislature met. The Supreme Court stated that the act of appropriat- 148 Art. IV, § 9 ing money was by implication a determination that the deceased had been duly elected. (People ex rel. Douglas v. Barrett, 370 111. 464 (1939).) In Reif v. Barrett (355 111. 104 (1933)), the Supreme Court upheld the finality of legislative determination of the "election, returns and qualifi- cations of its members." It was alleged that a man in default to the state had run for the House of Representatives, had been elected, had taken his seat, and had voted for the bill under attack in the litigation, and that the bill passed by precisely the minimum majority required. It was further alleged that the person in cjuestion was ineligible to serve by virtue of Section 4 (supra, p. 127), that his vote for the bill should not be counted, and that the bill did not pass since without his vote there was no constitutional majority. This case was a traditional test case — in this instance, to determine the constitutionality of the "sales tax" — and as is customary, all alleged facts were admitted. Notwithstanding all these admissions, the Court refused to invalidate the vote by which the bill passed. The representative in question "regularly received his certificate of election and qualified as a member of the house, and the House of Representatives seated him as a member of that body. W^e are constrained to hold that at the time he voted he was a member of the General Assem- bly." (Id. at 129.) "No court has the right to review the decision of the house .... When the house once acts upon the qualifications of its membership the matter is beyond further controversy." (Id. at 127.) The United States Supreme Court has ended any such blanket judi- cial refusal to review legislative decisions on seating members. In Bond V. Floyd (385 U.S. 116 (1966)), the Court overturned the refusal of the Georgia House of Representatives to seat Julian Bond. The Court held that it had jurisdiction to review the state legislative determination that Bond was not qualified, and further held that such determination in the circumstances actually represented a denial of Bond's right of free speech. (See also Powell v. McCormack, 395 U.S. 486 (1969), where the Court held that the United States House of Representatives could not refuse to seat Adam Clayton Powell, Jr., in view of the fact that he was not ineligible under any provision of the United States Constitution.) On several occasions the Attorney General has issued rulings concern- ing this section. He has stated that the decision by either house on seat- ing or not seating a member may be made by a majority of those present and voting, provided, of course, that a cjuorum is present. (1915 111. Att'y Gen. Rep. 455.) He has also stated that only a member of the House of Representatives is eligible to election as Speaker. (1915 III. Att's Gen. Rep. 144.) Section 9 provides for biennial sessions, but does not literally prohibit more frequent sessions by the parliamentary device of not adjourning Art. IV, § 9 1 49 si7ie die. The first two legislatures to meet after adoption of the 1870 Con- stitution each met twice, as did the 45th General Assembly in 1907 and 1908. The device was not utilized again until 1967, when the General Assembly adjourned to a day certain on several occasions through 1967 and 1968, adjourning 5me die in January, 1969, just before the 76th Gen- eral Assembly convened. In 1966, the Attorney General had rendered an opinion to the effect that the procedure subsequently followed would be constitutional. (See I.S.L. 133-38, app. D.) He also ruled that the state could switch from a biennial to an annual budget. (Id. See Explanation of Sec. 18, infra, p. 185.) Comparative Analysis Sessions: As a result of amendments adopted in 1968, a majority of the states for the first time in this century have constitutional provisions for annual sessions. There are now 27 states with such a provision. Three states, Ohio, Tennessee and Vermont, joined Illinois in using the ad- journment device to stay active dining the 1967-68 biennium. Of the 27 states with annual sessions, ten have general sessions with no limitation on length, eleven have limitations, and six alternate general sessions with sessions limited to adoption of a budget, but in all six the lengths of both the general and the budget sessions are limited. A majority of the states with biennial sessions also have limitations on their length. In Illinois, June 30th is, of course, a traditional "required" adjournment date. (See Sec. 13, infra, p. 160.) It is worth noting that in the many states with limitations on session length, only one has a required adjournment date later than June 30th. Both the Model State Constitution and the United States Constitution call for annual sessions and permit them to be un- limited in length. Approximately three-fourths of the states specify in their constitutions the date of convening of the session, usually a day early in January. Only about a dozen include a specific hour, usually noon, but in a couple of states 10 A.M. is the magic hour. Another half dozen states or so set the time of convening but permit the time to be changed by law. Three states appear to leave the whole business up to the legislature. The Model State Constitution does the same. The United States Constitution calls for Congress to convene at noon on the third day of January, "unless they shall by law appoint a different day." Quorum: Forty-four states set the quorum at a majority of all the mem- bers and four states set it at two-thirds. Vermont requires a majority except on bills raising taxes, in which case two-thirds of the members of the lower house must be present. New Hampshire requires a majority for a quorum, but if fewer than two-thirds of the members are present, then 1 50 Art. IV, § 9 a measure must receive a two-thirds vote to pass. A majority is the quorum in Congress and under the Model State Constitution. Forty-three states provide that a smaller number ol members than a quorum may adjourn from day to day and may compel attendance of absent members. Illinois is, of course, one of the seven states without such a provision. Both the United States Constitution and the Model State Constitution contain the provision. Rules: Strangely enough, two states, Georgia and North Carolina, do not have a provision stating that each house shall determine its own rules. The United States Constitution and Model State Constitution con- tain the customary provision. Qualification and Election of Members: Again, strangely, there are two states, Connecticut and Missouri, that do not empower each house to de- termine the qualifications of its members. Likewise, there are two states, Missomi and Wyoming, that do not empower each house to determine the election of its members. As noted in the Histoiy above, the word "returns" was added in 1870 and proposed to be dropped in 1922. Among the 48 states having a provision on determination of elections, there are several variations. Thirty-two states join Illinois in giving each house the power to judge the elections and returns of its members. (In Arkansas it is "sole judge" and in Connecticut, "final judge.") Twelve states speak only to elections, and three states refer to "election returns." (See the Comment below concerning these variations in wording.) The United States Constitution uses the traditional language while the Model State Constitution drops the word "returns." Officers: Most state constitutions provide, as in Illinois, that each house shall choose its own officers. In two states, the provision is drafted with precision by stating that such officers shall be so chosen except as other- wise provided in the constitution. This takes care of the fact that nor- mally a senate does not choose its presiding officer. Some states specify what officers shall be chosen. In one state, Minnesota, it is provided that each house shall choose its own officers as prescribed by law, a formula- tion that theoretically permits the governor to participate in the process of determining what offices shall exist. The United States Constitution states that the House of Representatives shall choose "their Speaker and other officers"; and that the Senate shall choose "their other officers, and also a President pro tempore." The Model State Constitution states that the unicameral legislature shall choose "its presiding officers from among its members and it shall employ a secretary to serve for an indefinite term. . . . The secretary of the legislature shall be its chief fiscal, ad- ministrative and personnel officer and shall perform such duties as the legislature may prescribe." The Commentary on the foregoing states: Art. IV, § 9 151 "The only novel feature of section 4.09 is the reference to a 'secretary of the legislature' who is to be employed for an indefinite term to manage fiscal and personnel matters. The purpose is to fill the need for better housekeeping in the legislative branch with its increased career staffs in legislative reference, bill- drafting and other services. The need for improved personnel and fiscal ad- ministration has become evident. It might be added that reference to the secre- tary of the legislature is not a constitutional necessity, for such an office could be established by a legislature entirely without such express authorization. Its inclusion, however, may prove useful." (Model State Constitution 53.) Comment Sessions: From the recent practice in Illinois and the close vote on the 1964 proposed amendment, it would appear that a proposal to sw^itch to annual sessions will be high on the agenda in the Convention. Of all the proposals for modernizing, streamlining, if you will, the legislative proc- ess, the annual session proposal has had the most dramatic acceptance in the last three decades. The change is shown by the following table: Annual Sessions Year Number of States 1941 4 1950 10 1960 18 1969 31* * Including the four biennial session states which used the adjournment device. If the decision is made to go to annual sessions, consideration should be given to the addition of words to make it clear that unfinished busi- ness carries over from the first to the second session of a single two-year legislature. Such a provision is not essential, of course, for Congress operates by such a ride, but since the tradition in state legislatures has been otherwise, specific coverage might be appropriate. Michigan adopted the following in its new Constitution: "Any business, bill or joint resolution pending at the final adjournment of a regular session held in an odd numbered year shall carry over with the same status to the next regular session." (art. IV, § 13.) It should be noted, however, that the previous Michigan provision stated explicitly that bills were not to be carried over from one session to another. The Model State Constitution provides that the legislature "shall be a continuous body during the tenn for which its members are elected." But as the Commentary to the Model makes clear, the purpose of this provision is to permit the utmost flexibility. An accompanying provision permits the legislature to meet in "regular sessions annually as provided by law." The commentary states: "Under these provisions it is not at all necessary that every session be a 152 Art. IV, § 10 miniature of the prevalent annual or biennial session. Priority could be given to those measures requiring consideration during the period the legislature hap- pens to be convened. Action on local matters could be timed in accordance with the fiscal year, tax-levying, budget-making or bond-issuing requirements of localities. The state budget could receive ample consideration at one session without crowding other measures on the calendar which could be taken up subsequently. Committees could plan their work with preliminary hearings and specific arrangements for further hearings at the next session or between ses- sions. An orderly process of distributing the work over the 21-month term would provide greater opportunity for adequate consideration and would quiet the public's fear of hasty or ill-considered action." (Model State Constitution 51.) Quorum: Presumably, no problem has arisen because of the absence of the traditional authorization ior a smaller number than a cjuorum to adjourn and to compel attendance, but it would be worth considering whether it ought to be put back in. Ofjicers: In connection with the Model State Constitution's recom- mendation for a career secretary of each house of the legislature, it is to be noted that the drafters concede that the position could be established by legislation. Immediately following this concession, the Commentary notes that the Model used to contain a constitutional requirement for a legislative council. The Commentary then observes: "Omission of the legislative council from the Model merely marks recognition of the fact that the battle for legislative councils has largely been won, that legislative councils may — and do — function well under authority of legislation or legislative rules and may function even better given the flexibility of legis- lative rather than constitutional authorization. Finally, the omission signifies recognition that the creation and operation of legislative councils is essentially a matter of legislative procedure which, particularly in the case of a con- tinuous legislature, ought to be left to the legislature itself." {Id. at 54.) Returns, Elections and Qualifications: Notwithstanding the fact that there are variations among the states in the use of "returns and elections," "elections," and "election returns," the var-iations are probably of no great significance. But it would probably be a mistake to drop "returns" as was proposed in the 1922 Constitution. Presimiably, the drafters con- sidered "returns" to be unnecessary because they are included in "elec- tions." This seems a fair conclusion, but there is the usual difficulty that a change in wording always opens the door to the argument that the drafters of the change meant something thereby. It should also be noted that the Bond case, discussed earlier, in no way justifies dropping, or qualifying, the traditional statement of legislative control over seating members. Open Sessions — Adjournments — Journals Sec. 10. The doors of each house and of committees of the whole shall be kept open, except in such cases as, in the opinion of the house, require secrecy. Neither house shall, without consent of the other, adjourn for more than Art. IV, § 10 153 two days, or to any other place than that in which the two houses shall be sitting. Each house shall keep a journal of its proceedings, which shall be published. In the Senate at the request of two members, and in the House at the request of five members, the yeas and nays shall be taken on any question, and entered upon the journal. Any two members of either house shall have liberty to dissent from and protest, in respectful language, against any act or resolution which they think injurious to the public or to any individual, and have the reasons of their dissent entered upon the journals. History The provision for open meetings, btit with secrecy permitted, first appeared in 1818, was continued in 1848, and was not changed in sub- stance in the proposed 1922 Constitution. The limitation on adjottrn- ment appears in all Constitutions, but the proposed 1922 Constitution increased the period of non-agreed-upon adjournment from two days to three. Likewise, the requirement for pubHcation of the journal appears in all four Constitutions. In the 1818 and 1848 Constitutions, any two members in either house could call for the yeas and nays. The require- ment for five in the House of Representatives was added in 1870 and continued in the proposed 1922 Constitution. Permission for any two members to have their dissenting views entered upon the journal was given in 1818 and continued in 1848, but in 1870 the requirement to use respectful language was added. The proposed 1922 Constitution con- tinued tlie permission and the respectful language requirements. Explanation In connection with serious problems tliat arise under Sections 12 and 13 (infra, pp. 156 and 160), the journal is an important document. So far as Section 10 itself is concerned, not many problems of interpretation have arisen. The Supreme Cotnt long ago announced that the officers of the legislature did not have to sign the journal and that there was no requirement that the journal clerk certify as to the accuracy of the jour- nal. (Miller V. Goodwin, 70 111. 659 (1873).) Indeed, even though Illinois is a "journal entry rule" state (see Neiberger v. McCullough, 253 111. 312 (1912)), that is, a state that permits the use of the journal to show that the constitutional requirements for passage of a bill were not met, as opposed to an "enrolled bill rule" state, which does not permit such evidence, there is no way to impeach the accuracy of the journal. In Sangamon County Fair & Agricidtiiral Association v. Stanard (9 111. 2d 267 (1956)), the House Journal stated that the bill in litigation had been read at large, but two members exercised their privilege to dissent to the effect that the journal was in error, that in fact the bill had been read by title only. Thus, there were contradictory statements in the jour- nal. The Court refused to accept the dissent as proof that the fonnal 154 Art. IV, § 10 journal entry was in error. Prcsunialjh, ihe CJourt was aware that "[b]y connnon acquiescence and by fraud upon the journals of both houses this constitutional requirement is avoided. Bills are read by title only but the journal shows the bills are read at large." (Elson, "Constitutional Revision and Reorganization of the General Assembly," 33 111. L. Rev. 15, 26 (1938).) Although the Court will accept journal entries as written, it will also draw inferences from the absence of entries. In a famous case arising under the 1848 Constitution concerning the Governor's power to ad- journ the legislature (see Histo)y of Sec. 9, Art. V, injra, p. 278), the Court avoided the political thicket involved by relying on the journal. There were no entries for a ten-day stretch and since the 1848 Constitu- tion also prohibited adjournment of either house for more than two days without the consent of the other, the Court concluded that the leg- islature had adjourned sine die. (People ex rel. Harless v. Hatch, 33 111. 9 (1863). See also discussions of Sees. 12 and 13, infra, pp. 156 and 160. For a comprehensive review of the journal entry problem, see Cohn, "The Process of Legislation," 1963 U. 111. L.F. 27.) Comparative Analysis Public Sessions: Approximately three-fourths of the states call for open sessions of the legislature, but almost all of them also contain an appro- priate exception for secrecy. Neither the United States Constitution nor the Model State Constitution specifies public sessions. Adjournment of One House: Of the 49 states with a bicameral legis- lature, all except two limit the power of one house to adjourn without the consent of the other. Most of the states limit such power to three days. About 40 states also require consent to adjourn to another place. The United States Constitution has the usual requirement for consent to adjourn for more than three days or to another place. The Model State Constitution has no comparable provision. This is obvious for its recom- mended unicameral provisions, but not so obvious for its alternative pro- visions for a bicameral legislature. Journal: All of the states except Massachusetts appear to require that a journal be kept and almost all require that it be published. A good many states have a secrecy exception. The United States Constitution re- quires that a journal be kept and that it be published from time to time, except such parts as may require secrecy. The Model State Constitution calls for a journal which shall be published "from day to day." Yeas and Nays: All except four of the states have a requirement for entering the yeas and nays in the journal upon demand. There is, how- ever, wide variation in the number required to make the demand. In a few states any one member can call for the vote. Louisiana has the high- Art. IV, § 11 1 55 est minimum required, one-fifth of the members elected. In ten states one-fifth of those present is required. The next-hirgest number of states with identical requirements is eight — at the desire of any two members in eitlier house. The United States Constitution requires one-fifth of those present. The Model State Constitution has the same requirement. Protest and Dissent: There appear to be some 13 other states which guarantee the privilege of entering a protest or dissent in the journal, but only Minnesota joins Illinois in rec[uiring two members to exer- cise the privilege. No other state conditions the privilege on the use of respectful language. Neither the United States Constitution nor the Model State Constitution extends the privilege of entering a dissent in the journal. All dissents in Congress are 'preserved, of course, because the debates are published. Comment All of the requirements of this section are normal and could very well be preserved unchanged. What should be guarded against is a proposal to add further recjuirements because of a past reluctance of the legislature to adopt them in its rules. For example, some people advocate a state equivalent of the Congressional Record, in part so that legislative "in- tent" can be more easily determined and in part so that the news media can report legislative activities more accurately. In the proposed 1967 New York Constitution, the issue was compromised. Each house was to be required to keep a journal and a transcript of its debates, the former to be published, the latter to be available to the public. It is certainly sound to advocate that verbatim transcripts of debates be made and, at the very least, that they be available to the public, but it should not be necessary to put the recpiirement into the Constitution. Enacting Clause Sec. 11. The style of the laws of this State shall be: "Be it enacted by the People of the State of Illinois, represented in the General Assembly." History The identical provision appears in both the 1818 and 1848 Constitu- tions. The proposed 1922 Constitution changed the beginning to read: "The enacting clause of laws shall be:" In another section the proposed Constitution included the statement: "No law shall be passed except by bill." (See History of Sec. 12 infra, p. 157.) Explanation In almost half the states there is a provision that laws may be enacted only by a bill. In 1887 the Supreme Court relied on Section 11 to produce the same effect by holding that a joint resolution cannot have the force 156 Art. IV, § 12 oi law because it does not have an enacting clause, (liunitt v. Connnis- sioners of State Contracts, 120 111. 322 (1887).) Because the section is a simple and explicit statement ot torni, it is not surprising that the Attor- ney General made a cautious but hypertechnical ruling that an act was unconstitutional it the enacting clause varied in any respect from the specified form. (1910 111. Att'y Gen. Rep. 77.) Comparative Analysis An enacting clause section is found in 15 ol the state constitutions. Most of the clauses speak only in the name of the legislature, a few include the people as does Illinois, and a few enact in tlie name of the people only. Three of the five states which have no enacting clause section — California, Pennsylvania, and Virginia — do have a recpiire- ment that laws be enacted only by bills. The other two states — Delaware and Georgia — have no such rec|iurement. The United States Constitu- tion has neither an enacting clause section nor a requirement for en- acting laws by bill only. The Model State Constitution has no enacting clause section but does have a "law by bill only" provision. Comment Notwithstanding the nearly universal practice of setting forth the style of enactment, it is obvious that such a provision is not indispensable. It is important, how^ever, to provide clear rules governing what the legis- lature can do alone and what requires the participation of the Governor. A "law by bill only" provision nails down the distinction. (In this respect the United States Constitution is not clear. Although it spells out the procedure for "bills," it also states that "[ejvery Order, Resolu- tion, or \'ote to which the Concurrence of the Senate and the House of Representatives may be necessary . . . shall be presented to the Presi- dent . . . ." (art. I, § 7.) Since Section 1 vests all legislative powers in Congress, it can be deduced that any exercise of legislative power must include the President.) By virtue of the Burritt case discussed above, Section 1 1 serves as the vehicle for guaranteeing that a law can be en- acted only by bill and only by including the Governor in the process.. This was reinforced recently when the Supreme Court held that the Governor has the power of veto over a redistricting act enacted pursuant to Section 8. (Williams v. Kerner, 30 111. 2d 11 (1963).) Origin of Bills Sec. 12. Bills may originate in either house, but may be altered, amended or rejected by the other; and on the final passage of all bills, the vote shall be by yeas and nays, upon each bill separately, and shall l)e entered upon the journal; and no bill shall become a law without the concurrence of a majority of the members elected to each house. Art. IV, § 12 157 History The first clause of tliis section appeared in the 1818 Constitution, but a separate section required revenue bills to originate in the House of Representatives. The 1848 Constitution omitted the revenue bill section, and except for the words "upon each bill separately," added the second and third clauses as they now appear. These additional words were pro- posed to the 1870 Convention and accepted by it without explanation or debate. The proposed 1922 Constitution put the substahce of the first clause in a separate section and added the sentence "No law shall be passed except by bill." The substance of the balance of the section was combined with elements of Section 13. Explanation Since Illinois has adopted the "journal entry rule" (see Explanation of Sec. 10, supra, p. 153), constitutional procedural provisions such as Section 12 are more than instructions to the legislature about how to en- act laws. They are also quasi-substantive provisions which litigants may rely upon in attacking the validity of legislation. (For an extended dis- cussion, see Comment below.) In general, judicial interpretations of a provision like Section 12 fall into one of two categories: one is the nature of the proof required to upset an enactment, the other is a matter of definition of terms used in the provision. Even though Section 12 says that the yeas and nays shall be entered on the journal, a recording of the yeas only will be accepted if the number constitutes a required constitutional majority. (People ex rel. Wies v. Bowman, 247 111. 276 (1910).) But if the journals indi- case that a bill passed one house with an emergency clause, passed the other without the clause, and neither journal exhibits a concurrence in the other version, then the Court will invalidate the statute as not having had the concurrence of a majority of both houses. (People ex rel. Oliver V. Knopf, 198 111. 340 (1902).) Or, if the journal entries show passage of a bill from the other house but with amendment followed by a recorded yea or nay vote to rescind the amendment, this is adequate evi- dence of conformance with the constitutional requirements for passage (People ex rel. City of Springfield v. Edmands, 252 111. 108 (1911); but the rescinding vote would have to be by a constitutional majority (People ex rel. Reitz v. DeWolf, 62 111. 253 (1871)). In any of these evi- dentiary journal questions, the burden of proof is upon him who would upset the law. Thus, if the journal is ambiguous in the description of amendments as a bill moved back and forth from one house to the other, the Court will presume that both houses were adopting the same amend- ments. (People ex rel. Badger v. Loewenthal, 93 111. 191 (1879).) 158 Art. IV, § 12 On the matter of definition ol terms, the principal problem has con- cerned the requirement oi a yea and nay vote "upon each bill separately." Although the purpose oi this phrase seems to be to guard against voting on a batch ot bills at once, the Coiut has had to beat down the claim that the j^hrase rec]uires separate votes on separate parts of a single bill. (See Hagler v. Small, 307 111. 160 (1923): .Mitchell v. Lowden, 288 III. 327 (1919).) A more reasonable argument can be made if separate parts of a single bill are amendments of separate laws, but it does not appear that the argument will prevail. (See Routt v. Barrett, 396 111. 322 (1947).) Of course, such arguments are almost automatically also claims that the act violates the one-subject requirement of Section 13. (Infra, p. 160.) The Court has also determined that the title of an act is not an essen- tial part of the legislation, at least to the extent that infirmities in the voting on the title do not invalidate the act. (Johnson v. People, 83 111. 431 (1876) (constitutional majority did not vote on title); Larrison v. Peoria, A &: D R.R., 77 111. 11 (1875) (two houses did not concur on title); Plummer v. People, 74 111. 361 (1874) (same).) Comparative Analysis Origination of Bills: All states, except unicameral Nebraska, of course, permit bills to originate in either house and to be amended in either house, but only about half of the states so specify in their constitutions. In 21 states, revenue bills may originate only in the lower house, and in Georgia appropriation bills also must originate in that house. The United States Constitution requires revenue bills to be introduced in the House of Representatives. The Model State Constitution's alterna- tive provisions for a bicameral legislature are silent on origin of bills. Eleven states have some kind of prohibition on the introduction of bills toward the end of the session. Yeas and Nays: Thirty-one other states require the entry of the yeas and nays iq^on final passage, and 13 of these specifically require that the name of each member and his vote be entered. It was noted in the Com- parative Analysis of Section 10 (supra, p. 154) that in all except four states, a demand could be made for the yeas and nays on anv cpiestion. Three of those four exceptions are included in the 31 that require entry upon final passage, so that it either is mandated or is possible, with a demand by the requisite number of members, to obtain entry of a yea and nay vote on final passage in the journal in 49 states. (The excep- tion is, of course, Massachusetts, which has no requirement that a journal be kept.) The United States Constitution provides for entry of any vote upon demand of one-fifth of those present and requires the entry, with the names of those voting, on any vote to override a veto. The Model Art. IV, § 12 159 State Constitution has no provision for yeas and nays upon final pas- saoe, but does provide for a record vote on any question if demanded by one-fifth of the members present. Required Majority: The vote required for passage of a bill in the sev- eral states is summarized in the following table: Number of Vote Required States Majority of members elected 26* Majority of members to which each house is entitled 2 Majority of those present but not less than a stipulated minimum 3 Majority of each house 3 Majority of those present 5 No majority requirement specified \\** * Includes Illinois. The Model State Constitution requires a majority of "all the members." (See Comment below.) ** The United States Constitution is also silent on the vote required to pass a bill. Comment Serious consideration should be given to the problems that arise in Illinois because the courts have followed the "journal entry rule." By virtue of this rule, anyone wishing to attack the validity of a statute, in addition to arguing the merits of the constitutionality of the legisla- tion, can search the journals of the two houses to see if there is any pro- cedural error in the legislative process upon which to make a claim that the act was not validly passed. All of this increases both the likeli- hood and the complexity of litigation. The first question to ask is whether or not the protection afforded by the journal entry rule is worth the cost. It must be noted that the journal entry rule serves a real purpose only in a case of either fraudulent or inadvertent signing of a bill by either the Speaker of the House or the Lieutenant Governor, or other ])residing officer. It must be further noted that even a fraudulent or inadvertent signing of a bill will survive if the journal has all the proper entries. As the Sangamon County Fair case, discussed under Section 10 {supra, p. 153), and other cases discussed above demonstrate, the courts do not question the accuracy of the journal entries. Thus, so long as the journal clerks make all the "correct" entries, a bill is "home safe." It follows that the journal entry rule does not protect people against fraudulent or inadvertent signing by the presiding officer, but against "sloppy" journal-keeping. Assuming that the foregoing is a con- vincing argument against the journal entry rule, the question becomes one of how to rewrite the section to insulate bill-passing from invalida- 160 Art. IV, § 13 tioii lor procedural defects; in other words, how to shift Illinois to an "enrolled bill ride" state, untler which the signing oi a Ijill by the pre- siding officers oi the two houses would l)e conclusive proof that consti- tutional procedures had been jMoperly loUoAved. One possibility woidd be to use the language proposed in ilic Model State Constitution as part of its section on confining bills to a single subject. The sentence reads: "Legislative compliance with the requirements of this section is. a con- stitutional responsibility not subject to judicial review." Another possi- bility is to make a minor change some place which, while not conclu- sive on its face, can be explained in Convention debates to be for the purpose of ending the Illinois rule. An example would be the addition of the following words to the requirement, now in Section 13, that bills be signed by the presiding officers: "which signing shall constitute a certificate that all procedural recjuirements for passage have been com plied with." A word is also in order concerning the constitutional requirement that bills pass by a majority of the members elected to each house. It was noted earliei* in connection with filling vacancies (see Comment on Sec. 2, supra, p. 119) that the Connnission on the Organization of the General Assembly recommended a constitutiona-l change to force the calling of special elections. The principal reason for the recommendation was the need for an absolute majority to pass a bill. The commission noted that it had considered but rejected a recommendation to eliminate the absolute majority requirement. (I.S.L. 9.) Notwithstanding the de- sirability of requiring special elections, the constitutional majority prob- lem could be met by using the wording of the Model State Constitution — "all the members" — instead of "all the members elected." It would, of course, be advisable to explain in the official record of the Conven- tion that the word "elected" was dropjjed in order to make the constitu- tional requirement a majority of the sitting members, excluding vacan- cies, and not a majority of the total number to which each house is entitled. Passage of Bills Sec. 13. Every bill shall be read at large on three different days, in each house; and the bill and all amendments thereto shall be printed before the vote is taken on its final passage; and every bill, having passed both houses, shall be signed by the Speakers thereof. No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed; and no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act. And no act Art. IV, § 13 161 of the General Assembly shall take effect until the first day of July next after its passage, unless, in case of emergency, (which emergency shall be expressed in the preamble or body of the act), the General Assembly shall, by a vote of two-thirds of all the members elected to each house, otherwise direct. History The 1818 Constitution contained only the requirement that every bill be read (but not "at large") on three different days, and the require- ment that the speakers sign every bill that passed. Three-fourths of a house could vote to dispense with a reading "in case of urgency." The 1848 Constitution preserved the foregoing and made two addi- tions: a requirement that a private or local law embrace only one sub- ject, to be expressed in the title; and a requirement that no public act take effect until 60 days after adjournment, "unless in case of emergency the General Assembly shall otherwise direct." Perhaps the most interesting thing about this section in the 1870 Con- stitution is that it was accepted by the Convention as proposed. There Avas an effort to strike out the printing requirement on the ground that it was an unnecessary, mandatory expense and there were several efforts to amend the "one subject only" requirement. The debate on these efforts was fairly confused and it is difficult to say whether the efforts to amend were designed to strengthen or weaken the provision. In the end, all efforts at amendment were beaten down. The Committee on Revi- sion and Adjustment made several stylistic changes and one substantive change that is rather interesting. The section as presented to the Con- vention — or at least as printed in the debates — read in part "and no law shall be revised or amended . . . , but the act revised or the section amended . . . ." It appears thus at least five times in the Debates. (De- bates 291, 393, 533, 916, 952.) When Article IV came back from the Com- mittee on Revision and Adjustment, the word "revised" had become "re- vived" and remained so. The proposed 1922 Constitution split Section 13 into several sections and made several changes. The bill-reading requirement was changed to provide for reading by title on three different days but with a proviso that tlie rules of either house could require reading "at greater length on second and third reading." The printing requirement was retained, but with a proviso that an amendment striking out an emergency clause need not be printed. The requirement that after passage a bill be signed by the presiding officers was retained and the following was tacked on: "and the facts of printing, placing on the desks of members, signing and presentation to the governor and the date of such presentation shall be entered upon the journals." (art. III,*§ 41.) The single-subject re- quirement was retained unchanged. The amendment-by-reference re- 162 Art. IV, § 13 quirenient was modified to "overrule" the line of cases, discussed below, tliat held that a completely independent act could iall aloul ol the prohibition. The wording was: "No act shall be revived by reference to its title only. An act expressly amend- ing an act shall set forth at length the section or sections as amended." (art. Ill, § 3G. tmpliasis added.) The provision concerning the eHective date oi legislation was changed to provide that appropriation acts were to take effect on July 1 but all other acts were to take effect 60 days after adjournment. The emergency exception was retained unchanged in sid^stance. Explanation Bill Reading: The requirement that every bill be read at large three times is as simple and clear a rule as coidd be drafted. It is hopelessly inirealistic and, as noted earlier (supra, p. 154), such reading does not take place, but the journals say it does and this satisfies the coiuts. The only additional point that has arisen is whether or not amendments have to be read at large on three different days. The answer is that they do not. (People v. Lewis, 5 111. 2d 117 (1955).) Such unread amendments must, however, be germane to the subject matter of the original bill. (Giebelhausen v. Daley, 407 111. 25 (1950) (appropriation act invalidated where unread amendment struck out everything after the enacting clause and substituted appropriation for wholly different purpose).) Bill Printing: Again, this is a requirement that is clear and specific. Moreover, the requirement includes "all amendments thereto." It was this requirement that was the cause of the most extreme Supreme Court ruling under the journal entry rule. In Neiberger x'. McCullough (253 III. 312 (1912)), the question was raised whether journal entries of yea and nay \otes in both houses to adopt a conference committee report that included amendments was adequate evidence that the amendments had been printed. The Cotnt held that unless the journal affirmatively stated that the amendments had been printed, it woidd be presumed that they had not been and that the statute was invalid for not having been passed in accordance with the constitutional requirement. Three years later the Court retreated from the Neiberger ruling and held that if there was something in the journal that would permit an inference of printing, such as an entry after second reading that the amendments "were ordered printed and engrossed," printing would be presumed. (Dragovich v. Iroquois Iron Co., 269 111. 478 (1915).) In the relatively recent case of Peoples Gas Light & Coke Company x>. City of Chicago (9 111. 2d 348 (1956)), the Siq^reme Court found another means of mitigating the harshness of the Neiberger rule. In Peoples, there was nothing in the journal of one house froin which to draw an Art. IV, § 13 163 inference of the printing of amendments adopted by a conference com- mittee. Instead of invalidating the statute as in Neiberger, the Court examined the amenchiients and conckided that it could not conclude that the legislature would not have passed the act without the amend- ments. By means of this "double negative" inference, the Court upheld the act and invalidated only the amendments. This, in a way, is a re- writing of the section, for it calls for the printing of the bill and amend- ments. Moreover, there is conceptual confusion confoiuided, for Section 16 of Article V (itifra, p. 293) requires a bill to be presented to the Governor. What was presented to him in the Peoples case was not the act which the Court declared to be valid. The, Court must have concluded, if it thought about the Governor at all, that he would have signed the bill if presented to him without the amendments. (C/. People ex rel. Dezettel v. Lueders, 283 111. 287 (1918), where an act was invalidated because, through an engrossing error, the bill presented to the Governor omitted amendments that had been adopted. See generally Cohn, "The Process of Legislation," 1963 U. 111. L.F. 27, 44-46.) Bill Sigfiing: Aside from noting that the drafters of the 1870 Constitu- tion were in error in using the word "Speakers," there is little to explain about the requirement. It can be suggested, however, that once the courts decide to follow the journal entry rule, the principal reason for having the bills signed has vanished. In a state following the enrolled bill rule, the signature of the presiding officers is accepted as conclusive certifica- tion that constitutional requirements have been met. Title and Subject: Two flat assertions may be made about this require- ment. One is that it is clear, simple, and imambiguous. The other is that it has been involved in a bewildering and enormous amount of litiga- tion which cannot be intelligently analyzed. The long and short of it is that almost any act can be demonstrated either to consist of only one subject or to consist of two or more subjects. One could, for example, argue with a straight face that some outlandish combination of regula- tions dealt with one subject: relationships among people. Likewise, one could argue that an act prohibiting gambling and making it a crime to gamble embraced two subjects: gambling and criminal behavior. The foregoing may be sophistical, but the fact is that most of the litigation involving multiple-subject legislation consists of each side making what- ever argument it can. The case of multiple subjects which no one would disagree with — e.g., an act to regulate roller coasters and to establish a state-wide system of junior colleges — just does not arise. Lest it appear that the foregoing is far-fetched, the following two cases may be noted. In Sutter v. People's Gas Light ir Coke Company (284 111. 634 (1918)), a statute which gave the City of Chicago the power to sell 164 Art. IV, § 13 surplus electricity and to regulate jirivate utility gas and electric rates was held to embrace two subjects. In People x'. Sargejit (254 111. 514 (1912)), "An act defining motor vehicles and j^roviding tor the registra- tion of the same and ot motor bicycles, and unilorni rules regulating the use and speed thereof; prohibiting the use of motor vehicles without the consent of the owner and the oiler or acceptance of any bonus or dis- count or other consideration for the purchase of supplies or parts for any such motor vehicle or for work or repairs done thereon by others, and defining chauffeurs and providing for the examination and licensing thereof, and to repeal certain acts therein named" was held to embrace only one subject. The problem of expressing the one permitted subject in the title em- braces all of the foregoing confusion and a 1)1 1 more. Obviously, there are two extremes in title-drafting. At one end, the title could simply repeat everything contained in the statute. At the other end, some totally gen- eral expression could be used, as for example, "An Act concerning motoj- vehicles." The first extreme is far-fetched, to be sure, but for the other extreme, consider Lamed xk Tiernan (110 111. 173 (1884)). The statute in question permitted a person who lost money by gambling to sue for recovery of his money. This was held to be embraced in the title "An Act to revise the law in relation to criminal jurisprudence." The addi- tional wrinkle comes if the title-drafters slip up and make the title a bit too narrow. In Rouse v. Thompson (228* 111. 522 (1907)), the Court held that the title, "An act to provide for the holding and the regulation of primary elections of delegates to nominating conventions, for the hold- ing of such conventions, filling vacancies and fixing penalties for the violation of the provisions thereof," was not broad enough because the act also covered nomination of candidates directly. The Court gave a little lecture on the subject, noting that an "Act to define larceny" could not include burularv, but that an "Act to revise the law in relation to criminal jurisprudence" could cover both. (And a civil remedy for gambling losses, too, for that matter.) Section 13 includes the instruction to the courts to invalidate only the part of an act not included in the title. This is a sensible instruc- tion, but its usefulness is limited. One ot the purposes of a single-sub- ject recjuirement is to prevent the tacking on of a rider not germane to the principal legislation. The rule of limited invalidation would pro- tect the principal legislation in such a case. But, as noted earlier, this is not the type of legislation that shows up in courts because it does not get passed in the first place. WHiat gets passed is legislation that the legis- lature thinks, and hopes the courts will think, is embraced in one sub- ject. When the courts decide otherwise, they are likely to conclude either Art. IV, § 13 165 that they do not know which of the two subjects that the legislature thought was one subject is embraced in the title, or that both subjects are embraced in the title. The statute is, accordingly, invalidated in toto. (See Sutter v. People's Gas Light & Coke Co., 284 111. 634 (1918).) On one point, at least, it is possible to be specific about the judicial interpretation of the one title and subject requirement. It applies only to acts of the General Assembly and not to municipal ordinances. (Chi- cago Cosmetic Co. v. City of Chicago, 374 111. 384 (1940).) Indeed, an ordinance need not even have a title. (City of Metropolis v. Gibbons, 334 111. 431 (1929).) Revival and Amendment: The problem of revival can be disposed of rather quickly. There is no problem because the legislature does not re- vive a law by the simple device of reference to it. (Compare the historical note, supra, p. 161, concerning "revised" and "revived.") This is the case, in part, because violation of the constitutional command would be so obvious. It is probably also partly because the legislating would be unlikely to revive an old law ^vithout change. It should be noted, however, that if Statute B repeals Statute A and Statute B is subse- quently declared unconstitutional, Statute A is "revived," but this is a matter of traditional constitutional theory and not related to the pres- ence or absence of a revival provision. {See People v. Fox, 294 111. 263 (1920).) It can also be noted that the policy expressed in this section is carried over as a public policy to municipal ordinances, and an ordinance that attempted to revive a repealed ordinance by reference to section numbers only was declared void. (City of Chicago v. Degitis, 383 111. 171 (1943). But, as noted above, the policy does not carry over so far as title and subject are concerned.) There really was no serious problem about amendment by reference until after 1900. The prohibition against amendment by reference was designed to prevent the enactment of a statute that might read some- what as follows: "Section 1 1 of 'An Act to do thus and so' is amended by inserting the word 'not' before the word "prescribe" and Section 12 there- of is amended by deleting the word 'not' from the second sentence." Whatever the merits of a constitiuional provision to prevent this sort of nonsense, amendatory legislation can easily be drafted so that he who reads knows what is being undertaken. But in 1900, the Supreme Court threw a monkey wrench into the legislative process by stating that if the purpose of an independent bill is in fact to amend an existing law or to add to it, then insertion at length of the amended act is required. (People ex rel. Stuckart v. Knopf, 183 111. 410 (1900).) This, naturally, produces a guessing contest between the legislature and the courts, and the courts always have the last guess. ]66 Art. IV, § 13 In 1913, the Supreme Court attempted to set lorth the guiding princi- ples: "(1) An act which is complete within itself and does not purport, either in its title or in the body thereof, to amend or revive any other act, is valid even thouHi it may by implication modify or repeal prior existing statutes.... " (2) An act, though otherwise complete within itself, which purports to amend or revive a prior statute h\ reference to its title only, and does not set out at length the statute amended or revived, is invalid, regardless of all other questions.. . . "(3) An act which is incomplete in itself and in which new provisions are commingled with old ones, so that it is necessary to read the two acts together in order to determine what the law is, is an amendatory act and invalid under the constitution, and it is unimportant, in such case, that the act does not purport to amend or revive any other statute." (People ex rel. Cant v. Crossly, 261 111. 78, 98.) One commentator recently quoted the foregoing and then observed: "These principles are so difficult of application that it is often impossible to predict with any degree of certainty whether or not an act will be held to offend in this manner." (Nichols, "Legislative Bill-Drafting in Illinois," 41 111. B. J. 136, 138 (1952).) There are a great many cases involving the amendment by reference rules, but it seems useless to review them. As long ago as 1919, it was noted that with the "large mass of statutes in force at any given time, it is possible to hold that practically any new piece of legislation is amend- atory of earlier legislation . . . ." (Legislative Reference Bureau, Consti- tutional Convention Bulletins 558 (1920) [hereinafter cited as Bulle- tins].) That observation is much more apt 50 years later. Suffice it to say that sometimes the courts find a statute void, sometimes not, and that no amount of analysis of the cases advances one beyond the observation of Mr. Nichols quoted above. There is one minor aspect of amendment by reference that should be mentioned. It has been pointed out that the prohibition "means that it is frequently necessary to have several 'companion' bills to accomplish a single purpose. For example, it took 70 separate bills at the 1961 session to try to make 55 percent of full, fair cash value of property the assessed valuation for property tax purposes." (Gove, "The Business of the Legis- lature," 1963 U. 111. L.F. 52, 68.) Into this lugubrious tale of the difficulties with amendment by refer- ence, there are a couple of cheerful observations that can be inserted. This prohibition does not extend either to explicit repeal of an existing law, or to repeal by implication. (See People v. Borgeson, 335 111. 136 (1929).) Nor is Illinois saddled with a prohibition against incorporating parts of other laws by reference. (New York has such a prohibition. In order to allow New York taxpayers to use their federal income tax com- Art. IV, § 13 167 putations for purposes of computing their state income tax, it was neces- sary to amend the Constitution. Otherwise, large chunks of the Internal Revenue Code would have had to be inserted at length in the New York income tax laws. Indeed, when the legislature subsequently adopted an act enabling the City of New York to levy an income tax, the foregoing amendment was found not to be applicable. The enabling act includes an appendix of over 400 pages of provisions from the Internal Revenue Code.) Effective Date: The most important effect of the provision that, except for emergency legislation, legislation goes into effect on the first day of July following enactment, is that it puts a practical limit on the length of the regular biennial session. This naturally produces a jam of legis- lative activity towards the end of June. On occasion, the legislature has a "stop-the-clock" session in order to complete action "prior" to July 1, but actually after midnight on June 30. Fortunately, courts will not look beyond the journal and an affidavit by a legislator that the clock was so stopped will be ignored. (Gouker v. Winnebago County Bd. of Supervisors, 37 111. 2d 473 (1967).) The requirement is that passage take place before July 1, and this has been construed to refer to the time of legislative action and not to the date when the Governor signs the bill. (People ex rel. Kell v. Kramer, 328 111. 512 (1928).) In those cases of signature after July 1, the act takes effect immediately. (Id.) The legisla- ture can, however, provide that an act become effective on a date later than July 1. (People ex rel. Thomson v. Barnett, 344 111. 62 (1931).) Section 13 allows immediate effectiveness of an act if there is an emer- gency and if the bill passes both houses by a two-thirds vote. In Graham V. Dye (308 111. 283 (1923)), the Supreme Court made it clear that a simple statement that there is an emergency is insufficient, that the legis- lature must include words sufficient to spell out the nature of the emer- gency. Although the Court implied that the existence of an emergency is an objective fact from which one might infer that the Court could "second guess" the legislature, it seems more likely that the courts will be satisfied with a recital describing the emergency. For example, the Court has held that it was sufficient to state that a substantial amount of money would be saved for the taxpayers if the statute went into effect immediately. (People ex rel. Tuohy v. City of Chicago, 394 111. 477 (1946); People v. Chicago Transit Authority, 392 111. 77 (1945).) In neither case is there any hint that evidence would be received to refute the legislative finding of an emergency. (See Comment below for further discussion.) 168 Art. IV, § 13 Comparative Analysis Bill Reading: Thirty-four states, including Illinois, require three readings before passage, three states require two readings, and 13 states have no requirement. In six states, including Illinois, such reading must be at large on all three occasions. Two states say it must be at large twice. Seven states say once, usually on third reading. A few states call for reading by sections on various numbers of occasions. Of those states (37) requiring readings, 33 require them to be on various days, but eight of these either permit two of the readings on the same day or empower the legislature to waive the different-day requirement by a specified majority vote. A dozen or so states have provisions for totally dispensing with a reading, such as in case of actual insurrection, upon unanimous consent, or upon an extraordinary vote of two-thirds, three-fourths or four-fifths Neither the United States Constitution nor the Model State Constitution mentions bill reading. Bill Priyiting: Approximately a half dozen states specifically cover printing of both bills and amendments before final passage, and another half dozen require printing of a bill before final passage under circum- stances that would require printing of amendments. New York requires bills to be printed and on members' desks in final form at least three calendar legislative days prior to passage, but the governor may certify an emergency recjuiring an immediate vote, and even then the bill in final form must be on every member's desk before the vote is taken. Michigan's new Constitution contains one small change in the bill-print- ing requirement — the words "or reproduced" have been inserted after the word "printed." The United States Constitution has no printing requirement. The Model State Constitution's provision is substantially the same as New York's, but without the governor's power of waiver. Bill Signing: Twenty-nine other states specify that the presiding officers of each house shall sign a bill after passage, and in 20 of the states the signing is to take place in the presence of the house. Two states require the additional signatures of the clerks of the houses. Sixteen states require that the fact of signing be entered in the journal. Minnesota even covers the contingency of a refusal by the presiding officer to sign a bill after passage. Neither the United States Constitution nor the Model State Constitution speaks of bill signing. Subject and Title: Some 40 other states limit a bill to one subject, and almost all of them also specify that that subject be expressed in the title. Fifteen states permit exceptions, generally either for appropriation bills or statutory revisions, or both. Six of the nine states with no "one subject" requirement are the New England states. The United States Constitution has no such requirement. The Model State Consti- Art. IV, § 13 169 tution has a "one subject" provision with the two exceptions just men- tioned, but also the following sentence: "Legislative compliance with the requirements of this section is a constitutional responsibility not subject to judicial review." (art. IV, §4.14.) Revival and Amendment: Some 31 other states prohibit amendment by reference and, in most cases, specify that the section amended be set out in full. Some 15 other states have much the same prohibition on revival of a statute, and some 13 states prohibit revision of a statute by reference. Interestingly, none of the states prohibiting revision by reference prohibits revival by reference, but all except two of the states prohibiting amendment by reference also prohibit either revival or revision but, of course, not both. (See the history of this word change, supra, p. 161.) There appear to be three states prohibiting incorporation of part of another statute by reference. Only one of these states. New York, is not included among the amendment and revival/revision by reference states. Neither the United States Constitution nor the Model State Constitution has any kind of prohibition on legislative action by reference. Effective Date: Twenty-eight states, including Illinois, specify when a law is to become effective; four specify that a law becomes effective either when published (2), or as provided in the act (1) or both (1); and 18 states have no provision concerning an effective date. The 28 states have specifications as follows: Number of Effective Date States 90 days after end of session 13 60 days after end of session 3 20 days after end of session 1 3 months after end of session 1 90 days after passage 4 60 days after passage 1 40 days after passage 1 July 1 after passage 2 July 1 after end of session 1 June 1 after end of session 1 All of the 28 states have a provision for an exception to the specified date of effectiveness. (The other 22 states have no need for an exception.) 170 Art. IV, § 13 Number of Exception for Emergency States Four-fifths of members voting 1 Two-thirds of members elected 16* Two-thirds of members voting 1 Three-fifths of members elected 1 Majority of members elected 1 By declaration in statute 7 By governor's certification to the legislature 1 Not applicable to appropriation and/or money bills 12** * In one of these states the governor may declare an act an emergency measure. ** These are inckided in the 28. The United States Constitution has no provision concerning an effec- tive date. The Model State Constitution provides that "no act shall be- come effective until published as provided by law." Comment Bill Reading: Since the original reasons for this requirement — the absence of printing and, on occasion, legislators who could not read — are gone, the provision could easily be dispensed with. If this seems too great a break with tradition, or if there is a wish to insure that the legislature acts with all deliberate speed, then it would suffice to delete the words "at large" and substitute "by title." This, at least, would make the Constitution conform to reality. (This is the recommendation of the Commission on the Organization of the General Assembly. I.S.L., p. 13.) Bill Printing: In any well-run legislature, bills will be printed — or "reproduced" as Michigan now also permits — and it is highly unlikely that removal of a requirement for printing would have any effect on the practice of printing. By the same token, there is no reason for removing a requirement that will in practice be followed — except, unfortunately, for the journal entry rule and the consetjuence that a statute may be in- validated through the inadvertence of not reprinting after a minor final change or the even less crucial inadvertence of failing to make the ap- propriate entry in the journal. Unless some such solution for ending the journal entry rule as suggested in the Comment on Section 12 (supra, p. 159) is adopted, it would be advisable to consider dropping the print- ing requirement as a means of eliminating the possibility of a technical journal entry error that can invalidate a statute. Bill Signing: It would appear that this requirement either ought to be rewritten in a manner that would serve to end the journal entry rule as suggested in the Comment on Section 12 {supra, p. 159) or it ought to be Art. IV, § 13 171 dropped, for unless the signatures of the presiding officers serve the pur- pose of certification of procedural conformance, they are an empty ritual. Title and Subject: There is certainly nothing objectionable about the principle of one bill-one subject-one title. (Even so, life goes on where the principle is not followed, as in the United States Congress. Students of federal jurisdiction know that the Urgent Deficiencies Act of 1913 provided for certain types of three-judge court litigation, notwithstand- ing the fact that the title describes an appropriation act.) What is ob- jectionable is the mischief wrought by litigants. There are two groups of people for whom the rule is written. One is the legislators themselves; the other is the general public or, to be niQre realistic, the legal profes- sion. The litigants who seek to invalidate legislation on the basis of violation of the one subject-one title rule are surely not legislators. They are, obviously, members of the general public. But there probably has never been a case where the litigation arose because the plaintiff: or de- fendant, as a member of the public, or, realistically, his lawyer, behaved as he did because he was misled by the title of the act or because he missed a statutory requirement that was in an act principally dealing with another subject. Without exhausive research, it is safe to assert that almost every case involving the one subject-one title rule has been either a case to test the constitutionality of a new law or a case in which the litigant was really interested only in the substance of the legislation. In both instances, one subject-one rule was thrown in for good measure. There is, of course, the argument that the rule is designed to protect the general public vicariously. This is the argument that the legislature would never have passed the act in the first place if they had not been misled by the title. Or it is argued that the general public must be pro- tected from the log-rolling and other devices by which "bad" legislation can be pushed through if there is no enforceable one subject-one title rule. This is not unlike the United States Supreme Court's efforts through exclusion of evidence to get police to change their methods. In many instances, the police quickly find ways to get around the Court de- cisions. Similarly, legislators can find ways of engaging in log-rolling and achieving other questionable results even if the multiple-subject- bill road is forbidden to them. The Model State Constitution has solved the problem of preserving the principle of one-subject bills without the accompanying misuse of the principle by litigants. As noted above in the Comparative Analysis, the following sentence is added to the one-subject bill section: "Legis- lative compliance with the requirements of this section is a constitu- tional responsibility not subject to judicial review." 172 Art. IV, § 13 In explanation and justification for the reconunendation, the following commentary is provided by the drafters of the Model State Constitution: "The main provision is common to most state constitutions. It requires that all laws be enacted by bill, i.e.. in a manner which gives notice to all legislators and to the people that the legislature is not merely expressing a sentiment or an opinion but is in fact passing a law in the prescribed and approved manner. The section further provides that all bills, except the appropriation bills and codified revisions and rearrangements of existing law, be confined to a single subject. This has been considered a beneficial rule to avoid such abuses as log- rolling, the attachment of special interest riders to bills to which they are not germane and other devices whereby legislatures and the people may have to accept an undesirable piece of legislation in order to get a useful and necessary one or to avoid a situation in which the content of a particular piece of legis- lation may be completely obscured or may be rendered incomprehensible by the coupling of unrelated matter. "While there is little disagreement over the desirability of limiting each bill to a single subject, a great body of highly technical decisional law has grown up explaining what is a 'single subject.' (Footnote: Millard H. Ruud, 'No Law Shall Embrace More Than One Subject,' Minnesota Law Revieiv, 42 (January 1958), 389-452.] In its most restrictive applications, the so-called single subject rule has resulted in the invalidation on essentially extraneous if not frivolous grounds of perfectly sound legislation which misled neither the legislators nor the people. In order to create what appears to be a desirable balance between the necessity of affirming the value of the single subject rule and the undesira- bility of having the rule operate as a basis for the invalidation of sound legis- lation on merely technical grounds, the last sentence has been added. It is not part of any state constitution. It provides that legislative compliance with the technical requirements of this section is not subject to judicial review, though it remains a constitutional responsibility of the legislature. In effect, this means that the legislature will have to police the single subject rule in the first in- stance and. if abuses should occur, then the governor's veto might be the proper remedy in response to public pressure or on the basis of information received from the state legislature itself. The unavailability of judicial review may en- courage mischief which would then have as its sole corrective the normal political processes and a prompt governor's veto. On balance this appears to be wiser than to permit the courts, as has been the case under existing rules, to invalidate a law, often many years after it has been passed, merely on the basis of a technical infirmity where, in fact, no one had been misled. It might be noted that similar considerations were persuasive in omitting the 'subject title' rule which required not only that bills be confined to a single subject but that the single subject be expressed in the title. The past history of the single title rule leads to the conclusion that it is more creative of the mischief of highly technical invalidations than beneficial to the achievement of its purposes." (Model State Constitution 59-60.) Revival and Amendment: As in the case of the one-stibject bill pro- vision, a prohibition on amendment by reference is a perfectly good principle. (But again, it may be noted that Congress does not follow the rule.) The explanation of this provision {supra, p. 169) demonstrates that the arguments set forth above in discussing the "one subject" rule Art. IV, § 14 173 are even more apt in the case of amendment by reference. Moreover, with the existence of a Legislative Reference Bureau, the increasing accept- ance of legislative staff assistance and the practice of preparation of digests of bills, both official and unofficial, the need for a prohibi- tion on amendment by reference to protect legislators against acting in ignorance is hardly necessary. So far as the general public, and their lawyers, are concerned, the existence of an up-to-date compilation of statutes with annotations decreases, if it does not eliminate, the need for covering a library table with many volumes in order to put together a single statute. The revival and amendment requirement could be dropped without harm. ff, however, it is desired to preserve the requirement, one of two things should be done. Either the Afodel State Constitution's approach, dis- cussed above, should be followed, or the provision should be changed, as recommended in 1922, to cover only an act expressly amending another act. This should eliminate substantially all judicial review and should leave the legislature under an injunction that would be easy to obey. Effective Date: It would appear advisable to make some change in the effective date provision. If the decision is made to go to annual sessions, some of the end-of-session log jam will be alleviated but hardly enough to justify preservation of the July 1 effective date. The 1922 proposal to change to 60 days after adjournment on all bills except appropriations would end the forced June 30 adjournment, but it is worth considering whether any provision is required, whether a requirement that the effec- tive date be no earlier than publication would suffice, or whether a stated period of delay— 30, 60, 90 days— should be computed from passage rather than from adjournment. If the decision is to preserve a constitutionally delayed effective date, then, of course, there must be an- exception for "emergencies." It would seem advisable to obviate the possibility of judicial second-guessing of the "emergency" by simply deleting the words "in case of emergency, (which emergency shall be expressed in the preamble or body of the act)." Privileges of Members Sec. 14. Senators and Representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place. History Except for variations in punctuation, this section is identical with provisions in the 1818 and 1848 Constitutions. The section was reworded ]74 Art. IV, § 14 in the proposed 1922 Constitution. The official explanation said that "[t]his section is the same .... "(P.N.C. 32), but this is arguable. (See Comment below.) Explanation This section serves two purposes — to protect legislators from harass- ment and to protect freedom of debate from threats of libel actions. Freedom of debate offers no difficulty. Indeed, the apparent absence of reported cases probably indicates a general understanding that the privilege is absolute. Freedom from arrest is a different matter. Again, there are apparently no cases on this but one can doubt that the matter is clear. A natural assumption is that the exception to freedom from arrest for "treason, felony or breach of the peace" leaves legislators with some protection from criminal process. For example, in Section 4 of Article XII (infra, p. 541), the same phrase appears as an exception to the freedom from arrest of a militiaman under comparable circumstances. In an opinion in 1915, the Attorney General ruled that militiamen arrested for assault and drunkenness were under the "breach of the peace" exception. (1915 111. Att'y Gen. Rep. 229.) The implication of liis opinion is that militia- men would be free from arrest for misdemeanors that do not constitute "breach of the peace." The question is whether the Illinois courts would ultimately follow the United States Supreme Court's interpretation of the same exception in the United States Constitution. That Court held that the words "treason, felony or breach of the peace" were well understood in 1787 to limit the privilege from arrest to the same privilege granted to mem- bers of Parliament — namely, freedom from civil arrest. (Williamson v. United States, 207 U.S. 425 (1908).) In other words, "breach of the peace" was used in the sense of "any crime not a felony," rather than in the sense of the common law offense of breach of the peace. Civil arrest is relatively rare today but it was still common in the colonies at the time of the adoption of the Constitution. As noted below, some states include protection from civil process. The Illinois Supreme Court has held that Section 14 does not deprive the legislature of the power to provide such protection, but it effectively destroyed the power by holding that an exemption from civil process for legislators only was a prohibited special act under Section 22 of this Article. (Phillips v. Browne, 270 111. 450 (1915).) Either the delegates to the 1920 Convention were unaware of the Phillips case or did not care to provide protection from civil process. In any event, there was no debate on the matter. Art. IV, § 14 175 Comparative Analysis Privilege Against Arrest: Some 40 states besides Illinois provide some protection against arrest, the vast majority of the provisions closely re- sembling Section 14. Some 13 states also include protection against civil process and four states protect only against civil process. The new Mich- igan Constitution has a unique provision protecting against "civil arrest and civil process." This presumably was done to conform to In re Wil- kowski (270 Mich. 687 (1935)), which construed "treason, felony or breach of the peace" to exclude criminal process just as the United States Supreme Court had done in the Williamson case. The language of the United States Constitution is in substance the same as Section 14. The Model State Constitution has no comparable provision. Protection of Speech: Some 42 states besides Illinois protect legislative speech, almost two-thirds of them using substantially the same language as in Section 14. The two new states, Alaska and Hawaii, have adopted modern language to cut back the breadth of "questioned in any other place." Obviously, constituents and others can very well "question" re- marks made on the floor. These two states provide that legislators are "not to be held to answer before any other tribunal." (Alas. Const, art. II, §6; Hawaii Const, art. Ill, §8.) Comment In the Comment on Article II, Section 16, it was suggested as a princi- ple of constitution-drafting that traditional language ought to be left alone. The equivalent of Section 14 in the proposed 1922 Constitution is an example of the significance of this principle. That equivalent read: "Except for treason, felony or breach of the peace senators and representatives shall be privileged from arrest while going to, attending or returning from sessions of the general assembly. They shall not be questioned elsewehere for any speech in either house, (art. Ill, § 53.) First, it is to be noted that in the first sentence the provision was changed from "during the session" to "attending . . . sessions." If one assumes that constitution-drafters choose their words carefully and further assumes that a change in wording is made for good reason, then one searches for the significance of the change. In the example here, it would be logical to conclude that the protection against arrest is re- moved during periods when a member is not in attendance — for ex- ample, during a long recess, or while ill, and the like. To be sure, the official explanation stated that the section is the "same" as Section 14, and this would weigh heavily in litigation. The point is that an un- necessary change is simply an invitation to litigation. The litigation may be doomed to failure, but if no change is made, there probably will be no litigation at all. ^76 Art. IV, § 15 The second sentence of the proposed provision had two changes — "in any other phice" became "elsewhere" and "speech or debate" became simply "speech." The "elsewhere" change seems harmless enough, but the dropping ol "debate" clearly raises a question. Legislators make what are customarily denominated "speeches"; they also engage in "debate." Obviously, spontaneous debate needs more protection than a carefully prepared speech and thus any distinction deduced irom the proposed change would have been at cross purposes with the spirit ot the protection. Nevertheless, the proposed change could have given rise to litigation. Section 14 is an excellent example ot the obverse of the foregoing. A failure to change wording which has acquired a technical meaning wall frequently be construed to mean that the drafters accepted the technical meaning. For example, it is doubtful that the delegates to the 1920 Convention were aware of the civil arrest interpretation of the "treason, felony or breach of the peace" exception. It may be that a discussion of the matter would have resulted in preservation of the interpretation, perhaps by such wording as Michigan used (see above), or would have resulted in a change in wording in order to protect legislators against certain limited criminal process. Restrictions of Members Sec. 15. No person elected to the General Assembly shall receive any civil appointment within this State from the Governor, the Governor and Senate, or from the General Assembly, during the term for which he shall have been elected; and all such appointments, and all votes given for any such members for any such office or appointment, shall be void; nor shall any member of the General Assembly be interested, either directly or indirectly, in any contract with the State, or any county thereof, authorized by any law passed during the term for which he shall have been elected, or within one year after the expiration thereof. History The 1818 Constitution simply prohibited the appointment of a legis- lator, during his elected term, to any civil office under the state which had been created or the emoluments increased during such term. The 1848 Constitution substituted a section that differs in only one respect from the present Section 15. The 1848 provision included a prohibi- tion against appointing a member of the legislature to the United States Senate. The present Section 15 was accepted by the 1870 Convention without change, but only after an extended debate over a proposal to add a prohibition on railroad employees also holding public office and on any legislator or other public officer holding a free railroad pass. The proposed 1922 Constitution extended the civil appointment coverage to Art. IV, § 15 177 include county and local "lucrative" positions and the contract coverage to include local governments as well as the state and counties. Explanation The first part of this section duplicates Section 3 (supra, p. 120) to some extent, but in two respects goes beyond it. That section, it will be recalled, covers named offices and other "lucrative" offices. This sec- tion covers "civil appointments." Indeed, because of the potential breadth of "civil appointments," it was necessary for the Supreme Court to devise an intrepretation that would permit legislators to serve, with- out salary, on commissions such as the Gettysburg Memorial Commission, Golden Gate Exposition Commission, and New York World's Fair Com- mission. The Court said that the prohibition was aimed at appointments that are of a permanent nature and that lend themselves to personal ag- grandizement with opportunity for private gain, pecuniary or otherwise. (Gillespie v. Barrett, 368 111. 612 (1938).) The second respect in which this section goes beyond dual office hold- ing is the formulation that prevents a legislator from accepting a civil appointment by resigning his legislative seat. (See 1921 III. Att'y Gen. Rep. 167.) The purpose of this formulation is to prevent the Governor from "bribing" a legislator for a favorable vote or for a legislator to "extort" a job from the Governor in return for a favorable vote. The second half of the section is a straightforward prohibition of a particular form of conflict of interest. Comparative Analysis Dual Office Holding: (See the Comparative Analysis of Sec. 3, supra, p. 125.) Contracts: Seven states have a comparable provision. Twelve states, one of which is included among the seven, have a provision requiring a legislator who has a personal interest in a measure to disclose that fact and to refrain from voting on the measure. Neither the United States Constitution nor the Model State Constitution has a comparable con- flict-of-interest provision. Comment Paradoxically, there are two important principles, somewhat contra- dictory, which should govern the drafting of a comprehensive dual office holding provision. One is that careful consideration should be given to precisely what purposes are served by the prohibition against dual office holding, what types of positions should be covered, and how the prohibi- tion is to operate. (That is, for example, whether a legislator can vacate one office to take another, as under Section 3, or can not, as under Sec- 178 Art. IV, § 16 tion 15.) The second principle is that the constitutional provision em- bodying the precise purpose and coverage should not be too precise. There are two reasons for this. One is that precision, entailing, as it must, considerable detail, may soon be out of date. (Consider, for example, the anachronism involved in distinguishing between postmasters on the basis of annual compensation above and below $300, as in Section 3.) The other is that precision either decreases judicial flexibility in de- veloping a body of law designed to carry out the provision's purposes, or results in an unsatisfactory body of law because the judiciary engages in strained reasoning in order to preserve flexibility. The paradox can be handled by a simple statement in the draft to be considered by the dele- gates, accompanied by a comprehensive report that spells out the pur- poses of the provision, the types of positions that are covered, the types that are not covered, and the like. This becomes a "legislative record" that the courts can use in carrying out the purpose of the provision through time and notwithstanding changes in job content and job titles. Conflict of interest is an equally vexing problem, but it is doubtful that it can be solved in the manner suggested above. The difficulty is that the entire subject is murky and any enforceable statement of general principle is likely to produce as many injustices as it prevents wrong- doing. A provision such as now appears in Section 15 is safe enough, but it obviously is only a segment of the conflict-of-interest problem. The real question is whether it is better to leave the entire problem on the statu- tory level than to place only a partial solution in the Constitution. There is, however, a special problem concerning conflict of interest and the legislature. Experience has shown, most notably in the case of Congress, that there is a natural reluctance on the part of legislators to enact as strict conflict-of-interest rules applicable to themselves as they enact for the executive department. Moreover, if the Constitution con- tains conflict-of-interest restrictions on the legislature, there is little doubt that it will see to it that the rest of the government is equally restricted, and this obviates any need for sprinkling conflict-of-interest provisions throughout the Constitution. A neat balancing act between excessive detail and the need to prod the legislature to police itself is called for. Appropriations Sec. 16. The General Assembly shall make no appropriation of money out of the treasury in any private law. Bills making appropriations for the pay of members and officers of the General Assembly, and for the salaries of the officers of the government, shall contain no provision on any other subject. Art. IV, § 16 179 History The second sentence of this section first appeared in substance in the 1848 Constitution. The first sentence was added in 1870. According to the Chairman of the Committee on the Legislative Department of the 1870 Convention, the sentence was requested by the Auditor of Public Accounts who had found that sometimes amendments appropriating money had been tacked onto private bills. The proposed 1922 Constitu- tion omitted the first sentence. The second sentence was changed in two respects. The General Assembly portion of the sentence was made to cover the pay of legislative employees in addition to members and officers. So far as officers of the government were concerned, the proposed section required that appropriations for the office of each of the seven elec- tive state officers be in separate bills. Explanation Private Bills: As noted above, the primary purpose of the first sen- tence of this section was to stop an earlier practice of tacking appropria- tion amendments onto private bills. Since Section 13 {supra, p. 160) prohibits multiple-subject bills and Section 22 {infra, p. 203) greatly cuts down the passage of private acts, the appropriation prohibition has not been of great significance. The only litigation invoking this sen- tence appears to have been in the nature of a make-weight argument, usually in a test case involving a general law. {See, e.g., Cremer v. Peoria Housing Authority, 399 111. 579 (1948); Hagler v. Small, 307 111. 460 (1923).) Pay: This sentence, analogous to the one subject-one bill rule of Sec- tion 13 {supra, p. 160), has brought forth considerable litigation, in- cluding some of the cases brought by the famous litigating taxpayer, J. B. Fergus. In the first Fergus v. Russel case (270 111. 304 (1915)), the Supreme Court dealt with what was called the "Omnibus Bill." It made a number of appropriations for a number of different purposes. Included were sums of money for the compensation of various people in various positions. The claim was made that these appropriations violated the second sentence of Section 16. The Court first had to dispose of a matter of principle — namely, whether the concluding words "any other sub- ject" really meant "any other subject than appropriations." All earlier cases construing this sentence had involved appropriations mixed with substantive legislation. The Court was unwilling to accept the prof- fered distinction and ruled that the concluding words meant "any other subject than pay of members and officers." The Court then went through each of the items of appropriation for pay and decided on the basis of the definition of officer in Section 24 of Article V {infra, p. 322) 180 Art. IV, § 16 whether the position was that of officer or employee. (There were a great many other constitutional problems involved in this landmark case, but they are discussed in connection with other sections of this and other Articles.) The third Fergus i>. Russel case (277 111. 20 (1917)) involved the first sentence of this section and held that appropriations to pay claims against the state were not "appropriations in a private law." In one of the cases distinguished by the Court in the first Fergus case, the Court had in fact construed appropriation language not to be an appropriation but only a provision for the amount to be paid to an officer from an appropriation. (People v. Joyce, 246 111. 124 (1910).) Some years later, in a case which did not refer to the Joyce case, the Court quite consistently held that such a provision did not entitle an attorney to payment of his salary where the Governor struck the item therefor from the "members and officers" appropriations bill. (People ex rel. Millner v. Russel, 311 111. 96 (1924).) Tlie recent case of People ex rel. Coons t. tlowlett (33 III. 2d 304 (1965)) involved this section, at least in the eyes of the dissenting judge. It appears that the legislature passed an amendment to the regular com- pensation of legislators provision increasing salaries from S6,000 to $7,500 per annum. The Governor vetoed the bill. The appropriation act, passed after the compensation amendment and on the assumption that it Avould not be vetoed, provided a sum for legislators' salaries at the rate of $7,500 per annum. The Supreme Court refused to issue a writ prohibiting payment of the larger salary. "The later law constitutes an amendment by implication and its provisions must prevail." {Id. at 308.) What happened to amendment by reference? Neither the opinion of the Court nor the dissent discusses the matter. (See discussion of Sec. 13, supra, p. 160.) The dissenting judge argued that to allow an amendment by implication in an appropriation act was a violation of the second sentence of Section 16. He also argued that an appropriation act, cover- ing, as it does, only two fiscal years, can hardly be a "law" under the rubric of Section 21 — "compensation as shall be prescribed by law." {Injra, p. 200.) Comparative Analysis Private Bills: No other state appears to have a comparable provision. Two states forbid appropriations for private purjDoses, a prohibition found by the courts in Illinois to be the thrust of Section 20. (See Com- ment on Sec. 20, infra, p. 199.) The absence of such a specific prohibition in other state constitutions does not mean that appropriations for private purposes are permitted. Most state courts would invalidate an appro- priation for a purely private purpose. Four states permit appropriations for private or local purposes but only by a two-thirds' vote of the Art. IV, § 17 181 membership of each house. But here again, such permission is probably of a Hmited nature. In New York, for examjjle, a two-thirds' vote is required for state grants to local governments, but another provision comparable to Section 20 effectively prohibits truly private appropria- tions. The United States Constitution has no comparable prohibition. The Model State Constitution has a limited prohibition on private laws. (See Comparative Analysis of Sec. 22, iyifra, p. 223.) Pay: The Nebraska Constitution (1875) and the West Virginia Con- stitution (1872) have a limitation in almost the same wording as the second sentence of Section 16. Two states include in the limitation both salaries and other current expenses of the state. Three states simply specify that appropriation bills should not have extraneous riders at- tached. The United States Constitution does not prohibit riders and, in fact, Congress frequently includes substantive legislation in appropria- tion acts, sometimes germane to the appropriation, sometimes totally irrelevant. The Model State Constitution limits appropriation bills to appropriations, but states that the recjuirement is not subject to judicial review. (See Comment on Sec. 13, supra, p. 170.) Comment As noted in the Explanation above, there is some question whether the first sentence of this section serves any purpose. The only purpose served by the second sentence presumably was to prevent the legislature from forcing an unwanted appropriation on the Governor who would have had to deny pay to himself and all other state officers if he were to veto the bill. But this eventuality was obviated by the item veto amend- ment to Section 16 of Article V. (Infra, p. 293.) Any legislative matter other than an appropriation could as easily be stricken under the one- subject rule of Section 13 {supra, p. 160) as by this sentence in Section 16. In this connection, it should be noted that the Model State Con- stitution exempts appropriation bills from the one-subject rule but pro- vides that appropriation bills must be limited to appropriations. Treasury Warrants — Duty of Auditor Sec. 17. No money shall be drawn from the treasury except in pursuance of an appropriation made by law, and on the presentation of a warrant issued by the Auditor thereon; and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution. The Auditor shall, within sixty days after the adjourn- ment of each session of the General Assembly, prepare and publish a full statement of all money expended at such session, specifying the amount of each item, and to whom and for what paid. 182 Art. IV, § 17 History The 1818 Constitution provided that no money should be drawn Ironi the treasury except in consequence ol an aj^propriation made by law. That Constitution also provided that "[a]n accurate statement of the re- ceipts and expenditures of the public money shall be attached to and published with the laws, at the rising of each session of the General Assembly." The 1848 Constitution made no substantive change in the foregoing. The present version of Section 17 was accepted by the 1870 Convention without explanation or debate. The proposed 1922 Consti- tution retained the first half of the first sentence and the substance of the second sentence. The second halt of the first sentence was omitted as a repetition, in effect, of the first half. (See State of Illinois, journal of the Constitutional Convention 1920-1922 at 363-64 (1922) [hereinafter cited as Journal].) Explanation The first half of the first sentence is a peculiar combination of two distinct propositions. One is the imiversal principle that money that flows into the treasury gets paid out only pursuant to appropriations. The second makes the Auditor of Public Accounts, not the Treasurer, the state's chief disbursing officer, and thereby indirectly adopts the principle of an independent pre-audit of public expenditures. The second half of the sentence is, as the 1920-22 Convention recognized, simply repetitious. This is so because by virtue of Section 11 {suprn, p. 155), a law requires an enactment clause and separate and joint resolutions do not have one. There have been a number of cases and opinions of the Attorney Gen- eral under the appropriation portion of the first sentence of this section. With one exception, the cases and opinions all say that the sentence means what it says. {See, e.g., People ex rel. Board of Trustees v. Bar- rett, 382 111. 321 (1943); Burritt v. Commissioners of State Contracts, 120 111. 322 (1887); 1917 111. Att'y Gen. Rep. 40; 1914 111. Att'y Gen Rep. 194.) The one exception is Antle x>. Tuchbreiter (414 111. 571 (1953)) where the Supreme Court quite sensibly held that social security taxes withheld from state employees pursuant to an Enabling Act could be paid over to the United States without the necessity of an appropriation. There are two other recent cases which, if read too hastily, appear to permit disbursements without an appropriation, but which, when read carefully, are revealed to have subtle rationales. In People ex rel. Conn xk Randolph (35 111. 24 (1966)), attorneys representing indigent defend- ants in murder trials ran up expenses and provided legal services far in excess of a statutory maximum for indigent representations. The Court pointed out that the indigents were constitutionally entitled to repre- sentation at the expense of the state, and that the state could hardly Art. IV, § 17 183 defeat this constitutional requirement by tailing to provide adequate funds to meet the requirement. Under some circumstances, the result might have been that the lawyers had a just claim against the state which they would have had to j^rosecute. In the Conn case, however, the Court was able to find the money. The accused were prisoners and the murders had occurred in the course of a prison riot. The Court noted that the Department of Public Safety was responsible for the prosecution of crimes committed in prison, and that such prosecution could not take place unless the accused were provided with counsel. The Department had a fund for contingencies, and the Court simply stated that payment should be made from that fund. The other case involved the not uncommon situation of having to decide whether or not a spe- cific proposed expenditure could be brought under one of the more gen- eral line items in an appropriation. Here taxpayers sought to enjoin the construction by the University of Illinois of a television station. The University appropriation for ordinary and contingent expenses con- sisted of a small number of general items under classifications estab- lished by law, and the Court had no difficulty in finding that that appro- priation included a television station. (Turkovich v. Board of Trustees, 11 111. 2d 460 (1957).) It should also be noted that it is possible under certain circumstances to operate without an appropriation if the required funds are obtained directly and do not have to be paid into the treasury. {See Elliott v. Uni- versity of 111, 365 111. 338 (1936).) As noted above, the first sentence also sets forth the constitutional duty of the Auditor of Public Accounts to be the state's disbursing offi- cer and by implication to conduct a pre-audit of every expenditure from state funds in the treasury. This pre-audit duty of the Auditor of Pub- lic Accounts indirectly expressed in the first sentence is the only con- stitutional auditing duty spelled out in the Constitution. (To be sure, Sees. 7 and 20, Art. V, infra, pp. 273 and 313, require executive account- ing, but accounting is not auditing.) Over the years, many nonauditing and nondisbursing duties were given to the Auditor of Public Ac- counts, and other agencies were given pre-audit powers which were, of course, in addition to the Auditor's constitutional power. Following the notorious scandal involving the Auditor of Public Accounts in the period 1953-56, a number of statutory changes were made. The situation today, in brief, is that the Auditor of Public Accounts retains his disbursing function, his pre-auditing function, and general supervision of some municipal and county auditing, but almost none of his nonauditing func- tions. As of January 1, 1958, a Department of Audits under the command 184 Art. IV, § 17 of an Auditor General took over all of the post-audit activities formerly handled by the Auditor of Public Accounts. The second sentence of Section 17 refers only to money expended by the General Assembly in the course of operating the legislative session. During the 1920-22 Convention, the Committee on Phraseology and Style inquired of the Auditor of Public Accounts concerning the am- biguous wording of the sentence. He replied to the effect that, from the beginning, the Auditor had construed the sentence to cover only the legislature's expenditures for its own purposes and not all money ex- pended as a result of the session. (Journal 364.) Comparative Analysis Most states either provide specifically that no money shall be drawn from the treasury except pursuant to an appropriation made by law, or provide by some indirect language for an ecjuivalent restriction. A few states permit interest on the state debt to be paid without a specific ap- propriation therefor. About a third of the states have a provision calling for warrants. Nebraska and West Virginia follow Illinois in having the Auditor issue the warrant. In tliree states the issuing officer is the Comp- troller. In Missouri, the Comptroller must certify for payment and the State Auditor must certitfy that the expenditure is within an appropria- tion and that there is an adequate unexpeiided balance thereof. Some half dozen states require that the warrant be drawn by the "proper officer." Both the United States Constitution and the Model State Con- stitution contain the traditional restriction on withdrawal of money from the treasury, but neither has any language covering the issuance of warrants. Mississippi and Nebraska appear to have copied the Illinois require- ment that the Auditor prepare a statement of the expenses of the legis- lative session. No other state has a comparable provision. The United States Constitution and the Model State Constitution have no com- parable provision. (But see the quotation from the Model concerning the secretary of the legislature, supra, p. 150.) Comment The second sentence of this section seems to be a minor matter hardly of constitutional significance. The repetitious part of the first sentence could easily be dropped. The point has been made from time to time in the Comments that care must be taken not to give rise to the infer- ence that some substantive change is intended by an omission. In this case the addition of the words "No law shall be passed except by bill" in an appropriate section as recommended elsewhere (see Comment to Sec. 11, supra, p. 156) would justify the dropping of the repetitious Art. IV, § 18 185 language. Considerable thought should be given to financial controls, particu- larly the extent to which a particular pattern of control should be frozen into the Constitution by virtue of detailed language. It is also important to analyze the effect on the distribution of power of different formulations of financial controls. As a rough generalization, a system of controls that virtually guarantees that no money will ever be illegally, improperly or foolishly spent is incompatible with effective and prompt administration. This is so because the paperwork and the double-check- ing slow everything down, and speed in taking action is frequently the effective and sometimes even the less expensive alternative. In devising a constitutional framework for financial controls, a balance must be struck between these incompatible objectives. In striking the balance, consideration shoidd be given to the degree of flexibility that the Constitution should permit. In other words, consideration shoidd be given to the extent to which the legislature should be left free to alter the control system from time to time. It is clear that an audit after the fact, a post-audit, does not inhibit efficient administration. It is also clear that the agency charged with such an audit shoidd be independent of the agencies whose books are to be audited. The United States, by statute, achieves this result by making the General Accounting Office an arm of the Congress and by setting the term of office of the Comptroller General at 15 years. The Model State Constitution recommends that the auditor be appointed by the legis- lature to serve at its pleasure. He would conduct post-audits as pre- scribed by law. The two newest states, Alaska and Hawaii, have adopted this recommendation, except that Hawaii gives the auditor an eight-year term, subject to removal for cause by a two-thirds' vote of the legisla- ture. Another dozen or so states provide for legislative appointment of the auditor, but in most cases the auditor is not a constitutional officer. Appropriations for State Expenditures Sec. 18. Each General Assembly shall provide for all the appropriations neces- sary for the ordinary and contingent expenses of the government until the expiration of the first fiscal quarter after the adjournment of the next regular session, the aggregate amount of which shall not be increased without a vote of two-thirds of the members elected to each house, nor exceed the amount of revenue authorized by law to be raised in such time; and all appropriations, general or special, requiring money to be paid out of the State treasury, from funds belonging to the State, shall end with such fiscal quarter: Provided, the State may, to meet casual deficits or failures in revenues, contracts debts, never to exceed in the aggregate two hundred and fifty thousand dollars; and moneys thus borrowed shall be applied to the purpose for which they were obtained, or to pay the debt thus created, and to no other purpose; and no other debt. 186 Art. IV, § 18 except for the purpose of repelling invasion, suppressing insurrection, or de- fending the State in war, (for payment of wliich the faith of the State shall be pledged), sliall be contracted, unless tiie law authorizing the same shall, at a general election, have been submitted to the people, and have received a majority of the votes cast for members of the General Assembly at such election. The General Assembly shall provide for the publication of said law for three months, at least, before the vote of the people shall be taken upon ilic same; and pro- vision shall be made, at the time, for the payment of the interest annually, as it shall accrue, by a tax levied for the purpose, or from other sources of revenue; whidi law, providing for the payment of such interest by such tax, shall be ir- repealable until such debt be paid: And Inovided, further, that the law levying the tax shall be submitted to the people with the law authorizing the debt to be contracted. History The 1818 Constitiilion contained no restrictions on either the appro- priations process or the incurring of debt. Under the 1818 Constitutiton, the legislature incurred considerable indebtedness in furtherance ol such internal improvements as the Illinois-Michigan Canal and the laying down of railroads. In the great depression years of the middle 1 830's the state was threatened with bankruptcy. {See Debates 298-300.) The 1848 Constitution reflected this experience. A section was inserted in the Leg- islative Article that differs from the present Section 18 in only three re- spects: (1) appropriations were for the period ending with adjournment of the next legislature instead of at the end of a fiscal quarter follow- ing adjournment; (2) the lapsing of appropriations was not covered; and (3) the temporary deficit debt limit was only |50,000. Section 18 does not differ in substance from the section as proposed to the 1870 Conven- tion. There was extensive debate, and several amendments were offered, mostly designed to restrict the legislature further, but all were defeated. The proposed 1922 Constitution contained a number of technical and simplifying changes in the appropriations and debt provision, but only two changes of substance: the temporary deficit limit was increased to $1,000,000 and bonds for the Illinois Waterway were exempted from the referendum recjuirement. This latter change was solely for the purpose of consistency, since the proposed canal section authorized a bond issue of $10,000,000 for the waterway. (The technical changes are discussed below in the course of the ExpUnuttioi}.) Explanation Appropriations: The provision for appropriations is fuzzy and indef- inite, but if the unexpressed assumptions of the drafters of the 1848 and 1870 Constitutions are considered, it is reasonably clear what was in- tended. In 1848, it was assumed that the General Assembly would appropriate enough money to run the government until the next Gen- Art. IV, § 1 8 1 87 eral Assembly could again appropriate money to run the government. The drafters ot the 1870 Constitution modified the earlier provision on the assumption that appropriations for running the government would be for a two-year period beginning July 1. This came about be- cause Section 13 (supra, p. 160) made legislation effective July 1, and the delegates assumed that the General Assembly would normally finish its regular session prior to April 1. (See Debates 540.) The extra fiscal quarter was designed to provide a two-year "budget." (It has been noted elsewhere (see Explanation of Sec. 7, Art. V, infra, p. 273) that the delegates to the 1870 Convention anticipated, perhaps unwittingly, modern budgeting.) Over the years, regular sessions got. longer and June 30 became the normal adjournment target. Thus, the "expiration of the first fiscal cjuarter" after adjournment became an "overlapping" quarter in which the previous bienniinn's appropriations and the new biennium's ap- propriations were available. The proposed 1922 Constitution sought to clear iqj this confusion by provididng that appropriations were for a two-year period from July 1 to June 30, but that money obligated be- fore June 30 could be paid up to September 30. The fuzzy language of Section 18 made it possible recently for the Attorney General to advise the Chairman of the Commission on the Organization of the General Assembly that not only could the legisla- ture turn itself into an "annual session" body (see Sec. 9, supra, p. 145), it could adopt annual appropriation acts. (See I.S.L. 133-38, app. D.) In his opinion dated October 19, 1966, the Attorney General discussed the ambiguity of the appropriations language of Section 18 and noted that the legislature had long since specified that appropriations expire on June 30 of the second year of the biennium. (Section 25 of the State Finance Act, 111. Rev. Stat. ch. 127, §161 (1967). Section 27 of the" State Finance Act authorizes payment, not until September 30, but "until the expiration of the first fiscal quarter after the adjournment of the General Assembly held next after that at which the appropriation was made." 111. Rev. Stat. ch. 127, §163 (1967). This would seem to mean that, since the 75th General Assembly did not adjourn until Jan- uary, 1969, payments could be made until June 30, 1969, on obligations incurred prior to June 30, 1967, under appropriations made by the 74th General Assembly.) The Attorney General concluded that this long- standing statutory resolution of the ambiguity of the length of the overall appropriation period would be accepted by the courts. It is not clear why the Attorney General discussed the ambiguity of the length of the appropriation period. It may be that he wanted to stress the literal absurdity of the indefinite appropriation period in justifica- 188 Art. IV, § 18 tion of steps to regiilari/e the appropriation process. Or it may be that he wanted to nail down the validity of the specific 24-month period be- fore deciding that it could be divided into two equal twelve-month periods. In any event, after discussing the ambiguity of the appropria- tion j)eriod, the Attorney General addresseed himself to the principal question, thus: "Although the General Assembly must make appropriations for the biennial period as set forth in Section 18 of Article IV, the Constitution does not state that the General Assembly might not make annual appropriations in order to discharge its duty. 'A state constitution is not a grant of power but is a limitation on legislative power, and the legislature may enact any law not expressly or inferentially pro- hibited by the state or national constitution.... "I can find nothing in the Constitution which expressly or inferentially pro- hibits the making of annual appropriations. Although the General Assembly must make appropriations for a certain period, there is no requirement that such appropriations cannot be made one year at a time." (I.S.L. 136.) The foregoing leaves open the question of whether or not the second annual appropriation bill must be passed by a two-thirds' vote. The Attorney General, after quoting the operative words from Section 18 — "the aggregate amoinit of which shall not be increased" — said: "The word 'aggregate' means the entire number, sum, mass, or quantity of anything. (Bauer v. Rusetos ir Co., 306 111. 602, 609). The words 'of which,' which follow the words 'aggregate amount,' can mean nothing except the entire amount of the appropriations made for the period for which the General Assembly is under a duty to make appropriations, i.e., for the two-year period from July 1st of an odd-numbered year to and including June 30th of the next odd-numbered year. Appropriations made for this period would not be subject to the two-thirds rule if increased by the same General Assembly which made the original appropriation. However, if the increase were made by the new successor General Assembly, a two-thirds vote would clearly be required, since there would be an increase in the aggregate amount of the appropriations provided by the previous General Assembly which was responsible primarily for making appropriations for tlie period in question." (Id at 138.) There are three things to be said about the appropriations portion of the Attorney General's opinion. One is that his conclusions are diffi- cult to square with the debates of the delegates to the 1870 Constitution. The changes in the proposed 1922 Constitution appear to represent a formulation of the way the appropriation process was originally sup- posed to operate. The second thing to be said is that, fortunately, the 1870 drafters used ambiguous language that permits a shift to anntial budgeting. Finally, there is only a limited area for judicial review of this question. Certainly, the courts could hardly invalidate the first-year appropriation acts. Thie only question which could arise over second- year appropriation acts is whether a two-thirds' \ote is required. It Art. IV, § 1 8 189 seems most unlikely that the courts would disagree with the Attorney General's opinion, considering the chaos which would ensue if such acts were invalidated and in view of the fact that to require a two-third's vote would be a technical matter, since a second one-year appropriation is not the second-guessing at which the restriction on increases in aggre- gate amounts is aimed. In any event, for the first time, the budget pre- sented on April 1, 1969, was for one fiscal year, beginning July 1, 1969. Section 18 provides that the aggregate amount appropriated shall not exceed the amount of revenue authorized. This provision is unenforce- able, and for this reason it was omitted from the proposed 1922 Con- stitution. It is unenforceable because, as discussed above, the period of time covered by appropriations is not definite, and because it is literally impossible to know until long after the event whether revenues are adequate to cover appropriations. An argument was once made that "revenue" should be construed to cover only amounts raised by direct taxation, but the Supreme Court rejected the argument in favor of the ordinary meaning of total income from whatever source. (Fergus v. Brady, 277 111. 272 (1917).) Notwithstanding unenforceability, the Supreme Court has relied on the provision to invalidate indefinite ap- propriations, on the ground that otherwise it would not be possible to know whether or not appropriations exceeded revenues. Thus, an ap- propriation of "such sums as may be necessary" for a stated purpose was held void. (Fergus v. Russel, 270 111. 304 (1915) (but also held void under Art. V, Sec. 16, requiring "amounts in distinct items," infra, p. 293).) It was noted earlier that the requirement that appropriations lapse at the end of "such fiscal quarter" has been implemented by statute to pro- vide that the power to use an appropriation lapses on June 30 of the biennium, but authority to pay continues to the end of "such fiscal quarter." This precludes continuing appropriations. (People ex rel. Millner v. Russel, 311 111. 96 (1924).) And, of course, payments after the end of the "fiscal quarter" are absolutely prohibited. (People ex rel. Polen V. Hoehler, 405 111. 322 (1950).) Nevertheless, if an appropriation lapses and a person through no fault of his own fails to get paid, a valid claim exists that will be recognized by the Court of Claims. (See, e.g.. King V. State, 11 111. Ct. CI. 577 (1941); Riefler v. State, 11 111. Ct. CI. 381 (1941).) Debts: In contrast to the fuzzy appropriation language, the restric- tions on incurring debt are precise and definite. (The concept of "debt" is another matter. See discussion of revenue bonds below.) There has been litigation, of course, but usually these have been test cases to settle the constitutionality of a bond issue, an important adjunct to the sue- 190 Art. IV, § 18 cessliil marketing of bonds. As is customary in such test cases, every con- ceivable argument is offered and the result is a series of cases that, in a way, simply imderscore the obvious. Thus, the requirement that the legislature provide for publication of the law to be voted upon can be met by a provision in the law itself, by a separate law, or by resolution. (Mitchell V. Lowden, 288 111. :;27 (1919).) Likewise, there is no need for separate laws, one to create the debt and one to provide a tax for repayment of interest. One law can cover both and one vote can be sub- mitted to the people. {Id. But, of course. Sec. 18 does not retjuire a special tax; "other sources of revenue" may be used.) And when the matter is sidimitted to the voters, a simple proposition suffices, notwith- standing the wording of Section 18 calling for submission of "the law" lo the voters. (Routt v. Barrett, 396 111. 322 (1947).) Perhaps the most incredible argument made in any of the test cases was the claim that the requirement that a bond issue receive "a majority of the votes cast for members of the General Assembly" was to be read literally. Since every voter normally votes for three representatives and half of the voters normally vote for a senator, a majority of all those votes would be more than the total nimiber of voters who could vote for the bond issue and a bond referendum could never j^ass. Needless to say, the Supreme Court said the majority required is of those persons voting for members of the General Assembly. (Mitchell v. Lowden, 288 111. 327 (1919).) The determination by the United States Supreme Court that the Fourteenth Amendment requires equality of voting — the "one man-one vote" rule — has raised questions about the constitutionality of the ma- jority required to approve a bond issue. The argument, in brief, is that a person casts a vote against the bond issue if he votes for members of the General Assembly even though he does not vote on the bond issue at all; that a person can cast "two votes" against a bond issue by voting for members of the General Assembly and against the bond issue; and that a person can cast "two votes" for a bond issue by refraining from voting for members of the General Assembly while voting for the bond issue. This c|uestion is in litigation in Illinois in an action in the Cir- cuit Court of Cook County contesting the announced result of the referendum on the Natural Resources Development Bond Act at the November, 1968, election. The State Electoral Board found that 1,656,000 favorable votes and 1,216,814 unfavorable votes were cast on the bond issue, but that, under the requirement of Section 18, the issue failed because 4,267,956 votes were cast for members of the General Assembly, and the required majority would have been 2,133,979. In Illinois, as in many other states, a simple but expensive device has Art. IV, § 18 191 been used to get around bond limitations. This is the device of creating a public authority to issue revenue bonds which do not involve the faith and credit of the state, but, consequently, carry a higher interest rate. The first use of state public authorities for this purpose was the Illinois Armory Board, created in 1935. The board was empowered to obtain land and construct or purchase buildings to be used as National Guard Armories. It would issue bonds, the payment of principal and interest for which was obtained from rentals to the state. Apparently, no attack on this operation was made until after the Greening case, discussed be- low, was decided. In Loomis v. Keehn (400 111. 337 (1948)), the Supreme Court held that Section 18 was not violated by the Armory Board Act because there was no irrevocable obligation on the state to use the build- ings and pay rent therefor and provision was made for the board to lease to others if the state failed to pay its rent. In 1941, the Illinois State Public Building Authority was created to perform a similar function for state buildings generally, but in 1943 the Supreme Court invalidated this Authority in People ex rel. Greening V. Green. (382 III. 577 (1943).) The principal difficulty was that the mem- bers of the Authority consisted of all of the elected state executives plus a member of the Supreme Court, and this was simply too transparent to support a claim that the Authority was not the state. Not until 1961 was a new Illinois Building Authority created with a membership of seven, none of whom could be an elected official. With this change, and others that met technical objections raised in the Greening case, the new Authority was upheld. (Berger v. Howlett, 25 111. 2d 128 (1962).) There are, of course, other public authorities engaged in making capi- tal expenditures financed by revenue bonds for such purposes as toll high- ways, college dormitories, and recreational facilities in state parks. These are much easier to defend than the State Building Authority, for the money received is from third persons utilizing the facilities rather than from the general taxpayer through appropriations for rent. In summary, it may be noted that the debt limitation applies only to debt for which the state pledges its credit. Revenue bonds are outside the limitation because the state's credit is not pledged. In the case of state office buildings, the arrangement approaches a fiction because, what- ever the technicalities involved, the real source for payment of the "debt" is the taxing power to raise the rent which the state pays to the authority, and as a practical matter the state's credit is involved. Since the state's credit is not legally pledged, the interest rate on the bonds is higher. Comparative Analysis Appropriations: There is a vast range of constitutional provisions con- cerning the appropriations process. There are a few states which have 192 Art. IV, § 18 adopted an executive budget system which gives the governor consider- able control over the appropriations process through restricting the power of the legislature to make changes in the executive budget. In most of the other states, constitutional provisions generally consist of specific limitations designed, principally, to preserve the integrity of the appropriations process. Some of these limitations appear in other sec- tons in the Illinois Constitution and the appropriate comparisons ap- pear elsewhere. (See Sees. 13, 16 and 17, supra, pp. 160, 178, and 181; and Art. V, Sec. 16, infra, p. 293.) Approximately a fifth of the states have a provision that, in one way or another, specifically prohibits deficit financing. Many other states in- directly prevent deficit financing through limitations on the incurring of debt. Several states, including states with a formal executive budget, prohibit the passage of supplementary or special appropriations until after the general appropriation act is passed. About a dozen states limit the life of appropriations, but at least two states have specific provisions permitting certain continuing appropriations. A few states specifically provide that payment may be made during a period, usually two years, after the oblgation has been incurred and the appropriation has lapsed. The United States Constitution has only one limitation on appropria- tions, the restriction on appropriating money to "raise and support" armies for more than two years. (Three states have copied this limitation for their state militia.) The purpose of this limitation is to prevent the creation of a standing army, and in the light of that purpose the two-year limitation actually covers only such items as pay and other current ex- penses. Congress regularly makes "no-year" appropriations which are available until spent, "one-year" appropriations which must be obligated, that is, committed, before the end of the fiscal year, and appropriations for a specific period beyond one year. In all cases, a distinction is made between "obligation" and "payment." Limitations on the life of ap- propriations are related to obligation, or commitment, of funds. Payment can be made at any time. The Model State Constitution provides: "The governor shall submit to the legislature, at a time fixed by law, a budget estimate for the next fiscal year setting forth all proposed expenditures and anticipated income of all departments and agencies of the state, as well as a general appropriation bill to authorize the proposed expenditures and a bill or bills covering recommendations in the budget for new or additional revenues." (art. VII, § 7.02.) Debt: States can be divided into roughly four groups in regard to power to incur debt: (1) states with no significant constitutional limitations; (2) states with absolute limitations; (3) states with no limitations but requiring voter approval by referendum; and (4) states requiring refer- Art. IV, § 18 193 endum approval but still retaining a maximum debt limit. There appear to be only six states in the first category, four of which are in New England. One of the six, Delaware, requires a three-fourths' vote in each house to create any debt other than to meet casual deficits or defense needs, or to refund existing debt. A seventh state, Maryland, has no limi- tation, but does require the enactment of a special tax to cover interest and repayment of the debt within 15 years. Approximately 23 states fall in the second category of absolute limitations. Most of these states have exceptions of one sort or another, but the most common exceptions — to meet casual deficits, repel invasion, or suppress insurrection — are not significant. The most common form of limitation is a percentage, frequently one percent, of the assessed value of taxable property. There are about 17 states in the third category of states with no limitation, but requiring approval by referendimi. Three states join Illinois in requir- ing a majority of those voting in the election. South Carolina requires a two-thirds' majority of those voting on the question. In the fourth cate- gory, there are four states requiring a referendum on incurring debt within the stated limitation. The United States Constitution simply empowers Congress to "borrow money on the credit of the United States." The Model State Constitution simply states: "No debt shall be contracted by or in behalf of this state unless such debt shall be authorized by law for projects or objects distinctly specified therein." (art. VII, §7.01.) Comment Appropriations: There are a great many signs pointing to annual sessions of the legislature and, naturally, annual budgets and annual appropriations. Even if the decision is not to require annual sessions, it seems unlikely that they will be prohibited. In either event, redrafting of the first part of Section 18 will be appropriate, particularly to remove the present fuzzy language. Before new language is drafted, however, there are several crucial decisions to be made. The budgeting and appro- priations process is an intricate business, and thought should be given to the advisability of limiting the constitutional language to a simple and flexible provision. But if the decision is to introduce details of control, care must still be taken that the desired control does not have an undesirable consequence in some other area of the budgeting process. For example, the requirement in Section 16 {supra, p. 178) that appropriations for pay for officers of the government be in a separate bill, whatever its supposed value, certainly increases the legislative task of relating appropriations to the budget. It would also be appropriate to weigh the pros and cons of such matters as continuing appropriations, longer-than-one-year ap- 194 Art. IV, § 19 propriations, and the federal rule that all that expires with an appro- priation is the avithority to obligate, not the authority to pay. It is not necessary, of course, to put decisions on all these matters into the Con- stitution. It may be acceptable to leave some or all of them to legislative decision. But if that is the decision, care must be taken not to draft language that will lead courts to impose unintended restrictions on the budgeting and appropriations process. Debt: There is much respectable argument for the proposition that debt limits are both ineffective and expensive and for the proposition that participatory democracy in the complicated business of rational financing of government is not particularly rewarding. (See, e.g., the Model State Constitution's Commentary, especially the explanation for dropping the referendum requirement of previous Models. Model State Constitution 91-92.) The political realities are such, however, that the wholesale abandonment of debt limits is probably not a practical pro- posal. Instead, consideration will probably have to be limited to (a) whether to keep the casual deficit limit and if so, at what sum in place of the unrealistic $250,000; (b) whether to liberalize the referendum voting requirement for debt above the casual deficit limit; or (c) whether to sub- stitute a maximum debt limit for casual deficit and the referendum. It should be noted, however, that the more difficult full faith and credit bor- rowing is made, the more expensive borrowing becomes. By one means or another, methods of essential financing will be found, all more ex- pensive than regular state bonds. It should also be noted that the most common form of debt limitation is a percentage of assessed valuation of property. In today's world, this is a poor measure of wealth or financial capacity. A novel, but economically sound, measure would be a per- centage of the Illinois Gross "National" Product. Two minor points of style and arrangement should be made. Appro- priation procedure and debt rules should be in separate sections and both should be in an article on finance that would replace the article on revenue. Unauthorized Compensation and Payments Prohibited Sec. 19. The General Assembly shall never grant or authorize extra compen- sation, fee or allowances to any public officer, agent, servant or contractor, after service has been rendered or a contract made, nor authorize the payment of any claim, or part thereof, hereafter created against the State under any agree- ment or contract made without express authority of law; and all such unauthor- ized agreements or contracts shall be null and void: Provided, the General Assembly may make appropriations for expenditures incurred in suppressing insurrection or repelling invasion. Art. IV, § 19 195 History The first part of this section, down to the words "nor authorize," first appeared in the 1848 Constitution. The balance of the section was added in 1870. There was no debate or explanation for the addition. The pro- posed 1922 Constitution retained the substance of the section. Explanation This section serves two distinct purposes: the first part states the traditional rule against payments of money without consideration, and the second states the traditional rule that agents of the government must have express authority in order to bind the government. Since they are traditional rules, they would probably have developed in the absence of Section 19 in somewhat the same manner as the courts have construed the section. This is to say, in general, that the courts have ruled that an em- ployee or contractor who has struck his bargain cannot later get more for his services, and that he who contracts with the state must ascertain at his peril that the agent of the state has the authority to act and that there is an appropriation therefor. (See e.g., Gholson v. State, 12 111. Ct. CI. 26 (1941); Amick v. State, 1 1 111. Ct. CI. 625 (1941); and Mandel Bros. V. State, 10 111. Ct. CI. 448 (1939). For the latter, see the leading case of Fergus v. Brady, 277 111. 272 (1917).) In relatively recent times, the courts have had problems with this sec- tion in connection with pension plans. Almost any politically feasible pension plan has elements of retroactivity in it, and against an argument that pension payments will be made in part for past service, the courts have had to find an answer. The answer, taken from J. Dillon, Municipal Corporations, Section 430 (5th ed. 1911), has been that pensions " 'are in the nature of compensation for services previously rendered for which full and adequate compensation was not received at the time of the rendition of the services. It is, in effect, pay withheld to induce long-continued and faith- ful service, and the public benefit accrues in two ways:' By encouraging com- petent employees to remain in the service, and by retiring from the public service those who have become incapacitated from performing the duties as well as they might be performed by younger or more vigorous men." (People ex rel. Kroner v. Abbott, 274 111. 380, 384-85 (1916).) The foregoing somewdiat ingenuous argument suffices to get around giving credit for past service, but it is of no value in the case of an effort to increase the pensions of those already retired. Such efforts have been invalidated under Section 19 in the case of noncontributory pensions and compulsory contributory pensions. (See Raines v. Board of Trustees, 365 111. 610 (1937); Porter v. Loehr, 332 III. 353 (1928).) The rule is different, however, in the case of a voluntary contributory pension plan. There, the courts argue, a contractual relationship is created and the legislature can amend the contract for retired persons. Thus, a retired 196 Art. IV, § 19 teacher was allowed to pay a small additional contribution to the pension fund and have his annual pension increased irom .^lOO to ^GOi). (Raines V. Board of Trustees, 365 111. (ilO (1937).) A related problem in compensation for services already rendered arose in the case of the soldiers' bonus after World War I. The Sujireme Court said that Section 19 did not stand in the way since soldiers and sailors were not, in the words of the section, oflicers, agents, servants or contractors. (Hagler v. Small, 307 111. 460 (1923).) Interestingly enough, the same argimient was used on behalf of a jjension increase for the widow of a retired fireman, but the Court would not accept the argument. (People ex rcl. Schmidt v. Yerger, 21 111. 2d 338 (1961). See also Coyn- ment below.) Comparative Analysis Approximately half of the states have a restriction on extra payments for services rendered by officers and employees, or for contractors and agents after performance or service rendered. Four states permit over- riding the restriction by a two-thirds' vote of the legislature. Two states make an exception for increases in pension payments, but in one of them a three-fourths' vote is required. Only about a third of the states specify the necessity for express author- ity to obligate the state. Four of these states permit overriding the re- striction by a two-tliirds' vote of the legislature, and three states join Illinois in providing an exception for insurrections. The United States Constitution has no comparable provision, but the standard rule against implied authority to obligate the government is followed. There are also strict criminal statutory rules against over- obligating appropriated funds. The Model State Constitution provides that no "obligation for the payment of money [niay] be incurred except as authorized by law." Comment It seems likely that the delegates to the 1870 Convention would have been astounded if some one had argued that Section 19 would preyent the state from increasing the pensions of retired employees. The dele- gates probably would have been unable to conceive of the state's having an obligation to provide for pensions at all. It is even jwssible that around the turn of the century the courts, in the absence of a Section 19, would have held a proposed increase in pensions of retired employees to be the "application of tax money for other than public purposes" and, therefore, "a deprivation of property without due process of law." (See cpiotation from the Sclnder case, injra, p. 199.) By 1961, a dissenting judge argued in the Yerger case, cited earlier, that since widows of retired Art. IV, § 20 1 97 employees do not come within the express terms of Section 19, the section ought not to stand in the way of helping widows faced with a "decreasing" pension relative to the increase of the cost of living. (It is only fair to note that public pension plans involve more legal problems than those arising out of Section 19. See Cohn, "Public Employee Retire- ment Plans - The Nature of the Employees' Rights," 1968 U. 111. L.F. 32.) There are two morals in this story of pensions. One is that it is dif- ficult to foresee the effects of rigid constitutional restrictions in a chang- ing society. A second is that it is difficult to find words to prohibit out- rageous "giveaways" without also prohibiting justifiable "giveaways." Assumption of Debts Prohibited Sec. 20. The State shall never pay, assume or become responsible for the debts or liabilities of, or in any manner give, loan or extend its credit to, or in aid of any public or other corporation, association or individual. History The 1848 Constitution forbade the state to give its credit "to or in aid of any individual, association or corporation." There were two similar proposals that wound their way through the 1870 Convention to the last week of the Convention when the Chairman of the Committee on Re- vision and Adjustment obtained unanimous consent to eliminate one of thein. The eliminated section forbade the legislatme to pay or assiune any debt of "any county, town or township, or of any corporation what- ever." The section which was substituted, now Section 20, had been proposed by the Committee on State, County and Municipal Intlebted- ness. The Chairman urged the substitution on the grounds that one section was a little broader than the other and that two sections would be repetitive. The only debate over either section concerned whether or not it was necessary to specify "public or other" corporations. One or two of the lawyers argued that courts usually ruled that the generic tenn "corporations" did not include municipal corporations and on the strength of these argmnents, the section was revised to specify "public" as well as all other corporations. The proposed 1922 Constitution re- tained the substance of Section 20, but included the introductory words "Except as otherwise j^rovided in this constitution." The "other- wise provided" referred to such things as a new section authorizing loans to farmers, and a provision authorizing the state to share the cost of some of the activities of drainage districts. Explanation It would appear that this section was aimed at two mid-Nineteenth Century problems arising from the drive for internal improvements — 1 98 Art. IV, § 20 particularly, railroads and canals. One was tlie use of state credit or finids to assist private entrepreneurs engaged in building such improvements. The other was tear that the slate niioht be induced to bail out local governments that had gotten deeply into debt, usually in connection with internal inij)rovements. As noted in the History above, there was an extensive debate in 1870 over the wording necessary to insure cover- age of municipal corporations. Mr. .\Iedill, whose proposed substitute language was essentially the language of the present Section 20, noted that local indebtedness in 1870 aggregated $40,000,000, and went on to say: "I can see, like a creeping shadow on the wall, the time approaching when a log-rolling scheme will be brought into some near future Legislature, to saddle on the State of Illinois the assumption of that §40,000,000, perhaps twice, aye! thrice told." (Debates 220). Over the years there have been a great many court cases in which someone has invoked Section 20, but, by and large, none have been situ- ations approaching either of the original purposes of the section. Indeed, there appear to have been only three successful invocations of Section 20, and two of them are rather indirect. The only straightforward case is that of Schiller v. Board of Education (370 111. 107 (1938)), where the Sujjreme Court upset an agreement between a school board and a private junior college for joint use of a library and laboratory equip- ment to be paid for with pidolic funds. The two indirect uses of Section 20 were in Chicago Motor Club v. Kinney (329 111. 120 (1928)), where the Court said that to permit a refund for a tax paid indirectly woidd be a payment for a private purpose, and Fergus xk Riissel (270 111. 304 (1915)), where the Court said that to pay the expenses of a legislative committee for work done' after adjournment siy^e die woidd be to make payments to private individuals. Over the years, government has entered many new areas and has adopted new ways of utilizing private and local organizations to carry out its functions. As noted above, except in the Schuler case. Section 20 has not stood in the way. For example, the state has been permitted to aid a private college as a means of assuring an adequate supply of public school teachers (Boehm v. Hertz, 182 111. 154 (1899) (the institution in question was technically "private" but in reality "public")); to assist a public housing authority (Cremer v. Peoria Housing Authority, (399 III. 579 (1948)); to assist the Chicago Regional Port District (People ex rel. Gutknecht v. Chicago Regional Port Dist., 4 111. 2d 363 (1954)); and to assist local governments in road construction (Martens v. Brady, 264 111. 178 (1914)). In short, if the money is spent for a public purpose, the utilization of a public or other corporation is not likely to be for- bidden through a rigid reading of Section 20. Art. IV, § 20 1 99 Comparative Analysis Most states have restrictions on the extension of state credit to pri- vate groups. Ahnost a majority of the states have some sort of restriction on gifts or grants for private purposes. Section 20 does not in specific terms prohibit such gifts or grants, but the section has been so con- strued by the courts. (See Comment below.) Only about ten states refer to assumption of debts. In many of the states with one or more of the foregoing restrictions, there are exceptions which, in many cases, were undoubtedly designed, either in advance or after the fact, to avoid overly restrictive judicial interpretations of the restrictions. For example, sev- eral states prohibit grants and loans except to assist the poor; or to the sick and the poor; or to institutions for support of orphans, dependent children, and aged poor; or to orphans, dependent children, the blind, the physically handicapped, and veterans. Georgia has an exception to permit the legislature to provide |250,000 to the first person or company to bring in a commercial oil well. Neither the United States Constitu- tion nor the Model State Constitution has any comparable restriction. Comment There are two observations to be made about this section. The first is that it is aimed at a specific problem of a bygone era, but the restric- tions are so broadly expressed that they can create difficulties in coping with completely different problems today. The Nineteenth Century prob- lem was that of free-wheeling entrepreneurs financing grandiose schemes with public money. In today's complex society, it appears inevitable that there will be an increase in the use of public subsidies to private groups to help solve public problems. If Section 20 were followed liter- ally, such public subsidies would not be permissible. The second observation is that the courts have effectively rewritten Section 20. In short, the courts look not to whom money or credit goes, but to the purpose for which the money or credit is to be used. In the Cremer case, cited above, the Court said: "The fundamental principle of the unconstitutionality of appropriating public funds for a private purpose is stated in a more forthright manner in section 20 of article IV...." (399 111. 579, 586-87 (1948).) Another formulation of the principle appears in the Schiiler case, also cited above: "We have expressly decided that the application of tax money for other than public purposes is a deprivation of property without due process of law." (370 111. 107, 109 (1938).) From the foregoing it may be argued that if Section 20 were deleted, the courts could continue, as they do now, to distinguish between the use of public funds for private purposes and for public purposes, striking 200 Art. IV, § 21 down the former and upholding the hitter. There woukl be no loss of protection of the public fisc. The gain would be in the elimination of a sternly worded command that of necessity cannot be followed literally. Compensation of Members Sec. 21. The members of the General Assembly shall receive for their services the sum of five dollars per day, during the first session held under this Con- stitution, and ten cents for each mile necessarily traveled in going to and return- ing from tlic seat of government, to be computed by the Auditor rtf Publit .\ccounts; and thereafter such compensation as shall be prescribed by law, and no other allowance or emolument, directly or indirectly, for any purpose what- ever; except the sum of fifty dollars per session to each member, which shall be in full for postage, stationery, newspapers, and all other incidental expenses and perquisites; but no change shall be made in the compensation of members of the General Assembly during the term for which they may have been elected. The pay and mileage allowed to each member of the General Assembly shall be certified by the Speakers of their respective houses, and entered on the jour nals, and published at the close of each session. History The 1818 Constitution had no provision of any kind covering legisla- tive salaries tand expenses. The 1818 Constitution set members' pay at two dollars per day for the hrst 12 days' attendance and one dollar per day thereafter, plus a travel allowance of ten cents a mile. The Speaker of the House of Representatives received an additional dollar a day. The 1848 Constitution contained substantially the same language concern- ing certification as now appears in the last sentence of Section 21. The subject of compensation for legislators evoked considerable de- bate in the 1870 Convention. There was imanimity only on the neces- sity for forbidding any indirect means of increasing compensation. Thus, all versions considered by the Convention included the flat ^50 expense allowance and the rec|uirement that the Auditor of Public Accounts compute mileage allowances. There were two views on the means of com- puting compensation: one argument was that a flat sum for a biennium might tempt the legislature to do a hasty job and adjourn quickly; the other argument was that per diem compensation would tempt the legis- lature to stretch out the session in order to increase their pay. On the fundamental principle of legislative compensation, there were three points of view. One delegate, who may very well have been a minority of one, argued that the 1818 Constitution, which was silent on the sub- ject, had worked well, and that the best solution was to leave compensa- tion up to the legislature. The opposite view was that nobody else in government fixed his own salary and that only the people speaking through their Constitution should fix legislators' compensation. The middle ground was the proposal that a legislature could determine the Art. IV, § 21 201 compensation to be enjoyed by the next legislature. This was the view which prevailed by a vote ol 35 to 24. (See Debates 540-55.) The proposed 1922 Constitution went the full route of allowing the legislature to set both compensation and allowances, but provided that an increase could take effect only after the second regular session fol- lowing enactment. The requirement of certification and entry in the journal of each member's pay and allowances was retained. Explanation This section has three significant operative provisions concerning compensation: It allows (1) the legislature to set its own compensation; (2) but only for future legislatures; and (3) prohibits indirect increases through the device of allowances for expenses. Two of the famous Fergus v. Russel cases struck down efforts to get around the section's restrictions. In the first case (270 111. 304 (1915)), an appropriation of |2,500 to the Secretary of State "for telephone toll for members of the General Assembly" was held invalid under the |50 expense allowance limitation. In the second case (270 111. 626 (1915)), a joint resolution allowed reimbursement at the rate of two cents per mile for 21 round trips between home and Springfield for each member from the contingent expense funds of the legislature. The Court held that if this were con- sidered an expense reimbursement, it ran afoul of the $50 limitation, and if it were not so considered, then it was an increase in compensation for sitting members and ran afoul of the restriction on an increase "during the term for which they may have been elected." At the 1870 Convention, on the occasion of the final vote on Article IV, the following exchange took place: "Mr. CHURCH. ... "It occurs to me here, without stopping for much reflection, that at all times, if a law shall have been proposed either to decrease or increase the pay, there will be under this Constitution, a portion of one house of the General Assembly in being, whose term will not have expired, and that the inconsistency may result of there being one portion of the General Assembly drawing one kind of pay, and another portion drawing another kind of pay. . . . "Mr. UNDERWOOD. Mr. President: I understand that the law will not take effect for two years after its passage. "Mr. CODY. Mr. President: This matter was fully discussed in the Convention upon that very view of it, and it was understood that no provision made by the General Assembly with regard to the pay of members, should apply to the mem- bers of either the house of representatives or the senate, until after the expiration of their terms of office — that it shall apply to their successors." (Debates 1780.) The language of Section 21 does not literally recjuire a two-year delay in the effective date of a salary change and the custom has been other- wise. For example, the 75th General Assembly increased legislative com- 202 Art. IV, § 21 pensation to 1 12,000 per year and Hlteen cents j^er mile. By virtue of the redistricting case (People e\ rel. Engle v. Kerner, .S3 111. 2d 1 1 (H)()5)), all Senate seats were filled at the 19(i(} election lor lour-year terms. For the 7fith General Assembly, all Representatives were elected in 1908 and are receiving .'> 12,000 per year in 19()9 and 1970, but all Senators are receiving only $9,000 per year. (See also the discussion ol the Coons case under Sec. 16, supra, p. 180.) Comparative Analysis There appear to be 14 states which set legislative salaries in their con- stitutions and another five states which set maximum salaries. With three exceptions, all other states permit the legislature to determine their own pay. The three exceptions, Massachusetts, Vermont and Wis- consin, have no salary provision of any kind. Within the past three years, eight of the 19 states with constitutional salary provisions ap- pear to have amended their constitutions to increase salaries. There appear to be 23 states, including Illinois, which prohibit an increase in salary during the term for which a legislator is elected. All except one of these states are among the states which authorize legislative determina- tion of salary. The exception is a "maximum salary" state. Approximately 38 states have a constitutional provision concerning legislators' ex}jenses. Seven states leave it up to the legislature to provide for "compensation" without distinguishing between salary and expenses, and five have no provision of any kind. 7 here appear to be only four states with restrictions comparable to the Section 21 limit of $50. Dela- ware has a limit of $25 per regular session and SIO per special session for stationery and other supplies; Nevada has a limit of $60 per regular or special session for express charges, newspapers and stationery; Mary- land forbids purchase of any book or other printed matter not pertinent to the business of the session; and West Virginia has prohibitive lan- guage nuich like that of Section 21 without even a permissible $50. Whether by constitutional provision or by statiue, all states directly or indirectly reimburse legislators for travel expenses, usually on a flat mileage rate, but in some 20 states only for one round trip per session. Almost three-fourths of the states provide a per diem living allowance, and a few additional states provide a flat allowance large enough to cover living expenses. The United States Constitution provides that compensation shall be "ascertained by law." It is of interest to note that the original batch of amendments to the Constitution, which resulted in the first ten com- monly known as the Bill of Rights, actually included two that were not ratified. One of the two that failed provided that no law changing com- pensation "shall take effect, until an election of Representatives shall Art. IV, § 22 203 have intervened." The Model State Constitution provides that the legis- lature determine its own salaries and allowances, "but any increase or decrease in the amount thereof shall not apply to the legislature which enacted the same." Comment It seems fairly obvious that the 1870 Convention made a sound decision when Section 21 was so drafted that legislators' salaries could be in- creased by statute. At first blush it would appear that to have limited reimbursement of expenses so severely was inconsistent. But at the time there was no income tax, and it was reasonable to prevent legislatures from hiding their pay increases by increasing their expense perquisites. For example, if the amount normally required for postage, telegrams, and the like were $50 a session per legislator and the allowance were $500, this would be a hidden pay increase. Today, many decisions are vitally affected by income tax rules, and in the light of those rules it is illogical to compensate a legislator for deductible expenses by an in- crease in salary. To use the same example, if today the amount normally required for postage, telegrams and the like is $500 and the $50 limita- tion stands, a salary increase must exceed $450, for a legislator must pay an income tax on the salary and he ends up with less than enough to cover his expenses. (See also the Cotntnent on Sec. 11 of Art. IX, infra, p. 476, concerning the general problem of salary changes.) Special Legislation Prohibited* Sec. 22. The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: For — (1) Granting divorces; (2) Changing the names of persons or places; (3) Laying out, opening, altering and working roads or highways; (4) Vacating roads, town plats, streets, alleys and public grounds; (5) Locating or changing county seats; (6) Regulating county and township affairs; (7) Regulating the practice in courts of justice; (8) Regulating the jurisdiction and duties of justices of the peace, police magistrates, and constables; (9) Providing for changes of venue in civil and criminal cases; (10) Incorporating cities, towns, or villages, or changing or amending the charter of any town, city or village; (11) Providing for the election of members of the board of supervisors in townships, incorporated towns or cities; (12) Summoning and impaneling grand or petit juries; (13) Providing for the management of common schools; (14) Regulating the rate of interest on money; (15) The opening and conducting of any election, or designating the place of voting; 204 Art. IV, § 22 (16) The sale or mortgage of real estate belonging to minors or others under disability; (17) The protection of game or fish; (18) Chartering or licensing ferries or toll bridges; (19) Remitting fines, penalties or forfeitures; (20) Creating, increasing, or decreasing fees, percentage or allowances of public officers, during the term for which said officers are elected or ap- pointed; (21) Changing the law of descent; (22) Granting to any corporation, association or individual the right to lay down railroad tracks, or amending existing charters for such purposes. (23) Granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. In all other cases where a general law can be made applicable, no special law shall be enacted. * Note: For purposes of discussion, item numbers have been given to the enumerated cases. These numbers are not official. History The 1818 Constitution had no prohibition on special legislation. The 1848 Constitution nibbled at the edges of the problem. There was a specific prohibition against legislative divorces and against the "sale of any lands or real estate belonging in whole or in part to any individual or individuals." That Constitution also recommended creating private, but not municipal, corporations by general law, but did not actually prohibit private corporate charters. (See History of Sec. 1 of Art. XI, infra, p. 515.) By negative implication, the 1848 Constitution prohibited local legislation creating a township organization in a county. (See History of Sec. 5 of Art. X, infra, p. 496.) By the time the 1870 Convention met, the problem of local and special legislation had become alarming. Some indication of the magnitude of the problem is given in the Municipal Home Rule Bulletin prepared for the 1920 Convention: "The total mass of special legislation is indicated in the increasing volume of state laws. In 1857 the private laws formed a volume of 1,550 pages. By 1867, the private laws were published in three volumes of more than 2,500 pages, of which 1,050 related to cities, towns and schools. In 1869 there was a further increase to four volumes of 3,350 pages, of which 1,850 pages related to cities, towns and schools." (Bulletins 384.) It is small wonder that the Committee on the Legislative Department of the 1870 Convention presented a section not differing too much from what became Section 22. The debate on the section opened with a pro- posal to substitute an absolute prohibition on passing "any local or special law in any case whatever." Several delegates supported this blanket prohibition, including one who observed that some of the itemized Art. IV, § 22 205 prohibitions covered subjects on which he had never known any private or special legislation to be passed. The principal argument for the "laundry list" approach was made by Mr. Medill of Chicago, a member of the committee. He said, in part: "The members of the committee considered in detail all the objects of special legislation of which the people have complained for a quarter of a century or more, and we carefully provided against every instance of that kind. We went through the similar provisions in the Constitutions of other States, and copied all the best things we could find therein. ". . .It would be probably unsafe and imprudent to foreclose every contingency that might arise in the future, requiring some special act to be passed. There are some things that no Legislature can provide for, by general laws, in advance of the event or necessity. There are contingencies that may arise requiring a particular act for a local and particular purpose. . . . No human wisdom can foresee all the necessities and contingencies of the future." (Debates 583.) Some delegates supported Mr. Medill's opposition to the blanket prohibition while other delegates indicated that they favored more free- dom for the legislature than was provided by the committee proposal. Presumably, these two groups joined hands in voting. In any event, the blanket prohibition was voted down by voice vote and the Convention, sitting in Committee of the Whole, turned to a consideration of each clause of the section. One and a half days were devoted to consideration of Section 22, about a third of which time concerned the foregoing effort to prohibit all special and local legislation. The balance of the debate, a full day, was mostly devoted to one enumerated case — "Incorporating cities, towns or villages, or changing or amending the charter of any town, city or village." Here the Cook County delegates were the principal opponents of the prohibition. (For their arguments, see History of Sec. 34, infra, p. 247.) At the end of the debate on the charter prohibition, all efforts at amend- ment were defeated by voice vote. Most of the other enumerated cases proposed by the Committee on the Legislative Department were accepted as written or with a slight change, and in either case without extended debates. Two or three enumerated cases were offered from the floor and accepted, again without extended debate. There were one or two proposals to weaken prohibitions, but all were turned away. At the very end of the debate, the concluding "In all other cases" sentence was offered from the floor and accepted. When the section was considered by the Convention proper, the work of the Committee of the Whole was accepted without change. The Committee on Revision and Adjustment made some style changes, moved one pro- hibition to the article on corporations ("Sec. 1 of Art. XI, infra, p. 515), and dropped a prohibition on extending a term of office by special act, 206 Art. IV, § 22 since Section 28 of Article IV {lufia, p. 2^56) is a total prohibition on such extensions. The proposed 1922 Constitution preserved the "laundry list" lormat of this section with several changes, one of which is particularly in- structive. To the enumerated "protection of game or fish" were added the words "unless by reasonable classification of waters." (See discussion below, p. 220, concerning the necessity for this exception.) Several items were omitted because they were adequately covered by other provisions. For example, at the time of adoption in 1870, the "county seat" removal enumeration was unnecessary by virtue of Section 4 of .Article X. (Infra, p. 494.) Presumably, the 1922 drafters thouoJu that locating a county seat for a new county would not arise. In any event, they omitted the pro- hibition. The other omissions were rules of practice in courts, changes of venue, and jurisdiction of justices' courts; elections of members of boards of supervisors; and the prohibition on increasing or decreasing fees and allowances. All of these were covered elsewhere. The prohibition on creating private corporations by special act was taken out of the article on corporations and placed in the "laundry list" section. The catch-all sentence at the end of Section 22 was made a separate section. Explanation Introduction: In general, it has been possible in preparing this analysis of the Illinois Constitution to include references to those court cases that have contributed significantly to the meaning or under- standing of the section. In a way, a rather stripped-do^vn annotation has been provided. It is not feasible to do this with Section 22. There are too many cases involved and, for reasons spelled out below, the cases cover almost the entire range of government activity, so that a compre- hensive discussion of the cases would approach a discussion of the con- stitutionality of almost everything other than levying taxes that the legislature has attempted to do in the last hundred years. In what follows, there is a general discussion of local and special legislation and the problem of classification; a reference, as appropriate, to cases concerning each of the 23 enumerated cases; and a discussion of the catch-all pro- hibition on special legislation. In General: Any discussion of this complicated subject of special and local legislation requires a primer-like exposition. To begin with, there is a clear-cut distinction between "local" and "special" legislation, but, unfortunately, the terms are used loosely and, as is so often the case, situations arise which do not fit the distinction neatly. A local law is one which applies only to the government of a portion of the territory of the state, and a special law is one which applies only to a portion of the Art. IV, §22 207 state — its people, its institutions, its economy — in some sense other than geographical. A general law is one which applies universally. Local and special laws are known as "private laws" and general laws as "public laws." It must be pointed out that, in addition to the imprecise use of these terms, the accepted practice of classification, discussed below, results in "universal" laws which in fact have only a "local" application; and that, by use of Section 22 as the equivalent of an equal protection clause, general laws that are invalidated are said to be "local or special laws." Moreover, even an effort at precision in the use of the terms is difficult. For example, a general law may provide for local government charters under the mayor-council, the commission, or the city manager system. If one of the three forms of government is permitted to do something denied to the others, and a court invalidates the permission under Section 22, it is a neat question whether the problem is one of a "local law" or a "special law." In one sense, the matter deals with a limited geographical area, but in another sense, the distinctions are state-wide, and the problem hinges on the special way in which one of three groups is treated. (In another context, a recent case involving this very distinction is discussed below, pp. 211-12.) Normally, in the law as elsewhere, the obvious violation of a rule not only creates no problems, it rarely occurs. This is true of local and special legislation. An obvious example of local legislation would be a statute proposing to permit the city of Onetown to have five dog-catchers, not- withstanding a general law that limited all cities to four dog-catchers. Another example would be a law which permitted Onetown to annex North Onetown, whether or not there was a general law setting forth a procedure for annexation. An obvious example of special legislation would be a bill granting a divorce to John Doe from his wife, Dosie. Another example would be a law granting a corporate charter to Tom, Dick and Harry for the business of operating an employment service. In order to keep the problem of local and special legislation in perspec- tive, it is appropriate to mention briefly the reasons for prohibiting it. The major reason, at least in the middle of the Twentieth Century, is that, if it is permitted, an inordinate amount of legislative time is taken up with local and special legislation. Connecticut, for example, until the adoption of a new constitution in 1965, permitted local and special legislation, and the common practice, particularly in the area of local legislation, was to solve any local problem by getting the local legislator to introduuce a private bill. Under such a system, legislators are normally interested only in their own private bills, and passage is relatively easy. Moreover, many legislators can achieve high status as easily by their attention to 208 Art. IV, § 22 the support of local and special legislation as by their qualities as legis- lators concerned with the problems of the state as a whole. In the case of special legislation, there are two significant dangers. One is that the influence of special interests is greatly increased and the likeli- hood of corruption, "honest and dishonest,", is accordingly increased. If there is public concern, as there usually is, over the influence of special interests in protecting themselves from the effect of general legislation, such concern would be much greater if special legislation were freely permitted. The other danger is that some special legislation, particularly in the case of corporate charters, can create vested rights that cannot be taken away easily. Much of the Nineteenth Century crusade against spe- cial legislation was directed at the effective "sale" of permanent privi- leges and the corruption that "greased" the way for such "sales." One final point in the story of the history of local and special legislation is that, by and large, legislators imder a system permitting such legis- lation dislike it. But for obvious reasons, they find it most difficult to resist the requests of their constituents. It borders on irony that those students of constitutional theory who oppose restrictions on the power of the legislature generally support a prohibition on special and local legislation. (See the Model State Constitution's provision in the Com- parative Analysis below.) It also borders on irony that legislators prob- ably do not object to such a constitutional restriction on them, for there is surely no easier way to turn away an insistent constituent than to point to a prohibition in the Constitution. Perhaps t^\o ironies make a right. The reasons for prohibiting local and special legislation may be exemplary, the examples of the evils may be delineated in blacks and whites, and yet the realities of a complex society quickly introduce ex- ceptions and circumlocutions that produce borders of gray. And the controversies, the litigation, naturally fall in the gray area. The gray-area problems of local legislation differ, however, from the problems of spe- cial legislation. Moreover, in the case of special legislation, for reasons discussed below, rules have been imported into the gray area that are actually irrelevant to the real evil of special legislation. The portman- teau word that carries within it all these grays is "classification." In the case of local legislation, a simple black and white example of five dog-catchers for Onetown was given above. But suppose that One- town were the only city in the state which bordered on an uninhabited wilderness in which there were packs of wild dogs. It would make great sense to permit Onetown to have more dog-catchers than other cities in the state. (If it is asked why the state concerns itself with the number of dog-catchers anyway, it can be assumed that experience has taught that the job of dog-catcher is a traditional sinecure for faithful party workers Art. IV, § 22 209 and that without a state limit, many cities would end up with dozens o£ dog-catchers who drew pay but did no work.) This assumed example demonstrates the means by which general legislation can be constructed which is applicable only to one locality. Instead of passing a bill allowing Onetown to have five dog-catchers, the legislature amends the general law by including an exception for any city bordered by an uninhabited wilderness. The exception purports to be general, but in fact applies only to Onetown. (There is a special problem in drafting, discussed below in connection with Professor Kales' article, which would make it advisable to include after the word "wilderness" such words as "con- ducive to the harboring of packs of wild dogs which prey on such bor- dering city.") From the foregoing analogy, it is easy to see that there are innumerable matters of justifiable state concern, even with acceptance of maximum home rule, in which the impact of legislation on Chicago should be dif- ferent from the impact on any other city in the state. In most instances, the reason for this is that Chicago is different because it is so large. The classification solution is simply to pass a general law applicable to cities with a population in excess of 500,000. Again, the assumption must be that the classification is reasonable in relation to the purpose of the legis- lation. It would be difficult to support a classification applicable to cities in excess of 500,000 if there were three large cities with populations of 468,000, 493,000, and 531,000, respectively. But if the third city was the only one on a lake and if the purpose of the statute was related in some way to the presence of a lake, then a classification of coverage of cities over 500,000 bordering on a lake would be a rational one. There have been occasions in some states when the legislature goes to the other ex- treme. Instead of passing what is a legitimate general law tailored to a special local problem, the legislature tries to pass a purely local law by the device of an artificial classification. For example, a bill applicable to cities over 95,000 but under 100,000 in population would be suspect, for there can hardly be a legitimate purpose for singling out such a narrow population spread. (For an Illinois example of a classification by description found to be too narrow, see Pettibone v. West Chicago Park Comm'rs, 215 111. 304 (1905).) In 1906, Albert M. Kales, a noted legal scholar, wrote an article in the Illinois Laiv Reviexv, now the Nortlnvestern Law Revieio, under the title "Special Legislation as Defined in the Illinois Cases." (1 111. L. Rev. 63.) Professor Kales was an authority in a completely different field of law, and the explanation for his article appears to be simply that he was rather annoyed with a broadside attack on constitutional prohibitions against local legislation which had appeared the previous year. {See Hub- 210 Art. IV, § 22 bard, "Special Legislation lor Municipaliiies," 18 Har\. L. Rev. 588 (1905).) In any event, Kales carefully analyzed the Illinois cases, mostly involving local legislation, or more accurately, local problems treated on a selective basis by the classification device. Kales pointed out at the beginning of his article that he was not in any way concerned with general regulatory legislation that was called special legislation because the courts disagreed with the legislative basis for determination of whom or what to regulate. (See discussion of special legislation below.) After analyzing the local legislation cases in Illinois to the date of his article, Kales extracted three principles, as follows: "First: 1£ there is a rational ground for legislating in behalf of the objects to which the Act applies and not for others of the same general sort, and if the rationale of the distinction is embodied in the Act's description of the objects themselves to which it applies, then the Act is not 'local or special' law. (Kales. "Special Legislation as Defined in the Illinois Cases," 1 111. L. Rev. 63, 66-67 (1906).) "Second: If there be no rational ground of distinction, on any view of the facts, upon which some objects are legislated for and others of the same general sort are not, the Act is a 'local or special' law. (Id. at 70.) "Third: Even if there be one or more rational grounds for legislating in behalf of the objects to which the Act applies and not for others of the same general sort, yet ;/ 7W rational ground is einbodied in the Act's description of the objects to which it applies then the Act is held to be 'local or special.' " {Id. at. 76.) There are three comments to be made about these three principles. The first comment is that the first two principles are neither startling nor earth-shaking. They represent the careful, scholarly formulation of the two sides of the obvious proposition that a good reason is required to support "general" legislation that is not universally applicable. It is Kales' third principle that is a key to acceptable classification. Kales is saying, in effect, that if the legislature has a reason for classification, it must state what the reason is and the courts will judge the rationality of the classification by the stated reasons, not by any conceivable basis that someone might dream up. The importance of this formulation is that it may explain the invalidation of legislation which appears to have a rational basis for classification. It is this type of invalidation that causes people to throw up their hands in despair at understanding the theory of classification. In order to put some meat on the Kales' skeleton, it is appropriate to review the examples that he used to demonstrate his third principle. His principal one is People ex rel. Gleeson t'. Mcecli (101 111. 200 (1881)), where the Supreme Court invalidated an act which said that justices of the peace should have county-wide jurisdiction except in Cook County which was to be divided into two districts, one consisting of Chicago and the other of the balance of the county. Suppose, Kales suggested, the Art. IV, § 22 211 act had said that every county should have one district except a county containing a city with a population in excess of 100,000, in which case there should be two districts. The point Kales made was that the actual statute singled out Cook County, whereas his suggestion separated coun- ties into two classes on a basis that on its face was rational. He drove his point home by contrasting two cases that involved statutes passed as a result of the Chicago fire. One case involved the Burnt Records Act which dealt with establishing land titles in any county whose land records had been destroyed by fire. The act was upheld. (Bertrand v. Taylor, 87 111. 235 (1877).) The other case involved a statute of limited duration authorizing a county with a population in excess of 100,000 to issue bonds for the construction of a courthouse on a site "heretofore used for that purpose." The act was held invalid. (Devine v. Board of Comm'rs, 84 111. 590 (1877).) Kales noted that the first statute applied only to Cook County but by its terms would apply to any other county which ever lost its land records by fire, whereas the second statute in fact simply permitted Cook County to issue bonds for a new courthouse. Presumably, though Kales was not this explicit, if the legislature had authorized any county which lost its courthouse by fire to issue bonds for a new court- house, the statute would have been upheld. It might even have been possible to qualify the fire as one causing a specified amount of destruc- tion in the county seat in order to limit the authority to a situation where special power to issue bonds would be essential. Kales concluded his article by conceding that the distinctions made were a matter of form, but he maintained that form is important if the courts are to be able to determine that there is a reasonable basis for classification. The second comment to be made about the Kales' principles is that with all their precision, they had an accordion word throughout — "rational." One man's "rational" is another man's "irrational," and judges are men. It is likely that any group of lawyers could sit around a table reviewing all the local legislation cases of Illinois and agree on the controlling principles of decision while disagreeing on whether the courts followed the principles. The third comment is a corollary to the foregoing. The process of deciding whether a given classification is or is not rational is sufficiently subjective that the milieu in which the problem arises may influence the course of decision. For example, in the recent case of In re Struck (41 111. 2d 574 (1969)), the Supreme Court decided that the provision of the Municipal Code that permits the recall of elective officials under the commission form of government is invalid under Section 22 because "there is no reasonable relation between the objectives sought to be ac- complished by the recall procedure and the differences in the various 212 Art. IV, § 22 tonus oi municipal government. Either the recall procedure should apply to none, or all forms of municipal government should be free to adopt it." (Id. at 579.) The interesting point about the facts of that case is that the alleged ground for wanting the officials removed was that they had voted for ordinances that they knew the voters opposed. The ordinances were the Uniform Housing Code and Uniform Building Code Short Form, the State Plumbing Code, a national Fire Prevention Code, and the National Electrical Code. Although simply disagreeing with policy decisions is an acceptable reason for recall, one can speculate whether the Court would have read the problem of classification different- ly in a case where the petition alleged bribery, corruption and embezzle- ment rather than opposition to ordinances of a type generally believed worthwhile. In any event, it is certain that the judicial process of determining when a classification is acceptably rational is one in which the governing principles may be crystal clear but the prediction of deci- sions imder the principles is difficult. (Compare the discussion of "Revival and Amendment" under Sec. l.H, supra, p. 160.) This discussion of local legislation may be summarized thus: (1) The purpose of a ban on local legislation is to prevent the state legislature from concerning itself with a purely local problem. (2) But, a state problem does not affect all parts of the state in the same way, and the legislature is entitled to classify parts of the state in order to produce a reasonable solution to a state problem. (3) In steering a course between (1) and (2), a court should demand that the legislature so draft its statutes that the rationality of the classification is explicit. (4) Notwithstanding the clarity of the principles involved, there is such latitude in applying them that the courts have considerable freedom, and there is little assurance that accurate predictions can be made — by legislature or litigants. The story of special legislation is quite different. As noted earlier, there is little difficulty in recognizing a blatant bit of special legislation, and, in fact, legislatures do not pass that kind of bill. The difficulty arises because it is almost impossible to legislate on a truly universal basis. Any statute, explicitly or implicitly, excludes somebody or some- thing. Even the fundamental proposition that anyone born in the United States is a citizen has an explicit exception. The Fourteenth Amendment to the United States Constitution includes the phrase, "and subject to the jurisdiction thereof," thereby excepting, for example, children born of parents who have diplomatic immunity. Thus, courts enforcing a prohibition on special legislation are constantly faced with an argument that the general law before the court is really a special law because of some exclusion from coverage. Art. IV, § 22 213 Out of all this grows the body of rules of classification. The short statement is that a law remains general so long as the basis for inclusion and exclusion under the law is reasonable. But, as in the case of reason- able classification for local laws discussed above, the statement of principle is of limited value, for reasonable men frequently disagree about what is reasonable. Moreover, as discussed earlier in connection with Section 1 of this Article (supra, p. Ill), reasonableness of classification has been used by the courts in the same manner as they use the due process and equal protection clauses. That is, .the determination of reasonableness becomes, to some extent, an expression of opinion on the soundness of the legislature's action. One fairly recent case, Monmouth v. Lorenz (30 111. 2d 60 (1963)), will suffice to demonstrate the complexity of classification as an element in the judicial process. The case involved the Prevailing Wage Law (111. Rev. Stat. ch. 48, §§ 39s-I to 39s-12 (1967)), which requires the pay- ment of wages at the prevailing area rate to craft workers on public works construction projects. One of the specific issues in the case was the validity of the requirement that such prevailing wages had to be paid to construction employees of government bodies as well as to construction workers employed by private contractors building public works. The law "in effect made a single classification of all employers of laborers, work- men and mechanics engaged in the construction of public works whether the employer be a contractor or a public body." (City of Monmouth v. Lorenz, 30 111. 2d 60, 65-66 (1963).) The Court continued: "It is well established that equal protection of the law is not violated as long as the selection of objects for inclusion and exclusion within the class, upon which the legislation acts, rests upon a rational basis. . . . Here the legislation has put into a single class public bodies and construction contractors which are for most purposes two entirely different classes. It is true that each class may employ laborers, workmen and mechanics for the construction of public works and that the legislation in question deals only with this common characteristic of the two classes. Labels may be deceptive, however, and labeling the two classes as employers of workmen for the construction of public works does not cover the vital and real differences between the two classes of employers and their respective employment relationships with their employees. Government employ- ment is generally of a steady nature and entails fringe benefits, whereas employ- ment by a private contractor is unusually seasonal and does not carry like fringe benefits. These disadvantages of seasonal employment and lack of fringe benefits are compensated, of course, by the payment of higher wages. The workmen employed by the public body may do as well as or better in the long run than the workmen employed by a private contractor although his rate of pay be not as high. The object of the legislation in question is to insure that workmen on public projects receive the same economic benefits as workmen on projects of a similar nature by regulating the rate of pay they are to receive but rate of 214 Art. IV, § 22 pay is jusl one lactor in determining ihc economic benefits to be derived from employment, and where, as here, the two classes of employers are by their very nature in such a position that they cannot and do not confer similar economic benefits on their employees exclusive of the rate of pay, an act requiring both classes to pay their employees on construction at the same rate violates the ecjual protection clause of both the fourteenth amendment to the Federal constitution and section 22 of article IV of the Illinois constitution." (Id. at 67-68.) The foregoing quoted excerpt from the Monmouth case serves as a demonstration of the somewhat subjective nature of the determination of the reasonableness of a given classification, as a demonstration of the complexity of the concept of classification, and as an example of the dif- ficulty of trying to cover in this Explanation the entire range of consti- tutional decisions on reasonableness of classification. The words "somewhat subjective" are used because, following the initial sentence setting forth the general principle of classification, the Court's opinion is simply a well-reasoned argument for not requiring the payment of prevailing construction wages to government employees. It is a wise argument that should have been made to the legislature and one that many people would think should have prevailed. But wisdom aside, it is not easy to see how a legislature can be labeled irrational for deciding that all people who work on public construction should be paid the prevailing wage. The Monnwuth case also demonstrates the complexity of classification. Consider, first, the initial sentence of the quoted portion of the opinion. It speaks of "equal protection," not of "general legislation." It speaks of "objects for inclusion and exclusion within the class," not of "exclusion" only. Thus, the sentence prepares the ground for invalidating the legis- lation under Section 22 on the ground that two things that are different are treated alike. Conceptually, this is understandable in the context of equal protection of the laws, but it is most difficult to conceive of a law as "special" because it is universal rather than limited in its application. Once it is recognized that the prohibition on special legislation has been used by the courts for purposes far beyond the particular evils which the drafters of the 1870 Constitution had in mind, it is clear that no comprehensive annotation can be undertaken here. In the Annotation to Section 22 by Smith-Hurd there are over 180 headings, of which ap- proximately 85 deal with the 23 enumerated cases. Most of the rest of the headings deal either with the general principles of classification or with different businesses, occupations, and other specific subjects. One heading, "Classification for legislative purposes— In general," (Smith-Hurd, Illinois Annotated Statutes, Constitution, arts. I-V at 643 (1964)), includes two paragraphs simply listing cases, in the one instance of those in which the classification was held void, and in the other of those in which the Art. IV, § 22 215 classification was sustained. A third paragraph cites a couple ot cases for the proposition: "The classification of objects of legislation is not required to be scientific, logical or consistent, if it is reasonably adapted to secure purpose for which it is intended, and is not purely arbitrary." (Id.) The general principle is clear; the application, case by case, is not. The Specified Prohibitions: (1) Granting Divorces: Apparently, the legislature has never tried to violate this prohibition. Two court cases have, however, referred to it. In one case, a rather far-fetched attack was made on a statute permitting waivers of a 60-day waiting requirement in divorce actions under which individual judges could differ in deciding what facts justified a waiver. The Supreme Court gave short shrift to the claim that a special law granting divorces was involved. (People ex rel. Doty v. Connell, 9 111. 2d '^90 (1956).) In the other case, a statutory effort to provide different procedures for divorce actions in counties of over 500,000 population was invalidated under the local law rule discussed earlier, but was held not to be a special law under this specific prohibition. (Hunt v. County of Cook, 398 111. 412 (1947).) (2) Changing Names: No cases and, presumably, no special laws. Ob- viously, it is necessary on occasion to change the name of a place. This prohibition simply forces the legislature to delegate the power to make changes. (See, e.g., 111. Rev. Stat. ch. 105, §8-9 (1967), giving the govern- ing board of a park district the power to change the name of a park.) (3) Laying Out Roads: An act attempting to validate an administrative selection of a road route appears to be the only truly special act invali- dated under this prohibition. (Watts v. Department of Pub. Works Sc Bldgs., 328 111. 587 (1928).) Other cases involving roads have been cases of local versus general legislation. For example, it was held not permissible to make highway commissioners in nontownship counties personally liable for negligence in not keeping roads repaired while leaving commissioners in township counties not liable. (Kennedy v. McGovern, 246 111. 497 (1910).) (See also discussion on Vacating Roads below.) (4) Vacating Roads: In a few instances of these specific prohibitions, it is evident that in fact action can be taken only on a case-by-case basis and that the legislatvue has to adopt a general law that delegates to someone the power to act. In 1870 there was no state highway system, and presumably the prohibition was aimed at preventing the legislature from superseding local governments. But somebody must have the power to vacate a single road, and the courts have recognized that a general law which delegates such power to a subordinate agency is no violation 216 Art. IV, § 22 ot the prohibition. {See People t-.v rel. Hill v. Eakiii, -^8:^ 111. '^83 (1943); People ex rel. Franchere v. City of Chicago, 321 111. 466 (1926).) (5) County Seats: No cases and undoiiljteclly no special acts. Indeed, so tar as changing county seats is concerned, this prohibition was redun- dant from the beginning by virtue of Section 4 of Article X, covering removal of county seats. See iufra. p. 494.) (6) Regulating County Affairs: There- are many cases involving statiues regulating county and township affairs, but they all appear to deal witli validity of the classification under a general law. As a matter of fact, any local or special law purporting to be a general law within the cover- age of any of the 23 specific prohibitions falls as a specifically prohibited act once the classification is found to be unreasonable. To put it an- other way, in one sense there are no local laws under this specific }jrohi- bition because there have been no laws regulating the affairs of County A by name or Township B by name; but in another sense, there have been such laws because the courts have refused to accept the purported classification. (7) Practice in Courts: It is not clear whether this prohibition was aimed primarily at preventing a special act giving John Doe a one-shot procedural favor — e.g., a cause of action notwithstanding the running of the statute of limitation — or at preventing a special act covering prac- tice in one specific court — e.g., the time to answer is extended Irom 20 days to 30 days in a particular circuit court. It seems doubtful that the prohibition was aimed at any of the types of legislation that have fallen afoul of it. For example, the Sujireme Court once said that a statute setting forth the weight to be gi\en to an administrative adjudi- cation under workmen's compensation was a special la^v regulating the practice of courts. (Otis Elevator Co. v. Industrial Comm'n, 302 111. 90 (1922). The Court also said that the provision was in violation of separation of powers under Article III and contrary to due process. See discussion ot Art. Ill, supra, p. 99.) Relatively recently, the Supreme Court struck down a provision under the school code which allowed only ten days in which to appeal one type of administrative decision while other types could be appealed within 35 days. (Board of Educ. v. County Bd. ot School Trustees, 28 111. 2d 15 (1963).) Statutes such as are involved in cases like these purport to be general laws, and the question raised is the reasonableness of the "classification," normally in the sense of due process or equal protection of the law. There are other cases involving court practice in which the classifi- cation problem is the traditional geographical local law situation dis- cussed earlier. For example, a requirement for the payment of a jury fee is reasonable, even if in fact applicable only to Cook County. (Hunt Art. IV, § 22 217 V. Rosenbaum Grain Corp., 355 111. 504 (1934). The Court also said that "juries" were not included under "practice in courts.") But a popu- lation classification of counties for the purpose of appointment of administrators of estates of nonresidents was held not reasonable. (Strong V. Dignan, 207 111. 385 (1904). As to the question of general legislative power over rules of practice, see Explanation of Art. Ill, supra, p. 99.) (8) Jurisdiction of Justices: One of the cases on classification. People ex rel. Gleeson v. Meech (101 111. 200 (1881)), discussed earlier in con- nection with Professor Kales' article {supra, p. 210), was invalidated as a local law regulating the jurisdiction of justices of the peace. In view of the abolition of justices of the peace and police magistrates under the new Article VI, tliis specific prohibition is now presumably a dead letter. (9) Changes of Venue: As in the case of other specific prohibitions, the original purpose of this change of venue restriction was probably to stop the legislature from passing private legislation such as shifting John Doe's suit to a different county notwithstanding the general venue statute. The only cases that appear to have arisen involved general venue matters. In one instance, special venue rules were proposed for the inunicipal courts of Chicago, but the statute fell because venue was not considered to be within the scope of permitted local legislation under Section 34 [infra, p. 246), and, paradoxically, part of a law which had been tailored to Chicago's special court system could not stand because Section 34 did not authorize a venue variation. (Feigen v. ShaefFer, 256 111. 493 (1912).) In the other instance, the Supreme Court gave short shrift to an argument that a venue differentiai between town courts and circuit courts was prohibited by Section 22. (People ex rel. Norwegian- American Hospital, Inc. v. Sandusky, 21 111. 2d 296 (1961).) (10) Special Municipal Charters: This prohibition was one upon which the delegates in 1870 were most insistent. The speediest way to induce proliferation of local legislation is to allow special municipal charters, because subsequent amendments will also be by local law. But, as noted earlier (supra, p. 207), genuinely universal general laws are not prac- ticable, and classification of one sort and another becomes a common practice. The earlier extended discussion on classification is applicable here. Nevertheless, it is important to note that the prohibition is limited to "town, city or village." It is possible, therefore, to create a "municipal corporation" by special act. (See People ex rel. Coutrakon v. Lohr, 9 111. 2d 539 (1956).) Of course, such a "municipal corporation" would not be available to regulate county and township affairs ((6) above), or 218 Art. IV, § 22 managenicni oi coiunion scliools ((13) below). (See also discussion of final sentence of Sec. 22, infra, p. 222.) It has been noted from time to time in this discussion, that courts use "special legislation" as a way to get at general hnvs that, in the eyes of the court, violate concepts ol due process and ecjual protection. The same judicial manij)idation ol the concept ol "local legislation" has been indidged in. In Krcnncvs v. C//)' of West (^hicao^o (IOC) 111. 51() (1950)), the Supreme Court was faced with a statute which set a state- w^ide maximum rate for a library tax lor cities, towns and villages. The computation of the maximum was tied to a figure for an earlier year in such a manner that the maximum possible levy would vary "irration- ally" from town to town. The Coint held the statute invalid. Such a statute does not appear on its face to be a local law "changing or amend- ing the charter." But the Court said that it a statute purporting to be a "general law is to establish dissimilarity in the powers and modes of different municipalities in the le\y and collection of taxes, then, since the laws conferring such powers and prescribing such modes become a part of the charters of the municipalities, it will be regarded as witliin tlie prohibition of [this section prohibiting local or special laws for in- corporating municipalities or changing or amending municipal charters]." (Id. at 552.) It is also noteworthy that the statute in question was as "general" as it could be — one formula universally applicable. Unfortu- nately, it was a bad formula. (Compare tlie discussion of the Monmouth case, supra, p. 213.) (11) Election of Supervisors: No cases and presumably no questionable statutes. (12) Summoning Juries: There have been a few cases that referred to this prohibition, but none dealt with the literal meaning of it, which woidd seem to be designed to cover special acts which summoned and impaneled specific grand and petit juries out of the ordinary comse of judicial administration. The cases that have arisen generally appear to have involved statutes classifying counties according to population so that Cook County had different rules for juries. In one case, a section providing a louver maximum age for jmy service in Cook County was held invalid, but all other parts of the statute were upheld. (People v. Bain, 358 III. 177 (1934). Incidentally, the jiay commissioners in Cook County had ignored the age differential and no one had been "injured" by the law.) (13) Management of Schools: The key word in this prohibition is "management." Local laws concerning schools are prohibited only if they deal \vith "management." Two early cases stated that this referred only to conduct of the schools in imparting instruction. (Fuller v. Heatli, Art. IV, § 22 219 89 111. 296 (1878); Speight v. People ex rel. County Collector, 87 111. 595 (1877).) Both of these early cases concluded that laws concerning raising revenue for schools were not within the specified prohibition. Likewise, a law concerning the filling of vacancies on certain types of school boards does not come under the prohibition. (People ex rel. Peterson v. Pollock, 306 111. 358 (1922).) It follows that many local laws concerning education may be passed. {See, e.g., Land Comm'rs of the Commons v. President h Trustees of the Commons, 249 111. 578 (1911).) Nevertheless there are a great many cases involving school legislation, and some of them invalidate legislation which purports to be general. In almost all cases, invalidity was based on the "exclusive privilege" pro- hibition. {See, e.g.. People ex rel. Board of Educ. v. Read, 344 111. 397 (1931). See (23), infra, p. 221.) (14) Interest: A handful of cases involved attacks on legislation deal- ing with interest, but in all instances the legislation survived. The ground was either that the classification was reasonable {<^-g-, Meier v. Hilton, 257 111. 174 (1912)), or tliat the "interest" was actually a penalty, as in delinquency in payment of taxes {e.g.. People ex rel. Johnson v. Peacock, 98 111. 172 (1881)). (15) Elections: It is sometimes unclear what evil produced one of these specific prohibitions, but, presumably, the evil was one of special ad hoc legislation. In the case of elections, the presimiption would be that the type of act to be prohibited would be one changing the general law for one specific election for some specific political advantage. If this presumption is correct, it can be said that the legislature does not appear to have passed any such law. The reported cases have concerned general laws under attack on some argument of improper classification. {See, e.g., Heimgaertner v. Benjamin Elec. Mfg. Co., 6 111. 2d 152 (1955); Larven- ette V. Elliott, 412 111. 523 (1952).) (16) Realty of Minors: The purpose of this prohibition is obvious. Many instances arise when land cannot be conveyed because someone with an interest therein is under a disability. It would be tempting, if permissible, to get the land transferred by legislative fiat. As the History above notes, this sort of legislation was forbidden inider the 1848 Con- stitution. Except for two cases prior to 1890, neither of which seems particularly relevant today, no question appears to have arisen under this specific prohibition. (17) FisJi and Game: Whatever the original reason for inserting this prohibition, the principal result was a disastrous judicial holding that caused the drafters of the 1922 Constitution to modify the prohibition. {Supra, p. 206.) An act required a license for fishing with a hoop net or 220 Art. IV, § 22 seine in any state waters except Lake Michigan. The exclusion of Lake Michigan was held lo make it a special act void under tliis prohibition. (People V. ^Vilcox, 237 111. 421 (1908).) Three judges dissented on the grounds ot reasonableness ot the classification, and ii appears probable thai the Court would now [ollo\v the dissenters. [See People v. Diekmann, 285 111. 97 (1918).) (18) Ferries and Toll Bridges: No charters or licenses for ferries or toll bridges appear to have been granted by special act, or if tliey Avere, no one appears to have objected by way of a lawsuit. (19) Remittance of Fines: The Supreme Court once pointed out that the purpose of this prohibition was to prevent the legislature from re- mitting a particular fine or penalty. (Compare the History of Sec. 23, infra, p. 226.) The court went on to note that the legislature could au- thorize courts to remit fines. (People v. Heise, 257 111. 443 (1913).) Not- withstanding a judicial explanation of the purpose of the provision, the Supreme Court some years later invalidated a law, limited by classifica- tion to Cook County, under which delinquent taxes could be paid in installments. The Court said it was a local law remitting fines, penalties and forfeitures. (People ex rel. Clarke v. Jarecki, 363 111. 180 (1936).) The Court could have said that the act was a local law regulating county affairs ( (6) above), or even a special law granting an exclusive privilege ( (23) beloAv), on the theory that only Cook County taxpayers had the exclusive privilege of paying delinquent taxes on the installment plan. Apparently, litigants and courts are not overly fastidious about which local and special law slot they use. (See also discussion below concern- ing exclusive privileges.) (20) Changing Compensation: This prohibition was probably redun- dant when adopted in 1870 and is certainly so under judicial interpreta- tion of other sections of the Constitution. It would appear that anyone who could be covered by a local or speciaj law would be covered by one of the other sections prohibiting compensation changes by general law. (See the discussion of Sec. 11 of Art. IX, infra, pp. 473-7.) (21) Changing Law of Descent: This is a prohibition, like granting divorces, changing names, selling real estate, and remitting fines, aimed at private bills that are designed to allow a John Doe to inherit property contrary to the general rules of descent. Only two cases appear to have re- ferred to the prohibition and both of them dealt with general laws. {See Jahnke v. Selle, 368 111. 268 (1938): \Vunderle v. Wunderle, 114 111. 10 (1893).) The Wunderle case is noteworthy, however, because the situation is conceptually comparable to the Kremers case discussed under (10) above. In Wunderle, the general law prohibited any nonresident alien from acquiring real estate by descent, but certain treaties of the United States Art. IV, § 22 221 permitted such acquisition. The Supreme Court would not go beyond the general law to consider its actual operation. (22) Railroad Tracks: This prohibition was aimed at one aspect of the internal improvement abuses of the middle of the Nineteenth Century. The whole business is substantially dead today. Indeed, except for an early case in 1874, only one case appears to have referred to this prohibition, and that was a traditional action to determine the constitutionality of a new authority. {See People v. Chicago Transit Authority, 392 111. 77 (1945).) Resort to the railroad track prohibition was a makeweight and so treated by the Court. (23) Special Privileges: It has been noted in several instances above that the original purpose of an enumerated prohibition was lost sight of long ago. This is particularly true of this last specific prohibition. The evil of special legislation which the 1870 delegates had in mind was the act that gave John Doe or the John Doe Corporation an exclusive franchise or privilege of some sort. In some manner that cannot be traced here — if it can be traced at all — the special privileges prohibition became a constitutional vehicle for attacking discriminatory legislation. The prohibition is, in effect, Illinois' version of the Fourteenth Amend- ment's equal protection clause. Indeed, the Supreme Court has said as much: "This provision supplements the equal-protection clause of the fourteenth amendment to the federal constitution and prevents the enlargement of the rights of one or more persons in discrimination against the rights of others." (Schuman v. Chicago Transit Authority, 704 111. 313, 317 (1950).) For the reasons set forth at the beginning of this Explanation, it is not feasible to cover all of the many examples of discrimination in legis- lative treatment of individuals, associations or corporations — those found valid and those found invalid. Nor is there any need to discuss the general principles involved, for they are set out in the introductory dis- cussion of special legislation. (Supra, pp. 212-15.) There is, however, one technical interpretation of the prohibition that should be noted. The word "corporation" is limited to private corporations. Exclusive privileges not otherwise invalid may be granted to public corporations. (See People ex rel. Greening v. Green, 382 111. 577 (1943).) From the discussion up to now, particularly the relatively detailed analysis of several cases, it should be clear that there is almost no limit to the way in which an argument of discrimination can be' turned into one of exclusive privilege. For example, if a law classifies counties or cities on a basis which the courts do not deem reasonable, and if the subject matter cannot be pushed under one of the first 22 prohibitions, it prob- ably can be called an exclusive privilege. If the law is burdensome, the 222 Art. IV, § 22 counties or cities not covered have a privilege denied others; if the law confers a benefit, the counties or cities covered have a privilege, denied the others. If a "general" law affects some people and not others, and if courts consider the differentiation unreasonable, one group or the other has an exclusive privilege, dei^ending on whether the law is beneficial or burdensome. Even in cases where the law treats all alike and the courts think that it is unreasonable not to differentiate, it may be possible to argue that some part of "all" gets a privilege denied to the rest of "all." There may be occasions when it is not possible to find an exclusive privilege, but this need not stop the courts. Consider the Monmouth case discussed above. (Supra, p. 213.) That case, it will be recalled, struck down a requirement that both public bodies and private contractors pay pre- vailing wages to construction workers on public works. It is difficult to find an exclusive privlege here or any other specific prohibition that fits. But then the Court apparently did not either. It simply said that the act violated Section 22. It is probably safe to say that by now the equal protection /special legislation rule is so firmly established that there is no longer a need to be precise in relating an alleged local or special act to one of the specific prohibitions. If the relation is obvious, that is all to the good. But of it is not obvious, a demonstration of unreasonable classification or discrimination will undoubtedly suffice. In All Other Cases: In the light of the preceding paragraph, it is para- doxical to mention two flat statements that the courts consistently make. One is that there is no absolute prohibition against a local or special law on any subject not included in the 23 enumerated cases. (See Foutch V. Zempel, 332 111. 192 (1928).) The other statement is that the admonition to act by general law whenever applicable is addressed to the legislature and not to the courts. If the legislature passes a local or special law not otherwise prohibited, the courts consider such passage a conclusive and unreviewable finding by the legislature that a general law cannot be made applicable. (Wilson v. Board of Trustees, 133 111. 443 (1890).) Paradoxical or not, there is good reason for the first of these rules. There are a great many occasions when a local or special act is the proper, perhaps the only, way to solve a legislative problem. The way must be cleared by a judicial affirmation that the last sentence of Section 22 means that sometimes local and special laws are permissible. (The word "local" does not appear in the last sentence, but there is no reason to believe that the 1870 Convention meant anything by this omission. In any event, the courts do not appear to have considered the omission significant). If some local and special laws are permissible, the only Art. IV, § 22 223 logical way to accept them is to say that they may cover any subject not excluded by the 23 enumerated cases. Indeed, the last sentence begins "In all other cases . . . ." Once the courts have come to this conclusion, it is easy for them to embrace the second rule. The assumption is that the Constitution has covered all the serious local and special legislation evils. Why then, the courts might ask themselves, should we "knock ourselves out" trying to determine "in all other cases" whether or not the legislature could have handled some problem by a general law? Moreover, the courts might sense that once they agree to review such acts, the legislature will start dressing them up in tortured language of generality. (See further dis- cussion in Comynent below.) Perhaps the best way to explain tjie paradoxes of Section 22 is to reclassify the types of laws which may be involved. Using "local" in the geographical sense and "special" in the nongeographical sense, there are the following types of laws that can get involved with Section 22: (a) A local law which is prohibited by one of the enumerated cases. (b) An artificial general law which is actually a local law in a pro- hibited area. (c) A local law which is not prohibited. (d) A special law which is prohibited by one of the enumerated cases. (e) A special law which is not prohibited. (f) A general law which the courts find unconstitutionally discrim- inatory and therefore call "special." (Note that there is no artificial general law which is actually special. So long as the courts use Section 22 to strike at discriminatory general laws, an artificial general law would fall in that category.) Comparative Analysis Approximately 36 states have some general prohibition against the enactment of local and special laws. Fourteen states, including most of the New England states, do not. Some of these 14 states may, however, have limited local or special law prohibitions. For example, two of the 14, Delaware and New York, prohibit legislative divorces. The new Connecticut Constitution for the first time contains an article on home rule. The local law prohibition reads: "After July 1, 1969, the general assembly shall enact no special legislation relative to the powers, organization, terms of elective offices or form of govern- ment of any single town, city or borough, except as to (a) borrowing power, (b) validating acts, and (c) formation, consolidation or dissolution of any town, city or borough, unless in the delegation of legislative authority by general law the general assembly shall have failed to prescribe the powers necessary to effect the purpose of such special legislation." (Conn. Const, art. X, § I.) (The Constitution was effective at the end of 1965. The July 1, 1969, 224 Art. IV, § 22 effective date for prohibiting local legislation was necessary to give the General Assembly adequate time to adopt the necessary general laws.) It is not essential to compare every one ot the 23 enumerated cases with other states, but a significant sampling seems appropriate: Changing names (2) 31 states County seats (5) 24 states County affairs (6) 19 states Change of venue (9) 25 states Municipal charters (10) 20 states Juries (12) 22 states Interest rates (14) 23 states Property of minors (16) 27 states Law of descent (21) 24 states Exclusive privileges (23) 31 states (Citizens Conference on State Legislatures, State Consti- tutional Provisions Affecting Legislatures (May 1967).) The United States Constitution has no comparable restriction and Congress regularly passes special acts. The equal protection clause in the Fourteenth Amendment applies only to the states, but the United States Supreme Court has made the due process clause of the Fifth Amendment, which is applicable to Congressional action, serve as an equal protection clause. Thus, the United States Supreme Court has found a substitute, just as the Illinois Supreme Court found a substitute in Section 22. The Model State Constitution has the following recommended pro- vision: "Special Legislation. The legislature shaff pass no special or local act when a general act is or can be made appficabfe, and whether a general act is or can be made applicable shall be a matter for judicial determination." (art. IV, § 4.1 1.) (See also the home rule provisions of the Model quoted in the Com- parative Analysis of Sec. 34 of this Article and Sec. 5 ot Art. X, injra, pp. 251 and 498.) The Commentary to the Model states, in part: "Tlie distinction between general and special laws may be far from clear in any given case. "But, even tliough the question as to what is a special law may not be capable of a categorical answer, it is not the major question under the common consti- tutional provison that no special law be passed when a general one is or can be made applicable. Rather, the problem has been when is a general law applicable and wlio is to determine, finally, wliether or not sucli a general act is or can be made applicable. "In the absence of specific constitutional directions, state courts have divided on the issue as to which branch of government is to malte this determination. Some have held that this is not open to judicial review but can be decided only by tlie legislature, while others have held that the question is initially for the Art. IV, §22 225 legislature but that the courts may set aside the legislative judgment when the determination of the legislature is arbitrary, unreasonable or clearly an abuse of discretion. Still others hold the question to be a purely judicial one. In any event, it has been troublesome in some jurisdictions where the courts have wavered in the holdings from case to case." (Model State Constitution 56.) It shotild be noted that the observations above (supra, p. 222) con- cerning the Illinois Supreme Court's rule that legislative determinations "In all other cases" are not reviewable is not necessarily inconsistent with the foregoing Commentary. In the absence of a large number of enumerated prohibitions, the Model's approach is the only one that assures some control over a legislature bent on evading the constitutional restriction. Comment It seems fair to begin by observing that Section 22, with its hundreds of judicial offspring, is a "mess." Unfortunately, in this imperfect world, it is a lot easier to criticize than it is to offer a blueprint for perfection. The way to proceed is not at all clear, and suggestions can only be tentative. First, it seems feasible to abandon the "laundry list" approach. A con- stitution is supposed to be a fundamental document, and if a limitation on legislative power is appropriate, it ought to be possible to express the limitation in the form of a statement of principle. Moreover, some of the 23 enumerated cases probably were not necessary in 1870, and even more are probably so unlikely today that it would no longer occur to a legislator to propose legislation on the subject. (The Commission on the Organization of the General Assembly made the same recommendation. I.S.L., p. 13.) Second, it seems appropriate to try to entice the courts away from using Section 22 as a substitute for or supplement to equal protection and due process. These are two fundamental rights that belong in the bill of rights. If the words "No person shall be denied the equal pro- tection of the laws" are added to the bill of rights, either as a separate section or as an addition to Section 2 thereof {supra, p. 9), a first step will have been taken. Third, it would be advisable to keep "local" and "special" legislation separated to the maximum extent possible. If an article on local govern- ment is to be prepared, combining county government and new material on other local governments, all with an eye to greater home rule, then a prohibitory section on "local" legislation, using that word and not "special," would be appropriate. Such a prohibitory section could take any of many forms — there are a number of "models" around. The only suggestion to be made here is to keep it simple. It should be either 226 Art. IV, § 23 a flat prohibition with a mininuiin ol exceptions as in the Connecticut example quoted above, or a general statement as in the Model provision concerning "special" legislation quoted above, or as in a flat prohibition with a proviso that the legislature may provide for different treatment on the basis of reasonable classification of local governments. Finally, there remains the problem of real special legislation. One would like to believe that this sort of legislation would not be revived if there were no prohibition, but it probably is not safe, or in any event not worth the gamble, to experiment with this sort of legislative free- dom. (The point here is that real special legislation has not been a problem since 1870, whereas local legislation in artificial classification disguises has. If there were no restraints on the latter, the legislature might stop struggling with classifications and simply pass local legislation from time to time, but they might not do the same in such areas as grant- ing divorces, changing names, changing the law of descent, and transfer- ring real property— cases of real special legislation.) The cautious solution is a provision like that of the Model quoted above, including the words of subjecting applicability of general laws to jtidicial determination. There is, of course, no assurance that the courts would not gallop through such a hole, dragging the old pseudo-special legislation rules with them. (One can rest assured that litigants would try to get the courts to do just that.) But if the problem of local and special legislation is handled in a comprehensive fashion as suggested here, with a well-documented explanation of the four interrelated steps— (1) abandonment of enumer- ated cases, (2) substitution of equal protection, (3) coverage of local legis- lation in the Ipcal government article, and (4) the limited general pro- hibition on special legislation — the courts might go along. Release of Nonstate Debts Prohibited Sec. 23. The General Assembly shall have no power to release or extinguish, in whole or in part, the indebtedness, liability, or obligation of any corporation or individual to this State or to any municipal corporation therein. History This section dates from 1870. Notwithstanding the breadth of the sec- tion, the debate on it in the Convention revealed that the section was aimed at one specific abuse. It was argued that tax collectors, instead of remitting collections promptly, would retain the money and use it im- properly. If through such use it was lost, the collectors ^\■ould fraudu- lently establish a robbery and then seek relief for themselves and their sureties by private bill. Several delegates protested that the proposed section was too harsh, for, it was argued, there would be no relief for the collector who was in fact robbed through no fault of his own. These Art. IV, § 23 227 arguments were to no avail and all proposals to provide for exceptions were defeated. It should be noted, however, that the delegates were aware that the section was broader than the abuse at which it was aimed. (See Debates 634.) The proposed 1922 Constitution retained this section in a much simpli- fied form. In the article on Public Servants of the proposed Constitu- tion, a provision was included stating that no statute of limitation could begin to run in favor of a public officer until an audit of his accounts had been made. Explanation The principal problem with this section is that it prevents the adop- tion of a statute of limitation that runs against the state or any muni- cipal corporation. It was this problem that presumably led the 1920-22 Convention to narrow the provision so that it approached in coverage the matter about which the 1870 delegates were worried. Over the years, a great many attempts have been made to rely upon this section in litigation, but in only two cases does it appear to have been effective. In 1931, a taxpayer sent in his check for fuel tax collected, but the bank failed before the state could deposit the check. The state filed a claim with the bank receiver and then, it was alleged, the Director of Finance canceled the taxpayer's surety bond. In a subsequent action on the bond, the taxpayer's defense of cancellation was turned aside on the ground that state officials had no power to release the obligation. (People ex rel. Ames v. Marx, 370 111 264 (1938).) In 1949, the Supreme Court relied on the Marx case to hold that one Attorney General's con- sent to settlement of an action for refund of taxes paid under protest without a judicial determination of liability was no bar to his successor's reviving the issue. (Massell v. Daley, 404 111. 479 (1949).) Notwithstanding the foregoing cases, it appears fairly clear that the courts are not anxious to push Section 23 to its literal extreme. In People V. Evamik (320 111. 336 (1926)), the claim was made that the legislature did not have the power to permit a judge to set aside a bail bond forfeiture after judgment where the surety subsequently produced the defendant. The Supreme Court held that all the statute did was to change the circumstances under which the obligation finally became an obligation. Another section of the same statute permitted the County Commissioners or Board of Supervisors to compromise such a judgment. In an action attacking a compromise of $100 on a $5,000 bond forfeiture, the Supreme Court had a more difficult time with the statute, but con- cluded that since such fines went into a fund to pay the state's attorney's salary with any surplus going into the school fund, the obligation was not really an obligation of the state and, therefore, the legislature could 228 Art. IV, § 24 permit a settlement lor a smaller sum. (People ex rel. Marcus v. Swan- son, 340 111. 188 (1930).) It should also be noted that a compromise ol a doubtlul claim is not prohibited by Section 23. (Binr v. City of Car- bondale, 76 111. 455 (1875).) Nor is the section a bar to the release of a claim for a consideration believed to be of equal or greater value. (City of Chicago v. Pittsburgh, C, C. R: St. L. Ry., 244 111. 220 (1910).) Comparative Analysis Nine states appear to have a comparable section. Three other states with a comparable provision exempt taxes delinquent for a specified period: ten years in two cases, the jjeriod of prescriptive rights in the third case. Two states are content with an extraordinary vote for any bill releasing a state claim. Eleven states simply prohibit release by private or local act. Neither the United States Constitution nor the Model State Constitution has a comparable provision. Comment It would seem appropriate to take a leaf from the 1920-22 Convention and then go a little further and drop this section entirely. The need for flexibility in providing general statutes of limitation and means of com- promise and settlement of state claims far outweighs the danger that on some occasion the legislature may propose the release of a good claim and the Governor may not veto it. Impeachment Sec. 24. The House of Representatives shall have the sole power of impeach- ment; but a majority of all the members elected must concur therein. All im- peachments shall be tried by the Senate; and when sitting for that purpose, the Senators shall be upon oath, or affirmation, to do justice according to law and evidence. When the Governor of the State is tried, the Chief Justice shall preside. No person shall be convicted without the concurrence of two-thirds of the Sen- ators elected. But judgment, in such cases, shall not extend further than removal from office, and disqualification to hold any office of honor, profit or trust under the government oi: this State. The party, whether convicted or acquitted, shall, nevertheless, be liable to prosecution, trial, judgment and punishment according to law. History The impeachment provisions in the Legislative Articles of the 1 81 8 and 1848 Constitutions included, in substance, most of what is now in Sec- tion 24 and the sentence now appearing as Section 15 of Article V. Neither Constitution provided for the Chief Justice to preside at a trial of the Governor. In the 1818 Constitution, a simple majority of the mem- bers present was required to impeach, and a two-thirds' vote of senators present was required to convict. The change to votes of the members Art. IV, § 24 229 elected was made in 1848. In all other respects the substance of Section 24 is the same. The proposed 1922 Constitution combined Section 15 of Article V and Section 24. No changes were made except in punctuation. Explanation The impeachment process is an historic means of removing someone from office. In some cases, such as state-wide elected officers, it is the only means of removal unless, of course, another constitutional provi- sion provides for removal. Under Section 30 of the original Judiciary Article, for example, judges could be removed by a three-fourths' vote of all elected members of each house of the legislature. The present Article VI provides a method for the judiciary itself to remove a judge for cause. (Sec. 18, infra, p. 372.) Impeachment is a rare event and it is not at all clear what its limits are. It seems likely, however, that the legislature can remove any state official through the impeachment process, notwithstanding any other method of removal provided by constitution or law. In addition to re- moval of judges by the impeachment process, it seems clear that the House of Representatives could impeach and the Senate try an officer appointed by the Governor, notwithstanding the Governor's removal power. (See Sec. 12 of Art. V, infra, p. 285.) The one exception to impeachment is legislators themselves. Section 9 (supra, p. 145) gives each house the power to expel members. It seems most unlikly that the Senate would try one of its own members following a purported impeachment by the House of Representatives, or that the House would impeach one of its o^vn members for trial by the Senate. (For definitional purposes, it is to be noted that "impeachment" is analogous to an indictment.) Comparative Analysis There are a great many variations in impeachment procedures among the several states. Only Oregon has no provision for impeachment. (See Comment below.) In Alaska, the senate impeaches and the lower house tries. In all other states, except unicameral Nebraska, the lower house impeaches and in most states the senate tries. In Nebraska and Missouri the highest court tries, except when one of its own members is impeached, in which case a different group of judges is used. In New York, the judges of the highest court join the senate for the trial. About a third of the states require a majority of all members of the house to impeach, a few require a two-thirds' vote, and a large number of the states are silent on the required vote. Almost all of the states re- cjuire a two-thirds' vote to convict, ajid a majority of them require that the two-thirds be of all the members of the senate. It is customary to 230 Art. IV, § 25 have the Chief Justice preside when the Governor is on trial, in a feu- states also when the Lieutenant-Governor is on trial, and in some states in all cases, except, ot course, when he hiniseli is on trial. Equally customary are the limitation on the judgment that can be rendered and the liability lor trial for any crimes alleged to have been committed. Most stales and the United States except impeachment convictions from pardons, and a majority of the states except such convictions from com- mutation. Illinois is silent on this jjoint. (See Sec. 13, Art. V, infra, p. 287.) The United States Constitution provides for impeachment in much the same manner as Illinois except that no specific vote is called for in the House of Representatives and the two-thiids \oie in the Senate is of the members present. The Model State Constitution calls for a two-thirds vote of all members to impeach and provides that trials shall be as provided for by law. Comment Impeachments are relatively rare, but it is a matter of important constitutional principle either to preserve the impeachment process — at least for constitutional officers — or to provide, as Oregon does, that "in- competency, corruption, malfeasance or delinquency in office may be tried in the same manner as criminal offenses, and judgment may be given of dismissal from office . . . ." (Ore. Const., art. VII, § 6.) State Contracts Sec. 25. Tfie General Assembly shall provide, by law, that the fuel, stationery, and printing paper furnished for the use of the State; the copying, printing, binding and distributing the laws and journals, and all other printing ordered by the General Assembly, shall be let by contract to the lowest responsible bidder: but the General Assembly shall fix a maximum price; and no member thereof, or other officer of the State, shall be interested, directly or indirectly, in such contract. But all such contracts shall be subject to the approval of the Governor, and if he disapproves the same there shall be a re-letting of the contract, in such manner as shall be prescribed by law. History The first sentence of this section first appeared in the 1848 Constitu- tion, but without the words "printing paper." Those words were in- cluded in the proposed section as stibmitted to the 1870 Convention. The section sailed through without discussion or debate until the day when the section was to be enrolled in the Constitution. At that time a motion was made to suspend the rules for the addition of what is now the second sentence of Section 25. The Chairman of the Committee on Revenue supported the motion, observing: "I am satisfied such a provision is necessary to the operation of this clause with any benefit to the State. It would liave saved thousands of dollars heretofore. Art. IV, § 26 231 and will save thousands of dollars in the future to the State." (Debates 1780.) The rules were suspended and the sentence added. The section was omitted from the proposed 1922 Constitution. Explanation This is the most limited in coverage of the several conflict-of-interest provisions. (See Sec. 15, supra, p. 176, and Sec. 4 of Art. VIII, infra, p. 409.) Only two cases appear to have arisen under this section. In Dement v. Rokker (126 111. 174 (1888)), the Supreme Court held that a contract that was the result of collusion among printers would be void. In Callaghan & Co. v. Smith (304 111. 532 (1922)), the Supreme Court invalidated an act authorizing a named concern to compile and publish the statutes of the state. The act was ylso.held to be special legislation invalid under Sec. 22. (Supra, p. 203.) Comparative Analysis There appear to be 15 states with comparable provisions. Some are more limited in coverage, such as printing only or stationery only, and some are broader, such as covering lights in addition to fuel. West Vir- ginia's provision is the same in substance and so close in language to Section 25 that it must have been copied by the drafters of the 1872 West Virginia Constitution. Michigan deleted a comparable provision in its recent revision. The United States Constitution and Model State Con- stitution are silent on the subject. Comment Even though 15 states have comparable provisions, it seems obvious that this is a minor matter of no constitutional significance. To be sure, corruption in government contracting, for printing or anything else, is important, but there is a limit to how far the people can go in trying to prevent corruption by constitutional fiat. Moreover, there is a danger in trying to ptit too many controls into a constitution. The legislature, for example, takes a dim view of the executive control over legislative printing that has been facilitated by Section 25. The Commission on the Organization of the General Assembly recommended that Section 25 be deleted so that the legislature can control its own printing. (I.S.L. 11-12.) Suit Against State Prohibited Sec. 26. The State of Illinois shall never be made defendant in any court of law or equity. History The 1848 Constitution stated that the "General Assembly shall direct, by law, in what manner suits may be brought against the State." The 232 Art. IV, § 26 Comniittee on the Legislative Department proposed the following to the 1870 Convention: "The State of Illinois never shall be made defendant in any court of law or equity; but the General Assembly may provide, in any case that they may deem it advisable, for commissioners or arbitrators to investigate and report any claims against the State, subject to review of the General Assembly; and the General Assembly shall provide means for the payment of all just claims against the State." When the section was brought tip in the Connnittee ot the Whole, a delegate inmiediately moved to strike everything after the word "equity" on the ground that the "General Assembly have all the power that is attempted to be conferred upon tliem by this provision." (Debates 612.) Without debate and by a vote of 25 to 21, the motion was passed. (It was also agreed to transpose "never shall" to "shall never." Id.) At a subsequent session an effort was made to put the stricken material back in. The principal argument was that the Constitution ought to spell out how creditors of the State "may seek their remedy." {Id. at 961.) Many delegates appeared to be afraid that any invitation to set up something like a court of claims would be abused. (There was a great deal of concern about the "Macalister and Stebbins bonds" and, appar- ently, a fear that anything except a prohibition against suing the state might open the door to another such situation. A brief description of the Macalister and Stebbins bonds will be found in Bulletin No. 10, Bulletins 865.) In the end, the original decision w^as sustained. The proposed 1922 Constitution omitted the section. Explanation The doctrine of sovereign immunity is traditional and would be ap- plicable in Illinois in the absence of Section 26. (In Molitor v. Kaneland Community Unit District, 18 111. 2d 11 (1959), the Supreme Court on its own abandoned common law immunity as to tort actions involv- ing political subdivisions of the state. The legislature can, of course, grant sovereign immunity to such subdivisions, totally or under certain limitations.) The only significance of the section, therefore, is that it prohibits the state from legislating permission to be sued. (See People el rel. Greening v. Green, 382 111. 577 (1943).) The state is not pro- hibited, however, from paying just claims against it (Fergus v. Russel, 277 111. 20 (1917)) or creating an "advisory" agency, a court ot claims, to determine the justness of claims against the state. {See Dinwiddie v. Sielkin, 299 111. App. 316 (1939).) Notwithstanding sovereign immunity, there are several ways in which, in effect, the state can be sued. A suit against a state official is not a suit against the state if the allegation is that the official is operating outside his authority or that the authority conferred is unconstitutional. Art. IV, § 26 233 (See People ex rel. Freeman v. Department of Pub. Welfare, 368 111. 505 (1938).) Likewise, one can sue an official to compel him to carry out a mandatory duty. {See People ex rel. First Nat'l Bank v. Kingery, 369 111. 289 (1938).) The state may also create instrumentalities that act on be- half of the state but that have shed enough attributes of the sovereign to permit suit. {See People v. Illinois Toll Highway Comm'n, 3 111. 2d 218 (1954).) It should also be noted that the legislature grants a right of judicial review of many administrative determinations and adjudications. In- deed, in many situations, the courts have required such right as a matter of due process of law. (See Explanation of Art. Ill, supra, p. 99.) In such cases of judicial review, the state is the defendant, whether the action is viewed as at law or ecpiity — in theory, it has to be one or the other — but the courts do not consider these cases as precluded by Sec- tion 26. Here, as in some other areas of the law, there is a semantic fog and the courts are sometimes no better than the rest of us in describing the course taken. To complete the judicial circle, it must be noted that although illegal and unconstitutional acts of the state can usually be stopped by suit against an official, it is not possible to sue the state by purporting to sue an individual who is legally acting for the state. {See Schwing v. Miles, 367 111. 436 (1937).) There are also technical problems that arise in involved litigation. For example, on one occasion the Attorney General was not permitted to intervene in a condemnation proceeding, under circumstances that would make the state a "defendant" (People V. Sanitary Dist., 210 111. 171 (1904)), but on another occasion a person sued by the state was permitted to file a cross-bill against the state. (Brundage v. Knox, 279 111. 450 (1917).) Comparative Analysis There appear to be only two states, Alabama and Arkansas, that join Illinois in prohibiting all suits against the state. West Virginia prohibits all suits against the state except where the state or a subdivision is made defendant in garnishment or attachment proceedings. Some ten state constitutions provide that the legislature may prescribe the manner in which suits may be brought against the state, and another four say that the legislature shall do so. Three states cover the problem by per- mitting suit, but not permitting the entry of enforceable judgments. The United States Constitution has no comparable restriction, and the United States has waived sovereign immunity by statute in certain areas. The Model State Constitution has no comparable provision. 234 Art. IV, § 27 Comment As noted in the History above, Section 26 was inserted in 1870 in an abundance of caution as the resuk ot a specific state bond dispute that had arisen earUer. It would seem appropriate to drop the section as un- necessary. Indeed, in view of the steady increase in the impingement of government on the daily activities of people, it is more likely that some will argue that a provision should be inserted guaranteeing the right to sue the state. Lotteries Prohibited Sec. 27. The General Assembly shall have no power to authorize lotteries or gift enterprises, for any purpose, and shall pass laws to prohibit the sale of lottery or gift enterprise tickets in this State. History This denial of legislative power was first introduced in the 1848 Con- stitution in a provision that, curiously, included in the middle of the sentence a denial of power to charter certain banks. (See discussion of Sec. 5, Art. XI, infra, p. 520.) In 1870 the words "or gilt enterprises" were added by motion on the Hoor ot the Convention. There was no explanation of the phrase, no debate, and adoption, apparently, was by voice vote. (Debates 612.) Presumably, the delegates knew the generally accepted meaning of the phrase — a scheme whereby a merchant sells wares at the market value but by way of inducement gives the purchaser a ticket for a prize-drawing. The proposed 1922 Constitution changed the section to read; 'Totteries and gift enterprises are forbidden." The official explanation said the proposed section was the same as Section 27, in- dicating, presumably, a belief that an unenforceable command to the legislature to pass laws is a meaningless constitutional provision. (P.N.C. 31. See the Comment on Sec. 32 of Art. IV, inp-a, p. 245.) Explanation It should be noted first tliat this section prohibits only lotteries, not all gambling. A lottery is understood to liave three controlling ingre- dients: a consideration, or price, to participate; a prize; and a deter- mination of the winner by pure chance. (In the current wave of con- tests through the mail, in gasoline service stations, and elsewhere, the "no purchase necessary" part is the means of trying to avoid a lottery.) Prior to 1932, there apparently had been no judicial construction of Section 27. In that year, the Supreme Court decided that pari-mutuel betting in horse races is not a lottery. (People v. Monroe, 349 111. 270 (1932). [Could the legislature authorize bookmaking?]) Since then there has been litigation concerning how close one can get to making the dis- Art. IV, § 27 235 tribution of tickets "free" while still keeping some strings on the dis- tribution. There has been no interpretation of "gift enterprises." Gen- erally, a gift enterprise is considered covered by a statute prohibiting lotteries. Comparative Analysis Over 35 states have constitutional prohibitions of lotteries and approx- imately 14 of them add a prohibition of "gift enterprises." A few states prohibit gambling, but in most of these, exceptions have been added by amendment. New York, lor example, has a strict gambling provision to which an exception for pari-mutuel horse racing was added in 1939, an exception for nonprofit bingo in 1957, and an exception for a state lottery for education in 1966. (Thus, the gambling provision has grown from approximately 45 words to approximately 450 words.) With the exception of Rhode Island, no New England state has a gambling or lottery provision in its constitution. Neither the United States Consti- tution nor the Model State Constitution has a gambling or lottery pro- vision. Comment Gambling has been one of the frailties of men that has plagued societies for centuries. Probably the greatest efforts to suppress gambling have been carried on in countries with a strong Protestant, Puritan tradition. In the middle of the Nineteenth Century there was a nation-wide move- ment against lotteries culminating in widespread adoption of provisions like Section 27. It is obvious, however, that such constitutional provisions and accompanying statutory prohibitions have not been particularly successful in stopping lotteries. "Policies" or "numbers" games are wide- spread and because of their illegality constitute one of the main supports for organized crime. Presumably, it is partly the recognition of the pervasiveness of the weakness for gambling that has caused states to make exceptions to gambling prohibitions and two states, New Hamp- shire and New York, to sponsor state lotteries. Notwithstanding the ineffectiveness of a constitutional gambling prohibition, it is one of the more controversial provisions in a state constitution and one that a convention is not likely to remove. Cogent arguments can be adduced to demonstrate that protection of the people against the temptation of gambling is hardly one of the fundamental principles of limited government for which constitutional protection is necessary. Nevertheless, delegates to a convention are not likely to wish to appear to be in favor of sin and a decision to delete Section 27 could be so characterized. (Ironically, a more accurate characterization would be that Section 27 must be preserved because of a fear that the legislature 236 Art. IV, § 28 might some day be in favor ol "sin" — i.e., gambling.) Fortunately, the limited nature ol the restriction of Section 27 preserves Illinois from the difliculties encountered in states such as New York Avhich have had to amend their constitutions from time to time to permit exceptions to a prohibition against all gambling. Extension of Term of Office Prohibited Sec. 28. No law shall be passed which shall operate to extend the term of any public officer after his election or ap])oiiUnient. History This section first appeared in the 1870 Constitution. It was explained on the floor of the Convention that the section "was intended to meet such a case as happened in 1 865, when the Legislature extended the term of the school conmiissioners for two years beyond the time for which they were elected." (Debates 744.) The proposed 1922 Constitution re- arranged the words to read thus: "No public officer shall have his term extended by law after his election or appointment." The section was moved to a new article called "Public Servants." Explanation This straightforward prohibition, especially in the improved language of the 1922 proposal, is self-explanatory. Its purpose is equally obvious: to prevent a partisan protection of incumbents likely to be ousted at the next election. There lias been some litigation involving this section, but in general it has simply confirmed that the section means what it says. {See, e.g., People ex re I. Bua v. Powell, 39 111. 2d 202 (1968).) Comparative Analysis Only a handful of states — eight besides Illinois — have a comparable provision. Georgia, for completeness, has a provision prohibiting length- ening or shortening terms except under certain circumstances. Neither the United States Constitution nor the Model State Constitution fias a comparable provision. Comment As indicated above, this is the sort of prohibition that gets into a constitution because of some specific prior abuse. The relative rarity of the provision among the states indicates that it is not a necessary or tra- ditional limitation of legislative power. As is frequently the case with a prohibition of legislative abuse of power, the ability to act properly is also prohibited. One can think of any nimiber of circumstances in which an extension of term of office would be salutary, would solve some prob- lem, or would simply be a minor aspect of some far-reaching change. Art. IV, § 29 237 {Compare People ex rel. Bua v. Powell, 39 111. 2d 202 (1968).) In the heat of outrage at some legislative abuse, there is frequently a failure to consider the consequences of withholding all power to act. Protection of Miners Sec. 29. It shall be the duty of the General ^Assembly to pass such laws as may be necessary for the protection of operative miners, by providing for ven- tilation, where the same may be required, and the construction of escapement shafts, or such other appliances as may secure safety in all coal mines, and to provide for the enforcement of said laws by such penalties and punishments as may be deemed proper. History This bit of legislative material was reported early to the 1870 Con- vention and apparently was the first substantive provision adopted by the delegates. It may be for this reason that the debate was so extensive. In the end, the section was adopted with only one dissenting vote. The dissenter had indicated earlier that he believed the Convention was act- ing too hastily. {See Debates 264 - 276, esp. 275.) The proposed 1922 Constitution retained this section. The official explanation stated that the section was unchanged (P.N.C. 33), but this is questionable. From the 1870 debates, it is clear that the delegates meant to require legislation for ventilation of all mines, but "escapement shafts" for coal mines only. The 1922 language omitted the word "coal." Explanation This section is, in effect, a dead letter. There appears to have been only one judicial reference to the section since 1920. In 1967, it was stated that mine safey legislation must be liberally construed in order to comply with the constitutional mandate of Section 29. (Freeman Coal Mining Corp. v. Ruff, 85 111. App. 2d 145 (1967).) The case concerned only alternative constructions of an ambiguous statutory provision. No constitutional issue was considered. The current insignificance of Section 29 can be demonstrated by the history of the problem of providing washrooms for coal miners. In 1906, the Supreme Court held unconstitutional a requirement that coal mine operators provide washrooms. The Court said that Section 29 could not be relied upon because the section mandated legislation for the "safety" of miners, not for their "health and safety." (The Court refused to con- sider the 1870 Convention debates on the ground that Section 29 was unambiguous. The debates make it clear that the delegates were con- cerned about both health and safety. {See Debates 264-276.) Once Section 29 was disposed of, the legislation fell under the special legislation 238 Art. IV, § 29 prohibition of Section 22, on the ground that the health of miners who would have to trudge home in wet clothes was no different from the health of other workmen who would have to trudge home in wet clothes but whose employers were not required to supply washrooms. (Starne v. People, 222 111. 189 (1906).) In 1913, an act was passed recjuiring wash- rooms in every "coal mine, steel mill, foundry, machine shop, or other like business in which employees become covered with grease, smoke, dust, grime and perspiration to such an extent that to remain in such condition . . . will endanger their health . . . ." The Court upheld the act. (People V. Solomon, 265 111. 28 (1914).) In 1919, the Court held that the act did not cover railroad roundhouses. (People v. Cleveland, C, C, & St. L. Ry., 288 111. 523 (1919).) In 1931, "railroad" was inserted after "machine shop," and so far it appears that no railroad has questioned the amendment. (111. Rev. Stat. ch. 48, §98 (1967).) If the foregoing demonstrates the failure of the 1870 mandate to go far enough, the case of Fowler v.. Johnston City ir Big Muddy Coal & Mining Company (292 111. 440 (1920)) demonstrates the futility of mandating legislation. In that case, the claim was made that there should be an escapement shaft to match every main shaft, even though tlie legislature had permitted a connecting passageway between two mines to suffice where one mine had such an escapement shaft. The Court refused to rewrite the statute and thrust aside the argument that the statute was unconstitutional because it did not properly carry out the constitutional mandate. (But see Comment on Sec. 32, injra, p. 245.) Comparative Analysis There appear to be four states besides Illinois that specifically man- date legislation for the protection of miners. All except one of them cover both "health" and "safety" of miners. Another five states have such a mandatory provision but include one or more additional indus- tries, such as railroads, smelters and "factories." Again, all except one of the five cover both health and safety. Three states have negative state- ments: that is, declarations that nothing else in the constitution shall be deemed to deny the legislature the power to protect the health and safety of employees. Neither the United States Constitution nor the Model State Constitution has a comparable provision. Comment If, as noted above, this section is, in effect, a dead letter, one would assume that the section could easily be removed. But there is always the interest of those who feel, rightly or wrongly, that they may lose some- thing if the section is dropped. At the least, an effort should be made, in this case as well as in others, to convince those directly interested that Art. IV, § 30 239 in the long run the abiHty of the legislature to solve the day-to-day problems of Illinois is facilitated if the Constitution does not appear to set priorities on problem-solving. Establishing Roads and Cartways Sec. 30. The General Assembly may provide for establishing and opening roads and cartways, connected with a public road, for private and public use. History In 1866 the Supreme Court in two cases, Nesbitt v. Trumbo (39 111. 110 (1866)) and Crear v. Crossley (40 111. 175 (1866)), held that the due process clause of the 1848 Constitution prohibited the state from condemning an easement over one man's property in order that another man might have access to a highway. The purpose of Section 30 was to get around these two decisions. There was an extended debate in the 1870 Convention revolving principally around two important questions: (1) who should pay for the easement -- the man who needed access to the highway, the public, or both? and (2) if the state exercised its power of condemnation, could the resulting easement remain a private road? (The practical significance of the second question is whether the man for whose benefit the easement existed could put up a gate at the junc- tion with the highway or only at his own property line at the opposite end of the easement.) The consensus of the delegates appears to have been that if the state were to exercise its power it must do so for the benefit of the public and that, therefore, the easement must be public; and if this were so, that the cost of condemnation should not be borne wholly by the owner who needed access to the highway. This consensus was developed by abandoning a majority committee report after many floor amendments and substituting therefor a minority committee report containing the language of Section 30. In the proposed 1922 Constitution, Sections 30 and 31 were combined and new matter related to Section 31 was added. The operative words for purposes of Section 30 were that the legislature could provide for "opening private roads to communicate with public roads." Explanation In 1924, the Supreme Court confirmed the understanding of the dele- gates to the 1870 Convention. (Road District No. 4 v. Frailey, 313 111. 568 (1924).) The Court said in effect that the state cannot condemn the land of "A" for the sole use of "B," but that it can do so if the public also participates in the use. Since the stretch of road in question in that case was less than 300 feet, it is fairly clear that the public-use aspect was more theoretical than real. Moreover, the condemnation award was 240 Art. IV, § 30 $140.00 of which $115.00 was to be paid by the property owner and only $25.00 by the road district. In short, one nuist always use the rubric "private and public use" and be sure that some small part of the con- demnation award is assessed against the public. (Actually, the award was set aside for a procedural error not pertinent to this discussion.) The clarity of the foregoing paragraph is snuidged a bit by the case oiLibbee v. Imhoff. (11 111. App. 2d 344 (1956).) Unfortunately, only an unofficial abstract of the case is published and nothing is known of the facts except that the county superintendent of highways refused to lay out a road. The abstract says: "The Appellate Court lield that a roadway to provide access to land isolated from any public road would be solely for the benefit of owner of sudi land and those having business with him and that hence such road could not be laid out under statute authorizing public authorities to lay out roads for private and public use, since to do so would amount to the taking of private property for private use in violation of Constitution." (Libbee v. Imhoff, 137 N.E. 2d 85, 85-86 (1956).) The only relevant speculation about this abstract is what kind of business the landowner was in that "those having business with him" were not the "public." It is relevant, however, to observe that the court might not have ruled the same if the superintendent of highways had laid out the road. Comparative Analysis No other state appears to have a provision precisely like Section 30. A dozen or so states specifically permit the opening of a private road provided that there is a necessity therefor. In some of these cases, it is made clear that the cost of condemnation is to be borne by the land- owner who benefits. Neither the United States Constitution nor the Model State Constitution has a comparable provision. Comment Section 30 is an example of a constitutional provision made necessary by a bad judicial decision. As the Frnilcy case discussed above demon- strates, the problem is more theoretical than real. It would seem obvi- ous today that a property owner who cannot reach the highway and cannot purchase an easement therefor at a reasonable price should be able to enlist the aid of the state to exercise the right of eminent domain to enable him to have access to the highway and the public to have access to him. It may be that the 1866 cases that created the problem in Illinois were badly handled or that something lay behind the disputes that does not appear in the opinions. If this is not the case, one can only conclude that the judges comprising the majority in those cases read "public use" in much too narrow a sense. Art. IV, § 31 241 The problem arises, however, whether it is advisable to remove what should be an unnecessary provision. In many instances (see the dis- cussions ol Sec. 29, supra, p. 237, and Sec. 31, below, ot this article and ot Art. XIII, infra pp. 545), the removal of a grant of powers creates no problem, for the legislature has all the powers ot government not denied to it. Unfortunately, the grant of power in Section 30 was made necessary by a judicial ruling based on a traditional denial of power. If Section 30 were omitted, someone some day could argue that the power to condemn land for a connection to a highway had been lost. But if the essence of Section 30 is to be retained, it probably ought to be included as part of the eminent domain section. Drains and Ditches Sec. 31. The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees for Agricultural, Sanitary or mining pur- poses, across the lands ot others, and provide for the organization of drainage districts, and vest the corporate authorities thereof, with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this State, by special assessments upon the property benefited thereby. History Section 31 dates from 1870 and originally read as follows: "The General Assembly may pass laws permitting the owners or occupants of lands to construct drains and ditches for agricultural and sanitary purposes, across the lands of others." It was proposed as a section of the Bill of Rights Article by a delegate who argued that the Nesbitt and Crear cases, Avhich had been the occa- sion for adopting Section 30 (supra, p. 239), would also invalidate exist- ing drainage laws. The Committee on Revision and Adjustment moved the section to Article IV. The present Section 31 was adopted in 1878 as the first amendment to the Constitution. In 1876, the Supreme Court had held that since Section 31 did not mention "levees," the state could not authorize a drainage district to condemn land tor a levee, and had also held that no drainage district could be authorized to finance itself by special assessment since Section 9 of Article IX (infra, p. 460) limited special assessment powers to "cities, towns and villages." (Updike v. Wright, 81 111. 49 (1876).) The amendment was designed both to cover the problem of levees and to overcome the restriction of Section 9 of Article IX. Interestingly enough, one delegate in 1870 had suggested that per- haps some language covering levees ought to be included and expressed 242 Art. IV, § 31 hope that more time would be given to the examination oi the problem. He was followed by a delegate who doubted the necessity of any pro- vision granting power to tlie legislature but conceded that it others thought such a provision was necessary, it was perhaps advisable to accept it. He moved the previous question, the section was adopted as written, and the problem of inchuling levees was apparently forgotten. (Debates f589.) The proposed f922 Constitution retained this section in a simi^iified version, but witli some sul)stantive changes. The principal changes were to make it explicit tfiat drainage districts liad the power of eminent domain and that the state could give them financial aid. In addition to cfearing up the ambiguity of whether a grant of one power negates other powers, it was finther provided that the proposed section should not be construed as a limitation on the powers ot the legislature. Explanation In one of the Bulletins prepared by the Legislative Reference Bureau for the f 920-22 Convention, the subject of drainage districts was intro- duced by the statement: "The drainage laws ot Illinois present a higlily complex and contusing body of legislation." (Bulletins 1030.) That statement continued to hold until the Drainage Code was adopted in 1955. In some measine, the complexity and confusion were the result of constitutional limitations, but not particularly limitations in Section 31 itself. Presumably, the codification of the many drainage acts has ended the confusion. Since 1947, at least, the courts have apparently had no constitutional question involving Section 31. Roughly speaking, there are two types ot drainage districts, using the term as a catchall. One is a district formed at the instance of land- owners for their own benefit. The other is a governmental agency formed at the instance of voters for the benefit of the public. The first type is organized pursuant to a statute enacted in conformance with Section 31, and the second type is organized pursuant to a statute enacted under the general police power. Section 31 districts are quasi-municipal corporations. They can raise money only by assessments against the land benefited and onfy to the extent of the benefit to the land. For example, in North Wichert Drain- age District v. Chamberlain (340 HI. 644 (1930)), Drainage District "A" engaged in drainage work ot benefit to District "B" and pursuant to statute obtained a judgment against "B" tor the cost of such work. Objection was raised that an assessment against all of the landowners of "B" would be unconstitutional because not every landowner neces- sarily benefited from the work done. 7 he Supreme Court construed the Art. IV, § 31 243 statute to require the Commissioners of District "B" to allocate the amount of the judgment by assessment against landowners in "B" accord- ing to the benefit received. Another case which exemplified this fun- damental limitation on the fiscal powers of a Section 31 district was Marsftall v. Commissioners of Upper Cache Drainage District (313 111. 1 1 (1924)), where the Court invalidated a statutory provision that author- ized the county court, in the course of dissolving a district, to assess the costs of the unsuccessful attempt against the landowners. Since the project failed, there were no benefits, and without benefits there could be no assessment. Section 31, it should be noted, goes further than simply to permit the formation of a drainage or levee district. The legislature is empowered to provide for a method whereby a property owner can run a drain through the property of another. (111. Rev. Stat. ch. 42, §§ 2-2 to 2-7 (1967).) Landowners may also mutually establish drains or levees by agreement. (111. Rev. Stat. ch. 42, §§ 2-8 to 2-11 (1967).) When a district is created, in the words of Section 31, there is a "cor- porate authority" which has the power to levy assessments. In the early days under the amended Section 31, the courts apparently were not concerned about the significance of the fact that, normally, "corporate authorities" are persons selected by the people affected or by a method to which they assented. When faced with districts created by special act, the analogy to municipal corporations was relied upon to require some form of consent by affected landowners in order to have a valid district whose commissioners could levy assessments. (See Funkhouser v. Randolph, 287 111. 94 (1919); Herschbach v. Kaskaskia Island Sanitary & Levee Dist., 265 111. 388 (1914). See also discussion of corporate author- ities under Art. IX, Sec. 9, infra, p. 460.) Districts which are for the benefit of the general public are not Section 31 districts. This means that they may raise necessary funds by taxation rather than assessment. This important principle was settled in the landmark case of Wilson v. Board of Trustees of Sanitary District (133 111. 443 (1890)). Such districts are not covered by the Illinois Drainage Code, but are part of the chapter on drainage under the head of "Sani- tary and Other Districts." Sanitary districts may be organized for purposes of flood control or sewage disposal or both. Other types of districts pro- vided for are river conservancy districts and surface water protection districts. Comparative Analysis Only about ten states have a comparable drainage district authoriza- tion. Michigan deleted one in its recent constitutional revision. In most 244 Art. IV, § 32 cases, the provision appears to have been designed either to meet an asserted lack of eminent domain power or lack of special assessment power, or both, as was the case in Illinois. The Model State Constitution has no comparable provision. Comment It would appear safe to delete this section. There is no inherent re- striction on the power of the legislature to create apjiropriate districts except as courts narrowly construe the power of eminent domain or except as a presumably inadvertent restriction on taxing power gets into the Constitution. The former is unlikely these days, and the Convention can avoid the latter. Homstead and Exemption Laws Sec. 32. The General Assembly shall pass liberal Homestead and Exemption laws. History This section was first added to the Constitution in 1870. It was first proposed to the Convention, sitting in Committee of the Whole, as a detailed article which "made very few modifications of our present statute law." (Debates 895.) Over four hours of debate ensued, including a great many proposed amendments. When the article came before the Convention proper, the amending process started all over again. Some delegates became alarmed at the rigidity of the article, and efforts were made to insert 'some flexibility by giving the legislature power to act. What is now Section 32 was offered on the floor as a flexible substitute that raised no problem of any kind. The section was quickly adopted. (Debates 1689-92.) The proposed 1922 Constitution preserved it un- changed. Explanation This is a simple, straightforward, unenforceable command to the legis- lature to pass homestead and exemption laws — laws to preserve one's home and, sometimes, other defined property, from being taken in satis- faction of one's debts. Homestead and Exemption laws have been passed pursuant to this command. Whether they are liberal is another question. Since any exemption law is more "liberal" than none, it is difficult to see how a court could judge compliance with the constitutional com- mand. An appellate court has, however, stated that such laws should be "liberally" construed. (Perkins v. Perkins, 122 111. App. 370 (1905).) Art. IV, § 33 245 Comparative Analysis Two states, Colorado and Montana, have provisions substantially identical with Section 32. Some 25 other states have actual exemptions written into the constitution. (It is of interest to note that no state east ot Indiana and Michigan and north of the Mason and Dixon line has any provision concernng homestead and exemption laws.) In many states there are provisions of great detail, including, for example, the max- imum allowable value of a homestead to be exempted. Michigan is a case in point. In 1943 the amount was increased by amendment from $1,500 to $2,500. In the 1963 revision the applicable provision was changed to read: "A homestead in the amount of not less than $3,500 . . . as defined by law, shall be exempt from forced sale on execution or other process of any court." (Mich. Const, art. X, § 3.) Neither the United States Constitution nor the Model State Constitution mentions the subject. Comment So long as courts accept the theory that the legislature has the power to pass laws covering any subject in any manner iniless the power is denied in the Constitution, a provision like Section 32 is an unnecessary grant of power. The command to the legislature to pass "good" laws adds nothing because, as noted above, there is no way to force the legis- lature to act and no likely way to eliminate a law on the grounds that it is not "good" enough. The most that can be said is that if the legisla- ture repealed an existing homestead exemption law and did not replace it with any exemption, an arginiient could be made that Section 32 implicitly denies to the legislature the power to take away an exemption once given. An intriguing question is whether such an argument could be made against any change in the law that reputedly decreased the homesteader's rights. Nevertheless, if one believes that there should be something in the Constitution concerning homestead and exemjition laws, then a provision like Section 32 is to be preferred to a provision that establishes the substance of the homesteader's rights. State House Expenditures Sec. 33. The General Assembly shall not appropriate out of the State treasury, or expend on account of the new capitol grounds, and construction, completion, and furnishing of the State House, a sum exceeding, in the aggregrate, three and a half millions of dollars, inclusive of all appropriations heretofore made, without first submitting the proposition for an additional expenditure to the legal voters of the State at a general election; nor unless a majority of all the votes cast at such election shall be for the proposed additional expenditure. 246 Art. IV, § 34 History This section was first added to the ('constitution in 1870. On the floor of tlie Convention the proposal was offered with a ceiling of $4,()()(),0()(). The leading elder statesman in the Convention announced that he had made a study of the cost of the state house and found that it would be less than $3,000,000. After discussion, the matter was referred to committee. (Debates 1320.) In the end, the Convention split the differ- ence. The proposed 1922 Constitution deleted the section. Explanation This (juaint section puts a ceiling on the expenditures for the state house and surrounding grounds under the normal appropriations process, but permits additional expenditures if approved at a referen- dum. Notwithstanding an 1880 case that held that new grounds added to the capitol groun^fs after 1870 were covered by this section (People V. Stuart, 97 111. 123 (1880)), it seems likely that Section 33 is now a dead letter. In 1948, the Supreme Court made it clear that the limitation applies only to the capitol at Springfield and not to other state office buildings. (Owens v. Green, 400 111. 380 (1848).) Presumably, anything done at the state house today would be construed as repair, replace- ment, maintenance, or something other than "construction, completion and furnishing." Comparative Analysis There is no comparable state provision. Three states — Colorado, Montana, and Washington — forbid expenditures prior to the determi- nation by the people of the permanent capital city, but those provisions serve a different purpose. Indiana has a provision forbidding the sale or lease of certain capitol grounds. There are, of course, many con- stitutional requirements for referenda in connection with the expendi- ture of money, both in general and for specific purposes. Comment In the light of some of the famous scandals connected with the build- ing of state capitols and other public building, this section may very well have been prudent in 1870. It could surely be dropped now without fear. Special Laws for City of Chicago Sec. 34. The General Assembly shall have power, subject to the conditions and limitations hereinafter contained, to pass any law (local, special or general) providing a scheme or charter of local municipal government for the territory now or hereafter embraced within the limits of the city of Chicago. The law or laws so passed may provide for consolidating (in whole or in part) in the Art. IV, § 34 247 municipal government of the city of Chicago, the powers now vested in the city, board of education, township, park and other local governments and author- ities having jurisdiction confined to or within said territory, or any part thereof, and for the assumption by the city of Chicago of the debts and liabilities (in whole or in part) of the governments or corporate authorities whose functions within its territory shall be vested in said city of Chicago, and may authorize said city, in the event of its becoming liable for the indebtedness of two or more of the existing municipal corporations lying wholly within said city of Chicago, to become indebted to an amount (including its existing indebtedness and the indebtedness of all municipal corporations lying wholly within the limits of said city, and said city's proportionate share of the indebtedness of said county and sanitary district which share shall be determined in such manner as the General Assembly shall prescribe) in the aggregate not exceeding five per centum of the full value of the taxable property within its limits, as ascertained by the last assessment either for State or municipal purposes previous to the incurring of such indebtedness (but no new bonded indebtedness, other than for refunding purposes, shall be incurred until the proposition therefor shall be consented to by a majority of the legal voters of said city voting on the question at any election, general, municipal or special); and may provide for the assessment of property and the levy and collection of taxes within said city for corporate purposes in accordance with the principles of equality and uniformity pre- scribed by this Constitution; and may abolish all offices, the functions of which shall be otherwise provided for; and may provide for the annexation of territory to or disconnection of territory from said city of Chicago by the consent of a majority of the legal voters (voting on the question at any election, general, municipal or special) of the said city and of a majority of the voters of such territory, voting on the question at any election, general, municipal or special; and in case the General Assembly shall create municipal courts in the city of Chicago it may abolish the offices of justices of the peace, police magistrates and constables in and for the territory within said city, and may limit the jurisdiction of justices of the peace in the territory of said county of Cook outside of said city to that territory, and in such case the jurisdiction and practice of said muni- cipal courts shall be such as the General Assembly shall prescribe; and the General Assembly may pass all laws which it may deem requisite to effectually provide a complete system of local municipal government in and for the city of Chicago. No law based upon this amendment to the Constitution, affecting the muni- cipal government of the city of Chicago, shall take effect until such law shall be consented to by a majority of the legal voters of said city voting on the question at any election, general, municipal or special; and no local or special law based upon this amendment affecting specially any part of the city of Chicago shall take effect until consented to by a majority of the legal voters of such part of said city voting on the question at any election, general, municipal or special. Nothing in this section contained shall be construed to repeal, amend or affect section four (4) of Article XI of the Constitution of this State. History Chicago was first organized as a town under a general act for incorpora- tion of towns. It received a special town charter in 1835 and a special city charter in 1837. A second special charter was enacted in 1851 and a 248 Art. IV, § 34 third in IHti.'i. In between enacinicnt oi these charters there were num- erous amendments by special act. At the 1870 Convention, as noted above in connection with Section 22 {supra, p. 203), some of the delegates Irom Chicago argued that it would not be practicable to handle all municipal charter problems, particularly ol large cities, by means of general legislation. The Chicago delegates were also worried about charter changes not to the liking of the citizens of the city. A Cook County delegate offered a proposal which, he said he believed, had the approval of all other Cook County delegates. The proposal would have permitted special legislation concerning original municipal charters but, in the case of changes or amendments, only if the voters of the community had the power of veto by referendum. There was an extended and rather discursive debate which, among other things, showed that the delegates generally did not have much of a theory about home rule. In the end, the strong bias against special legislation evidently won out, for the delegates retained the prohibition on any special legislation incorporating cities, towns or villages, or changing or amending such charters. In 1872, a general act was passed to cover municipal incorporation. Chicago adopted the new law in 1875. (With the prohibition on special legislation, it was not possible, of course, to obtain amendments to an existing special charter.) The Cook Coimty delegates had been right, however, and it soon became evident that Chicago could not operate satisfactorily under the general act. Section 34, the sixth amendment to the Constitution, adopted in 1904, was the proposed answer to Chicago's problem. The 1920-1922 Convention made another stab at the special problem of Chicago. In place of Section 34, it produced 16 sections in a 34-section article on Local Governments. The first of these sections opened with the following expansive expression of home rule: "Except as expressly prohibited by law the city of Chicago is hereby declared to possess for all municipal purposes full and complete power of local self- government and corporate action. This grant of power shall be liberally con- strued and no power of local self-government or corporate action shall be denied the city by reason of not being specified herein." (art. VIII, § 178.) There followed in that section and in many of the succeeding 15 sections various withholdings of power, reservations of control in the hands of the legislature, requirements for referendum approval of cer- tain actions, and detailed instructions for consolidation of overlapping governmental units. The several sections as a whole added up, however, to more home rule than that afforded by Section 34. For present purposes only some of the more important sections need be summarized. The most important limitation on Chicago was in the sentence immediately fol- Art. IV, § 34 249 lowing the grant of power quoted above. The sentence read: "The city however may impose taxes and borrow money only as authorized by the general assembly or by this article." Since "this article" did not authorize any taxes, the legislature retained all power for the authorization of taxes. (The legislature's power was, of course, circumscribed by the reve- nue article.) The article did provide, however, that no municipal corpo- ration (other than a county) exercising taxing power inside the city could be created or have its taxing power enlarged without the city's consent. Borrowing power was to be limited to 7 per cent of the value of taxable real property. (This was not an increase over the 5 per cent in Section 34, for that limitation included personal property.) Approval by referendum was required. Chicago was given power to create its own city charter but only by an "elective convention." The voters had to approve the calling of a con- vention and to approve any charter adopted by the convention. Like- wise, amendments had to be approved by the voters. One interesting proviso was that the charter and any ordinances passed under it would "prevail over state laws so far as the organization of the city government, the distribution of powers among its official agencies and the tenure and compensation of its officers and employees are concerned." But there followed another proviso stating that compensation, employment and promotion "in the classified civil service" should be in accordance with a general plan recognizing "merit and fitness as controlling principles." The legislature was authorized to pass special legislation for Chicago, but only with the city's consent. One of the more ingenious proposals in the 1922 Constitution was an authorization to issue unlimited bonds on the city's faith and credit for transportation or water purposes provided that a tax for repayment of principal and interest was to be levied but not collected if enough money was set aside from revenues to make the necessary repayment. This device would have allowed bonds to be floated at a lower rate of interest than would be required for revenue bonds. A final portion of the Chicago home rule proposal worth discussing is the authorization for consolidation of all other local governments or other authorities wholly within the city and that part of any town within the city. (The latter authorization went beyond Section 34.) The city was also authorized to take over the Sanitary District and the Forest Preserve District, or either of them, but only with the approval"of a majority vote "both in the district and the city." The authorization further provided that, after consolidation, no taxing power would exist outside the city limits and that the city would not make any charge outside the city for sewage service in existence at the time of the take-over. 250 Art. IV, § 34 It should be noted that in the Cook County portion of the proposed 1922 article on local government, there was an authorization for the legislature to propose consolidation of the city and that part of the county ^\•ithin the city limits, but only with the approval by referendum of the voters in the city and the voters in the county outside Chicago. Explanation The need that was considered most pressing at the time Section 34 was adopted was a reorganization of the local court system. For this reason, in part. Section 34 contains detailed authorization for legislative alteration of the then-existing judicial system. In part, however, this detail was necessary because, in effect. Section 34 had to "amend" Article VI as it then existed. Shortly after adoption of Section 34, the Supreme Court had to rule on whether Section 34 was validly adopted in the light of the then-existing restriction on amending more than one article of the Constitution at a time. Section 34 was upheld. (City of Chicago v. Reeves, 220 111. 274 (1906).) Shortly after adoption, a municipal court system was established by statute and the required approval by referendum was obtained. Over the years there was extensive litigation concerning the municipal courts, but since, with the adoption of the new Article VI, the municipal court system has been superseded, there is no need to discuss the judicial interpretations of that part of Section 34. For the most part, Section 34 has not been used as a home rule author- ization for Chicago. Shortly after the section was adopted, Chicago pro- posed a new charter, but after it was amended by the legislature, Chicago rejected it. A second charter passed the General Assembly but was vetoed by the Governor. A third effort was rejected by Chicago. (See Bulletins 940-41.) In the meantime, the legislature adopted the practice of enacting general legislation applicable to cities over a given population so that the law would apply only to Chicago. (The figure now used is 500,000 but in earlier days was smaller.) The courts have held that Section 34 is in no way exclusive and that general legislation affecting Chicago but not "based upon this amendment" is not subject to the referendimi requirement of Section 34. (See Alexander v. City of Chicago, 14 111. 2d 261 (1958).) Normally, the courts determine that an act is not based upon Section 34 by the absence of a provision for a referendum. (Id.) In 1941, an optional act under Section 34 was passed and in Novem- ber, 1947, Chicago by referendum opted to operate under the act. (111. Rev. Stat. ch. 24, §§21-1 to 21-49 (1967).) No changes under that act can be made, of course, without referendum approval by Chicago voters. Section 34 has a parenthetical clause to the effect that new bonded indebtedness is subject to a referendum. The Supreme Court has ob- Art. IV, § 34 251 served that this "provision becomes operative only in the event that the legislature provides a consolidated government for the city of Chicago." (People ex rel. Gutknecht v. City of Chicago, 414 111 600, 623 (1953).) The legislature can, of course, require a referendum on a bond issue. (See 111. Rev. Stat. ch. 24, § 8-4-1 (Supp. 1968).) It is worth nothing that the proposed 1922 Constitution made a referendum on any new bond issues mandatory, (art. VIII, § 191.) Comparative Analysis No other state constitution has a single section dealing with a single city in the combination of powers and restrictions contained in Section 34. Several states have provisions dealing with the principal large city in the state. Examples are St. Louis, Denver, New Orleans, Baltimore, and, in Pennsylvania, two large cities, Philadelphia and Pittsburgh. These may be grants of power to adopt local charters or power to consolidate city and county, or both. In each case, the provision is, as in Illinois, tailored to the specific problem of the municipality. The varations in municipal home rule provisions in the various state constitutions are too great for a detailed comparative analysis. Not quite half of the states prohibit special acts of incorporation. Many, but not all, of those states specifically state that the legislature shall provide by general law for the incorporation of municipalities. In some states, this takes the form of a limitation on the powers of the legislature; in other states, the language is that of a grant of power to the legislature to provide for home rule which, of course, is no guarantee of home rule. The Model State Constitution provides for the organization of local governments as set forth in the Comparative Analysis of Section 5 of Article X. {Infra, p. 498.) This is followed by a "limitation of powers" section as follows: "Powers of Counties and Cities. A county or city may exercise any legislative power or perform any function which is not denied to it by its charter, is not denied to counties or cities generally, or to counties or cities of its class, and is within such limitations as the legislature may establish by general law. This grant of home rule powers shall not include the power to enact private or civil law governing civil relationships except as incident to an exercise of an independent county or city power, nor shall it include power to define and provide for the punishment of a felony." (art. VIII, § 8.02.) Comment It is obvious that Section 34 should be dropped. What should take its place is a complicated matter. It would appear inadvisable to adopt the approach of the 1920-22 Convention of a detailed local government article with some 16 sections devoted to Chicago alone. It may be appro- priate to say something about Chicago, but in general, a minimum of 252 Art. IV, § 34 •substantive detail is the goal. It is important to spell out who has power to make decisions in what areas — the people through denial of power to any government, the state through denial ol power to local govern- ment, local voters through reservation of referendum rights, or the local government. It is equally important to avoid making substantive decisions in tlic Constitution. Article V EXECUTIVE DEPARTMENT Officers — Terms Sec. I. The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction and attorney general, who shall each hold his office for the term of four years from the second Monday of January next after his election and until his successor is elected and qualified. They shall, except the lieutenant governor, reside at the seat of government during their term of office, and keep the public records, books and papers there, and shall perform such duties as may be prescribed by law. History This section dates from 1870. In the earlier constitutions, the various elective officials were covered in different sections of the article on the executive department. Thus, the first half of the first sentence of Section 1 simply makes exphcit what was implicit before. Likewise, in the 1848 Constitution, the designation of the time of beginning and ending of the terms of Governor and Lieutenant Governor was explicit, but partially implicit as to other elected officers. (For the length of terms of office, see Histoiy of Sees. 2 and 3, infra, pp. 260 and 262.) The second sentence, as an all-inclusive statement, also dates from 1870. In the 1848 Constitution, only the Governor was required to reside at the seat of government and only the Secretary of State, the Auditor of Public Accounts and the Treasurer were to have duties as prescribed by law. (It is to be noted, however, that the Superintendent of Public Instruction was first added in 1870, and that the Attorney General who had been provided for in 1818 was omitted from the 1848 Constitution.) The proposed 1922 Constitution preserved the substance of Section 1 in the course of splitting it into several sections. One substantive change was made. The executive department was stated to consist of the named elected officers "and such other officers as provided by law." In a section concerning performance of duties as prescribed by law, all officers of the executive department, not just constitutional officers, were covered. 253 254 Art. V, § 1 There was a technical amendment to Section 1 in 1954 as part ot the proposal to increase the term of the Treasurer to four years. The change was simply the deletion of words that had excepted the Treasurer from the clause prescribing the length of term of the executive officers. Explanation Executive Power: In the beginning, one might say, there was Field v. People ex rel. McClernand. (3 111. 79 (1839).) This monumental case- in length, 105 pages, if nothing else — is of such historical importance in the development of constitutional theory in Illinois that a fairly full statement of the case is warranted. Under the 1818 Constitution, the Governor appointed the Secretary of State, subject to Senate con- firmation. There was no stated length of term. A. P. Field was appointed Secretary of State in 1829 by Governor Ninian Edwards, following the resignation of the incumbent Secretary. Secretary Field served under two succeeding Governors and was still in office when Thomas Carlin was elected in 1838. Governor Carlin nominated John A. McClernand to be Secretary of State, but the Senate rejected the nomination and, by a vote of 22 to 18, adopted a resolution to the effect that consent was not given because there was no vacancy in the office of Secretary of State. (Id. at 154.) After the legislature adjourned, the Governor removed Field and appointed McClernand to fill the vacancy. The lawsuit followed. It is clear from the opinions that the case was a political hot potato. (Each of the three sitting justices wrote an opinion, one of which was a dissent. The fourth member, a relative of McClernand, declined to sit.) The decision was that the Governor had no power to remove the Secre- tary of State, a decision that the 1870 Convention subsequently "over- ruled" by the addition of Section 12. (See infro, p. 285.) Moreover, the Field decision was ignored. At the next session in 1840, Governor Carlin nominated Stephen A. Douglas, who had been one of the principal counsel for McClernand. A Senate motion not to consent on the ground that no vacancy existed was defeated. A motion to advise and consent to Douglas* nomination was then adopted. Apparently, Field accepted this, for Douglas took office the same day. The importance of the Field case lies in the broad constitutional doctrine enunciated by Chief Justice Wilson. (In passing, it is inter- esting that the Chief Justice was speaking only for himself. Neither the dissenting nor the concurring justice agreed with the Chief Justice's con- stitutional theory. Yet, presumably because his opinion was printed first, the theory therein expressed became the theory of the "Court.") The doctrine is: Art. V, § 1 255 "The constitution is a limitation upon the powers of the legislative depart- ment of the government; but it is to be regarded as a grant of powers to the other department[s]. Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the Constitution." {Id. at 81.) It is difficult to point out how Chief Justice Wilson's sweeping state- ment affected the course of constitutional development in Illinois. The case has been cited for this theory many times. (For the most recent, see In re Estate of Quick, 333 III. App. 573, 579 (1948).) But because of its fundamental nature, the theory is influential in a general, un- expressed way. To put this rather difficult thought another way, if the concurring opinion of Mr. Justice Lockwood had been the opinion of the Court, one assumes that the concept of executive power would have developed differently because he carefully limited his remarks to the question of whether or not removal of a constitutional officer at will was an inherent part of the executive power. Under his theory, there was some inherent executive power, and if he had spoken for the Court, no one could have cited the Field case for the proposition that the executive and the judiciary have only powers "clearly granted by the Constitution." It is simply not possible to point to any particular deci- sion and state categorically that the decision would have gone the other way under Mr. Justice Lockwood's theory. The most that a student of the subject can say is that some aspects of constitutional development in Illinois appear to have been influenced by Chief Justice Wilson's pronouncement. (See, e.g., Explanation of Art. Ill, supra, p. 99.) There have, of course, been cases in which the argument was made that the legislature was luiconstitutionally interfering with executive powers. These cases are discussed in connection with the separation of powers doctrine embodied in Article III. (See supra, p. 101.) The im- portant point about those cases is that the courts were not concerned with alleged interference with inherent executive power, but interference with the executive power as "granted" by the Constitution. Those cases are in no way inconsistent with the Field theory. Indeed, aside from the power of removal, now amply covered by Section 12 (infra, p. 285), there are very few ways in which the question of an inherent executive power over and above specific constitutional grants can arise. In the case of the United States, the President has asserted, and the courts have recognized, inherent executive power in the conduct of foreign affairs. (See United States v. Curtiss-Wright Export Corporation, 299 U.S. 304 (1936).) Other presidential attempts at action in the absence of statu- tory authority have not fared so well. (See Youngstown Sheet &: Tube Co. v. Sawyer, 343 U.S. 579 (1952). For a discussion of the power of 256 Art. V, § 1 removal, see Explanation of Art. Ill, supra, j). 99. Sec also Comment below.) Executive offices: Illinois has what is called the "long ballot." The problems connected with this are discussed in the Cotnment below. For present purposes, it is sufficient to note that the courts have said that the legislature may not take away any constitutional j30wers or duties of a constitutional executive officer. [See American Legion Post No. 279 V. Barrett, 371 111. 78 (1939); People ex rel. State Bd. of Agr. v. Brady, 277 111. 124 (1917).) The rule that constitutional powers and duties may not be taken away from constitutional officers is in itself unobjectionable. There are, however, very lew specific constitutional powers and duties set forth in the Constitution for officers other than the Governor. (For the Auditor of Public Accounts, see Sees. 17 and 21 of Art. IV, supra, pp. 181 and 200; and for the Secretary of State, see Sec. 9 of Art. IV, supra, p. 145, and Sees.- 16 and 22 of Art. V, infra, pp. 293 and 318. The Lieutenant Governor is really an executive officer only when he is acting as Governor.) In the case of the Treasurer, Attorney General, and Superintendent of Public Instruction, constitutional powers and duties can be only such as necessarily flow from the title of the office. Moreover, Section 1 specifically states that the officers of the executive department "shall perform such duties as may be prescribed by law." From the foregoing, one would normally assinne that the legislature is relatively free to parcel out powers and duties in the executive depart- ment. Such an assumption is clearly wrong in the case of the Attorney General. In Fergus v. Russel (270 111. 304 (1915), also see supra, p. 103), the Supreme Court decided that the Attorney General had all the powers that the English Attorney General had at common law. Since there was no Attorney General provided for in the 1848 Constitution, and in the Sched- ule to the 1818 Constitution, only an authorization to the legislature to appoint an Attorney General whose duties could "be regulated by law," it is difficult to believe that the drafters of the 1870 Constitution had any such understanding of the title "Attorney General." But the really strange thing about the case is that the Court used the words "such duties as may be prescribed by law" to back up its argument that the 1870 drafters meant to clothe the Attorney General with the powers of the English common law Attorney General. In a feat of masterful legerdemain, the Court took words that appear to allow the legislatme to take away common law powers, assuming such an original meaning, and converted them into words that establish the "original" meaning. It should be conceded that the Supreme Court has taken the same approach to legislative efforts to curtail the power of the sheriff (see Explanation of Sees. 7 and 8 of Art. X, infra, pp. 501, 505), but at least in that instance Art. V, § 1 257 there is no reference to "duties as may be prescribed by law." It might also occur to someone that the legislature's lack of power over the Attorney General and his duties is a little inconsistent with the Field theory. The Fergus Court had a ready answer to that. Field, it seems, was different because the Governor was not an official known to the common law! (See also Comment below.) Comparative Analysis Executive Power: There does not appear to be any state constitution that expresses a theory of executive power such as that of Chief Justice Wilson discussed above. Whether any other state Supreme Court adopted such a theory is rather difficult to ascertain. The traditional expression of executive power in a state constitution is in a provision comparable to Section 6, and the Comparatix'e Analysis of that section, together with the Comparative Analysis of Section 12 on removal power, will serve as a comparison with other states. (Fnfra, pp. 271 and 286.) Executive Offices: Three states — Idaho, Kansas, and Montana — list precisely the same seven elected constitutional officers as those comprising the executive department. Approximately 17 other states have an "execu- tive department" provision, listing anywhere from five to 12 officers, most of whom are elected constitutional officers. The presence or absence of an "executive department" provision is not, however, a guide to the presence or absence of a long ballot, which is a matter of the number of elected executive officials, whether or not grouped together under the title of the "executive department." The following is a summary tabulation of elective constitutional executive offices with any elective statutory offices included in parentheses. (Not included are multimember boards and commissions. For example, Illi- nois elects nine statutory university trustees. In Michigan, there are three different constitutional governing boards, each consisting of eight elected members.) Number of States 2 2 4 2 4 3 7 3 1 1 8 1 er of Elective Offices 2 3 4 4 5 (1) 5 6 (1) 6 6 6 7 (1) (2) (6) 7 (1) Art. V, § 1 Number of Elective Offices 8 8 8 8 9 11 (1) (3) (4) (1) 12 258 Number of States 3 2 1 1 1 3 1 (Council of State Governments. The Book of the States, 1968-1969 at 134-5 (1968).) In some cases, the official, constitutional or statutory, is elected by the legislature, but insofar as the executive power of ttie governor is con- cerned, the difference is slight. In most states, one of the elected officials is either a comptroller or an auditor. Any auditor whose duties are limited to post-audit is not really an executive officer. A few states liave a constitutional provision designed to force a rational administrative arrangement on the executive branch. The customary statement is that there shall be no more than 20 executive departments. The United States Constitution provides for the election of one exec- utive official, the President, and his potential successor, the Vice Presi- dent. The Model State Constitution recommends only one elected exec- utive official, the Governor. The Model State Constitution has a "20 department" provision reading as follow: "Administrative Departments. All executive and administrative offices, agencies and instrumentalities of the state government, and their respective funcions, powers and duties, shall be allocated by law among and within not more than twenty principal departments, so as to group them as far as practicable according to major purposes. Regulatory, quasi-judicial and temporary agencies estab- lished by law may, but need not, be allocated within a principal department. The legislature shall by law prescribe the functions, powers and duties of the principal departments and of all other agencies of the state and may from time to time reallocate offices, agencies and instrumentalities among the principal departments, may increase, modify, diminish or change their functions, powers and duties and may assign new functions, powers and duties to them: but the governor may make such changes in the allocation of offices, agencies and in- strumentalities, and in the allocation of such functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the legislature while it is in session, and shall become effective, and shall have the force of law, sixty days after submission, or at the close of the session, whichever is sooner, unless specifically modified or disapproved by a resolution concurred in by a majority of all the members." (art. V, § 5.06.) Comment Executive Power: It was pointed out above that Chief Justice Wilson's theory of executive and judicial power is, to say the least, unusual, but is was also conceded that it is difficult to point to specific, concrete Art. V, § 1 259 effects of his theory. It follows that there is no way that the Convention could safely draft anything designed explicitly to eliminate the Field theory. Any formulation of a theory of government beyond the separation of powers expressed in Article III (supra, p. 99) would probably usher in a new period of constitutional confusion. The fact is that there is a theory of constitutional government in the United States, a sort of "brooding omnipresence in the sky," that in a general way runs throughout the country. Chief Justice Wilson represents an aberration, a man out of step, and as time passes, citation of his theory probably means less and less. The Illinois courts will undoubtedly move along the same road that constitutional decisions across the country take. Nevertheless, it would be advantageous if the Illinois courts would forget Mr. Chief Justice Wilson's theory. For one thing, aberrations in the law are of no value except when they are the first step in a shift in the law, which is certainly not the case with Field. For another thing, the political process is a matter of balancing interests, of effecting com- promises among forces. The process is a delicate one, and a categorical theory that the legislature is "top dog" except to the extent that the Con- stitution says otherwise, is not a delicate theory of balancing interests. Having said all of this, there are only two suggestions that seem appro- priate. One is that in the course of considering Article III and its rela- tionship to Articles IV, V, and VI, the Convention could make a legis- lative record to the effect that the Convention adheres to the traditional constitutional theory of separation of inherent powers and not to the Field theory. The other suggestion is that a scholarly article developing more fully the presentation made here might convince the Illinois courts to drop the Field theory. Executive Offices: In any constitutional convention, the long versus the short ballot is an important policy question. It is not appropriate here to spell out the whole range of policy considerations relevant to reaching an informed decision. It should be noted, however, that the "long ballot-short ballot" controversy has two facets, only one of which is particularly relevant to Section 1. It is argued that voters cannot exer- cise their choices intelligently if they are confronted with too many elective offices to fill. In the case of Section 1, this side of the problem becomes a matter of five people, not seven, since the Treasurer and Superintendent of Public Instruction are elected in the "off" even- numbered year. (See Sec. 3, infra, p. 262.) If the Convention were to join the current trend of having voters vote for Governor and Lieutenant Governor as a team (see infra, p. 263), the number of state-wide executive offices to be filled could drop to four in one election. Moreover, by a judicious arrangement of elections and by small decreases in elective 260 Art. V, § 2 offices at various levels ol government, the ballot could be shortened con- siderably. The facet of the "long ballot-short ballot" controversy that is relevant here is exemplified by the sign President Truman had on his desk: "The buck stops here." The "short ballot" proponents would argue that a similar sign cannot be put on tlie desk of the Governor of Illinois. The proj)onents add, obviously, thai such a sign belongs on the Governor's desk. The argument of the proponents of the long ballot is simply that it avoids giving one man too nnich power. (See also Comments on Sees. 6 and 21, infra, pp. 272 and 318.) If the Convention decides to keep some or all of these elective officers, it would seem appropriate, and, it is to be hoped, not too con- troversial, to do something about the Fergus v. Russel determination concerning the Attorney General. There is a simple drafting change that will introduce adequate flexibility in allocating legal work within the Executive Department. The change is to use the words of the 1818 Schedule — "whose duties may be regulated by law" — in place of "per- form such duties as may be prescribed by law." Such a change would require a recasting of the second sentence of the section, but it is such a hodgepodge as it is that recasting is necessary anyway. Whether the Convention should adopt some version of a "20 depart- ment" section depends on whether it is believed that the legislature cannot be expected to permit rational ordering of the executive depart- ments or that the legislature cannot be trusted to leave a rational order- ing alone, or both. There is no reason in constitutional theo-ry for a "20 department" provision. Anyone who is champing at the bit to force a good organization chart on the Executive Department might well pause to consider who else is champing at the bit to put in his pet project. All good men will not agree on what is essential in a constitu- tion, but all good men ought to agree that once the door is opened to "good" nonessentials, "bad" nonessentials will slip in, too. A "20 depart- ment" provision is a good nonessential. Treasurer Sec. 2. The treasurer shall hold his office for the term of four years, and until his successor is elected and qualified, and shall be ineligible to said office for four years next after, the end of the term for which he was elected. He may be required by the governor to give reasonable additional security, and in default of so doing his office shall be deemed vacant. History The 1818 Constitution provided for the appointment of a treasurer every two years by the joint vote of the two houses of the legislature. Art. V, § 2 261 The 1848 Constitution continued the two-year term but made the office elective. The 1870 Constitution added the prohibition against a treas- urer succeeding himself and the requirement that he give "reasonable additional security" it so required by the governor. By Amendment in 1954 the term was extended to tour years. Through a Schedule accom- panying the amendment, the first four-year term began with the election of the treasurer in 1958. The proposed 1922 Constitution increased the term of office to four years, but otherwise retained the substance of the section. Explanation A separate provision for the treasurer was originally required because of his two-year term, all other constitutional executive officers having four-year terms. A separate section was and is still required to cover the treasurer's ineligibility to succeed himself and the requirement for "additional security." As to the latter, see Comment below. As to the former, it was observed by a delegate to the 1870 Convention: "Now, there is a good reason why the Treasurer of the State should not be eligible to a second term. There ought to be, with reference to the custodian of the public treasury, a change, in order that we may have an actual account — an actual, as distinguished from a constructive accountability — with regard to the funds in the treasury . . . ." (Debates 762.) There has been only one case construing this section, Fairbank v. Stratton (14 111. 2d 307 (1958)), and that simply made the obvious point that the legislature cannot deprive the treasurer of his constitu- tional powers. Comparative Analysis The treasurer is elected by the voters in 40 states. In four states the treasurer is elected by the legislature and in three states, he is appointed by the governor. Three states have no treasurer. The states are approxi- mately equally divided between two- and four-year terms. About 13 states limit immediate succession as treasurer and another seven or so have a less stringent restriction on length of service as treasurer. Some seven state constitutions specify some requirement for bonding, but no other state has a provision for "additional security." The treasurer is not a constitutional officer under the United States Constitution or the Model State Constitution. Comment The last sentence of Section 2 is one of the more curious provisions in the Illinois Constitution. There is an assumption that the treasurer gives a bond upon taking office, but there is no constitutional requirement 262 Art. V, § 3 for the initial bond. In the debates of the 1H7() Convention, it was noted that existing statutes required an initial bond and additional security "[b]ut before the committee there was a doubt whether the Legislature woidd have the power to confer such a discretion upon the Governor without a constitutional provision . . . ." (Debates 809.) What the doubt really was was whether the legislature could enforce the requirement for additional security by declaring the office vacant upon default. Election and Terms of Office Sec. 3. An election for governor, lieutenant governor, secretary of state, auditor of public accounts, and attorney general, shall be held on the Tuesday next after the first Monday of November, in the year of our Lord 1872, and every four years thereafter; for superintendent of public instruction, and treas- urer, on the Tuesday next after the first Monday of November, in the year 1958, and every four years thereafter at such places and in such manner as may be prescribed by law. History This section, a composite statement of terms of office and times of election, first appeared in 1870. Under the 1818 Constitution the Gov- ernor and Lieutenant Governor were elected by the voters for four-year terms. The Secretary of State was appointed by the Governor subject to Senate confirmation. The Treasurer was chosen by joint vote of the two houses of the General Assembly for a two-year term, f n the Schedule of the 1818 Constitution it was provided that the General Assembly could appoint an Auditor, Attorney General, and "such other officers for the State as may be necessary." (§ 10.) It is said that the original plan of the 1818 Convention was to have the appointing power in the Gover- nor but that when the members of the Convention learned that the man who was expected to be elected Governor was not going to appoint as Auditor a man favored by the members, the original plan was abandoned and the section quoted from was inserted in the Schedule. {See E. Anthony, The Constitutional History of Illinois 39-40 (1891).) In the 1848 Constitution, the Secretary of State and Auditor of Public Accounts were made elective with four-year terms corresponding to the terms of Governor and Lieutenant Governor. The Treasurer was made elective but the two-year term was continued. In 1870, the Attorney General and Superintendent of Public Instruction were made elective with four- year terms, but the Superintendent's election was to be in the non- gubernatorial even-numbered year. By amendment adopted in 1954, the Treasurer's term was extended to four years, effective in 1958, so that his term coincides with that of the Superintendent. The proposed 1922 Constitution preserved the election of the Superintendent of Public Art. V, § 3 263 Instruction in the off even-numbered year but included the Treasurer with the other four-year-term offices. Explanation This section is self-explanatory. The only judicial comment appears to have been the observation that the election day referred to does not necessarily govern any election for offices not named in the section. (Bilek v. City of Chicago, 396 111. 445 (1947).) Comparative Analysis In 39 states, including Illinois, the governor is elected for four years. In 11 of those states, he cannot succeed himself and in another 12 he is limited to two consecutive terms. Pennsylvania is in transition. The present governor cannot succeed himself, but future governors will be eligible for one additional term. Two states have an absolute limit of two terms, consecutive or otherwise. One of the 11 states with two- year terms limits consecutive terms to two and another by statute prohibits nomination for a third consecutive term. Wisconsin switches from two to four years in 1971. Of the 39 four-year states, 11, including Illinois, hold gubernatorial elections in presidential years. Twenty-four hold their elections in the other even-numbered year. Five states hold their elections in an odd-numbered year. All two-year states elect governors in even-numbered years. The Model State Constitution calls for four-year terms, election in an odd-numbered year, and has no limitation on re-election. One of the more popular changes in recent years has been the adoption of the President- Vice President team system. In at least nine states, voters cast one vote for a governor-lieutenant governor team (secretary of state in Alaska), so that succession will be within the same political party. A little over a decade ago. New York was the only state with a team system. In general, in states electing treasurers and state school superintend- ents, election takes place at the same general election at which the governor and other state officers are chosen. In no state does it appear that the treasurer is elected in an off-year. In Wisconsin the superin- tendent is elected for four years at the election for members of the Supreme Court, which must be on a day other than, and not within 30 days of, the election for any other state or county office. Comment If the State School Superintendent is to be elected, it may make sense to elect him apart from the other state-wide offices on the theory that education ought to be nonpartisan. It is difficult to justify the election of the Treasurer, if he is to be elected, in an off-year. 264 Art. V, § 4 Canvass of Election Returns — Contests Sec. 4. The returns of every election for tlie aliove named officers shall be sealed up and transmitted, by the returning officers, to the Secretary of State, directed to "The Speaker of the House of Representatives," who shall, immedi- ately after the organization of the House, and before proceeding to other busi- ness, open and publish the same in the presence of a majority of each House of the General Assembly, who shall, for that purpose, assemble in the hall of the House of Representatives. The person having the highest number of votes for either of said offices shall be declared duly elected; but if two or more have an eciual, and the highest, number of votes, the General .\ssemljly shall, by joint ballot, choose one of such persons for said office. Contested elections for all of said offices shall be determined by both houses of the General Assembly, by joint ballot, in such manner as may be prescribed by law. History The 1818 Constitution contained the substance of the foregoing in the section providing tor the election ol a Governor. (Except tor a Lieutenant Governor, no other state official was elected. In the section providing for a Lieutenant Governor, it was stated that lie should be chosen at "every election for governor" and "in the same manner.") No change was made in 1848. (Although the Secretary of State, Auditor and Treasurer were made elective in 1848, returns for their election were handled according to the law concerning election of United States Representatives. (Schedule, § 17).) In 1870, the Secretary of State was named as recipient of the returns, the hall of the House of Representa- tives was designated as the meeting place, and the timing — "immediately after the organization of the House, and before proceeding to other business" — for the canvass was spelled out. The 1870 Constitution also added the words "by joint ballot" to the last sentence of the section. The proposed 1922 Constitution had a considerably rephrased section but did not change the substance. In the course of such rephrasing the rare use of "either" as one of more than two was abandoned and the word "up" w-as omitted. It is interesting to recall from the 1870 Con- vention that on the occasion of tlie adoption of the Executive Article in its final form, the following took place: "Mr. PEIRCE. Mr. President: I move to strike out the word 'up' in the first line. I consider that if the returns are sealed, they will be sealed up. The expres- sion is unnecessary and inelegant. "A division was ordered. The Convention divided, when, there being twenty- four in the affirmative, and twenty-five in the negative, the motion of Mr. Peirce to strike out was not agreed to." (Debates 1781.) Explanation This section serves three purposes: It provides (1) a method for can- vassing the election returns and determining who has been elected; (2) a means for brealcing a tie; and (3) a system for settling election Art. V, § 4 265 contests. These purposes are served, however, only as to the offices named in Section 3. Canvassing, breaking ties, and setthng contests for elections of other officials are governed wholly by statute. In the applicable chapter of the Election Code there is a section on procedure to be followed in contesting the election of any of the named officials. The section follows the language of the Constitution and thus leaves the entire issue in the hands of the legislature. (111. Rev. Stat, ch. 46, § 23-1 (1967).) One can speculate whether this was done to keep control in legislative hands or in the belief that the Constitution so requires. It is to be noted that the Chairman of the Committee on the Executive Department stated to the delegates of the 1870 Convention that the provision concerning contests "is substantially the law of the State at the present time; and while a mode is pointed out here, it does not take away the right of contesting elections in the courts of law, which would also have jurisdiction of such cases." (Debates 747.) The Chairman presumably represented the intent of the Convention, but the language used is difficult to square with such intent. There do not appear to have been any reported cases or other pronouncements on election contests. In 1913, the outgoing Governor wrote to the Attorney General on January 15th inquiring whether he, the Governor, should continue in office in view of the fact that the House of Representatives had not yet organized and so the General Assembly had not been able to announce the election of his successor. The Attorney General assured the Governor that he remained in office until his successor qualified and that this could not occur until the General Assembly followed the procedure called for in Section 4. (1912 111. Att'y Gen. Rep. 1237.) On January 22nd of the same year the Secretary of the Senate inquired whether it could conduct business while waiting for the House to organize. The Attorney General replied that the restriction on proceeding to other business applied only to the House of Representatives. (1912 III. Att'y Gen. Rep. 1240.) Comparative Analysis Just under half of the states provide that the determination of the election for governor shall be handled by the legislature. In seven states the canvassing procedure is specified but the group named is not the legislature. Eight states leave canvassing to be determined by law and, presumably, the same obtains in the states that have no provision for canvassing the votes for governor. About 20 states direct the legislature to deal with contests for election of governor, four specify that the method be prescribed by law, and one state specifies that the highest 266 Art. V, § 4 court settle contests. Presumably, in the other states, the matter is handled by legislation. About three-quarters ol the states direct the legislature to break a tie in the election ol governor. Kentucky directs choice by lot. In general, each state applies the same rules to canvassing, contests and ties lor other state offices. But there arc exceptions as, lor example, in Maryland where the Governor breaks the tie in the case ot the election tor attorney general and in Connecticut where the canvass is done by the Secretary ot State, Treasurer, and Comptroller except that in the canvass of each of those three the other two do it. The United States Constitution covers the matter through the Electoral College. In the absence of a majority vote for one person, the election shifts to the House of Representatives. This would cover a tie, of course, as was the case in 1800, though that was a tie vote between Thomas Jefferson and Aaron Burr ot the same party. The Twelfth Amendment eliminated this particular tie-vote problem by requiring that the elector designate which person was to be President and which to be Vice President. The Constitution is silent as to election contests. The Model State Constitu- tion simply provides that the legislature shall provide for the adminis- tration of elections. Comment It is obvious that detailed provisions for canvassing votes, breaking ties, and determining contests are traditional and that placing control in the liands of the legislature is also traditional. But it is questionable whether there is any value in retaining such an anachronism. With modern equipment and rapid commimications, election results are known within a short time after the polls close. It seems unnecessary to hold all official action in abeyance for almost two months. This is particu- larly a problem in Illinois, where the official ritual may be delayed by the inability ol the House ol Representatives to organize. It is also questionable whether the handling ot contests should be left to the legislature. The contest is essentially legal and evidentiary, and courts are best equipped to handle that kind ot dispute. Moreover, tlie stakes are political and the legislature, a political body by definition, is more likely to make a political decision than a judicial one. Furthermore, the contest cannot be handled by the legislature until after the results are known and this, under Section 4, is after publication in the House of Representatives. Under a normal procedure, the contest could be started in the courts soon after Election Day. Nevertheless, traditional rituals have tenacious life and it may be better to concentrate on changes more crucial to the operation of the state. After all, the occasions when the existing ritual is likely to Art. V, § 5 267 create an inconvenience are rare indeed. In any event, it is advisable to preserve the right oi the legislature to break a tie. It is certainly not appropriate to choose a Governor by tossing a coin. Elective State OflRcers — Eligibility Sec. 5. No person shall be eligible to the office of Governor, or Lieutenant Governor, who shall not have attained the age of 30 years, and been, for five years next preceding his election, a citizen of the United States and of this State. Neither the Governor, Lieutenant Governor, Auditor of Public Accounts, Secretary of State, Superintendent of Public Instruction nor Attorney General shall be eligible to any other office during the period for which he shall have been elected. History The 1818 Constitution required the Governor to be at least 30 years of age, a United States citizen for at least 30 years, and to have resided in the state for two years "next preceding his election." In the 1818 Schedule, Section 14, the requirement of 30-year citizenship for Lieu- tenant Governor was removed, notwithstanding the section in the Execu- tive Article which said that the Lieutenant Governor should have "the same qualifications" as the Governor. There was no reference to eligi- bility to any other office, but the Governor could serve for only four years out of any eight-year period. In the 1848 Constitution the mini- mum age was raised to 35, the citizenship requirement was reduced to 14 years, and the residency requirement was increased to ten years, but with no words of "next preceding his election" accompanying residency. The Lieutenant Governor was now required to meet the same qualifi- cations as the Governor. (It is not clear, but it was probably intended that the "four in eight year" limitation applied to the Lieutenant Governor.) The 1848 Constitution also provided that the Governor was not eligible "to any other office until after the expiration of the term for which he was elected." (It is not clear, but it would seem that the "any other office" limitation did not apply to the Lieutenant Governor.) In 1870, age was dropped back to 30, United States citizenship to five years, and residency to five years, but "next preceding his election" came back in. The limitation on successive terms was dropped. Everybody except the Treasurer came under the "any other office" ban. In 1922, it was proposed to increase the age requirement back to 35 and the residency back to ten years but to retain "next preceding his election." (Actually, the 1922 provision changed "preceding" to "before.") In the official explanation the foregoing age changes were pointed out. It was not noted that the Treasurer now came under the "any other office" ban. (P.N.C. 35.) 268 Art. V, § 5 Explanation The first sentence ol tliis section is sell-explanatory. The second sen- tence is not. There was an extended debate in the 1870 Convention on this sentence, but the debate turned principally on whether to limit the named elected officers to one tour-year term in every eight. In the course ol the debate it was indicated that none ot the named officers could run lor any other office while serving, including, though this is not crystal clear Irom the debates, another office at the general election just preceding the end ot his term ot office. (Del^ates 773.) One delegate moved to change "shall be eligible to" to "shall hold" but the motion was not agreed to. Thus, the thrust ot the sentence was clearly aimed at using one office as a stepping stone to another office and not at dual office holding. Dual office holding is, however, prevented by the "eligible to" fornuilation. At no point in the dcl^ates was there an explanation for the omission of the Treasurer from the list of those who coiUd not run for another office. The most plausible explanation is that the drafters overlooked liim because he is covered by a different section. The drafters apparently also overlooked the fact that Section 6 of Article VII (infra, p. 394) requires United States citizenship for any elective office, thus making part of the first sentence superfluous. There have been several reported cases involving a claim of dual office holding. The cases uniformly held that Section 5 does not prohibit additional duties to one of the named officers. (Baro v. Murphy, 32 111. 2d 453 (1965) (Governor ex ofjicio member of State Parks Revenue Bond Commission); People v. Illinois Toll Highway Comm'n, 3 111. 2d 218 (1954) (Governor ex ofJicio member thereof); People ex rel. Graham V. Inglis, 161 III. 256 (1896) (Superintendent of Public Instruction ex officio trustee of state normal school).) By virtue of the definition of "office" in Section 24 {infra, p. 322), it is clear that anv of the named officers can run for federal office durin^ the term for which he is elected. By virtue of the last sentence of Section 3 of Article IV (supra, p. 120), he would be prohibited from retaining his state office if elected to federal office. Comparative Analysis Qjialifications: In some 35 states besides Illinois, the minimum age for governor is 30. A couple of states have a higher (31 and 35) and four states have a lower minimum (25). Eight states have no minimimi. About 40 states specify that the governor must be a citizen of the United States. Almost half of these specify no minimum number ot years. Of tlie others, the number of years ranges from two to 20. More states Art. V, § 5 269 (seven including Illinois) choose five as the appropriate minimum than any other number ot years. Residency (or state citizenship) require- ments also vary widely from no minimum up to ten years. The most common minimum is five years (18 states, including Illinois). Not all states combine the governor and lieutenant governor in the same qualifi- cation sentence as does Illinois. Generally speaking, the requirements are much the same lor the two offices. The United States Constitution requires that the President be native born, 35 years old and 14 years a resident. By implication the same recpiirements must be met by the Vice President. The Model State Constitution requires only that the governor be a qualified voter ol the state but includes a minimum age requirement with the number ol years left blank. Dual Office Holding: Only about half of the states have dual office holdina^ restrictions on executive officers set forth in connection with qualifications for their office. In most of those states, the limitation appears to run only against the governor, and most of them prohibit "holding" another office. Only a handful of states, principally Arkansas, Delaware, Montana, Nebraska and West Virginia, follow the Illinois provision of declaring most elective executive officers ineligible for any other office. It does not appear that any of those states specifically omit a constitutional officer as the treasurer is omitted in Illinois. Nebraska, it is interesting to note, amended its constitution in 1962 to provide an exception to allow the lieutenant governor to be a candidate for gover- nor. Neither the United States Constitution nor the Model State Con- stitution has any comparable restriction. Comrtient There are good reasons for prohibiting dual office holding, but the formulation of a policy needs to be thought through carefully. The most important restrictions are those concerning legislators and judges as discussed elsewhere. [Supra, p. 120, and injra, p. 368.) Insofar as con- stitutional executive officers are concerned, it seems appropriate to pro- hibit dual office holding even though in a large industrial state it probably is not necessary. In such a state, any of the constitutional offices, except perhaps that of lieutenant governor, is so obviously a full-time position that as a practical matter it seems unlikely that anyone would attempt to hold down a second job, public or private. Moreover, in the absence of a constitutional prohibition, litigation of the type set out above (p. 268) would be avoided. But if a prohibition is to be retained, careful consideration should be given to the distinction between "ineligibility for" and "holding" any other office. The underlying policy against 270 Art. V, § 6 dual office holding is cjiiite difierent Iroin the underlying policy against permitting a person holding one office to run tor another office. Governor — Supreme Executive Power Sec. 6. The Supreme executive power shall be vested in tlie Governor, who shall take care that the laws be faithfully executed. History The substance of this section appeared in two sections of the 1818 Constitution which were continued unchanged, except tor punctuation, in the 1848 Constitution. In the course of creating this section, the 1870 Convention added the word "Supreme" and dropped the words "of the state" after "power." The jjroposed 1922 Constitution left this section unchanged in substance. Explanation The most important point to be made in explanation of this section is that it is not accurate. Leaving aside for the moment the significance of the word "Supreme," it is obvious that the executive power of the state is not vested in the Governor. There are, according to Section 1 of this Article (supra, p. 253), six other elected officers in the executive department, five of whom have executive duties. The Lieutenant Gov- ernor presumably has no executive duties except when acting as Governor pursuant to Section 17. (Infra, p. 303.) The other elected officers have both express and implied executive duties. The Secretary of State is specifically given custody of the state seal by Section 22 (infra, p. 318), and the Auditor is specifically given power to control every state expendi- ture by Section 17 of Article IV. (Supra, p. 181.) The other three elected officers. Treasurer, Superintendent of Public Instruction, and Attorney General, and the Secretary and Auditor as well, have implied executive powers by virtue of their titles. Thus, the executive power is divided up and vested in a half dozen people, all independent of each other. More- over, the Supreme Court, as mentioned earlier (supra, pp. 103 and 256), has held that the Attorney General's implied powers are so solid that the legislature cannot pry any of them loose for transfer elsewhere in the Executive Department. So far, the Court has not frozen any pow-ers of the other named officers. It is possible that the word "Supreme" was added on the theory that some special recognition should be given to the Governor as the one who had all the executive power not parceled out to the other elected execu- tives. (The more likely reason is that it is traditional. See Comparative Analysis below. But also see the quotation from the 1870 Debates in the Histoiy of Sec. 21, infra, p. 315.) There have been judicial opinions Art. V, § 6 271 that refer to this section, but in general tlie point of the litigation has in fact been the theory of separation of powers enunciated in Article III. It is clear that the courts will not issue a writ of mandamus to compel the Governor to act (People ex rel. Bruce v. Dunne, 258 111. 441 (1913)), but will issue the writ to compel other constitutional executive officers to act. (People ex rel. Mosby v. Stevenson, 272 111. 215 (1916); People ex rel Sellers v. Brady, 262 111. 578 (1914); People ex rel. Akin v. Rose, 167 111. 147 (1897).) This distinction lies in part in the fact that in this section the Governor is singled out for the vesting in him of executive power. (See also the Explanation of Art. Ill, supra, p. 99.) The second part of the section commanding the Governor to take care that the laws are faithfully executed is a truism taken, directly or in- directly, from the United States Constitution. Comparative Analysis Executive Power: All states except Arizona, Minnesota and Utah explicitly state that the executive power is vested in the governor. Thirteen of them are without a qualifying adjective, six make it the "chief" executive power, and 27 join Illinois in using the adjective "supreme." Michigan, it is interesting to note, had "supreme" in its first (1835) constitution, removed it from the second (1850) constitu- tion, put "chief" in the third (1908) constitution, and removed it from the fourth (1963) constitution. (Citizens Research Council of Michigan, A Comparative Analysis of the Michigan Constitution, at vi-9 to vi-10 (1961) [hereinafter cited as C.A.M.C.]; Mich. Const, art. V, § 1.) It is also to be noted that the three states that really do vest executive power in their governor by virtue of having no other elected executive officers — Alaska, Hawaii and New Jersey — are among the states that have no qualifying adjective. (Strictly speaking, Alaska has left a loophole in executive power by providing for the election of a secretary of state who has such duties as are delegated to him by the governor or "as may be prescribed by law." There is no lieutenant governor in Alaska, voting for governor and secretary of state is by joint ballot, and the secretary of state acts for the governor in his absence arid succeeds him for the balance of his term when necessary. The election of a potential suc- cessor to the elected governor is, of course, most appropriate. The Alaskan practice may develop so that the secretary of state remains a minor official comparable to the lieutenant governor in most states, but the language quoted above permits a diffusion of executive power.) The United States Constitution vests executive power in the President, and the Model State Constitution vests it in the governor. 272 Art. V, § 6 Execution of the Laivs: Almost all oi the states enjoin the governor to take care that the laws be laithtully executed. The two new states, Alaska and Hawaii, state that he is responsible tor their faithtul execu- tion. Massachusetts and New Hampshire are silent on the subject. South Carolina rather endearingly enjoins him to take care that the laws are "faithfully executed in mercy." (S.C. Const, art. IV, § 12.) The United States Constitution uses the traditional language and the Model State Constitution uses the same language as in Alaska and Hawaii. (See also Comment below.) Comment See the Comment for Section 1 of this Article for a general discussion of executive power. (Supra, p. 253.) It is to be noted here only that if executive power is to be diffused as it now is by virtue of Section 1, it is appropriate to put in a qualifying adjective such as "chief" or "supreme" if it is made clear in convention debate or committee report that the adjective is designed to enhance the executive power of the Governor. If a decision is made to go the route of the short ballot, consideration might be given to the Model State Constitution's implementation of gubernatorial power to see that the laws are faithfully executed. The Model provides: "The governor shall be responsible for the faithful execution of the laws. He may, by appropriate action or proceeding brought in the name of the state, enforce compliance with any constitutional or legislative mandate, or restrain violation of any constitutional or legislative power, duty or right by an officer, department or agency of the state or any of its civil divisions. This authority shall not authorize any action or proceeding against the legislature." (art. V, § 5.04 (a).) The Commentary on the foregoing provision explains it as follows: "As a further device for enhancing the governor's powers, the section author- izes him to take appropriate action in the name of the state to enforce compliance with constitutional or legislative mandates and to restrain violations of consti- tutional or legislative powers and duties by state officers or instrumentalities. This provision, derived from an earlier edition of tlie Model State Constitution, has been incorporated into the recent constitutions of Alaska and New Jersey. Its effect is to enable the governor to initiate proceedings or to intervene in pro- ceedings on behalf of the people of the state or on behalf of any individual, even in situations where the interest of the state is not directly involved. It gives the governor "standing to sue" even in cases where he might previously not have had it by reason of the fact that, either as a matter of procedure or sub- stance, the state itself had nothing to lose or gain in consequence of such liti- gation. The provision makes the governor, the only statewide elected official, a spokesman for all of the people." (Model State Constitution 69.) If the decision is to preserve the long ballot with executive power diffused, such a provision would be inappropriate, for it would allow the Governor to interfere with his constitutional equals. Art. V, § 7 273 Governor — Powers and Duties Sec. 7. The Governor shall, at the commencement of each session, and at the close of his term of office, give to the General Assembly information, by message, of the condition of the State, and shall recommend such measures as he shall deem expedient. He shall account to the General Assembly, and accompany his message with a statement of all moneys received and paid out by him from any funds subject to his order, with vouchers, and, at the commencement of each regular session present estimates of the amount of money required to be raised by taxation for all purposes. History The 1818 Constitution simply enjoined the Governor to give the legislature information on the state of the government, from time to time, and to recommend such measines as he deemed expedient. The 1848 Constitution made no changes in the section. The 1870 Constitution added the specified times for messages, including a farewell message, lire details about accounting for funds and the hint of an executive budget were added at the same time. Tlie proposed 1922 Constitution preserved the message requirements, greatly shortened the accounting requirement and deleted the hint of an executive budget. Explanation It is traditional to expect the Governor to send a "state of the state" message to the legislatine at the beginning of the session. It is not so common to require a farewell message. Altliough the present Consti- tution specifies the times of message as contrasted witli the 1818 and 1848 Constitutions wliich simply said "from time to time," presumably no one has argued that the Governor is stopped from sending up mes- sages wlienever lie wishes. In the light of the requirement that no money be drawn from the treasury except on a warrant issued by the Auditor, a requirement also added in 1870, it is difficult to see the significance of the detailed account- ing called for from the Governor. It appears from the 1870 debates that the accounting was of the Governor's own expenditures and not of all of the executive departments. "Heretofore, the method has been to make appropriations to the Governor for his use and benefit. . . . The people have a right to know what becomes of all moneys appropriated, and the uses to which they are applied." (Debates 747.) This is borne out by the Governor's biennial messages. For example, in 1927, Governor Small's message included the following: "For a statement of the expenditures made by me for this department from funds subject to my order, your attention is directed to the Biennial Report of the Auditor of Public Accounts for the period ending September 30, 1926. Vouchers for all such expenditures have been filed in the Auditor's office." 274 Art. V. § 7 Precisely tlie same wording appeared in Governor Deneen's message in 1911. (See also the discussion ol Sec. 20, infra, p. .SI 3. It may be that the Governor was supposed to account lor his expenditmes under Section 7 and not under Section 20.) Since deficit financing is in theory prohibited by virtue of Section 18 of Article IV {supra, p. 185), an estimate by the Governor at the begin- ning of a regidar session of the moneys recjuired to be raised by taxes is tantamount to an operating i:)udget for the biennium. Only by the preparation of such a budget can the Governor make a realistic estimate of revenues required. Today, this is not a startling thought, but in 1870 this indirect approach to a single executive budget for the whole state was not so common. Indeed, it was not until 1921 that the Fedeial Government adopted an executive budget. In all fairness, it must be noted that for a long time Illinois governors did not in fact carry out this implied recjuirement for an executive budget. The first such formal presentation of an executive budget was made in 1913, not much earlier that the Federal Government's adoption of an executive budget. Prior to 1913, each executive officer sent up his own estimates. {See N. Garvey, The Government and Administration of Illinois 182-83 (1958).) Comparative Analysis Almost every state constitution calls for messages and recommenda- tions from the governor to the legislature. The only exceptions are Alabama, which calls for a message and no recommendation; Vermont, which calls for recommendations but no message; and Massachusetts, New Hampshire, New Mexico and Rhode Island, which say nothing about messages. Many states make it clear that the governor can send up a message whenever he wants to, sometimes in addition to the requirement of a message at the beginning of the session, sometimes with no mention of timing. Only five states besides Illinois call for a message at the end of the governor's term of office. Seven states besides Illinois call for an accounting of monies paid out, and five require estimates of revenues required. Several state constitutions require the governor to send up a budget message. The United States Constitution commands the President "from time to time" to give Congress "Infor- mation on the State of the Union," and to recommend "such Measures as he shall judge necessary and expedient . . . ." (art. II, § 3.) The Model State Constitution conmiands the governor to give information and reconnnendations to the legislature at the beginning of each session and permits him to give information at other times. The Model State Constitution also provides for a budget message as follows: Art. V, § 8 275 "The Budget. The governor shall submit to the legislature, at a time fixed by law, a budget estimate for the next fiscal year setting forth all proposed ex- penditures and anticipated income of all departments and agencies of the state, as well as a general appropriation bill to authorize the proposed expenditures and a bill or bills covering recommendations in the budget for new or additional revenues." (art. VII, § 7.02.) Comment In any large industrial state the vast majority of significant govern- ment policies are fiscal matters. The level ot government expenditures, the extent ol services to the populace, the formulas for state aid to local governments, grants from the Federal Government, the distribution of tax burdens among the population and between state and local taxing units — all these have a greater impact on the life of inhabitants than the regulatory activities of state government. It would seem more im- portant to provide for a comprehensive budget message along the lines called for in the Model State Constitution than to call for "state of the state" messages. There is no reason to drop the traditional message requirement, but it would seem appropriate to simplify it and to substi- tute a comprehensive budget message. In any event, it seems appropriate to drop the requirement that the Governor account specially for his own expenditures. The quotation from Governor Small's message shows how meaningless the requirement is. Special Sessions Sec. 8. The Governor may, on extraordinary occasions, convene the General Assembly, by proclamation, stating therein the purpose for which they are convened; and the General Assembly shall enter upon no business except that for which they were called together. History The 1818 Constitution gave the Governor power to call special sessions and instructed him to tell the legislature, when assembled, why he had called them together. In the 1848 Constitution, he was required to give the reason for the call in his proclamation and for the first time the legislature was forbidden to transact any other legislative business. No substantive change was made in 1870 except to excise the word "legislative" from in front of "business." The proposed 1922 Constitu- tion transferred this section from the Executive to the Legislative Article. It preserved the substance of Section 8 but gave the Governor the power to add to the business to be considered "in one additional message . . . during the session." 276 Art. V, § 8 Explanation The courts, governors and attorneys general have all agreed that this section means what it says. The Supreme Court has said that the Gov- ernor's decision that an "extraordinary occasion" exists is final. (Herz- berger v. Kelly, 366 III. 126 (1937).) The Governor has vetoed as unconstitutional legislation on a subject not mentioned in his procla- mation but passed at the special session. (Veto Messages 1911 at 31, 33.) The Attorney General has ruled that the Governor can add to the subject matter for a special session, but only by issuing a new procla- mation for another special session and not by amending the proclamation for the special session already called. (1912 Att'y Gen. Rep. 964.) According to the Attorney General, it the second proclamation arrives while the legislature is in session pursuant to the first proclamation, the two sessions should run along concurrently with all entries made in a single legislative journal. (Id. at 966.) Comparative Analysis In all states the governor has the power to call special sessions. In North Carolina he does so "by and with the advice of the Council of State," consisting of named constitutional elected executive officers. In Louisiana, he has to have the consent of three-fourths of the mem- bers of each house of the legislature to call a special session within 30 days of the beginning of a budget session or within 30 days after adjournment sine die. In approximately nine states, the legislature, sometimes by simple majority, sometimes by an extraordinary vote, can call itself into session or require the governor to issue a call. A dozen or so states authorize the governor to call the senate into session alone. In Alaska he may convene either house. Approximately 19 states limit the special session to the subject matter specified by the governor. With one exception, these are states in which no one else can call for a special session. In that one exception, Arizona, the governor may convene the legislature specifying the subject matter, but two-thirds of the members of each house can force a special session with no limitation on subject matter. The President of the United States may "qonvene both houses, or either of them," but he has no power to limit the subject matter to be discussed. Under the Model State Constitution, a special session may be called by the governor or by the presiding officer upon the written request of a majority of the members. Comment There are three important policy decisions to be made in considering special sessions of the legislature. One concerns an automatic or semi- Art. V, § 8 277 automatic return after adjournment to act on vetoes. (See discussion under Section 16, infra, p. 293.) The second is whether to permit the Governor to control the agenda absolutely as in Illinois, with some qualifications such as allowing an extraordinary majority ot the legis- lators to broaden the agenda, or not at all as in many states. The third is whether to give the legislature any power to convene itself. (The Commission on the Organization of the General Assembly recommended that the presiding officers of the two houses be empowered to call a special session upon the written request of two-thirds of the members of both houses. I.S.L. 8.) The second and third policy decisions involve intricate practical political considerations. For example, if the Governor controls the subject matter, he need not hesitate to meet any emergency; but if he has no such control, he must weigh the emergency against the Pandora's Box that he opens. In this connection an exchange during the 1870 Convention is instructive: "Mr. TINCHER. . . . The beauty about this is, that these gentlemen come around and get informa- tion a little before hand as to when the Governor is going to call an extra session, so that they can all tome down and get everything they want embraced in the subject of the call. Mr. SKINNER. Mr. Chairman: The gentleman may have been nearer the throne than myself. I never knew the session was to be called till it was all fixed up. Mr. TINCHER. Then, Mr. Chairman, all I have to say is, that the gentleman should get nearer the throne. [Laughter.] I saw it announced that there was to be an extra session called a year or two ago. A correspondent got the news weeks ahead; and I think these corres- pondents, sir, are a valuable part of this government, for they will give notice of such things. I came down to see the Governor, sir, and got some little railroad matters I was interested in included in the- call." (Debates 775-76.) It is also appropriate to give some thought to the change proposed in 1922. It is obvious that the change was designed to eliminate the arti- ficial device of issuing additional proclamations. It is not so obvious that the proposed language would have prevented the Governor from issuing a new proclamation once he had exhausted his one additional message privilege. In any event, the proposed language demonstrates two interrelated unsatisfactory practices of constitutional conventions. One is to look at a problem narrowly instead of broadly. The other is to provide a precise and limited solution to a problem created by a precise and limited provision. It would seem more appropriate to con- sider the basic policy question of whether the Governor is or is not to control the agenda. If the decision is to give the Governor control, then the drafter should use language that creates no other problem. For example, "The Governor may, on extraordinary occasions, convene the 278 Art. V, § 9 General Assembly; but the General Assembly shall enter upon no busi- ness except such as the Governor recommends for consideration." Two further thoughts are in order. In a convention debate, it is likely that some one will observe that under the ioregoing "loose" language, a governor could keep the legislature in session indefinitely. So he could. Kut this is an example ol the "parade oi horribles" debating technique and should be coimtered with the argument that a constittition is a document for all men for all seasons, and that an attempt to limit pos- sible but unlikely abuse will inevitably restrict probable and proper action. Finally, it must be conceded that the j^olitical process — and a constitutional convention is a proper part of the political process — is oiled by compromise. On occasion only by compromise can a consensus be reached. Sometimes, this produces a bad constitutional provision. The most that one can ask for is that all concerned strive to keep their eye on the fundamental issue and compromise on that level, rather than to get entangled in details and compromise on that level. Adjournment of Houses in Case of Disagreement Sec. 9. In case of a disagreement between the houses with respect to the time of adjournment, the Governor may, on the same being certified to him by the house first moving the adjournment, adjourn the General Assembly to such time as he thinks proper, not beyond the first day of the next regular session. History In the 1818 and 1848 Constitutions the substance of Section 9 was the same except for the certification requirement. It appears that, during the regular session in 1863, a disagreement on adjournment arose between the two houses and before the disagreement could be worked out, the Governor exercised his power to declare the legislatine adjourned. Apparently this was not what the legislature, or at least one of the political parties, wanted and litigation ensued. The Supreme Court found that the legislature acquiesced in the action of the Governor and avoided a decision on the correctness of the Governor's action. (People ex rel. Harless v. Hatch, 33 111. 9 (1863).) The certification language was added to meet the defect. (See Explanation below.) In the proposed 1922 Constitution, the section was moved to the Legislative Article and changed to permit the Governor to act upon a certificate from either house rather than only from the house first moving the adjournment. (Such a change was suggested during the debates in the 1870 Convention, but no one so moved. Debates 778.) Explanation In reporting to the 1870 Convention, the Chairman of the Committee on the Executive Department explained that "disagreement" is an Art. V, §9 279 accepted term of parliamentary usage with a precise technical meaning, to wit: after a motion by one house to adjourn to a set time and an amendment by the other house, if (1) the first house non-concurs, (2) the amending house insists, (3) the first house insists, (4) the amend- ing house adheres, and (5) the first house adheres, then there is dis- agreement. (Debates 748.) During debate it was noted that, in the Htigation that followed the 1863 mix-up, the Court did not use the parliamentary meaning of "disagreement." (Debates 778.) Presumably, it was for this reason that the drafters introduced the certification con- cept, thereby permitting the legislature to follow technical steps to "dis- agreement" before the Governor could act. In 1911, the Governor recjuested an opinion from the Attorney General on what he should do with a certificate of disagreement. It appeared that the Senate on October 26 moved to adjourn sijie die on November 9. The House did nothing until November 9, when it moved to adjourn to November 14. Upon receipt of the House proposal, the Senate voted not to concur and instructed its officers to prepare a certificate of disagreement. The Attorney General assured the Governor that he had the power to adjourn the legislature, that his action would not be reviewable in the courts, but declined to say whether the Governor should act. (1912 111. Att'y Gen. Rep. 73.) The Attorney General quoted from the 1870 Convention debates, including the five technical parliamentary steps, and then observed: "I have referred to, and quoted, the debates in the constitutional convention, not for the purpose of indicating the construction which should be adopted, but solely for the purpose of affording information which may be of assistance to your Excellency in reaching a conclusion as to whether or not, as a matter of fact, there is a disagreement within the meaning of the constitution." {Id. at 79.) In the same opinion he told the Governor that if he set the day before the next regular session as the adjournment day he could still call a special session if need be. In 1963, the Governor adjourned the legislature following receipt of a certificate of disagreement. On June 28 the House adopted a joint resolution to adjourn that day sine die and a resolution stating that it was ready to adjourn and asking the Senate if it had anything more for the House to consider. The House heard nothing from the Senate. A second joint resolution was adopted proposing to adjourn sine die no later than 9:00 P.M. This was delivered to the Senate at 8:56 P.M., but the Secretary of the Senate refused to accept it. The House then adopted a resolution at 9:30 P.M. reciting a disagreement and directing the Speaker so to certify to the Governor. At 10:45 P.M. the Speaker read to the House a proclamation from the Governor adjourning the 280 Art. V, § 10 legislature. The House adjourned .sine die. The Senate recessed and reconvened the next day and pinported to conduct business. In People ex rel. Myers v. Lewis (32 111. 2d 506 (1965)), the Supreme Court confirmed the effectiveness of the Governor's proclamation of adjournment. No reference was made to the technical meaning of "dis- agreement, " and from the natine of the Court's discussion it would not appear that the issue was even raised. Apj^arently, the principal argument against effectiveness was that the Senate Journal did not recite receipt of the Governor's proclamation on June 28 and that therefore the proclamation ^vas not eftecti\e. The Coiut gave the argu- ment short shrift. Comparative Analysis Twenty-two states besides Illinois authorize the governor to adjourn the legislature in case of disagreement. Five states besides Illinois re- quire a certificate of disagreement, but only Oklahoma calls for a certifi- cate from the house first moving adjournment. In Colorado, it is the house last moving adjournment; in Alaska and Rhode Island, either house; and in Arkansas, both houses. In most of the 22 states the gover- nor is limited only by the requirement to adjourn not beyond the next regular session, but in a few states there are specific limitations such as not exceeding four months. The President of the United States, in the case of a disagreement, may adjourn Congress "to such time as he shall think proper." There is no comparable provision in the Model State Constitution. Comment Although it is obvious that a gubernatorial power to adjovnn the legislature is not absolutely essential, it is not inappropriate to provide for the rare contingency of disagreement. It seems appropriate also to provide for a certificate of disagreement. The proposal in the 1922 Con- stitution that either house could make the certification seems preferable to the present language which gives one house a tactical advantage over the other. Appointments Sec. 10. The Governor shall nominate and, by and with the advice and con- sent of the Senate, (a majority of all the Senators elected concurring, by yeas and nays), appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not other- wise provided for; and no such officer shall be appointed or elected by the General Assembly. Art. V, § 10 281 History The 1818 Constitution contained a comparable provision, differing only in the absence of a specified majority vote for confirmation and in the absence of the prohibition on appointment of officers by the General Assembly. In fact, the 1818 Constitution provided for the ap- pointment by the General Assembly of a treasurer and public printers and authorized the legislature to appoint an auditor, attorney general and "such other officers for the state as may be necessary." The 1848 Constitution added, in substance, the majority of elected senators re- quirement and the appointment prohibition. In the 1870 Convention, the only debate over the section concerned the breadth of the concluding prohibition. As noted in the History of Section 24 {jnpa, p. 322), that definitional section was drafted in lieu of amending Section 10. The proposed 1922 Constitution put the substance of the concluding pro- hibition into the article on the legislature and combined the substance of the balance of the section with Section II. (See infra, p. 283.) Explanation This rather convoluted section really has only two constitutionally operative provisions: (1) the legislature may not appoint any officers; and (2) consent of the Senate, when called for, must be by yeas and nays and a majority of those elected must concur. (Even (1) is not strictly true, for Sec. 9 of Art. IV {supra, p. 145) allows each house to choose its own officers.) Beyond this, the section does not settle any matters of gubernatorial power of appointment. First, there are no offices "estab- Hshed by this constitution" except ones whose election is "otherwise provided for." Even if "established" is stretched to include filling the vacancies under Section 20 (infra, p. 313), "appointment" is otherwise provided for, since Section 20 says the Governor shall fill the vacancy. Thus, Section 10 is operative only as statutes are passed which establish offices and which provide for nomination by the Governor and appoint- ment by and with the consent of the Senate. But by the very language of Section 10, it is clear that offices may also be created by statutes which provide for appointment by the Governor without Senate confirmation, or which provide for appointment by someone else. (See, e.g., People v. Chicago Transit Authority, 392 111. 77 (1945); People v. Evans, 247 111. 547 (1910).) It should also be noted that "officers" in this section refers only to state officers and not local officers. (See Ramsay v. Van Meter, 300 111. 193 (1921); People v. Evans, 247 111. 547 (1910).) Comparative Analysis As an easy generalization, it can be said that the usual rule among the states is the same as in Illinois — appointments are made by the 282 Art. V, § 10 governor by and with the advice and consent of the senate. But there are so many quahfications to the generalization that it is relatively meaning- less. To begin with, many states have much the same provision as in Section 10 to the effect that the section is operative only to the extent not otherwise provided for by constitution or law. In a great many states there are constitutional officers, from adjutant general to wildlife and fish- eries commissioners, whose appointments are covered by specific reference in the constitution. In most of these cases the governor makes the ap- pointment, sometimes with confirmation required, sometimes without. In a couple of states the chief administrative officer of an operation is chosen by the policy-making board or commission, and in one of those states. New Jersey, the power of approval may be given to the governor. In one state, Connecticut, there is no constitutional provision of any kind concerning appointments. Moreover, the important point is the extent to which the governor has the power to appoint the chief ad- ministrative officers in the executive department, and this need not be a constitutional matter. Apart from elective offices, which are discussed elsewhere {Comparative Analysis of Sec. 1, supra, p. 257), there are a great many variations among the states.. Some states follow Illinois' prac- tice of requiring senate confirmation of most department heads. Some states, notably neighboring Indiana and Iowa, do not require legislative confirmation of the governor's appointments. Most states have one or more departments headed by a board or commission that in turn appoints an administrative head, subject, in some cases, to gubernatorial approval. In the new Michigan Constitution there is a unique provision on senate confirmation, as follows: "Appointment by and with the advice and consent of tfie senate wfien used in this constitution or laws in effect or hereafter enacted means appointment sub- ject to disapproval by a majority vote of the members elected to and serving in the senate if such action is taken within 60 session days after the date of such appointment. Any appointment not disapproved within such period shall stand confirmed." (art. V, § 6.) The Model State Constitution provides: "The governor shall appoint and may remove the heads of all administrative departments. All other officers in the administrative service of the state shall be appointed and may be removed as provided by law." (art. V, § 5.07.) The second sentence of the model provision is based on the assumption that most such officers will be under the civil service system that the Model State Constitution mandates. The United States Constitution provision on presidential appoint- ments is, of course, the model for the many states that call for legis- lative confirmation. The second clause of Section 2 of Article II reads in part: Art. V, § 11 283 "[A]nd he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Ap- pointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Comment Once in a while — one is tempted to say once in a lifetime — a really new idea enters the world of constitution-drafting. The Michigan pro- vision on advice and consent quoted above is an ingenious new idea. It is analogous to the device of permitting the President (or Governor) to reorganize executive departments subject to veto by the legislature within a specified period of time. Whatever its origin, the Michigan provision is an interesting solution to one of the criticisms of senatorial confirma- tions. The stated purpose of advice and consent is to make sure that incompetent people are not appointed. This purpose is met by the Mich- igan provision. The potential evil in the traditional provision is that the necessity for affirmative action may compel the executive to make trades in order to obtain confirmation. Moreover, the power of appoint- ment can almost be nullified by a tradition of senatorial courtesy such as is followed in the United States Senate, whereby a nomination is killed by a Senator's statement that a nominee from the Senator's state is personally obnoxious to him. The Michigan provision does not wholly preclude any such misuse of the confirmation process, but it certainly makes misuse more difficult. Vacancies — Temporary Appointments Sec. 11. In case of a vacancy, during the recess of the Senate, in any office which is not elective, the Governor shall make a temporary appointment until the next meeting of the Senate, when he shall nominate some person to fill such office; and any person so nominated, who is confirmed by the Senate (a majority of all the Senators elected concurring by yeas and nays), shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person, after being rejected by the Senate, shall be again nominated for the same office at the same session, unless at the request of the Senate, or be appointed to the same office during the recess of the General Assembly. History The 1818 Constitution had a simple provision permitting the Governor to fill appointive vacancies occurring during a recess of the General Assembly, such recess appointment to expire at the end of the next session. This included those offices for which the power of appointment was vested in the legislature. The 1848 Constitution provided, in the Judiciary Article for some strange reason, that all vacancies of elective 284 Art. V, § n (except the Secretary of State) and appointive offices should be filled as provided by law. The Governor was empowered to fill a vacancy in the office of Secretary of State without the advice and consent of the Senate. In the 1870 Convention, the Chairman of the Committee on the Executive Department stated that the first sentence, offered as a separate section, was "as in the present Constitution." (Debates 748.) This is curious, for, as noted above, the 1848 Constitution left the method of filling vacancies to be prescribed by law. He noted that the second sentence, also offered as a separate section, was new. (Id.) The two sections were adopted by the Convention without change and subsequently com- bined into one section by the Committee on Revision and Adjustment. The proposed 1922 Constitution combined the first part of Section 10 (supra, p. 280) with Section II. In the course of revision by the Com- mittee on Phraseology and Style, the words "in any office which is not elective," were changed to "where the appointing power is vested in the governor subject to the consent of the senate." In all other respects the substance remained unchanged. Explanation The change in the proposed 1922 Constitution, referred to above, made explicit what is only implicit in Section 1 1; namely, that the section is operative only in the case of a vacancy in an office which is filled by an appointment subject to confirmation by the Senate. So limited, the section is substantially self-explanatory. It is, in short, simply a means of preventing the Governor from getting around the requirement for confirmation of his appointees. The only questions that appear to have arisen are (1) What about an office that has never been filled? (2) What about an office with a term that expires during a recess but with the usual provision that the incumbent holds over until his successor is ap- pointed and qualified? and (3) What about the failure of the Senate to act as opposed to rejection? As to (2), the Attorney General has said there is no vacancy (1910 111. Att'y Gen. Rep. 172): and as to (3), he has said that Section 1 1 permits a reappointment after adjournment of the Senate. (1925 111. Att'y Gen. Rep. 331.) As to (1), a case under the 1818 Constitution held that a position could not be filled initially during a recess of the Senate. (People ex rel. Ewing v. Forquer, 1 111. 104 (1825).) It has been pointed out, however, that the 1818 wording was sufficiently different from Section 11 to raise doubts that the Forquer case would be followed today. (Annotations 138.) It was also pointed out that the legis- lature customarily provides in the appropriate case that if the Senate is not in session when an act takes effect, the Governor is to make a Art. V, § 12 285 temporary appointment as in the case ot a vacancy. (Id. See, e.g., 111. Rev. Stat. ch. 144, § 182 (1967).) Comparative Analysis Approximately ten states appear to have no constitutional provision for the filling of vacancies in appointive positions. Of the remaining states, approximately 17 have provisions generally comparable to Sec- tion 1 1 in that they are designed in one way or another to back up the requirement for legislative confirmation of appointees. The rest of the states require that vacancies not otherwise provided for in the consti- tution shall be filled by the governor, shall be filled as provided by law, or shall be filled by the governor unless otherwise provided by law. The United States Constitution provides that the President "shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." Since the Model State Constitution gives the governor unrestricted power to appoint and remove officers, he obviously has the power to fill vacancies. (The applicable section is quoted in the Com- parative Analysis of Sec. 10, supra, p. 281.) Comment It is worth emphasizing that Section 1 1 precludes reappointment of a nominee only if the Senate rejects him. Compare this with the Michigan advice and consent definition discussed in the Comment on Section 10. {Supra, p. 283.) There is no question but that Sections 10 and 11 could be greatly shortened and combined somewhat along the lines of the proposed 1922 Constitution. Removal from Office by Governor Sec. 12. The Governor shall have power to remove any officer whom he may appoint, in case of incompetency, neglect of duty, or malfeasance in office; and he may declare his office vacant, and fill the same as is herein provided in other cases of vacancy. History In the course of presenting Article V to the 1870 Convention, the Chairman of the Committee on the Executive Department said, with reference to this section: 'The [twelfth] section is a new section, and gives power to the Governor to remove any officer he may appoint, in case of incompetency, neglect of duty, or malfeasance of office.... Under the present Constitution the Governor may appoint a person to an important office, and when appointed he has no power whatever to remove him, though he may be incompetent. . . . The executive 286 Art. V, § 12 should liave some power as well as responsibility, and he should have power enough, at least, to execute the laws; and if he is first to appoint men and be held responsible for his appointments, and then, in case they should prove failures, not have the power to remove then [sic], what a ridiculous spectacle would be presented. This power of removal is for the benefit of the people and for their security, and not for the glory of the executive." (Debates 748.) The section was accepted without ciebate and without change. The proposed 1922 Constitution preserved the substance of the first half of the section but dropped the second half as unnecessary. Explanation Although the 1870 delegates may have considered the quoted reasons adequate justification for Section 12, the pressing need for the section was to "overrule" Field i'. People ex rel. McClernand. (3 111. 79 (1839).) In that case, Chief Justice Wilson held that, under the 1818 Constitu- tion, tlie Governor, with the advice and consent of the Senate, appointed a Secretary of State but had no power to remove Iiim. Moreover, under the ratlier novel constitutional theory enunciated by the Chief Justice (see Explanation of Sec. 1, supra, pp. 254-5), it would be necessary to pro- vide for the power of removal in the Constitution, at least for any consti- tutional officers appointed by the Governor. The irony of the matter is that Section 12 goes much furtlier than the Field theory required, for under the section the Governor has the power to remove any officer whom he appoints, including, naturally, statutory officers. (This means that the removal power may be gieater than the President's power under the United States Constitution. See Comment below.) Moreover, the Supreme Court, in what may have been an act of expiation for the Field case, construed Section 12 in just about as broad a manner as is possible. In Wilcox V. People ex rel. Lipe (90 111. 186 (1878)), the Court held that (1) Section 12 covered any officer appointed by the Governor and not just those who were subject to senatorial confirmation; (2) that no notice or hearing was required; and (3) that the Governor's discretion was not reviewable in the courts. Although the power of removal under Section 12 is limited to appointed officers, the legislature has some in- herent power to provide by statute for the removal of elected officers. Thus, the Supreme Court upheld a statute giving the Governor the power to remove a sheriff who permitted a mob to take a prisoner from him. (People ex re/.Davis v. Nellis, 249 111. 12 (1911).) Whether this inherent power covers any state constitutional officers has apparently never been raised. Comparative Analysis About a dozen states have provisions giving the governor power to remove state officials, but, of course, there are many variations in both Art. V, § 13 287 the stated reasons for removal and the offices covered under the power. A somewhat larger number of states provide that removal from office shall be as prescribed by law, but in almost half of those states such legislative power is limited to officers not subject to impeachment. (Without extended analysis of individual constitutions, it is not possible to state whether such an impeachment exception is the means of dis- tinguishing between elective and appointive offices, the means of covering causes beyond those specified for impeachment, or something else.) The United States Constitution has no provision, other than the im- peachment section, for removal. In Myers v. United States (272 U.S. 52 (1926)), the United States Supreme Court held unconstitutional an Act of Congress that required the consent of the Senate for the removal of postmasters. The argument was that the doctrine of separation of powers required leaving the President with a free hand in administering the government. But in Humphrey's Executor v. United States (295 U.S. 602 (1935)), the Court held otherwise in the case of a member of the Federal Trade Commission. The argument this time was that the Commission was a quasi-legislative and quasi-judicial body and that the members of such an "independent" agency could be protected by statute from arbitrary removal without cause. (See also Wiener v. United States, 357 U.S. 349 (1958).) The Model State Constitution gives the governor an unrestricted power to remove heads of departments and empowers the legislature to prescribe by law for the removal of other executive department officials. (The applicable section is quoted in the Comparative Analysis of Sec. 10, supra, p. 282.) Comment As noted above, Section 12 is unusually broad. It would appear dif- ficult, for example, for the Illinois courts to follow the Humphrey's Executor case in the face of such broad language. Nevertheless, it may be better to leave the section alone than to attempt to narrow it. Any such attempt is likely to produce too much detail. Nor is it advisable to use any "as prescribed by law" language to avoid detail, for that would revive the Field doctrine and permit the "ridiculous spectacle" deplored by the Committee Chairman in 1870. It is clear that the 1922 drafters were justified in dropping the second half of the sentence as unnecessary. Pardons Sec. 13. The Governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses, subject to such regulations as may be provided in law relative to the manner of applying therefor. 288 Art. V, § 13 History The 1818 Constitution contained a simple statement of power to "grant reprieves and pardons after conviction, except in cases of im- peachment." The 1848 Constitution went to the opposite extreme with a complex provision that included special rules for conviction for treason, a prohibition on pardons for convictions on impeachment, power to condition pardons, an authorization to the legislature to regulate the manner of applying for pardons, and a requirement for a detailed bien- nial report to the legislature on every reprieve, pardon or commutation granted. In the 1870 Convention, the section as proposed was substantially as it now appears, but without the concluding words "relative to the manner of applying therefor." An extensive debate ensued between those who felt that, notwithstanding the restrictions added in 1848, the power of pardon had continued to be abused, and those who feared that the pro- posed language would permit the legislature to destroy the Governor's traditional power. A compromise was reached by the addition of the words quoted above w^hich thus limited the legislature's power of regu- lation to only one of the alleged areas of abuse — failure to notify in- terested parties, such as judge and prosecutor, that an application for a pardon was under consideration. The proposed 1922 Constitution made one substantive change in the section. It was provided that the Governor's grant could be "on such terms as he thinks proper." This was designed to permit the grant of conditional pardons. Explanation It is perhaps appropriate to begin by defining terms that are used in this section.. A "reprieve" is a suspension of the sentence that has been imposed. The popular understanding of the word is in connection with a death sentence where the Governor or a court grants a reprieve pending further consideration of some claim of error. But a reprieve can be any suspension of execution of any sentence. A "commutation" is a shortening or lessening of a sentence. A "pardon" is, in effect, a complete exoneration of the convicted person. A "conditional pardon," proposed in effect in 1922, is the equivalent of a release on parole. The courts have consistently supported the gubernatorial power which the 1870 delegates preserved from legislative regulation. For example, the legislature is specifically given the power to regulate the manner of applying for a pardon, but the courts have refused to set aside a pardon where the Governor acted without having before him the written statements of the judge and prosecutor called for by statute. (People ex rel. Smith v. Jenkins, 325 111. 372 (1927).) Moreover, the courts have Art. V, § 13 289 denied to themselves any general power ot reprieve (People e\ rel. Smith V. Allen, 155 111. 61 (1895)), and have denied to the legislature any power to authorize the courts to commute sentences. (People ex rel. Brundage V. La Buy, 285 111. 141 (1918).) There are, however, definite limits on the Governor's power. For one thing, he cannot pardon someone sentenced for civil contempt ot court. (People ex rel. Brundage v. Peters, 305 111. 223 (1922). For present pur- poses, it is sufficient to note that a civil contempt order is in furtherance of effective judicial power; criminal contempt is punishment for dis- respect of the court, or interference with the judicial process. A pardon would be appropriate in a case of criminal contempt.) For another, the Governor has to go all the way; he cannot "commute" a conviction for murder to a conviction for manslaughter so that a "lifer" would become eligible for parole. (People ex rel. Fullenwider v. Jenkins, 322 111 33 (1926).) The change in the proposed 1922 Constitution would not have permitted such a "commutation" but would have authorized a conditional pardon which is what the Governor presumably was trying to do in the Fullenwider case. It is important to note that, absent a proviso authorizing conditional pardons, there is a clear distinction between commutation and pardon on the one hand and parole on the other. The former is, under Section 13, wholly and exclusively in the hands of the Governor, and the latter is wholly and exclusively subject to legislative control. A parole board may be empowered pursuant to legislative direction to act in the case of parole but empowered only to advise and recommend in the case of commutations and pardons. {See generally People ex rel. Abner v. Kin- ney, 30 111. 2d 201 (1964).) Comparative Analysis Almost all states give the governor power to grant pardons. A majority of the states deny the power to grant pardons in cases of treason and impeachment. Approximately a third of the states leave the governor's power relatively unrestricted, another third permit legislative regulation in general, and about a third require the governor to share his power with a parole board. In the case of commutations, approximately a third of the states have a grant of power comparable to Section 13, about a quarter of the states do not grant any power of commutation to the governor, and in the rest of the states the power is either shared or subject to statutory regulation. As for reprieves, about half the states leave the governor relatively unrestricted, in most of the rest the power is shared or subject to statutory regulation, and in a few no power is granted to the governor. In all but a handful of states, whatever the grant of power, it is a grant "after conviction." 290 Art. V, § 14 The United States Constitution gives the President power to grant reprieves and pardons except in the c^se ol impeachment. The Model State Constitution states that the "governor shall have power to grant reprieves, commutations and pardons, alter conviction, for all offenses and may delegate such powers, subject to such procedures as may be prescribed by law." (art. 5, § 5.05. See Comment below concerning an ambiguity in the foregoing.) Comment It would appear appropriate to consider whether to go back to the original language proposed in 1870 and thus permit the legislature to regulate the entire pardoning process. There are cogent arguments on both sides of the issue and the choice is a relatively balanced one. But if the decision is in favor of retention of the Governor's power, it would seem desirable to give him the power to grant conditional pardons as was proposed in 1922. One of the easiest drafting ambiguities to create is that of a modifying clause that is so placed that it is unclear whether it is designed to modify only the last of a series of statements. The pardon provision of the Model State Constitution quoted above has just such an ambiguous modifying clause. The question there is: Does the legislature have power to prescribe procedures only in the case of delegation or can the legisla- ture also prescribe procedures for the exercise of the power to grant reprieves, commutations and pardons? The natural reading of the sentence leads one to believe that the clause refers only to delegation and, indeed, the Commentary to the Model makes this clear. (Model State Constitution 70.) But the point is that either of two minor changes in the wording would erase the ambiguity completely. One change is to make a separate sentence on the power to delegate. The other is to move the clause from the end of the sentence and place it between "and" and "may." The alternatives would read thus: "The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses. He may delegate such powers, subject to such procedures as may be prescribed by law." "The governor shall have power to grant reprieves, commutations and par- dons, after conviction, for all offenses and, subject to such procedures as may be prescribed by law, he may delegate such powers." Governor — Commander-in-Chief of Militia Sec. 14. The Governor shall be commander-in-chief of the military and naval forces of the State (except when they shall be called into the service of the United States); and may call out the same to execute the laws, suppress insurrection, and repel invasion. Art. V, § 14 291 History The first half ot Section 14 appeared in substance in both the 1818 and 1848 Constitutions. The second half was added in 1870. The Chair- man of the Committee on the Executive Department reported to the 1870 Convention that Section 14 "is the same as in the (1848] Constitu- tion . . . ." (Debates 748.) At no time during the deliberations was any explanation offered for the added words. The proposed 1922 Constitu- tion changed "military and naval forces" to "armed forces" and revised the last half to read: "and may call them out to execute the law, protect life or property, suppress insurrection or repel invasion." Explanation This traditional statement is in support of the fundamental subordina- tion of military power to civilian power. (See Art. II, Sec. 15, supra, p. 76.) The only reported case construing this section observed that military activities are under the control of the state and cannot be dele- gated to city or other local authorities. (City of Chicago v. Chicago League Ball Club, 196 111. 54 (1902).) In 1906, the Attorney General ruled that the Governor's power to call out the militia "to execute the laws" did not include the power to do so just because local officials were failing to enforce the Sunday Clos- ing and Dram Shop Laws. The Attorney General suggested that citizens who were concerned about saloons that were open on Sunday could file complaints themselves. (1906 111. Att'y Gen. Rep. 54.) In 1915, the Attorney General ruled that the Governor could not use the militia to aid a judge who was unable to get his orders carried out by the sheriff in another county. (1915 111. Att'y Gen. Rep. 78.) Both of these instances, it can be seen by reading between the lines, were simply efforts to drama- tize a situation by calling on the Governor to call out the militia. In both instances, the Attorney General politely refused to distort the mean- ing of "execute the laws." The official explanation of the proposed 1922 Constitution stated that Section 14 was revised because "the power of the governor to call out the militia to protect life or property at times of great public disaster, dan- ger or catastrophe was questioned." (P.N.C. 37.) Comparative Analysis Every state except Connecticut makes the governor the commander-in- chief of the state's military forces. In Connecticut the governor is the Captain-general of the militia. The title used for the military forces varies from state to state. The two new states of Alaska and Hawaii use the contemporary term "armed forces." The 1964 Michigan Constitution adopted the same term. Thirty states join Illinois in acknowledging 292 Art. V, § 15 that the governor's supreme command is not apjjlicable wlien the armed forces are under United States control. I liree states are careful to warn the governor not to take personal command of his forces without legis- lative consent. Approximately 20 states use substantially the same language as Illinois in setting forth the exigencies for calling out the armed forces — execute laws, suppress insurrection, repel invasion. A couple of states add "sup- press riots," a couple add "preserve public peace," and Oklahoma adds "protect public health." The United States Constitution states that the President shall be "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States . . . ." The Constitution also grants power to Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Inva- sions . . . ." The Model State Constitution makes the governor "comman- der-in-chief of the armed forces of the states," and authorizes him to call them out "to execute the laws, to preserve order, to suppress insurrection or to repel invasion." Comment It would seem appropriate to change the term to "armed forces" if this section is to be revised. It would also be appropriate as a matter of accurate grammar and felicitous phrasing to change the authority to read "and may call them out to execute the laws, to suppress insurrection, or to repel invasion." It would seem that the caution expressed in 1922 was undue and that the power to call out the armed forces to execute the laws is adequate to cover preservation of peace, suppression of riots, protection of public health and to "protect life or property." Impeachment of Officers Sec. 15. The Governor, and all civil officers of this State, shall be liable to impeachment for any misdemeanor in office. History See History of Section 24 of Article IV. (Supra, p. 228.) Explanation The purpose of this section is to designate what class of people is sub- ject to impeachment. In the case of Donahue i'. County of Will (100 111. 94, (1881)), the Supreme Court held that the constitutional county officers provided for by Section 8 of Article X are not "civil officers of this State" and are, therefore, not subject to impeachment. This did not, however, result in an inability to provide for removal of county officers. Art. V, § 16 293 In People ex rel. Davis v. Nellis (249 111. 12 (1911)), the Supreme Court upheld a statute authorizing the Governor to remove a sheriff who was derelict in prescribed duties. It is fair, therefore, to assume that the legislature has the power to provide for the removal of any elected offi- cials whom it cannot remove via the impeachment process. Comparative Analysis Almost every state has a different formulation of coverage for impeach- ment purposes. Only Mississippi has an exact duplicate of Illinois' cov- erage. Delaware covers the governor and civil officers under the state. Only a few states appear to include constitutional local officials, but in a small number of states the coverage is subject to increase by law. The United States Constitution covers the "President, Vice-President and all civil Officers of the United States." The Model State Constitution covers the "governor, the heads of principal departments, judicial officers and such other officers of the state as may be made subject to impeachment by law." (The Model State Constitution provides for no constitutional elec- tive offices other than the governor and members of the legislature.) Comment This section requires no change. Approval or Veto of Bills Sec. 16. Every bill passed by the General Assembly shall, before it becomes a law, be presented to the Governor. If he approve, he shall sign it, and there- upon it shall become a law; but if he do not approve, he shall return it with his objections, to the House in which it shall have originated, which house shall enter the objections at large upon its journal and proceed to reconsider the bill. If then two-thirds of the members elected agree to pass the same, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered; and if approved by two-thirds of the members elected to that house, it shall become a law notwithstanding the objections of the Governor; but in all such cases the vote of each house shall be determined by yeas and nays to be entered upon the journal. Bills making appropriations of money out of the Treasury shall specify the objects and purposes for which the same are made, and appropriate to them respectively their several amounts in distinct items and sections, and if the Governor shall not approve any one or more of the items or sections contained in any bill, but shall approve the residue thereof, it shall become a law as to the residue in like manner as if he had signed it. The Governor shall then return the bill, with his objections to the items or sections of the same not ap- proved by him, to the house in which the bill shall have originated, which house shall enter the objections at large upon its journal, and proceed to reconsider so much of said bill as is not approved by the Governor. The same proceedings shall be had in both houses in reconsidering the same as is hereinbefore provided in case of an entire bill returned by the Governor with his objections; and if any item or section of said bill not approved by the Governor shall be passed 294 Art. V, § 16 by two-thirds of the members elected to each of the two houses of the General Assembly, it shall become part of said law notwithstanding the objections of the Governor. Any bill which shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him shall become a law in like manner as if he had signed it, unless the General Assembly shall, by their adjournment prevent its return, in which case it shall be filed with his objections, in the office of the Secretary of State, within ten days after such adjournment, or become a law. History The 1818 Constitution created a Council of Revision, consisting of the Governor and the justices of the Supreme Court of which there were four during the Hfe of that Constitution. A majority of the Council could reject a bill. A majority of all the elected members of each house could override the "veto." There was the customary ten-day provision, but with an unusual twist. In the case of adjournment within ten days, the "bill shall be returned on the first day of the meeting of the General Assembly, after the expiration of the said 10 days, or be a law." The 1848 Constitution dropped the Council of Revision and vested the veto power in the Governor alone. No other changes were made except to provide that Sunday was not to be counted as one of the ten days, and to require a recorded yea and nay vote in each house. In the 1870 Convention, the veto section proposed by the Committee on the Executive Department purported to differ in substance from the 1848 section only in changing the required vote to override to two-thirds. Both in Committee of the Whole and in the Convention proper, an effort was made to go back to the majority vote requirement, but in each case the effort was defeated by a wide margin. The item veto portion of the section was added by amendment in 1884. The proposed 1922 Con- stitution made one substantive change. The period within which the Governor had to act after adjournment intervened was extended to 30 days. The section was moved to the Legislative Article and the portion dealing with the form of appropriation bills was made into a separate section. (See Comment below concerning this change.) Explanation General Veto: A routine procedural provision in the nature of rules of the game ought to be clear enough that no judicial gloss is required. This is certainly the case with so important a matter as the Governor's power to veto. Unfortunately, the drafters in 1870 created ambiguities, one of which showed up almost immediately and the second of w^hich showed up many decades later as the result of an informal practice de- signed to cope with the mass of bills passed on the last days of a session. The 27th General Assembly, the first to meet under the 1870 Consti- Art. V, § 16 295 tution, adjourned on April 17, 1871, under an adjournment resolution calling for reconvening on November 15, 1871. Prior to that date, the Governor called a special session which convened on May 24, 1871. The Governor's call included a number of items, the last of which was: "Thirteenth — The reconsideration of bills passed by both branches of the General Assembly and laid before the Governor, and by him filed in the office of the Secretary of State, with his reasons for withholding his signature there- from." (1871 111. H.R. Jour. 3 (1st Spec. Sess.).) In his message to the Special Session, Governor Palmer listed the five bills which he had vetoed after adjournment and then said: "And these several bills were, within ten days after the adjournment of the session, filed by me in the office of the Secretary of State, with my objections. "From the peculiar language of the last clause of the 1 6th section of the 5th Article of the Constitution, it is somewhat difficult to determine what is the actual status of the above mentioned bills. If they had been returned by the Governor, with his objections, to the Houses respectively in which they originated, the General Assembly being in session, then the course of procedure would have been plain; for, in that case, it is provided by the Constitution that the House in which the bill originated, shall proceed to reconsider the bill, and if two-thirds of the members elected agree to pass the same, it shall be sent, together with the objections, to the other House, by which it shall be likewise reconsidered; and if approved by two-thirds of the members elected to that House, it shall become a law, notwithstanding the objections of the Governor. "The foregoing provision is substantially like that upon the same subject in the Constitution of 1847, but instead of being followed, as in the Constitution of 1847, by the further language that, 'If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall be presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly shall, by their adjournment, prevent its return; in which case the said bill shall be returned on the first day of the meeting of the General Assembly after the expiration of the said ten days, or be a law,' the last clause in the section of the present Constitution is: Any bill which shall not be returned by the Governor within ten days (Sundays excepted) after it has been presented to him, shall become a law in like manner as if he had signed it, unless the General Assembly shall, by their adjournment, prevent its return, in which case it shall be filed, with his objections, in the office of the Secretary of State, within ten days after such adjournment, or become a law.' "The last quoted clause is unlike anything I have been able to find in the Constitution of any of the States, so that I know of no precedents that can be consulted to aid in its proper construction. "The last clause of the 14th section of the 5th article of the Constitution of the State of Indiana, from which this provision of our Constitution was probably borrowed, is more complete; for, after providing for the filing of bills disapproved by the Governor, with his objections, in the office of the Secretary of State, within five days after the adjournment, it contains the additional requirement that the Secretary of State shall 'lay the bill and the objections of the Governor before the General Assembly at its next session, in like manner as if it had been returned by the Governor.' "Whether the last clause of the 16th section of the 5th article of the Consti- 296 Art. V, § 16 tition is to be construed as if the words last quoted from the Constitution of Indiana were actually employed, or whether the Executive disapproval is to have the effect to defeat bills that have passed both Houses, as is the consequence in like cases under the Constitutions of most of the New England States, and New York, New Jersey and other States, is so uncertain, that I have thought it proper to call the special attention of the General Assembly to the matter, as one de- serving most serious consideration." {Id. at 20-21.) The matter was referred to committee in both houses, but nothing appears to have been reported back. Tliere was a second special session convened on October 13, 1871, but it was devoted to consideration of problems caused by the Chicago fire of October 8th and 9th. At the Adjourned Regular Session in November, 1871, the Secretary of State wrote to the Speaker of the House in response to a request for two of the five vetoed bills and accompanying messages. The Secretary inter- preted the statutes imder which he operated to require him to retain the originals, but lie attached certified copies to his letter. Again, noth- ing appears to have happened. No vote was taken on overriding any of the vetoes. As noted in connection with Section 9 of Article IV (supra, p. 145), there were two other adjourned regular sessions after 1871 and before the 75th General Assembly's series of adjourned sessions in 1967, 1968, and a final session on January 8, 1969. The 27th General Assembly, the second under the 1870 Constitution, and the 45th General Assembly in 1907-1908, both had adjourned regular sessions, but in neither case were any post-adjournment vetoes considered. Two important procedtiral decisions, one by the General Assembly, and one by the Governor, were made in connection with the 75th's adjourned regular sessions. At all times during the life of the 75th General Assembly, the offices of the Clerks of the House and the Senate remained open for business, a practice that obviously is not appropriate after adjournment sine die. Presumably because of this, the Governor addressed his veto message to the members of the appropriate house of origin and dispatched the messages to the proper Clerk. Thus, for exam- ple, the House |ournal entry following the veto message of August 20, 1968, concerning House Bill 2633, reads: "The foregoing message from the Governor, transmitting veto to House Bill No. 2633, having been received in the office of the Clerk of the House on Tuesday, August 20, 1968, at 10:46 a.m., was read by the Clerk and ordered placed on file." (Journal No. 106 for January 8, 1969 at 11.) There were a number of veto messages so handled, but only the veto of House Bill No. 2633 was overridden. So far no lawsuit has been in- stituted contesting the validity of the legislative action in overriding the veto. Art. V, § 16 297 It is clear from the procedural decisions to keep open the Clerk's offices and to transmit messages to the Clerk's office, that everyone con- cerned has acted on the assumption that the key words in Section 16 are "prevent its return," and that "prevent" is to be read in the sense of physically preventing return because, so to speak, the door is locked. It is worth noting that the overriding of the veto of House Bill No. 2633 was only the fourth such since 1870, and the first since 1936. The sys- tem of minority representation in the House (see Sec. 7 of Art. IV, supra, p. 136) increases somewhat the difficulty of mustering a two-thirds' vote of the whole membership of the House of Representatives, but the more significant reason for the absence of overriding has been that so many bills are acted upon after the legislature adjourns sine die. The message of Governor Palmer, quoted above, demonstrates that from the beginning there was a problem of bills passed at the last minute, but it was not until much later that the well-known "log jam" developed at the end of the session. By virtue of the July 1 effective date provision of Section 13 of Article IV (supra, pp. 160-1), there is a drive to finish business by June 30, and a great many bills are passed in the last few days of the session. In 1939, for example, 232 of the 474 bills passed during the regular session were passed on the last day. At the regular session in 1965, 429 bills were passed on the last day, and in the last three days of the session, 1,259 of the 2,211 total were passed. In 1967, the first year in which a schedule was adopted in an effort to con- trol the log jam, there were 421 bills passed on the last day and 832 in the last three days out of a total of 2,603. In order to give the Governor adequate time to consider these last-minute bills, an informal practice has developed whereby bills are "'presented" to him in an orderly fashion over a period of several weeks following adjournment. Unfortunately, the drafters in 1870 created an ambiguity in Section 16 which, when combined with this informal practice, finally required judicial resolution. (People ex rel. Petersen v. Hughes, 372 111. 602 (1939).) The ambiguity first arises because there are two ten-day periods referred to — from presentation of a bill and from day of adjournment. In passing, it may be noted that Sundays are specifically excepted in computing the ten days after presentation, but not the ten days from adjournment. The Supreme Court has excepted the day of rest from the adjournment ten-day computation also. (People ex rel. Akin v. Rose, 167 111. 147 (1897).) The Attorney General has told the Governor that he cannot approve or veto a bill on Sunday. (1917 111. Att'y Gen. Rep. 571.) The initial problem of ambiguity arises when the legislature adjourns less than ten days after presentation of a bill. In the Petersen case, the 298 Art. V, § 16 Supreme Court pointed out that lor many years Governors had cautiously followed the practice of acting within ten days of presentation rather than to assume that a new ten days began to run upon adjournment. This is the course, familiar to every lawyer, of choosing the alternative that cannot be wrong. What gave rise to litigation, however, was the practice of presenting bills to the Governor some time after adjournment. The two bills in question in the Petersen case were passed on the 30th of June, the day on which the legislature adjourned sine die. One bill was presented to the Governor on July 17 and the other on July 11. Both bills, with veto messages, were filed with the Secretary of State within ten days of presentation, but not within ten days after adjournment. The Court concluded that the Governor has ten days, Sundays excepted, from date of presentation regardless of how long after adjournment this may be. In reaching this conclusion, the Court relied upon and approved the practice mentioned above whereby the Governor always acts within ten days of presentation and does not permit adjournment to extend the period. The long and short of it is that a consistent and eminently satis- factory solution to a practical problem was found by the Court, but its reading of the veto provision in both instances of ambiguity is ques- tionable, both as to the "plain meaning" of the words and the "intent" of the 1870 drafters. (One judge dissented without opinion.) There are two minor rulings concerning the Governor's general veto power that should be noted. If, after adjournment sine die, the Gover- nor formally approves or vetoes a bill and deposits it in the Secretary's office, he has lost all power over the bill even though his ten-day period for consideration has not expired. (People ex rel. Partello v. McCullough, 210 111. 488 (1904).) But if he deposits a bill without having approved or disapproved it, his power is not lost and he can recall it within his ten- day grace period. (See People ex rel. Akin v. Rose, 167 111. 147 (1897).) Item Veto: There have been several straightforward Supreme Court de- cisions delineating the Governor's power to veto a line item in an appropriation. The principal ruling was that he could not reduce an item by, for example, striking "per annum," or saying "I approve in the sum of $3,500 and veto all in excess of said sum of $3,500." (Fergus v. Russel, 270 111. 304 (1915).) The Supreme Court has also held that a line item for a large sum followed by subsidiary lines stating how much of the sum is to be spent for each of several purposes permits the Gover- nor to strike a subsidiary item even though, in a sense, this is reducing rather than striking the principal item. (People ex rel. State Bd. of Agr. V. Brady, 277 111. 124 (1917).) Finally, the Supreme Court has recognized that the Governor has the power to strike line items of appropriations Art. V, § 16 299 for constitutional officers. (People ex rel. Millner v. Russel, 311 111. 96 (1924).) Tlie thrust of this case is to underscore the point that the dis- persion of executive power by the "long ballot" (see Section 1, supra, p. 253) can be undercut by the Governor if he wants to veto items for the operations of the offices of the elected constitutional offices. Another line of decisions deals with the item veto portion of Section 16, but not all of them appear to be limited to the purpose of the pro- vision. In Peabody v. Russel (302 111. Ill (1922)), the legislature at- tempted to create a general contingency fund of $500,000 which the Governor could allocate as he saw fit. The Supreme Court held that this was unconstitutional because the item did not "specify the objects and purposes" of the appropriation and did not appropriate "amounts in distinct items and sections." In dissent, Mr. Justice Cartwright pointed out that the purpose of the wording was to prevent the legislature from destroying the item veto power by appropriations in insufficient detail. Justice Cartwright was unable to construe the item veto amendment as an amendment of Section 17 of Article IV (supra, p. 181), which is the governing section on the "legality" of expenditure of public moneys. The irony of the Peabody case is that a provision designed to protect the Governor was used to deny to him a well-recognized budgeting tool. (The State Finance Act, 111. Rev. Stat., ch. 127, §§ 149 (1967), does pro- vide for contingency appropriations, but the "contingencies" are nar- rower than the appropriation involved in the Peabody case.) A comparable, but not so devastating, construction of the item veto language was the ruling that an indefinite appropriation — i.e., "such sums as may be necessary to refund taxes on real estate" — is unconstitu- tional. (Fergus v. Russel, 270 111. 304 (1915).) The case is comparable because the Governor's power is not protected by such a construction, but it is not devastating since the legislature, with executive help, can make an "educated guess" and put in a sum certain. Although the Supreme Court was certain of its ground in the two cases just discussed, it has conceded that determining the required degree of specification of items is most difficult. (See People ex rel. State Bd. of Agr. V. Brady, 277 111. 124 (1917).) In many ways, the question of how far a breakdown must go is almost like the age-old question, "How long is a piece of string?" For example, an appropriation of $60,000,000 for the construction of roads was accepted. (Mitchell v. Lowden, 288 111. 327 (1919).) On another occasion, $400,000 for construction and mainte- nance of roads was accepted. (Martens v. Brady, 264 111. 178 (1914).) The Attorney General has said, however, that $500,000 for purchase of lands, machinery, supplies, salaries, wages, and materials will not do. (1912 111. Att'y Gen. Rep. 960.) It may be noted that the last appropria- 300 Art. V, § 16 don includes many different kinds of expenditures, whereas the other two are comprised of large sums for many units of one kind of expenditure. Comparative Analysis General Veto: One state, North Carolina, has no gubernatorial veto of any kind. All other states require the Governor to return a bill within a specified number of days, usually excepting Sunday and sometimes excepting holidays. (Three days, nine states; five days, 21 states; six days, four states; ten days, 12 states; and 15 days, two states. Under the new Michigan Constitution, the Governor has "14 days measured in hours and minutes from time of presentation.") Overriding a veto requires a vote of two-thirds of elected members in 23 states and of those present in 15 states. A vote of three-fifths of elected members is required in four states and of those present in one state. A simple majority of elected members suffices in six states. In Alaska, the required two-thirds of elected members rises to three-fourths for revenue and appropriation bills, including item vetoes. The same step-up in vote is required in Arizona for emergency measures. In 18 states, the intervention of adjournment permits a Governor to "veto" a bill by doing nothing. This, of course, is the pocket veto. In 31 states the Governor must specifically veto a bill. In New York, a pocket veto state, Governors have long followed a practice of acting on every post-adjournment bill even though it is not constitutionally re- quired. This may very well be the practice elsewhere. In the light of the earlier discussion concerning the end-of-session log jam, it is to be expected that many states lengthen the time for gubernatorial action upon ad- journment of the legislature. A total of 32 states give the Governor a longer time for consideration of bills following adjournment than during the session. In some cases, the increase may be only from three days to five, or from five to ten. In other cases, the period is quite long, fre- quently 30 days, and in a few cases 45 days. The question of whether or not adjournment refers to sine die is not answered by the wording of most constitutional provisions. It seems likely that the more common assumption is that bills vetoed after any regular adjournment are permanently dead, if only because of some special provisions in a few of the states. For example, there are five states which convene in special session to consider post-adjournment ve- toes. In three states, it is clearly stated that bills may be returned at the commencement of the next regular session. In a couple of states, the legislature as a matter of practice holds off adjourning until the Gover- nor has acted on all bills. Item Veto: There appear to be 42 states which give the Governor Art. V, § 16 301 power to veto appropriation items, but in three of the states there is a limitation. In one case, Missouri, no reduction is permitted from appro- priations for public schools or for debt interest payments. In Nebraska, appropriations in excess of the budget request require a three-fifths' majority, and any such items may not be vetoed. In West Virginia, the budget bill does not require the Governor's approval and his item veto covers only supplemental appropriations. (The legislature may not in- crease the executive portion of the budget.) In five of the states, the Governor may reduce an item rather than strike it. The state of Washington has a unique provision which permits the Governor to object to "one or more sections or items while approving other portions of the bill." Thus, his "item" veto power is not limited to appropriations. United States Constitution: The President has ten days, Sundays ex- cepted, in which to act. A two-thirds' vote of members present in each house is required to override his veto. If Congress adjourns during the ten-day period, a bill dies unless signed by the President. The President has no item veto. On some occasions, the President has announced that he would not use certain funds which he did not want, a situation an- noying to Congress but difficult for Congress to prevent. This sort of situation can exist, of course, only if no third-party rights are created. The President could refuse to build a battleship, for example, but he could not refuse to pay re-enlistment bonuses. Model State Constitution: In view of the earlier discussion of the mean- ing of "adjournment" in the Illinois Constitution, it is appropriate to quote the Model's provision in full with certain words italicized: "Action by the Governor. " (a) When a bill has passed the legislature, it shall be presented to the gov- ernor and, if the legislature is in session, it shall become law if the governor either signs or fails to veto it within fifteen days of presentation. If the legisla- ture is in recess or, if the session of the legislature has expired during such fifteen-day period, it shall become law if he signs it within thirty days after such [sic] adjournment or expiration. If the governor does not approve a bill, he shall veto it and return it to the legislature either within fifteen days of presentation if the legislature is in session or upon the reconvening of the legislature from its recess. Any bill so returned by the governor shall be reconsidered by the legisla- ture and, if upon reconsideration two-thirds of all the members shall agree to pass the bill, it shall become law. " (b) The governor may strike out or reduce items in appropriation bills passed by the legislature and the procedure in such cases shall be the same as in case of the disapproval of an entire bill by the governor." (art. IV, §4.16 (em- phasis added).) Comment General Veto: The extended Explanation above is indication enough 302 Art. V, § 16 that there is a need for a thoroughgoing reconsideration and redrafting of Section 16. It is necessary, of course, to mesh any such reconsideration with decisions concerning annual or biennial sessions, and concerning power of the General Assembly to (all itself into session. (See Comments to Sec. 9 of Art. IV, supra, p. 151, and Sec. 8 of this Art., supra, p. 275.) But whatever is decided about these matters, it seems advisable to recog- nize the realities by giving the Governor a .HO- or 45-day period in which to act after adjournment. (It should not be forgotten that the present system of staggered presentation is an informal one and that the legis- lature could change the system and dump several hundred bills on the Governor's desk all at once.) It would also be appropriate to give serious consideration to the relatively new policy of an automatic "veto session." The new Connecticut Constitution provides: "If any bill passed by any regular or special session or any appropriation item described in Section 16 of Article Fourth has been disapproved by the governor prior to its adjournment, and has not been reconsidered by the assembly, or is so disapproved after such adjournment, the secretary of the state shall recon- vene the general assembly on the second Monday after the last day on which the governor is authorized to transmit or has transmitted every bill to the secretary with his objections pursuant to Section 15 of Article Fourth of this constitution, whichever occurs first; provided if such Monday falls on a legal holiday the general assembly shall be reconvened on the next following day. The reconvened session shall be for the sole purpose of reconsidering and, if the assembly so de- sires, repassing such bills. The general assembly shall adjourn sine die not later than three days following its reconvening." (art. 3, § 2.) Once all of the decisions on the veto process have been made, extreme care should be exercised in redrafting the veto section. In this connec- tion, it should be noted that the veto section is in the Executive Article, but that the veto is part of the legislative process. (The veto provision in the United States Constitution and in some state constitutions is in the Legislative Article.) ff, as is normal, the Convention has Committees on the Legislature and on the Executive, an effort should be made from the beginning to assure coordination of consideration of the veto prob- lem. An alternative solution is to agree at the beginning that the Com- mittee on the Legislature should have jurisdiction over Section 16 of Article V. As noted above, the 1920-1922 Convention moved the veto provision to the Legislative Article. Item Veto: It would seem appropriate for the Convention to undertake a redrafting of the item veto language in a manner that wipes out the Peabody case discussed above. In these days of multibillion dollar budgets, covering an ever-increasing range of activities in a volatile economy, it seems tmfortunate that the chief executive is not permitted to have a general contingency fund. Moreover, this is the day of program Art. V, § 17 303 budgeting, or the even newer planning-programming-budgeting system (PPBS), and rigid line item constitutional language, though not an in- surmountable hurdle, does inhibit experimentation. If the Convention were to go the route of the strong executive budget with accompanying limitations on legislative power to alter it (compare the reference to the West Virginia item veto above), the restrictive item veto language would be of minimal significance. If the decision is to preserve legislative budgeting power, the way in which to protect the " Governor's item veto is to use language of "strike out or reduce" as in the Model State Constitution section quoted above. With power to reduce, the Governor can defeat any legislative attempt to lump items together in order to protect an expenditure against an item veto. If this simple solution is unattractive, then some sort of "fuzzy" language should be substituted for the specific "objects and purposes" and "amounts in distinct items" language in order to insulate the item veto from a tax- payer's suit of the Peabody nature. Above all, it would seem most ill- advised to go the route of the 1920-1922 Convention of putting "objects and purposes" in a separate section, thereby killing any opportunity for the courts to change their minds and adopt Mr. Justice Cartwright's approach in his Peabody dissent. Lieutenant Governor as Acting Governor Sec. 17. In case of the death, conviction on impeachment, failure to qualify, resignation, absence from the State, or other disability of the Governor, the powers, duties and emoluments of the office for the residue of the term, or until the disability shall be removed, shall devolve upon the Lieutenant Governor. History There have been several twists and turns in the evolution of this sec- tion. The 1818 Constitution provided for the taking over by the Lieu- tenant Governor in the case of the Governor's impeachment, removal from office, death, "refusal" to qualify, resignation or absence. This would appear to cover impeachment, whether convicted or not. Such a disability as illness was not covered. The 1818 section also said that the Lieutenant Governor should serve "until the time pointed out by this Constitution for the election of governor shall arrive, unless the General Assembly shall provide by law for the election of a Governor to fill such vacancy." This literally would have meant that if the Governor were impeached but acquitted or left the state on a trip, he lost his office per- manently. Such a meaning was undoubtedly not intended. In another section it was provided that while acting as Governor the Lieutenant Governor should receive a Governor's salary. In the 1848 Constitution the provisions for succession were even more 304 Art. V, § 17 mixed up. The dralters divided the succession provision into two sec- tions, one covering temporary succession and one covering permanent succession. In order to demonstrate the extent of the drafting confusion, the actual 1848 sections are set out, as follows: Sec. 19. In case of the impeachment of the Governor, his absence from the State, or inability to discharge the duties of his office, the powers, duties and emoluments of the office shall devolve upon tlie Lieutenant-Governor; and in case of his death, resignation, or removal, then upon the Speaker of tlie Senate for the time being, until the Governor, absent or impeached, shall return or be acquitted; or luitil the disqualification or inal)ility shall cease, or until a new Governor shall be elected and qualified. Sec. 20. In case of a vacancy in the office of Governor, for any other cause than those herein enumerated, or in case of the death of the Governor elect be- fore he is qualified, the powers, duties, and emoluments of the office shall devolve upon the Lieutenant-Governor, or Speaker of the Senate, as above provided, until a new Governor be elected and qualified. The drafting error in the temporary succession section (19) was in inserting in the middle of the section the provision concerning the Speaker of the Senate. Without those words it would be clear that the Lieutenant-Governor ceased to serve as Governor if (1) the absent Gov- ernor returned, (2) the impeached Governor was acquitted, or (3) the disabled Governor recovered. (Even so, "disqualified" is left dangling.) But with the Speaker of the Senate tossed in, the section literally per- mitted the Governor to resume office only if dining his absence, impeach- ment or disability the Lieutenant Governor happened to die, resign, or be removed. This is obviously not what was intended but it is what the section said. Moreover, in the section on election of Speaker of the Senate, provision was made for his succession to the duties of Lieutenant Gov- ernor and, if necessary, to the Governor. Thus, the interpolated lan- guage was utterly superfluous. The permanent succession section (20) can be read in a straightfor- ward manner if one assumes that "as above provided" refers to the relationship between the Lieutenant Governor and the Speaker of the Senate that the drafters meant to but did not clearly provide for. It is not clear in either section whether "until a new Governor (shall be) (be) elected and qualified" refers to the next regular election or implies that a special election may be provided lor by law as was explicitly stated in the 1818 Constitution. In a masterpiece of understatement, the Chairman of the Committee on the Executive Department reported to the 1870 Convention that Sections 17, 18 and 19 "are in substance the same as in the present Con- stitution, but they have been entirely recast and remodeled." (Debates 748. He was also inaccurate. See History of Sec. 19, iyijra, p. 310.) Art. V, § 17. 305 The recasting of Section 17 certainly removed confusions from the earlier Constitutions. But a new ambiguity was created. The wording of Section 17 as it now stands either permits the Governor to serve fol- lowing impeachment and until conviction or includes impeachment under "other disability." The proposed 1922 Constitution combined Sections 17 and 19. Succession rules were further clarified and the im- peachment ambiguity was finessed by omitting the word and simply referring to "vacancy" which would be the case following conviction on impeachment, and to using "under disability" which may or may not have been intended to include the period' from impeachment to the end of trial. Explanation Except for the possible ambiguity of whether or not the Governor is displaced during the period between impeachment and conclusion of his trial, this section is clear. There are problems that can arise, such as how long an absence from the state is necessary to justify temporary succession or how to determine whether in case of illness the Governor is disabled, but these are not problems of poor draftsmanship. They are practical problems that may or may not justify additional consti- tutional coverage. (See Comment below.) Notwithstanding all of the confusion in rules of succession discussed above, there appears to have been no litigation, Attorney General opinion or other consideration of the problem of succession. The Attorney General has ruled that the Lieutenant Governor when occupying the Governor's chair, either tem- porarily or permanently, is the "Acting Governor." (1912 111. Att'y Gen. Rep. 162.) Comparative Analysis In all states (38) that have a constitutional lieutenant governor, he is, of course, the person who first assumes the office of governor in the line of succession. Among the remaining states, in seven the president of the senate first succeeds the governor; in four, the secretary of state; and in one state the legislature elects a successor, but if the legislature is in recess the president of the senate succeeds, pending a choice by the legislature. In general, the several states provide for succession under much the same circumstances set forth in Section 17. In a few states a special election is provided for in certain circumstances, but the more common practice is to permit the lieutenant governor or other first successor to serve out the unexpired term. There is also consider- able variation in the provision concerning impeachment. The general rule is that upon impeachment the governor ceases to act until he is 306 Art. V, § 17 acquitted — i.e., the disability removed; upon conviction, he would pre- sumably be removed from office. Only a few states follow the Illinois ambiguity of succession upon conviction of impeachment. With the adoption of the Twenty-fifth Amendment, the United States Constitution now has one of the more comprehensive provisions cover- ing succession. It should be noted, however, that the President is not succeeded upon his absence from the Ignited States and apparently not upon impeachment pending trial. Under the Twenty-fifth Amendment, the Vice President becomes President in case of removal, death, or resig- nation of the President. In case of inability of the President to act, two alternatives are provided for. The President may notify the Presi- dent pro tern of the Senate and the Speaker of the House in waiting that he is incapacitated, in which case the Vice President becomes Acting President until the President makes a contrary declaration in writing to the President pro ton and the Speaker. In the absence of a declaration from the President, the Vice President and a majority of either the cabinet or some other body created by law may make a written declara- tion of incapacity to the President pro te?n and the Speaker, and the Vice President becomes Acting President. Thereafter, the President may make a contrary written declaration, but if there is disagreement. Con- gress by a two-thirds vote within a specified time may keep the Vice President in his capacity as Acting President; otherwise the President resumes his powers and duties. The Model State Constitution also provides a comprehensive section on gubernatorial succession. The section first covers the problem at the beginning of the governor's term by providing that the presiding officer of the legislature — there being no lieutenant governor and the legislature being unicameral — serves until the governor-elect assumes office, but if this period exceeds six months, a special election is to be held and the presiding officer serves as acting governor until the newly elected governor assumes office. The section next covers temporary situations — impeachment, mental or physical disability, and continuous absence — in which case the presiding officer serves as acting governor in the interim, and if the disability exceeds six months the office be- comes vacant. In the case of a vacancy, the presiding officer becomes governor for the remainder of the term or until a special election is held and a new governor assumes office. A special election is held unless the remainder of the term is less than a year. The legislature is given the duty to provide by law for special elections and the supreme court is given "original, exclusive and final jurisdiction" to settle any questions of absence, disability, existence of a vacancy or any other matter of succession. Art. V, § 17 307 Comment In any major revision of a state constitution these days it is obvious that consideration should be given to the problem of succession, for only the more recent constitutions adequately provide for the rare but quite possible serious mental or physical incapacity of the chief execu- tive. In a large industrial state, executive duties are much too important to be left in doubt for any extended period. It may be noted that it is not absolutely necessary to spell out the contingencies in such detail as in the Twenty-fifth Amendment and the Model State Constitution. The succession section could have a sentence saying in effect that the legis- lature shall provide by law for the manner of determining whether the governor is incapacitated. In addition to the problem of incapacity, consideration should be given to whether the Governor continues to serve after impeachment. Rare as impeachment may be these days, it seems appropriate as a matter of principle to require the Governor to stop governing until the cloud is removed. An even more important consideration is whether to abandon the traditional "absence from the state" provision for tem- porary succession. With modern high-speed transportation and high- speed communication there is no reason for the Governor not to con- tinue to govern from outside the state. After all, the President of the United States continues to govern when out of the country. The Model State Constitution solves this problem by providing for temporary suc- cession after "continuous absence." It should be possible under such language to permit the Lieutenant Governor to take over at the request of the Governor when he expects to be absent for a considerable period of time or when, as in the case of a vacation, he wishes to be relieved of his duties. Finally, it would be appropriate to clarify the distinction between Acting Governor on a temporary basis and succession as Governor on a permanent basis. The Model State Constitution, for example, puts it this way: "When the presiding officer of the legislature succeeds to the office of governor, he shall have the title, powers, duties and emoluments of that office and, when he serves as acting governor, he shall have the powers and duties thereof and shall receive such compensation as the legislature shall provide by law." (art. V, §5.08 (c).) By way of postscript to this Comment, it is perhaps appropriate to justify the extended discussion under History of the confusing language of the several succession provisions. In any constitution, there are pro- visions that should be broad and general to allow for accommodation to changes in the society. There are other provisions that should be as 308 Art. V, § 18 precise and clear as the ingenuity of draftsmen can make them. The former arc exemplified by a bill of rights and other restrictions on government action, the latter by procedural provisions for the operation of the government. In the field of private law, by analogy, there are many instances when a judge should concentrate on finding the "right" or "good" decision, but other instances when it is more important to enunciate an unambiguous and precise rule than it is to worry about whether it is a "good" rule. The distinction lies principally in whether accommodation to the rule is easy or difficult. A rule of substance can cause great difficulty, but a rule of procedure, once known, can almost always be followed with ease. In constitution-drafting, the rules for the process of government should be clear and definite. There is little danger of injustice arising at some future time because changed condi- tions are inconsistent with the assumptions underlying the original formulation, but there is danger of confusion if there is procedural ambiguity. The moral is, of course, to let delegates to a convention make the policy decisions but to rely on professional draftsmen, particularly in the case of procedural matters, to translate the policies into consti- tutional language. President of the Senate Sec. 18. The Lieutenant Governor shall be President of the Senate, and shall vote only when the Senate is equally divided. The Senate shall choose a Presi- dent, pro tempore, to preside in case of the absence or impeachment of the Lieutenant Governor, or when he shall hold the office of Governor. History In the 1818 Constitution, the substance of this section was spread among three sections. In one of them, the Lieutenant Governor was made Speaker of the Senate and given the right to debate and vote when the Senate sat as a Committee of the Whole, but otherwise could vote only to break a tie. In a second section, provision was made for election of a Speaker, from among the membership of the Senate, who was to preside in the absence of the Lieutenant Governor and was to succeed to the Governor's office if necessary. The third section called for the Secretary of State to convene the Senate to choose a Speaker if a necessity for succession to the Governor's office arose while the legislature was in recess. These three sections were carried over in substance to the 1848 Constitution. The 1870 changes consisted of boiling down the language, transferring the provision for succession to Section 19, dropping the Lieutenant Governor's participation in the Committee of the Whole, and adopting "President, pro tempore" in place of "Speaker." (In Section 19 of this Article the term used is "President of the Senate," in Section Art V, § 1 8 309 9 of Article IV the term is "temporary President," and in Section 13 of Article IV the term "Speaker" is still used to designate the presiding officer of the Senate.) The proposed 1922 Constitution combined the substance of this section with the substance of Section 9 of Article IV concerning organization of the General Assembly. Explanation There appear to have been no problems concerning this section. Under Section 17, it was noted {supra, p. 303) that the Governor is apparently not succeeded even temporarily upon impeachment, but only upon con- viction, whereas the President pro tern presides over the Senate from the moment of impeachment of the Lieutenant Governor. This is obviously necessary, for the trial on impeachment takes place in the Senate. Although the language is unclear, the fair import of the section is that the Lieutenant Governor would retake his seat as presiding officer if he were acquitted. (It may be noted that, in dealing with this technical matter of impeachment, the drafters of the proposed 1922 Constitution slipped up. They had the President pro tern preside "pending the im- peachment of the Lieutenant Governor." Literally, this is the period of time from the filing of a motion of impeachment in the House of Repre- sentatives until it votes on the motion.) Comparative Analysis Lieutenant Governor: In 38 states the lieutenant governor is a con- stitutional officer and in 36 of those states he presides over the senate. In Massachusetts he presides over the governor's council and in Hawaii he has been given by law the duties normally held by a secretary of state. In Tennessee the title of lieutenant governor has been given by statute to the speaker of the senate who is a constitutional officer and succeeds to the governor's chair. In three states, the lieutenant governor has no vote and in the other 33 states, including Illinois, of course, he has only a casting vote in case of a tie. In a few states the lieutenant gover- nor retains the right to debate and vote in committee of the whole as used to be the case in Illinois. The United States Constitution provides that the Vice President shall serve as President of the Senate and shall have a tie-breaking vote. No lieutenant governor is provided for in the Model State Constitution. President pro tern: Twenty-eight states besides Illinois provide that the senate shall elect a president pro tern to preside in the absence of the lieutenant governor. In those states that have a lieutenant governor but do not provide specifically for a president pro tern there will still be such an officer elected pursuant to the usual provision that each 310 Art. V, § 19 house oi the legislature shall choose its own officers. The United States Constitution provides that the Senate shall choose a President pro tern to serve under the usual circumstances. The Model State Constitution provides that the unicameral legislature choose a presiding officer Irom among its members. Comment There has been considerable discussion in recent years about the need for an elected lieutenant governor. On the one hand it seems appropri- ate that the person who may succeed to the governor's chair be elected by all the voters ot the state. On the other hand, it is difficult to find enough for the lieutenant governor to do in that capacity, particularly if the person chosen for the position is expected to be ol sufficient stature to become governor. Alaska chose to drop the lieutenant gov- ernor and to provide that the secretary of state be elected on a joint ballot with the governor and to succeed the governor if necessary. Hawaii did the reverse by leaving the lieutenant governor's duties to be prescribed by law and then by statute making him, in effect, the secretary of state. The 1964 Constitution of Michigan compromised by continuing the lieutenant governor's traditional legislative function of presiding over the senate but adding the following sentence: "He may perform duties requested of him by the governor, but no power vested in the governor shall be delegated." (Mich. Const, art. V, § 25.) The Model State Constitution tries to avoid the difficulty by providing that the presiding officer of the legislature, an official elected by one segment of the state, can, in effect, serve as governor for only a relatively short time, never more than a year, and by requiring a special election for governor when a longer period is involved. Acting Governor — Successions Sec. 19. If there be no Lieutenant Governor, or if the Lieutenant Governor shall, for any of the causes specified in section seventeen, of this article, become incapable of performing the duties of the office, the President of the Senate shall act as Governor until the vacancy is filled or the disability removed; and if the President of the Senate, for any of the above named causes, shall become in- capable of performing the duties of Governor, tire same shall devolve upon the Speaker of the House of Representatives. History In the discussion of the Histories of Sections 17 and 18 (supra, pp. 303 and 308), the matter of succession of the presiding officer of the Senate as it appeared in the 1818 and 1848 Constitutions was covered. The only significant substantive change made in 1870 was to provide for succession by the Speaker of the House of Representatives if necessary. Art. V, § 19 311 The proposed 1922 Constitution combined this section with Section 17 and, in the course thereof, clarified the rules of succession. Explanation Although this section leaves much to be desired as a matter of draft- ing, its purpose is clear enough. Section 17 provides for the Lieutenant Governor to act as Governor under certain circumstances, and Section 18 provides for the President pro tern to act as presiding officer of the Senate in certain circumstances. Section 19 is designed to move the President pro tern into the Governor's chair when neither the Governor nor the Lieutenant Governor is available, and the Speaker of tlie House into the Governor's chair in the absence of the Governor, Lieutenant Governor and President pro tern. The drafting difficulty with Section 19 is that it literally fails to spell out an absence of the Governor in addition to that of the Lieutenant Governor as a condition for suc- cession of the President pro tern, fn the proposed 1922 Constitution, the drafters solved this drafting tangle by providing in effect that in the absence of the Governor, his duties and powers moved to the Lieutenant Governor; that in the absence of the Lieutenant Governor, his duties and powers moved to the President pro tern; and so on. It is provided by statute that if the offices of Governor and Lieutenant Governor are both vacant, the person acting as Governor, or if there is none then tlie Secretary of State, shall issue a writ for a special election to fill the vacancies for the balance of the term. (111. Rev. Stat. ch. 46, § 25-4 (1967).) It is not at all clear what constitutional authority exists for such a law. Presumably, reliance would be placed on the words "until the vacancy is filled" on the theory that such words are superfluous if the "vacancy" is filled by the winner at the next regular election for a new term. But compare the language used in Section 20 to provide that a person appointed serves "until his successor shall be elected and qualified in such manner as may be provided by law." (See Explanation, infra, p. 314.) In any event, no occasion for a special election appears to have arisen and thus there has been no opportunity for a determi- nation of the validity of the statute. Comparative Analysis There are a great many variations in the order of succession among the several states. Approximately 13 states join Illinois in moving from the lieutenant governor to the president pro tern to the speaker. A few of these states go on to list further successors or to authorize further succession as provided by law. In many of the states without a lieutenant governor the succession is from the president pro tern to the speaker. Among other variations, the commonest is to provide for 312 Art. V, § 19 the succession oi the secretary of state, either alter the lieutenant gov- ernor if there is one or directly if there is none. Several states leave succession after the lieutenant governor or other first successor to be determined by law. Prior to the adoption of the Twenty-fifth Amendment, the United States Constitution left it to Congress to provide by law for succession beyond the Vice President. Under the Twenty-fifth Amendment, the President is to fill any vacancy in the office of Vice President by nomi- nation with confirmation by "majority vote of both Houses of Congress." In a case where the Vice President became President by virtue of the President's removal from office, resignation or death, the new President would nominate a successor Vice President. The amendment does not cover the case of something happening to the Vice President while he is Acting President. Presumably, the original language of the Consti- tution remains applicable, namely: "and the Congress may by Law pro- vide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected." The statutory rules of suc- cession enacted pinsuant to the foregoing are still on the books and their language is not inconsistent with the Twenty-fifth Amendment. The line of succession runs from the Speaker of the House to the Presi- dent pro tern of the Senate to the cabinet officers beginning with the Secretary of State. (3 U.S.C, § 19 1964).) The Commentary on the Model State Constitution notes that a virtually unlimited line of succession is assured, for there will always be a pre- siding officer of the unicameral legislature and he is the named successor to the governor. The implication is that either the legislature will have provided by rule for a successor when its presiding officer has succeeded to the governor's chair or that a special session will be called to elect a new presiding officer. Comment It seems desirable to clear up the problem of succession by special election. This could be done by language such as that quoted above from Section 20 or by a separate sentence empowering the legislature to provide by law for filling vacancies in the offices of both the Governor and the Lieutenant Governor. Another solution is to empower the legisla- ture to provide for further succession in much the manner quoted above from the United States Constitution. Indeed, it may be that the present statute calling for a special election was adopted because there appeared to be no way to assure indefinite succession. But it may also Art. V, § 20 313 have been because of a belief that a person not elected by all the people should not serve for too long. This is the theory of the Model State Constitution's rules of succession. (See Comparatixie Analysis of Sec. 17, supra, p. 305.) Financial Report of State Officers — Vacancies Sec. 20. If the office of Auditor of Public Accounts, Treasurer, Secretary of State, Attorney General, or Superintendent of Public Instruction shall be vacated by death, resignation or otherwise, it shall be the duty of the Governor to fill the same by appointment, and the appointee shall hold his office until his suc- cessor shall be elected and qualified in such manner as may be provided by law. An account shall be kept by the officers of the Executive Department, and of all the public institutions of the State, of all moneys received or disbursed by them, severally, from all sources, and for every service performed, and a semi- annual report thereof be made to the Governor, under oath; and any officer who makes a false report shall be guilty of perjury, and punished accordingly. History Under the 1818 Constitution, none of the executive offices, other than Governor and Lieutenant Governor, was elective. The Governor's power to fill vacancies in appointive positions and his power, under the 1848 Constitution, in the case of both elective and appointive positions are described in the History of Section 11. (Sirpra, p. 283.) Neither Con- stitution had a requirement for financial reporting. In the 1870 Conven- tion the Chairman of the Committee on the Executive Department described the first half of the section as "the ordinary section relating to vacancies . . . and . . . how they shall be filled." (Debates 749.) The second half was noted to be new. (Id.) There was no extended debate on this section. One delegate pointed out that the Governor is required to report to himself semiannually. The Chairman of the Committee on Revision and Adjustment retorted that it "mentions all the officers except the Governor." (Debates 1782.) The Chairman's reply was irrele- vant, because the officers are mentioned in the first sentence, and incor- rect, because the Lieutenant Governor who is an officer of the Executive Department is not mentioned. But the Chairman's explanation was accepted. The proposed 1922 Constitution made the substance of the first sentence of Section 20 into a separate section and combined most of the substance of the second sentence with Section 21. The official explanation stated that the first sentence was unchanged in substance (P.N.C. 37), but this is arguable, for the concluding clause, "in such manner as may be provided by law," was omitted. Presumably, this clause permits legislation providing for a special election for an unexpired term whereas its omission inight not. The second sentence was changed 314 Art. V, § 20 in substance only in omission of the perjury provision. The literal requirement that the Governor report to himself was retained. Explanation Vacancies: The first sentence of Section 20 is straightforward and unambiguous. As noted above, the final clause permits special elections to be provided for by law. The implementing statute (111. Rev. Stat, ch. 46, § 25-5 (1967)) provides, however, that the person appointed to fill a vacancy serves out the remainder of the term. Accounts: As noted abo\e, this sentence of the section literally calls for a semiannual financial report by the Governor in addition to the other officers listed in Section 1 of this Article. In 1904, the Attorney General dutifully ruled that the Governor, as an officer of the Executive Department, was required to make a semiannual report A\hich, for obvious reasons, was to be filed with the Secretary of State. (1904 111. Att'y Gen. Rep. 385.) In that same opinion, the Attorney General ruled that this provision covers even officers who merely disburse appropriated funds through warrants drawn by the Auditor of Public Accounts. {Id.) He has also ruled that the State Board of Agriculture and the State Horticultural Society are public institutions under this section. (1910 111. Att'y Gen. Rep. 163, 666.) The Supreme Court has held that accept- ance of a financial report by the Governor does not relieve the reporting officer of liability for errors. (People v. W^hittemore, 253 111. 378 (1912).) Comparative Analysis Vacancies: The provisions for filling vacancies in the several named offices vary greatly among those states that make such offices constitu- tional. In general, it appears that if the office is an elective one, the go\ernor normally fills the vacancy, sometimes on his own as in Illinois, sometimes with the advice and consent of the senate. In some states, it appears to be within the power of the legislature to provide for special elections rather than to permit the person filling the vacancy to serve out the unexpired term. Occasionally, a constitution specifically calls for filling a vacancy only until the next general election. Neither the United States Constitution nor the Model State Constitution has any elected executives other than the chief executive and, of course, has no provision lor filling vacancies. Accounts: Approximately a dozen states have a provision much like that of Illinois. Eight of them require the account to be under oath, but only three other states include perjury language. The absence of an accounting provision in most states does not necessarily signify that Art. V, § 21 315 there is no constitutional requirement for accounting for public funds. (See Comment below.) The Model State Constitution has no comparable provision but the general reporting section (see Comparative Analysis of Sec. 21 injra, p. 317) could include financial reporting. There is no comparable provision in the United States Constitution. Comment Vacancies: If Illinois is to preserve the long ballot, a provision such as this is necessary. It is eminently satisfactory as it stands, for the legis- lature is given the flexibility to provide by law for special elections if at some future time there were a general feeling that the Governor ought not to have power to fill vacancies for a long period of time. It is a matter of choice whether to include the Senate in the appointing process as is done under Sections 10 and 11 of this Article for other offices and vacancies. Indeed, one can ponder why the delegates to the 1870 Convention made the choice the way they did. The debates throw no light on the matter. (See also discussions of Sees. 10 and 11, supra, pp. 280 and 283.) Accounts: This is a curious requirement in the light of Section 17 of Article IV controlling expenditures through the Auditor. Moreover, in view of the magnitude of governmental expenditures in large indus- trial states, any assumption that requiring semiannual reports under oath from elective and appointive officials is the way to assure honest accounting is simplistic indeed. A comprehensive auditing process is the appropriate approach to the problem of control over public receipts and disbursements. (This may be the reason that so few states have a comparable financial reporting provision.). It would be appropriate for the Convention to look at the realities of modern-day accounting and auditing and provide constitutional responsibility therefor, but leave details to be spelled out by law. Report of State Officers — Departments — Judges Sec. 21. The officers of the Executive Department, and of all the public in- stitutions of the State, shall, at least ten days preceding each regular session of the General Assembly, severally report to the Governor, who shall transmit such reports to the General Assembly, together with the reports of the Judges of the Supreme Court of defects in the Constitution and laws; and the Governor may at any time require information, in writing, under oath, from the officers of the Executive Department, and all officers and managers of State institutions, upon any subject relating to the condition, management and expenses of their re- spective offices. History The 1818 Constitution provided, in language much like that of the United States Constitution, that the Governor could require information 316 Art.V, § 21 in writing irom the several executive officers upon any subject pertain- ing to their duties. Only changes in punctuation were made in 1848. In the 1870 Convention the Chairman of the Committee on the Execu- tive Department explained the proposed expanded section in these words: "This is a new feature, and is designed to give the executive such control over all the State officers and officers of the State institutions, that he can at least know what they are about, and have some check upon their administration. Heretofore the Governor of this State has been clothed with hardly any powers. He has been treated like a child under tutelage. He might complain, but he possessed no power to remedy any evil in the administration of public affairs." (Debates 747-48.) This "new feature" did not include the reference to the reports of the judges on defects in the Constittition. That was added at a later session on motion of a member of tlie Committee on the Judiciary. The "reports of the judges" Avere reports called for by a section of the Judi- ciary Article. (Section 31 of Article VI prior to 1964.) That section required all judges of courts of record annually to report in writing to the Supreme Court on defects and omissions in the laws. In turn, the judges of the Supreme Court were to report annually to the Governor on the defects and omissions in both the Constitution and the laws and were to include appropriate bills to cure the defects and omissions in the laws. That section also originally includeci in parentheses an instruction to the Governor to send everything along to the legislature. In view of the addition of the instruction in Section 21, the Committee on Revision and Adjustment dropped the instruction from the section in the Judicial Article. This judicial reporting requirement appears to have been an out- growth of a device designed to increase the compensation of the judges, whose salaries had been frozen at a low level in the 1848 Constitution. In January, 1869, an act was passed requiring circuit court judges to report to the Supreme Court on "redundancies, omissions, inconsisten- cies and imperfections in the statutes, together with bills remedying these defects." For tliis service the judges were each to receive |i,000. A bare majority of the judges complied, but all were paid. The Supreme Court forwarded most of the reports to a Statutory Revision Commission which adopted some of them. (See Annotations 180.) That this prececient of the year before was clearly in the minds of the delegates is evidenced by efforts on two occasions to have inserted in the section a prohibition on extra compensation for the reports. On both occasions, delegates were assured that extra compensation was prohibited by another section. (Debates 1185, 1495. The other section was 16 in the old Article VI.) One delegate objected that the reporting Art. V, § 21 317 section was "special legislation, and rather interior legislation at that," and moved to strike. In defense of the section, a member of the Com- mittee on the Judiciary noted that all constitutions required the execu- tive to make recommendations to the legislature but that judges, "who could be much more useful in this respect," were not required to make recommendations. He continued: "This provision will be very useful if the judges do their duty. We would thus be enabled to make our laws plain, for judges like to have the laws plain after they get on the bench, however intricate they may desire them when they are off the bench. We will be enabled to abbreviate and simplify the law, and in fifteen years we will have the most perfect laws and rules of judicial procedure in America." (Debates 1495.) The proposed 1922 Constitution removed that section from the Judi- ciary Article and the comparable language from the equivalent of Section 21. The proposed revision was a combination of the accounting sen- tence of Section 20 and the reporting recjuirements of Section 21. The end product was greatly simplified and the only changes of substance were the removal of the perjury words of Section 20 and the "under oath" words of Section 21. Section 19 of the present Article VI provides that the Judicial Conference report to the legislature on suggested im- provements in the administration of justice. (See discussion of Sec. 19, Art. VI, infra, p. 376.) Explanafion The first quotation set out above explains why such a detailed report- ing requirement was inserted in the Constitution. Presumably, the exec- utive departments have dutifully reported to the Governor. No one will ever know, however, whether they would have done the same under the customary short form of constitutional language. The optimistic hopes expressed in the second quotation were never fulfilled. The judges apparently ignored the reporting requirement and in 1909 the Supreme Court formally declined to report. (See Explanation of Art. Ill, supra, p. 99.) Comparative Analysis Aproximately three-fourths of the states have the customary require- ment that executive officers report to the governor at his request. Only a handful of states require such reports to be under oath. Almost as few states specify that periodic reports are to be made at the appropriate time for transmittal to the legislature at the beginning of its session. Only about seven states appear to join Illinois in expecting the judges to offer advice on what is defective in the constitution and laws. Eight states authorize the governor or the legislature to request advisory opinions, normally concerning the constitutionality of proposed legis- 318 Art. V, § 22 lation, ironi the highest court of the state. (Two ot the states author- izing advisory opinions are among those with judicial reporting require- ments.) The United States Constitution simply states that the President may "require the Opinion, in writing," ol each executive officer. The Model State Constitution says that the governor "may at any time require intormation, in \\riting or otherwise," Ironi any executive officer. Comment The interesting thing about the quotation from the 1870 Debates set out above is that the Chairman may not have realized that he was con- centrating on form and not substance in worrying about the Governor's power as chief executive. Proponents of the short ballot (sec Comment on Sec. 1, supra, p. 258) are cjuick to point out that one ot the advantages thereof is that it enhances a governor's power. Appointed offtcials are able to build a personal power base, of course, but it is much shakier and weaker than that of the elected official. While the 1870 Convention was readily accepting the Chairman's effort to increase the Governor's power by means of this section, the Convention was also accepting an increase in elected executive officers from three to five. Indeed, there was an unsuccessful floor fight to add a sixth, a Superintendent of Public Charities. (Debates 749-54.) Even if the substance of executive power were to continue to be denied by virtue of the preservation of the long ballot, the Convention could still appropriately simplify this section. It should be sufficient to state that the Governor may require information in writing or other- wise at any time from any executive officer. If the custom of requiring formal reports for the use of the legislature is considered worth preserv- ing, it would be preferable to provide that the legislature may by law- require such formal reports from such executive departments as it deems necessary. Actually, we live in a society that thrives on reports and our more serious problem is that there are too many of them. An "information to the Governor" provision is more in the nature of an attempt to spell out who is boss than it is a reporting device. Formal reporting ought simply to be assumed as a normal element of the process of government. State Seal Sec. 22. There shall be a seal of the State, which shall be called the "Great Seal of the State of Illinois," which shall be kept by the Secretary of State, and used by him, officially, as directed by law. History In the 1818 Constitution, the Schedule stated that the Governor should use his private seal until a state seal was provided. The 1848 Consti- Art. V, § 23 319 tution provided that all grants and commissions be sealed with the great seal of state, signed by the Governor and countersigned by the Secretary of State. The section proposed to the 1870 Convention differed only in the last phrase which was originally worded "under the direction of the Governor." Upon objection, the phrase was changed to the present language. The proposed 1922 Constitution simplified the wording but made no change of substance. Explanation There is obviously no explanation required for this section, but it is worth noting that the nature of the duties of the Secretary of State is implied by this section. Comparative Analysis All but 1 1 of the states have some constitutional reference to a great seal. Over half of the references give custody of the seal to the secretary of state and another dozen give custody to the governor. Mis- cellaneous references are found in half a dozen states. Neither the United States Constitution nor the Model State Constitution has a refer- ence to a great seal. Comment This section is obviously not essential, but neither is it obtrusive or capable of creating problems. If the Convention were to move to a short ballot (see Comment on Sec. 1, supra, p. 258), custody of the seal should be given to the Governor. Fees and Salaries Sec. 23. The officers named in this article shall receive for their services a salary, to be established by law, which shall not be increased or diminished during their official terms, and they shall not, after the expiration of the terms of those in office at the adoption of this constitution, receive to their own use any fees, costs, perquisites of office, or other compensation. And all fees that may hereafter be payable by law for any services performed by any officer provided for in this article of the constitution, shall be paid in advance into the State treasury. History Under the 1818 Constitution, the only references to executive com- pensation were a provision providing that the Governor receive a salary not subject to increase or decrease during his term and a provision that the Lieutenant Governor receive the same compensation as the Speaker of the House except that when serving as Governor he was to receive the Governor's salary. In the 1848 Constitution, fixed salaries were set out as follows: 320 Art. V, § 23 Governor $1,500.00 Secretary of State 800.00* Auditor 1,000.00 Treasurer 800.00 *plus fees In the 1870 Convention, a donnybrook broke out over the matter when the Committee on the Executive Department presented a proposal which in principle was the same as the section as finally adopted. Reading between the lines of the extended debate, one can see that the inade- quate salaries provided for in the 1848 Constitution had caused various extralegal and perhaps even unconstitutional devices to be utilized to augment salaries. For example, one delegate observed that "for the last ten years, the Governor has had control of about $10,000 a year. His gardener has had $2,500 a year, and he has never had a gardener in fact that I know of." (Debates 801.) It is also obvious from the strong language of prohibition of fees, that one popular device for getting around the constitutional limitations on salaries was to authorize the retention of fees. The view that pre- vailed among the delegates was that a fee system of compensation was susceptible of overcompensation and not the view that if one did not have to collect fees in order to get paid he would neglect his duties. In the proposed 1922 Constitution, the substance of Section 23 was split up among several sections, some of which were applicable to other offices. In essence, the equivalent section in the proposed Executive Article simply said that officers of the executive department should be paid salaries and no other compensation. In a new article, "Public Servants," one section said that no legislative, executive, judicial, or county officer should receive any fees or other nonsalary compensation, another section said that no "public officer" should have his compen.a- tion increased or decreased during his term, and a third section said that every public officer should pay at least monthly to someone desig- nated by law all public moneys received. In the Revenue and Finance Article a rhsw section said that "[n]o payment of money belonging to or for the use of the state shall be held to be made to any officer of the executive department until evidenced by the receipt of the state treas- urer." The official explanation simply said: "This section is new." (P.N.C. 52.) Except for the immediately preceding section, the work of the 1920-22 Convention was simply a matter of rearranging compen- sation provisions in terms of the principles involved rather than in terms of offices. Art. V, § 23 321 Explanation This section does four things. It provides that officers of the execu- tive department shall be paid salaries to be established by law. It reinforces the separation of powers principle by prohibiting increases or decreases in compensation of incumbents during their terms of office. It ends any fee system of compensation, and it reinforces that prohibi- tion by making it clear that fee receipts go into the state treasury. The only significant judicial gloss on this section is a ruling that appointed officers under Section 10 are also "officers named in this article," a construction that is not obvious. (Peabody v. Russel, 301 111. 439 (1922).) Several cases have held that the requirement to pay fees into the treasury means what it says and that no deductions are to be made before such payment. (People v. Sargent, 254 111. 514 (1912); Whittemore v. People, 227 111. 453 (1907).) One case relied upon the public policy behind this section to declare illegal an incredible scheme whereby the Treasurer had entered into an agreement with the sureties on his bond to deposit public moneys in the sureties' banks, the interest thereon to be divided personally among the sureties and the Treasurer. (Estate of Ramsay v. Whitbeck, 182 111. 550 (1900).) Comparative Analysis A large majority of the states either provide that salaries shall be set by law or stipulate a sum that is subject to change by law. It is custom- ary to state that salaries cannot be changed during the incumbent's term of office. Some states specify salaries, most of which are unrealistically low. Only a small number of states appear to have specific prohibitions against fees and other emoluments. The United States Constitution states only that the President's compensation may not be changed dur- ing his term of office. The Model State Constitution has no provision on compensation. Comment Presumably, the battle over salaries which was won in 1870 will not have to be fought again. Presumably also, the involved language over fees could be dropped. That language was designed to end the abuses that had arisen under the ridiculously low 'salaries set out in the 1848 Constitution. It would seem obvious that omission of such language today would not lead to a revival of an old practice no longer necessary. It should also be noted that the fee language of this section is applicable only to this Article and any decision to drop the language would have no policy implications concerning fees for county and township officials. (See Art. X, Sec. 9, infra, p. 507.) 322 Art. V, § 24 Definition of "OfFice" Sec. 24. An office is a public position created by the constitution or law, con- tinuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. An employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished. History This is a new section added in 1870. It appears to have grown out of the debate over Section 10 of this Article concerning appointments by the Governor with its accompanying prohibition against appointments by the legislature. Several amendments were proposed in an effort to clarify which appointments were to be covered by the section and which were not. The delegates were particularly exercised over the case of Biinn V. People ex rel. Laflin (45 111. 397 (1867)), where the Supreme Court held that commissioners who were to supervise construction of the state house were not "officers" and could, therefore, be chosen by the legislature. In the course of the debate, several members of the Committee on the Executive Department suggested that the proper way to solve the problem was not by amending Section 10, but by a separate definition of "officer" to be inserted at some appropriate place. Accord- ingly, the amendments were withdrawn and on the next day a resolu- tion calling for a definition of "officer" was introduced. There was no further discussion of the matter and Section 24 appeared as part of the Executive Article upon final consideration by the Convention. Ironically, the section as adopted is essentially the definition worked out by the Supreme Court in the Biinn case and it would appear that the result of that case would be the same. Except for punctuation, the section was carried over unchanged into the proposed 1922 Constitution. Explanation There has been considerable litigation referring to this section, but in almost all cases the substantive issue involved another section of the Constitution or a statute. (See, for example, the discussion of the Fergus case under Sec. 16 of Art. IV, supra, p. 179.) This must be so since Section 24 is only a definition. The only significant effort to use this section as a substantive provision was in the attack on civil service wherein it was argued unsuccessfully that civil service tenure, being neither at the pleasure of the appointing power nor for a fixed term, was prohibited by Section 24. (People ex rel. Akin v. Loeffler, 175 111. 585 (1898).) Comparative Analysis No other state appears to have a definition of a public office. Both Art. V, § 25 323 the United States Constitution and the Model State Constitution are silent on the subject. Comment The fact that no other state constitution defines a public office indi- cates at the very least that such a provision is not essential and at the most that such a provision is inappropriate. One should be chary about putting definitions in a constitution. A definition is designed to produce precision and in many areas of a constitution one needs imprecision in order to permit flexibility in coping with changing times. In a narrow procedural provision, a definition may be helpful, such as "ten days (Sundays excepted)" in the veto provision of Section 16 of this Article. {supra, p. 293.) But in something so pervasive as distinguishing "office" from "employment," a case-by-case method of developing the meaning of the word "office" in each context in which it appears is preferable. For example, "office" in the context of dual office holding need not necessarily have the same meaning as "office" for an oath or "office" for the purpose of determining whether salaries may be increased dur- ing incumbency. A single definition for all uses is likely either to thwart the purpose of some particular provision in some contexts or to result in judicial legerdemain in eroding the stated definition. (See discus- sion of the Capuzi case under Sec. 3 of Art. IV, supra, p. 122.) In any event, it is doubtful that this definition should be preserved as is. As noted earlier, the definition is derived from the Bunn case and a careful reading of the majority and dissenting opinions of that case should convince one that the commissioners to supervise the construc- tion of the state house were officers and not "agents." They were required to take an oath and to provide bond, and were to supervise the expenditure of $3,000,000, a princely sum in 1867. A definition tailored to exclude them from a constitutional provision referring to "office" inevitably focussed on the wrong attributes. Oath of Office Sec. 25. All civil officers, except members of the General Assembly and such inferior officers as may be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Illinois, and that I will faithfully discharge the duties of the office of according to the best of my ability." And no other oath, declaration or test shall be required as a qualification. 324 Art. V, § 25 History The 1818 Constitution simply required that all public officers take an oath to support the United States and Illinois Constitutions and an oath of office. The Schedule of that Constitution provided that justices of the peace could administer oaths until the legislature otherwise di- rected. Roth provisions were repeated in the 1848 Constitution and a new oath was added: against dueling. The proposed 1922 Constitution left this section unchanged, but nio\ed it to a new article called "Public Servants." Explanation No explanation of the oath itself is necessary. From time to time there has been litigation to determine whether a particular position was an office and to determine whether a particular "inferior" office had been exempted by law from the oath requirement. There has also been litigation over the word "test." It is clear that "test" is used in the traditional sense of "religious test" or "political test" and, for ex- ample, in no way precludes civil service examinations. (People ex rel. Akin V. Loeffler, 175 111. 585 (1898).) Similarly, the Attorney General ruled that a statute requiring an oath of ten years' residence before taking office was not a prohibited oath. (1913 111. Att'y Gen. Rep. 220.) Although the question has apparently never arisen, the "no other test" presumably applies equally to members of the General Assembly not- withstanding the opening exception. (Their oath is contained in Sec. 5, Art. IV, supra, p. 129.) Comparative Analysis The vast majority of the state constitutions require an oath to support the United States Constitution, the applicable state constitution, and to perform duties faithfully. A half dozen or so states permit some sort of exemption by law from the oath. Approximately ten states prohibit any other oath. The only constitutional oath in the United States Constitution is that required of the President. The United States Con- stitution states that "Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath of Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualifi- cation to any Office or public Trust under the United States." (Art. VI.) The Model State Constitution provides for an oath through the back door. The Bill of Rights Article prohibits any oath except one as set forth therein. (It is much like Section 25.) But there is no literal re- quirement that any one take the oath. Art. V, § 25 325 Comment In the Comment on Section 5 of Article IV {supra, p. 130), a question was raised as to the efficacy of that part of the oath requiring a detailed disclaimer of wrong-doing. If a decision is made to preserve the de- tailed disclaimer, the question arises, as it did in 1870, of why only legis- lators should so swear. In short, it would seem appropriate to treat all constitutional oath-takers — legislative, executive and judicial — alike. In other words, one constitutional oath section might well suffice. Article VI JUDICIAL DEPARTMENT General Introductory History Unlike other Articles of the 1870 Constitution, Article VI is a total revision of the Article as initially adopted. Except in minor respects, virtually nothing remains of the original 1870 Article. The amendment effecting this change was adopted by the voters in 1962 and became effective January 1, 1964. The 1962 Amendment has a history more extensive, perhaps, than any other Article of, or amendment to, the 1870 Constitution. For this reason, as well as the comprehensive nature of its substantive changes, it may be helpful to the Convention members to have a brief organic development of that history, and the major revisions contained in the Article, in this introductory comment. This approach will not affect the established format of this publication under which each section will have its own History, Explayiation, Comparative Analysis and Comment, all serving as a detailed supplement to this introduction. In respect to the detailed ex- planation for each section, it must be noted, however, that there is very little decisional law, since the Article has been in effect for only six years. Pre-Gateiuay Amendment: Prior to the so-called 1950 Gateway Amend- ment which liberalized the constitutional amendment process (see History and Explanation, Art. XIV, Sec. 2), there had been few efforts to amend Article VI. The rigid electorate approval requirement virtually foreclosed any significant probability of successful amendment and eventually discouraged efforts to secure reform, notwithstanding a general professional consensus that Article VI of the 1870 Constitution (which itself made little changes in the 1848 Constitutional provisions relating to the State's Judicial Department) substantially hampered, in many respects, the objective of an efficient system for the administration of justice. Post-Gateway Period: The passage of Gateway immediately inspired the movement for amendment. A Joint Committee of the Illinois State and Chicago Bar Associations, after extensive study, prepared a draft of a proposed new Article in 1952. In 1951 the Illinois General Assembly, 327 328 Art. VI conscious of the momentum for change motivated by the Gateway Amend- ment, created a legislative commission to study the needs for constitu- tional reform and to evaluate proposals and make recommendations with respect to these changes. The Joint Bar Committee and the Legislative Commission cooperated extensively in seeking to arrive at an agreed proposal for submission to the 1953 session of the General Assembly. Con- sensus was achieved for most of the suggested changes. An impasse de- veloped, however, on the critical issue of the method of selecting judges. The Bar Committee insisted upon the American Bar Association pro- posal of 1938 (also popularly known as the Missouri Plan) which pro- vided for the selection of a slate of nominees for judicial office by non- partisan commissions and appointment by the Governor from the nomi- nees so designated, followed, after a brief tenure, by submission to the electorate of the question of retaining the appointee in office for the full term. The purpose of this proposal was to eliminate or minimize the influence of political parties in the selection of judges. The Legislative Commission insisted upon the retention of the partisan adversary method of electing judges, urging that political involvement in the selection of judges had more to commend it in principle than the proposed non- partisan nominating commission method. An important aspect of the Bar plan involved tenure of judges after initial selection. The Bar Com- mittee insisted upon nonadversary, nonpartisan submission to the elec- torate of the question of retaining the incumbent in office for another term. This principle was also rejected by the Legislative Commission. The conflict on this issue was largely, though not solely, responsible for the failure of the Bar proposals to secure legislative adoption in 1953 and 1955. In 1957 the General Assembly adopted a substantially revised version of the Bar Committee draft which contained neither element of the selection and tenure plan endorsed by the Bar Associations. The proposal failed by a close margin to receive electorate approval in 1958. In 1962, the legislature accepted a variant of the 1957 compromise, re- taining the political method of election of judges but adopting the non- adversary election on retention. (For a more detailed description of this compromise, see Explanation, Sec. 10, infra, pp. 356-7). Although selec- tion and tenure of judges was a central issue in all of the proposals for constitutional amendment, it was by no means the only major con- cern of the legal profession and the public. The 1870 Constitution was deficient in a number of respects. Among the more important were the following: (1) The absence of authority and responsibility in the Supreme Court for the administration of the judicial system. (2) A proliferation of trial courts of general and limited jurisdiction, Art. VI, § 1 329 including nonrecord justice of the peace and police magistrate courts. (3) A hybrid intermediate appellate court structure, legislatively estab- lished, and manned by circuit judges temporarily assigned to the appel- late courts. (4) An allocation of mandated appellate jurisdiction to the Supreme Court which stifled it in a mass of comparatively unimportant litiga- tion, effectively preventing it from considering many novel and important areas of procedural and substantive law. The 1962 Amendment dealt with these and other matters in a significant manner. The method of treatment is contained in the Explanation under each of the sections. Suffice it to say in concluding this introductory comment that Article VI, on balance, is viewed in objective professional circles as one of the most far-reaching and constructive reforms in the history of state constitutional efforts to establish a modern and efficient system for the administration of justice. This is not to suggest that there is now a perfect and unanimous consensus as to its merits or that there is not responsible criticism of some of its features. These will be dealt with in the appropriate places in the materials which follow. Courts Sec. 1. The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts. History The 1818 Constitution established only a Supreme Court but author- ized the General Assembly to create inferior courts as it saw fit. The Constitution of 1848 gave constitutional status to a Supreme Court, cir- cuit courts, county courts and justices of the peace. The General Assem- bly was authorized to establish additional inferior courts of uniform jurisdiction in cities. The 1870 Constitution added police magistrates, the Superior Court of Cook County, and the Criminal Court of Cook County to the 1848 category of constitutionally established courts. Authorization was given the legislature to establish an appellate court, probate courts in counties of a specified population, and courts in and for cities and incorporated towns. It should be noted that the Municipal Court of Chicago was established, not under the authority of Article VI of the 1870 Constitution, but under Article IV, Section 34. The conse- quence of the establishment of the Municipal Court of Chicago was the abolition of the offices of justices of the peace and police magistrates in the City of Chicago. (See Explanation, Art. IV, Sec. 34, supra, pp. 250-1.) The 1922 Convention proposal provided for a Supreme Court, an independent appellate court, circuit and county courts and justices of the peace. No provision was made for the creation of additional inferior 330 Art. VI, § 1 courts by the General Assembly, but the Municipal Court of Chicago was not affected. Explanation The present Section 1 has its greatest significance in (1) the simplicity of the constitutional judicial structure and (2) the withdrawal of power from the General Assembly to add courts to that structure. Of special importance also is the constitutional sanction and status given to the appellate court. Thus there is a streamlined three-tier structure of courts — a Supreme Court, the appellate courts, and circuit courts — which is not susceptible to legislative change. The advantages which accrue from this simplified structure in the critical areas of allocation of jurisdiction to the Supreme and appellate courts and in the overall administration of the judicial system, should be very great. Moreover, the desirability of an independent constitu- tionally established appellate court for the first time in the state's history is generally, if not universally, recognized. But the truly signifi- cant reform effected by this section is in the establishment of a single unified and integiated trial court. There is and can be only one trial court, the circuit court. Of necessity, its jurisdiction is original and unlimited. To fully appreciate the import of the integrated trial court concept, a look at the trial court structure which prevailed prior to the new Judicial Article will be helpful. The several circuit courts and the Superior Court of Cook County were the only trial courts of original and unlimited jurisdiction. The justice of the peace and police magistrate courts exercised a limited civil and quasi-criminal jurisdiction but their principal deficiency, aside from the generally low level of competence of their judges, most of whom were not lawyers, was the fact that they were not courts of record. Their decisions were re-triable de novo either in the county or circuit court at the instance of the losing party who fre- quently failed, quite deliberately, to defend in the justice or magistrate courts. The only other constitutionally created courts were Superior and Criminal Courts in Cook County and the county courts. These courts, as well as the legislatively established probate courts, municipal courts, and city, village and incorporated town courts, but excluding the Superior Court of Cook County, exercised only a limited jurisdiction. The appel- late voidance of a judgment entered by one of these courts, sometimes after years of litigation, on the ground of lack of jurisdiction, was not an uncommon occurrence. This hodgepodge of trial courts was wasteful and inefficient. City, village and town courts were legislatively authorized on occasion to satisfy a political rather than a public need. Many of these courts were virtually Art. VI, § 1 331 without business though manned by salaried judges and nonjudicial staff. The system of re-trials de novo from judgments of justice and magistrate courts was expensive, frustrating, and wasteful of judicial time and manpower. The integrated circuit court eliminates multiple trials and vexatious questions of jurisdiction. A suit cannot be filed in the wrong trial court, since there is only one trial court. Problems of venue may remain but issues of trial court jurisdiction are eliminated. The problems of assign- ment of cases and control of the dockets are minimized in the integrated court with the aid of the administrative provisions established in the Article. In the last analysis, the concept of the single trial court is premised on the belief that every litigant is entitled to a single trial of his cause in a court of record and a guaranteed appellate review. This is what this section and related sections dealing wtih appellate jurisdiction seek to accomplish. Comparative Analysis While 46 other state constitutions provide for a highest court, only 12 provide for an intermediate appellate court — four of these having been authorized since 1960. Forty-two other states have constitutional provisions establishing general trial courts. Of these, ten also provide for separate county courts and 13 for separate probate courts. Twenty-one states still provide for justices of the peace, a reduction of five since 1961. At present, nearly all states authorize legislative creation of additional trial courts of limited jurisdiction. No state expressly authorizes legisla- tive creation of a single general trial court of unlimited jurisdiction. No other state constitution provides for the single trial court structure estab- lished in Illinois. The United States Constitution establishes only a Supreme Court and "such inferior Courts as the Congress [may provide]." The Model State Constitution vests the judicial power in a Supreme Court, an appellate court, a general court and inferior courts of limited jurisdiction as may be established by law. Comment There appears to be no reason to quarrel with the provisions estab- lishing Supreme and appellate courts. The single integrated trial court has raised some sporadic criticism, largely because of the elimination of the small claims jurisdiction of former justice of the peace and magis- trate courts. Despite the many failings of these courts, they provide an inexpensive and expeditious, if not necessarily a judicious, disposition of many small claims and litigation arising out of localized disputes. And notwithstanding the right to seek a re-trial de novo, many litigants, for 332 Art. VI, § 2 reasons of economy, accepted the decisions of these courts as final. Under the new system, a small claims division of circuit courts is authorized by Supreme Court rule. If an appeal is desired, a record must be made. This expense factor irritates many small claim litigants who would prefer to avoid this expense. To overcome this objection, at least to some ex- tent, provision is made in the rules of the Supreme Court for inexpensive small claims procedures and for records which need not be printed. Inex- pensive typewritten or other methods of producing legible records are authorized, and other provisions permit further reduction in costs of appeal. The advantages of the integrated trial court system seem clearly to far outweigh the relatively minor criticisms which have been directed against it. Given the importance of the concept, its uniqueness, and its relationship to efficient judicial administration, it would appear that the single, integrated trial court concept should be retained. Administration Sec. 2. General administrative authority over all courts in this State including the temporary assignment of any judge to a court other than that for which he was selected with the consent of the Chief Judge of the Circuit to which such assignment is made, is vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules. The Supreme Court shall appoint an administrative director and staff, who shall serve at its pleasure, to assist the Chief Justice in his administrative duties. History This section has no parallel in any of the prior Illinois Constitutions. Nor did the 1922 Convention proposal deal with this subject except for a provision authorizing temporary assignments of judges. Such adminis- trative power as existed in the Supreme Court was of legislative origin. Primarily, the statutes granted limited powers of assignment of judges to serve in courts other than their own. In addition, the legislature in 1959 established the Ofhce of Court Administrator under the administration of the Supreme Court. The powers of that ofhce were largely routine and ministerial. The law granted no significant administrative control over the judicial system to the Supreme Court, but it did provide the rationale for the expression constitutionally of the principle of centralized admin- istration of the entire judicial system by the Supreme Court. Explanation Under prior Constitutions, courts existed virtually as autonomous units. A degree of administrative control was exercised in several of the larger circuit courts, but for all practical purposes there was no admini- strative plan or purpose to guide a massive system of courts and its judi- cial and nonjudicial personnel. The absence of a centralized administra- Art. VI, § 2 333 live authority over the judicial system was conceived by proponents of constitutional revision to be one of the major deficiencies of that system. Judicial manpower in many areas was largely wasted. In other parts of the state, courts were overburdened to the point of helplessness. Legislative palliatives authorizing transfer of judges were only partially satisfactory. To rectify this gaping flaw in the judicial system, this section estab- lishes general administrative authority over all courts in the Supreme Court to be exercised by its Chief Justice with the assistance of an ad- ministrative director and staff. These provisions, together with the pro- visions of Section 8 providing for administrative responsibility in the chief judge of each circuit court, subject to the authority of the Supreme Court, should provide the mechanism for a coordinated and efficient administration of the judicial system. This section was not intended to deal with rule-making power respect- ing practice and procedure in the courts. Legislative history derived from prior drafts submitted to and considered by the legislature, as well as other contemporaneous history, make it clear that this section is not a general grant of authority to the Court to adopt rules of practice and procedure. Rule-making authority is granted to the Supreme Court in particular instances (see Sec. 5 — appellate jurisdiction of the Supreme Court, infra, pp. 338-9; Sec. 7 — rules for inexpensive and expeditious appeals and for appeal of nonfinal judgments of the circuit courts, infra, p. 345), but no general grant of rule-making power is made. Of interest in this connection was the recent assertion by the Supreme Court of an inherent rule-making power in the Court in a specific instance of a legis- lative rule confficting with a Supreme Court rule. (People ex rel. Stamos v. Jones, 40 111. 2d 62 (1968).) The case does not, however, deny the existence of a concurrent or independent legislative rule-making power. (See Explanation, Art. Ill, supra, p. 102, for an additional discussion of the Stamos case.) Comparative Analysis Nearly one-third of the state constitutions provide for administrative control in some form by the state's highest court. Of these, however, only five have a constitutional office similar to the administrative director pro- vided by Illinois, and four of these were established since 1959. The Constitution of the United States has no comparable provision. The Model State Constitution contains basically the same administra- tive provision. Comment ^ It would appear that a grant of administrative power to the Supreme Court deserves constitutional rather than legislative status. Given the 334 Art. VI, § 3 unhappy history of the past and the critical importance of centralized administrative control, the case for retention of this section is strong. Judicial Districts Sec. 3. The State is divided into five Judicial Districts for the selection of judges of die Supreme and Appellate Courts. The First Judicial District consists of the county of Cook. The remainder of the State shall be divided by law into four Judicial Districts of substantially equal population, each of which shall be compact and composed of contiguous countries. History Geographic representation in state courts became a constitutional principle in the 1848 Constitution. Supreme Court representation was tied to three grand divisions, and circuit judges were elected from nine judicial districts. Under the 1818 Constitution, Supreme Court justices and the judges of inferior courts were appointed by joint ballot of the two houses of the General Assembly and commissioned by the Governor. Nothing in that Constitution suggested area representation as relevant to the selection of judges. The 1870 Constitution continued the 1848 precedent but mandated seven districts, from each of which one Supreme Court justice would be elected. The districts were defined in the Consti- tution but legislative alteration was authorized. Judicial circuits were also to be established by law for the election of circuit judges. The 1922 Convention proposal contained the 1870 provisions virtually unchanged. The 1870 Constitution authorized legislative establishment of appellate courts, with districts to be defined by law. The 1922 Convention pro- posal did not provide for appellate court election districts. It provided instead that appellate court judges would he appointed by the Supreme Court. Explanation The present Article adheres to the principle of geographic represen- tation for the election of judges. Two major changes from the 1870 requirements were made. The first was the reduction from seven to five in the number of judicial districts for the selection of Supreme Court judges, and the second was the designation of Cook County as one of these districts. The four districts other than the Cook County district were to be legislatively adjusted to maintain substantial equality of population. With the creation of the new appellate court, the new section provided that the five districts would also be the area basis for the selection of appellate court judges. The problem of area representation for judicial selection of judges serving in a state-wide capacity (as distinguished from judges elected for and serving defined political subdivisions such as circuits, counties and Art. VI, § 3 335 cities) is a troublesome one. It is dithcult to see any rational relationship between Supreme and appellate court judicial service and the principle of limited geographic representation. The Constitution of the United States and the constitutions of those states which provide for the appoint- ment of Supreme Court judges do not mandate area representation. It is difficult to equate the administration of justice with a particular con- stituency represented by a defined but impermanent set of county boun- daries or other standard of area measurement. The Joint Committee of the Illinois State and Chicago Bar Associations, in its earlier deliber- ations and drafts, indeed proposed the selection of all or part of the Supreme and appellate court judges on a state-wide basis. Legislative resistance, based largely on tradition and considerations of political and public expediency, ultimately resulted in the decision to retain the prin- ciple of area representation for the selection of these judges, except for the changes in the 1870 provision already noted. In connection with this issue it is important to note that the one man-one vote principle applicable to legislative representation has not been determined by the United States Supreme Court to be applicable to judicial elections. Such limited judicial precedent as exists suggests the contrary. Thus, in Romiti v. Kerner (256 F. Supp. 35 (N.D. 111. 1966)), the federal district court rejected a taxpayer's challenge that the district- ing provisions of this section and the allocation of judges under Section 4 denied him the equal protection of the law, strongly hinting — though not deciding — that the one man-one vote principle was not applicable. Comparative Analysis Two-thirds of the states have a constitutional provision for the elec- tion of judges of the highest court. Of these, however, only nine, exclud- ing Illinois, elect high court judges from districts. All other states provide for "at-large" elections. In contrast, all seven states which provide for the election of appellate court judges create judicial election districts. Apparently only one state, Louisiana, provides for judicial election districts for both Supreme and appellate court judges. Since the Model State Constitution provides for the appointment of judges to the Supreme, appellate, and general trial courts, there is no provision for election districts. Presumably, the legislature may establish districts. The Constitution of the United States, for like reason, has no provisions for election districts. Comment Whatever the merits of area representation as applied to statewide judicial service, the principle is so deeply ingrained in constitutional 336 Art. VI, §4 history and tradition that any attempt to repeal or aker it would, in all probability, cause substantial political and public reverberations. It is doubtful that there is any merit in provoking this kind of controversy. As to the establishment of Cook County as a separate and single county judicial district (as contrasted witli the 1870 provision which grouped Cook, Lake, Will, Kankakee and DuPage Counties into a single district), it would seem that if area and jjojjulation representation is the acce]:)t- able principle, the provision should be retained. It should be noted, how- ever, that the 1870 districts were subject to legislative alteration, but that the designation in the present section establishes Cook County perma- nently as a single judicial district. The judgment here was that in all probability Cook County would continue to have approximately 50 per cent of the state's population for a considerable period into the future. Supreme Court — Organization Sec. 4. The Supreme Court shall consist of seven judges, three of whom shall be selected from the First Judicial District and one each from the Second, Third, Fourth and Fifth Judicial Districts. Four judges shall constitute a quorum and the concurrence of four shall be necessary to a decision. The judges of the Supreme Court shall select one of their number to serve as Chief Justice for a term of three years. History The 1818 Constitution established a four-man Supreme Court with legislative authorization to increase the number. The 1848 Constitution reduced the membership to three and eliminated the legislative author- ization to increase the number. The 1870 Constitution established the number of Supreme Court justices as seven. Quorum. The 1818 and 1848 Constitutions established a two-member- ship quorum requirement. The 1870 Constitution increased this to four. Districts. The 1818 Constitution had no district specifications. Supreme Court justices were appointed by the General Assembly and commis- sioned by the Governor. As noted in the History of Section 3 (supra, p. 334), the 1848 Constitution introduced the district concept with provision for the election of a judge from each of three districts. However, the legis- lature w^as authorized to provide for state-wide elections. The 1870 Constitution established seven election districts and eliminated the 1848 authorization for state-wide elections. Chief Justice. The 1818 Constitution provided for a Chief Justice but was silent as to the method of designation. The 1848 Constitution placed this mantle upon the judge having the oldest commission. The 1870 Con- stitution provided for election of the Chief Justice by other members of the Court with no period of service designated. The Court by rule pro- Art. VI, § 4 337 vided for annual rotation of the position among the judges. The 1922 Convention proposal dealt with these matters as follows: Number of Judges: Nine, with three being elected from the district containing Cook County. Qiwrum Requirement: Majority for a quorum; five for a decision. Districts: Seven. Chief Justice, Selection and Tenure: Selection by judges of Supreme Court; no provision for a term. Explanation The present Article changed the 1870 provisions in the following important respects: (1) Reduction in the number of Supreme Court judicial districts from seven to five. (2) Establishment of Cook County as one of the five districts. (3) Reallocation of the seven judges so that three justices would be selected from Cook County and one justice from each of the other four districts. (4) Establishment of a three-year term of service for the Chief Justice. Unchanged were the number of judges, the quorum requirement of four, and the requirement that the members of the Court elect the Chief Justice. The Explanation of Section 3 above touched directly or indirectly upon points (1), (2) and (3) which deal with the districting principle. The increase to three in the number of Supreme Court judges to be selected from the Cook County district was a consequence of adherence to the district standard for the election of judges. With Cook County generating more than 50 per cent of the state's judicial business, and possessing approximately one-half the state's population, the political and professional pressures to equalize the representation of that district on the Court were substantial. Three-sevenths of the total was accepted as a reasonable adjustment. With the provisions of the new Article vesting administrative authority in the Supreme Court to be exercised pursuant to its rules by the Chief Justice and Adiministrative Director and staff (Sections 1 and 2), it was thought desirable to mandate a minimum three-year term as Chief Jus- tice. The absence of a specified term could have led to the continuation of the Supreme Court's annual rotation rule. A longer term of adminis- trative responsibility was deemed necessary for administrative efficiency. The three-year term seeks to accomplish this objective. Nothing in this section precludes the reappointment of the Chief Justice for additional terms. 338 Art. VI, § 4 Comparative Analysis As was noted in the Comparative Analysis of Section 3 above, two-thirds of the states elect high court judges, nine states with judicial districts and 24 at large. Eleven states appoint high court judges, normally by the governor or legislature or a combination of both. The iModel State Con- stitution provides for the apjjointment of the justices by the governor with the advice and consent of the unicameral legislature. About four-fifths of all state constitutions deal in some fashion with the size of the state's highest court. Twenty-four states, excluding Illinois, set a specific size. Of these, 15 set the size at seven judges. Delaware with three, provides the smallest membership, and Mississippi, with nine, the largest. The average is six to seven. Sixteen states, however, set either a maximum and minimum or a recommended size with pro- visions for increases and decreases, typically as directed by the legis- lature or the Court itself. Only four states — Kansas, Nebraska, Maryland and Michigan — have provisions similar to those of Illinois with respect to both size and selection. Thirty-two other states provide a quorum requirement. Of these, 24 require a majority, four more than a majority, and four less than a majority. Only 28 other states set a voting or decision requirement, however. Twenty-one states require a majority for a decision, four require less than a majority of all judges, and three require more than a majority at times. Only nine other states provide for the Court itself to select the Chief Justice. Four states provide for appointment by the governor or legis- lature. Nine states provide that the justice with the shortest term remain- ing becomes Chief Justice. Five make the justice with the oldest com- mission the Chief Justice. Four other states set a term for the position of Chief Justice, ranging from two to six years. The Constitution of the United States, of course, specifies the term of office to be "during good Behavior." Selection is by presidential appoint- ment with the advice and consent of the Senate. No mention is made of the size of the Court or the selection and terms of the Chief Justice. The Model State Constitution is silent on the subjects of quorum, voting, and selection and term of the Chief Justice. Comment There is no evidence of professional or public dissatisfaction with the provisions of this section. The only potentially controversial provision is that which allocates three Supreme Court judges to Cook County. Yet Art. VI, § 5 339 it is difficult to argue against this allocation if area representation is retained as a constitutional principle. Moreover, a reduction in the num- ber of judges for Cook County would surely engender a bitter political controversy. It is doubtful whether the issue is of such importance as to risk a sharp partisan fight. Supreme Court — Jurisdiction Sec. 5. The Supreme Court may exercise original jurisdiction in cases relating to the revenue, mandamus, prohibition and habeas corpus, such original juris- diction as may be necessary to the complete determination of any cause on review, and only appellate jurisdiction in all other cases. Appeals from the final judgments of circuit courts shall lie directly to the Supreme Court as a matter of right only (a) in cases involving revenue, (b) in cases involving a question arising under the Constitution of the United States or of this State, (c) in cases of habeas corpus, and (d) by the defendant from sentence in capital cases. Subject to law hereafter enacted, the Supreme Court has authority to provide by rule for appeal in other cases from the circuit courts directly to the Supreme Court. Appeals from the Appellate Court shall lie to the Supreme Court as a matter of right only (a) in cases in which a question under the Constitution of the United States or of this State arises for the first tima in and as a result of the action of the Appellate Court, and (b) upon the certification by a division of the Appellate Court that a case decided by it involves a question of such importance that it should be decided by the Supreme Court. Subject to rules, appeals from the Appellate Court to the Supreme Court in all other cases shall be by leave of the Supreme Court. History The 1818 Constitution gave original jurisdiction to the Supreme Court in cases relating to the revenue, in cases of mandamus, and in such cases of impeachment "as may be required to be tried before it," and appellate jiuisdiction apparently without qualification. The impeachment pro- vision is somewhat curious, as the Legislative Article granted the "sole power of impeaching" to the House of Representatives with the trial to be conducted by the Senate. The 1848 Constitution added habeas corptts to the category of original jurisdiction, and otherwise re-enacted the 1818 provision, including the impeachment reference. The 1870 Constitution re-enacted the 1848 provisions respecting original and appellate juris- diction, eliminating, however, the impeachment reference. With the authorization in the 1870 Constitution for the establishment of appel- late courts, the Supreme Court's mandatory appellate jurisdiction was extended to include judgments "in all criminal cases and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law." The proposed 1922 Constitution gave the Supreme Court original jurisdiction in cases relating to the revenue, in quo warranto, mandamus, 340 Art. VI, § 5 habeas corpus, prohibition and other cases involving cjuestions of great piihh'c importance, and appelhite jurischction in all other cases. In a separate section entitled "Apjjeals and Writs oi IJror," it was also pro- \ided that a])peals }nny be prosecuted "to oi Ironi the supreme court in all criminal cases wiiere the punishment allowed by law may be death or imprisonment in the penitentiary and in cases where a franchise or a freehold or the validity of a statute is involved . . . and to or from the supreme court in all other cases." Explanation The present Article adds to the original jurisdiction of the Supreme Court the authority to entertain writs of prohibition, while retaining revenue, mandamus and habeas corpus. The grant of original jurisdiction is couched in language of discretion and not mandate. The 1870 grant had been construed to reach the same result, the Court holding that in the cases enumerated the circuit courts enjoyed concurrent jurisdiction. (People ex rel. Taylor v. Board of Educ, 197 111. 43 (1902).) Experience teaches that the Supreme Court will accept original jurisdiction in only the most pressing of circumstances,- normally when time is of the essence in construing important legislative enactments. The great significance of the present section is in its severe proscrip- tion of the mandatory appellate jurisdiction of the Supreme Court. Be- cause of this mandated jurisdiction deriving from prior Constitutional provisions, the Court, as a practical matter, had little fiexibility in the exercise of its discretion to control or limit appeals to it. In addition to appeals from different courts in common la^v actions, the legislating established review responsibility in the Supreme Court in almost all in- stances of administrative action. And, as noted, with the establishment by law of appellate courts pursuant to Section 11 of the 1870 Constitu- tion, mandatory apj^ellate jurisdiction from the judgments of those courts was constitutionally imposed "in all criminal cases and cases in ^vhich a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law." The effect of this open-ended mandatory appellate responsibility was to enmesh the Court in a mass of relatively unimportant litigation, leav- ing it little room for exercising its discretionary appellate jurisdiction in important and novel issues. A major objective of the new Article was to make the Supreme Comt, in fact as well as in name, the pinnacle of the state judicial system by assuring that it would be primarily concerned with issues of paramount importance. This was aciiieved by severely circumscribing ajjjjeals as of right from the circuit and apj^ellate courts to the Supreme Court. Thus under the existing provisions, litigants may appeal a final judgment of the circuit court directly to the Supreme Art. VI, § 5 341 Court only in the four types of cases enumerated in the second paragraph ot this section. Appeals as of right from the appellate court to the Supreme Court are limited to the two situations designated in the last paragraph of this section. However, the Supreme Court is granted the authority to permit direct appeals from the circuit court and other appeals from the appellate court in cases other than those which it is required to take. By this combination of limited mandatory appellate jurisdiction and discretionary authority to accept other cases for review, the Supreme Court can now fulfill the function of resolving the litiga- tion and issues of greatest importance to the state. Many of the cases formerly heard by it are now shifted to the jurisdiction of the appellate court, thus assuring the objective of a single trial and a single judicial review by a competent judicial tribunal in every case. Several important decisions under this section deserve reference. In First National Bank & Trust Co. r;. City of Evanston (30 111. 2d 479 1964)), the Court construed the provision that appeal as a matter of right from the circuit court lies "in cases involving a question arising under the Constitution of the United States or this State" and refused to give it an exact and literal interpretation. Instead, it adopted the "substantial question" test as employed by the United States Supreme Court in the exercise of its discretionary jurisdiction. Conceding the difficulty of applying that test, the Court nevertheless observed that the purpose of the Judicial Article "seems clearly to have been to relieve [the Supreme Court] of the bulk of its mandatory appellate jurisdiction and to establish instead a basic pattern of discretionary review of determinations of the Appellate Court," and that in the light of that purpose the Court could deny jurisdiction in a case raising a constitutional issue if in its judg- ment the issue did not meet the test of substantiality. The principle has been applied in a number of criminal cases wherein constitutional issues were raised and preserved and in each of which the cause was transferred to the appellate court because the issues were not "fairly debatable" or "substantial." (People v. Wolfson, 34 111. 2d 585 (1966); People V. Hale, 31 111. 2d 200 (1964); People v. Arbuckle, 31 111. 2d 163 (1964).) Nevertheless in People v. Perry (34 111. 2d 229 (1966)), the Court assumed jurisdiction of a cause in which a constitutional issue was raised though it did not find it necessary to rule on the issue, a not unlikely occurrence where the Rule of Substantiality is itself grounded in judicial discretion. In People v. Turner (31 111. 2d 197 (1964)), the Court interpreted the provision for appeal as a matter of right "from sentences in capital cases" as excluding a case in which a life sentence and not a sentence of capital punishment had been imposed. In People v. Nasfi (36 111. 2d 275 (1966)), the Court held it had jurisdiction to review directly a sentence of im- 342 Art. VI, § 5 prisonment for a term of 99 years to 150 years in a case in which the defendant was tried for murder. Though obscurely developed, the appeal appears to raise issues of procedural due process. The effect of these interpretations is to protect the Court from appel- late jurisdiction in numerous cases in which a constitutional issue is raised spuriously for the purpose of securing a Supreme Court review or where indeed the issue is not "fairly debatable" or "substantial." Fairly administered, this approach by the Supreme Court would seem in accord with the spirit if not the literal language of the section. Comparative Analysis Although the Comparatwe Analysis of the Michigatt Constitutiuu (C.A.M.C., vii-8) cautions that "[i]t is quite difficult to compare state constitutions with respect to their provisions for the jurisdiction of the highest court," the Index Digest of State Constitutions (Index) indicates that some general observations can be made. While nearly half of all states provide the high court with some original jurisdiction, only eight others give it original jurisdiction over cases re- lating to habeas corpus, seven to mandamus, five to prohibition, one to revenue, and three "as necessary." On the other hand, nearly three-fourths of the states provide some form of mandatory appellate jurisdiction in terms of a case description. All others providing mandatory appellate jurisdiction do so in terms of a combination of case description and court, or by court alone. While only about one-sixth of the states provide dis- cretionary appellate jurisdiction, nearly half authorize the court to issue writs in aid of its jurisdiction. The Constitution of the United States grants the Supreme Court original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls" and those in which a state is a party. In all other justiciable matters enumerated in Article III, Section 2, the Supreme Court is given appellate jurisdiction, "both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." The Model State Constitution provides the high court with original jurisdiction in two particular areas, review of legislative redistricting and all matters concerning the governor, and "in all other cases as provided by law." Appellate jurisdiction is granted in all cases arising under the state and federal constitutions, and "in all other cases as provided by law." Comment The provisions of this section limiting the mandatory appellate juris- diction of the Supreme Court are among the most important in the Judicial Article. It is a fair estimate that the limitation has thus far operated in a manner consistent with its purpose. The work load of the individual members of the Court has not been reduced; rather, their Art. VI, § 6 343 efforts are now expended in the important areas defined and in the addi- tionally important areas which are brought within the Court's discretion- ary appellate jurisdiction. There appears to be no professional or other opinion which is critical of the substance or application of this section. Appellate Court — Organization Sec. 6. The Appellate Court shall be organized in the five Judicial Districts. Until otherwise provided by law, the court shall consist of twenty-four judges, twelve of whom shall be selected from the First Judicial District and three each from the Second, Third, Fourth and Fifth Judicial Districts. The Supreme Court shall have authority to assign additional judges to service in the Appellate Court from time to time as the business of the Court requires. There shall be such number of divisions, of not less than three judges each, as the Supreme Court shall prescribe. Assignments to divisions shall be made by the Supreme Court and a judge may be assigned to a division in a district other than the district in which such judge resides with the consent of a majority of the judges of the district to which such assignment is made. The majority of a division shall constitute a quorum and the concurrence of a majority of the division shall be necessary to a decision of the Appellate Court. There shall be at least one division in each Appellate District and each division shall sit at times and places prescribed by rules of the Supreme Court. History A constitutionally authorized appellate court, intermediate between the trial and Supreme courts, first appears in the 1870 Constitution (Art. VI, Sec. 1, supra, p. 329). Its origin and status were both constitutional and legislative but its establishment, and thus presumably its continu- ation, was left to the discretionary power of the legislature. The con- stitutional authorization did not include provision for a separate and distinct judiciary. Instead it was provided that the court would be manned by "such number of judges of the circuit courts" and sit in "such time and places and in such manner, as may be provided by law." By law, appointments were made by the Supreme Court. Judges of the Superior Court of Cook County, being determined to have the same constitutional status as circuit judges, were qualified to sit on the appellate court established for Cook County. At the time of the adoption of the Judicial Article in 1962 there were four legislatively established district appellate courts. Cook County was designated as the First District and the remaining three districts sat respectively at Ottawa, Springfield and Mount Vernon. The Cook County District was organ- ized into three divisions of three judges each. The Second District had two divisions and the Third and Fourth Districts had one division each. Each division had three judges assigned to it by the Supreme Court. The 1870 Constitution had no provision respecting quorum or the number of judges necessary for a decision. It prohibited additional compensation for circuit judges assigned to appellate court service. 344 Art. VI, § 6 The proposed 1922 Constitution established a constitutional appellate court consisting of four districts. The districts, or divisions if applicable, were to sit where provided "by law." i\o mention was made of a quorum or decisional requirement. In a remarkable departure from the 1870 provisions, the Supreme Court was given the power to appoint all appel- late court judges, and no requirement was made that such judges be selected from judges sitting on a circuit or lower coint. Explanation The appellate court (or courts) established pursuant to the 1870 Con- stitution was hybrid in character. Having neither a permanent constitu- tional status nor its own judiciary, it lacked the independence and pres- tige essential to a properly conceived judicial system. Though it served well, and often with distinction, there was little question among most proponents of judicial reform that a new and independent intermediate appellate court structure was a constitutional imperative. This section establishes the essential structure of the appellate court. Its most important features are (not necessarily in order of priority or importance): (1) A permanent constitutional status. (2) The establishment of the court into the five judicial districts pro- vided by Section 3, thus coordinating the districts for the selection of Supreme and appellate court judges. (3) Providing for the selection of the courts' own judiciary. (4) Designation of the number of judges, initially 24, divided equally between the Cook County district and the four remaining districts, which number is subject to legislative change. (5) Administrative authority in the Supreme Court to (a) assign additional judges (presumably circuit and associate circuit judges, although assignment of a Supreme Court judge is not prohibited) to appellate coiut service as the business of the court demands: (b) assign, subject to majority consent oi the appellate judges of the district, an appellate court justice to a district other than the district in which he resides; (c) establish such number of divisions in each judicial district, of not less than three judges each, as the Supreme Court deter- mines to be necessary; and (d) prescribe the times and places where each division shall sit. (6) Designation of a majority of a division as necessary to a quorum and a decision. The detail embraced in this section may seem at first blush to estab- lish too rigid a structure and too many substantive principles which Art. VI, § 7 345 might better be left to legislative determination. In fact the structure is most flexible, permitting a wide latitude of administrative authority in the Supreme Court, and an important measure of legislative discretion in determining the number of judges. Judicial implementation of these provisions has been effective. The First District has been divided into four divisions; the other districts remain with one division each. A presiding judge of each division is also authorized by rule. The assignment power has been employed to good advantage by the Supreme Court to meet the substantially increased jurisdictional responsibilities of the appellate court. Comparative Analysis As stated in the Comparatixie Analysis of Article VI, Section 1 (supra, p 331), only 13 states, including Illinois, or slightly more than one-fourth of all states, have constitutional provisions for an intermediate appellate court. The organization of each system varies considerably from jurisdic- tion to jurisdiction. The Constitution of the United States itself establishes no intermediate appellate court. The federal courts are established by Congress pursuant to the constitutional provision vesting the judicial power in a Supreme Court, "and in such inferior Courts as the Congress may from time to time ordain and establish." — The Model State Constitution establishes an intermediate appellate court, but does not define its organization in detail. Comment There appears to be much support for and little observable complaint about the concept of an independent intermediate appellate court. Nor is there any evidence that the section as structured is in need of revision in any significant respect. Such problems as have arisen have been quite manageable, thanks to the flexibility and scope of the administrative power of the Supreme Court. Appellate Court — Jurisdiction Sec. 7. In all cases, other than those appealable directly to the Supreme Court, appeals from final judgments of a Circuit Court lie as a matter of right to the Appellate Court in the district in which the Circuit Comt is located, except that after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acqiu'ttal. The Supreme Comt shall provide by rule for expeditious and inexpensive appeals. The Appellate Court may exercise such original jurisdiction as may be necessary to the complete determination of any cause on review. The Supreme Court may provide bv rule for appeals to the Appellate Court from other than final judgments of the Circuit Court. The Appellate Court shall have such powers of direct review of administrative action as may be provided by law. 346 Art. VI, § 7 History The 1870 Constitution left the jurisdiction of the appellate court to the discretion of the General Assembly. The provision was quite simple and general and was utilized by the legislature to relieve the Supreme Court of some of its awesome burdens of constitutionally and legislatively mandated direct appellate responsibility. The proposed 1922 Constitution j^rovided simply that appeals from circuit and county courts to the appellate court could be had in all cases, other than those involving direct appeal to the Supreme Court, as pre- scribed by Supreme Court rules. No mention was made of the cost of appeals, original jurisdiction, nonfinal judgments, or direct review of administrative decisions. Explanation The appellate jurisdictional philosophy of the Judicial Article, partially explored in Section 5 dealing with the Supreme Court, is completed and fully disclosed in this section. An ajjpeal lies as a matter of right to the appellate court from all final judgments of the circuit court except in those cases in which appeal as a matter of right lies directly to the Supreme Court. Thus an aggrieved litigant has a constitutional right of appeal either to the appellate or Supreme Court in respect to final judg- ments of the trial court. In addition, the Supreme Court may by rule authorize appeals to the appellate court from other than final judg- ments of the circuit court. This discretionary power, not normally to be expansively exercised, recognizes that substantial rights may be threat- ened or impaired by interlocutory or other nonfinal trial court orders, for which immediate appellate review should be available. The effect of the jurisdictional allocation designated here and in Section 5 is to enhance the importance of the appellate court by mak- ing it the final arbiter in the vast majority of cases which it decides. The discretionary power of the Supreme Court to accept appeals from the appellate court in cases other than those which it is constitutionally required to take assures an additional final appellate review in cases determined by the Supreme Court to be of sufficient importance to justi- fy such action. The provision which precludes an appeal from a judgment of acquit- tal after a trial on the merits of a criminal case was inserted out of a sense of extreme caution, it having been urged that an otherwise uncon- ditioned right of appeal would repeal the double jeopardy provision of Article II, Section 10. The elimination of the non-record justice and magistrate courts and the consequent probability of increased appellate review of decisions formerly terminated by a re-trial de novo of decisions of such courts Art. VI, § 7 347 led to the inclusion of the provision that the Supreme Court shall pro- vide by rule for expeditious and inexpensive appeals. The cost problem was equally troublesome in other appeals. The direction is at best a pious and unenforceable pronouncement. Indeed it may be largely meaningless, since "inexpensive" and "expeditious" are largely abstract and relative concepts. Yet the Supreme Court has responded to this direction and by rule has eliminated the need of abstracts and the re- cjuirement of printed briefs in cases assignable to magistrates, as well as permitting the preparation of abstracts and briefs by methods less ex- pensive than printing in other cases. Of special importance may be the provision authorizing the General Assembly to provide for direct review of administrative action by the appellate court. Presently, as well as in the past, most review proceed- ings were initiated in a trial court with appeal either to the appellate or Supreme Court. The Illinois Administrative Review Act (111. Rev. Stat. ch. 110, §§264-279 (1967)) provides for this pattern in all review actions which are covered by that law. The new provision allows for a technique of review, similar to that which prevails in several areas of federal practice, whereby the public interest is deemed to be best served by permitting direct appellate court review of administrative decisions. Though not as yet utilized by the legislature, the provision permits a desirable flexibility in methods of reviewing administrative action. There have been fairly substantial amounts of litigation and appellate decisions interpreting provisions of this section. The most important cases deal with the power of the appellate court to determine consti- tutional issues when the Supreme Court has transferred a cause to the appellate court because the constitutional issues raised were not "fairly debatable" or "substantial" for purposes of direct appeal to the Supreme Court. (See Explanation of Sec. 5, supra, pp. 339-41.) In People v. Valen- tine (60 111. App. 2d 339 (1965)), the First District Appellate Court considered the effect of such a transfer. It rejected both the defendant- appellant's contention that its power to hear and determine constitu- tional questions was unlimited and the state's contention that it totally lacked power to decide constitutional issues. It then proceeded to review the entire case, including the constitutional issues. In Belden Manufacturing Co. v. Chicago Threaded Fasteners, Inc. (84 111. App. 2d 336 (1967)), the appellate court assumed that a transfer of the cause to it after the Supreme Court had first denied a motion for transfer, heard oral argument, and then entered an order to the effect that it had no jurisdiction, constituted a rejection on the merits of the constitutional issues raised by the appellant. There appears to be no Supreme Court decision or rule definitely resolving this issue at this time. 348 Art. VI, § 7 Other litigation concerns the "final order" requirement lor appellate review. Illustrative is Peof^le v. Miller (85 111. 2d 62 (19()())), wherein the order ol the circuit court denying delendant's motions to dismiss rape counts in the indictment was held to he an interlocutory and not a final order, and that {onsccjuc luly the appellate court had no juris- diction ol an appeal liom that order. Other decisions establish and aflnin the constitutional re(|uiiement ol liual order loi pur])Oscs ol aj)- pellate court review. {Sec Smith \. Lewis, 85 111. App. 2d 24() (19()7) order relative to master's lees held interlocutory); La Salle Nat'l Bank V. Little Bill ".S.H" Flavors Stores, Inc., 80 111. Ap]). 2d 298 (HKi/); Schoen V. Caterpillar Tractor Co., 77 111. Apj). 2d 815 (196()): Robinson v. City ol Geneseo, 77 111. App. 2d .'^08 (19(i(i).) Several decisions interpreting the provision prohibiting appellate review ol a judgment of accpiittal in a criminal case after a trial on the merits are worth noting. In People v. Blauehetl {Ti 111. 2tl 527 (1965)), it \vas held that an uncjualified reversal of a criminal verdict of guilty ijy the a]:)pellate court did not constitute a judgment of ac([uittal from which an appeal would not lie. In I'ilUige of Park Forest v. lir'(i!;g (.88 111. 2d 225 (1967)), a municipality was held entitled to appeal a judg- ment ac(|uitting the defendant of an ordinance viotation on the ground that the jjroceeding, though cpiasi-criminal in character, was civil in form and thus not within the intent of the constitutional ban on appeals. Comparative Analysis Of the states providing for an intermediate court of appeals, nine pro- vide for appeaf in some areas as a matter of right. The other three estab- lish ajjpellate jurisdiction "as prescribed by law." Only two states provide for direct appeals of administrative decisions, and only one mentions appeal from nonfinal orders. Only one prohibits the state from appealing an accjuittal in criminal cases, and only one mentions costs of appeal. "Lhe Constitution of the United States has no comparable provisions. The Model State Constitution provides only that the appellate court will have such jurisdiction as is provided by law. Comment The constitutional j^lan of allocation of appellate responsibility be- tween the Supreme and appellate couits aiul the experience thereiuuler to date seem to jjrovide vindication for the underlying philosophy of the Article. Of course any alteration of the jurisdictional provisions of this section would of necessity involve reconsideration antl amendment of Section 5 as well. The necessity for revision is not only not apparent; it would appear to be unwarranted. Art. VI, § 8 349 Circuit Courts — Judicial Circuits Sec. 8. The State shall be divided into judicial circuits each consisting of one or more counties. The county of Cook shall constitute a judicial circuit and the judicial circuits within the Second, Third, Fourth and Fifth Appellate Districts, respectively, shall be as established from time to time by law. Any judicial circuit composed of more than one county shall be compact and of contia;uous counties. There shall be one circuit court for each judicial circuit which shall have such number of circuit and associate judges and magistrates as may be pre- scribed by law; provided, that there shall be at least twelve associate judges elected from the area in Cook County outside the City of Chicago and at least thirty-six associate judges from the City of Chicago. In Cook County, the City of Chicago and the area outside the City of Chicago shall be separate units for the election or selection of associate judges. All associate judges from said area outside the City of Chicago shall run at large from said area, such area apportionment of associate judges shall continue until changed by law. There shall be at least one associate judge from each county. There shall be no masters in chancery or other fee officers in the judicial system. The circuit judges and associate judges in each circuit shall select one of the circuit judges to serve at their pleasure as Chief Judge of such circuit. Subject to the authority of the Supreme Court, the Chief Judge shall have general administrative authority in the court, including authority to provide for divi- sions, general or specialized, and for appropriate times and places of holding court. The General Assembly shall limit or define the matters to be assigned to magistrates. History Circuit courts, in name, found their first constitutional identity in the 1848 Constitution. The 1818 Constitution established only a Supreme Court, delegating authority to create "inferior courts" to the General Assembly. The 1870 Constitution continued and built upon the circuit court concept, providing for their establishment in Cook County and generally on a multicounty basis for the remainder of the state. The 1848 and 1870 Constitutions also established or alternatively authorized the establishment by law of courts of lesser geographic and jurisdictional scope than the circuit court. The General Introductory History and the Explanation of Section 1 {supra, pp. 328-9) have treated such lesser con- stitutional and statutory courts. The establishment of the district or circuit structure for circuit courts was also first established in the 1848 Constitution, wherein provision was made for the division of the state into nine judicial districts. The 1870 Constitution continued the concept, authorizing circuits (other than Cook County) formed of "contiguous counties in as nearly compact form and as nearly equal as circumstances will permit, having due regard to business territory and population," but with a maximum circuit popula- tion of 100,000. One circuit judge was authorized for each such circuit. Authority was granted, however, to establish larger circuits by law, with 350 Art. VI, § 8 a maximum of lour judges to be elected in each circuit. None of the prior Constitutions dealt with the remaining provisions in the present Section 8. The 1922 Convention proposal was substantially the same as the 1870 constitutional provisions. Explanation In this section (and in the jurisdictional grant in Section 9, infra, p. 353) we see the full flowering of the integrated trial court concept— one of several great objectives of the new Judicial Article. All trial courts, consti- tutional and statutory, established prior to the new Article, were abol- ished, and all their powers, functions, and jurisdiction vested in a single circuit court for each judicial circuit. The nonrecord justice and magis- trate courts, and the courts of record of limited jurisdiction, e.g., county, probate, city and village, municipal, and the specially established courts in Cook County, were merged into a single circuit court for each judicial circuit as established by law, with Cook County being constitutionally designated, as in the 1870 Constitution, a single and separate judicial circuit. To maintain a desired continuity in the trial and appellate rela- tionship, all circuits were to be established within the newly created five judicial districts. The central and important substantive aspects of this section, beyond those already mentioned, deal with the following matters: (1) The classification of the circuit court judiciary into three levels, e.g., circuit judges, associate judges, and magistrates. (2) The requirement that there be at least one associate judge from each county in a circuit. (3) The requirement of the selection of a chief judge for each circuit in whom general administrative authority is vested, subject to the para- mount administrative authority of the Supreme Court. (4) The administrative authority of the chief judge to establish gen- eral and specialized divisions within the circuit court. (5) The abolition of masters in chancery and other fee officers in the judicial system. (6) The allocation of judges in Cook County. Extended explanation of each of these principles is not practical, but an attempt will be made to distill the essence of each. (1) Classification of Circuit Court Judiciary With the abolition of all pre-existing trial courts of a lesser jurisdic- tion than the circuit court and the absorption of the judges of those courts into the newly created integrated circuit court structure, it was thought desirable to maintain to some extent the difference in judicial status which had theretofore prevailed. Thus county judges, probate Art. VI, § 8 351 judges, city, village, and town court judges, and municipal court judges, and the judges of the Municipal Court of Chicago (other than its chief judge), all having exercised limited jurisdictional powers, were absorbed into the circuit court as associate circuit judges. Circuit judges, the judges of the Superior Court of Cook County (a court on a constitu- tional parity with the circuit court), the Cook County probate and county court judges, and the chief judge of the Municipal Court of Chicago, were all absorbed as circuit judges in their respective new circuits. Presumed differences in judicial experience, as well as the desire to establish a structure which would result in progressive advancement to the highest level of trial court service, were among the factors which motivated this classification. Several points must be noted with regard to this classification. First and foremost is that all levels of the circuit court judiciary, including magistrates, exercise the full jurisdiction of the circuit court. However, the section authorizes the General Assembly to limit or define the matters to be assigned to magistrates. This provision derives from the notion that magistrates, selected by the circuit judges to serve at their pleasure (Sec. 12, infra, p. 361), would be selected initially from personnel having little or no judicial experience and that their judicial responsibilities should be equated to those previously vested in the prior justice and magistrate courts. It must be emphasized, however, that the newly created magistracy is not and was not intended to be a mere reflection of the prior justices and magistrates. They are judicial officers in the circuit court structure as fully as circuit and associate judges and theoretically it would appear that they can exercise the full jurisdiction of the court, though by law, and for the reasons noted, particular kinds of cases are assigned to them. (2) One Associate Judge for Each County To assure that each county within a multi-county circuit has a full time judicial officer, the section requires that there be at least one asso- ciate judge for each county. All counties had had county judges as of constitutional right and many had had probate judges. The provision seeks to maintain this standard and to assure the constant availability in each county of a judge prepared and competent to handle the full jurisdictional range of the circuit court. (3) Chief Judge and Administrative Authority The problems incident to the administration of judicial business in each circuit are many. Indeed, in Cook County and in larger circuits they are enormous and complex. Prior Constitutions made no provision for administrative responsibility. The consequence, in most cases, was that each court and each judge exercised virtually independent and auto- 352 Art. VI, § 8 nomous power. The results were frequently ujiloriunatc. The provision seeks to give each circuit a responsible role in the administration oi its business, subject to the overall, centralized adminisirative authority of the Supreme Coint. Ihe importance of tliis concept cannot be over- emphasized. (4) General and Specialized Dixnsions With the absorption of all pre-existing trial courts into a single circuit court, the level of its business corresjjondingly increased. A com- pensating factor was the absorjjtion of the judicial manpower from the abolished courts. Levels of judicial maturity and experience quite naturally may vary among the judicial personnel. Also, particular subject matter may call for specialized treatment, handling and experience, establishing the need for specialized divisions. The specialized division within a court of general jurisdiction is not a novel concept. In Cook County, by assignment, designated judges handled only divorce and sepa- rate maintenance cases. Others handled only a chancery docket; still others dealt exclusively with personal injury litigation. These examples are not exhaustive of this practice. The provision has special relevance to the objectives of an eHicient administration of the judicial business of the court and the maximum effective utilization of the judicial manpower available to the court. Again it is emphasized that the divisional structure within a unified court does not affect the jurisdictional status of the court. Thus in Coleman v. Scott (38 111. 2d 387 (1967)), it was held that an error in assigning a particular claim to a magistrate did not affect the validity of the ultimate judgment rendered by that magistrate, since the error did not affect the jurisdictional power of the court. Although the decision rests on statutory grounds, the validity of the statute, under the constitutional concept of a unified trial court, is implicit in the decision. (5) Abolition of Masters in Chanceiy and Other Fee Officers One of the most troublesome and vexatious practices under the pre- existing Article was the employment, generally in chancery cases, of masters in chancery or other special hearing officers to take testimony and make advisory recommendations to the court. The costs to litigants in many of these cases were enormous. With the larger pool of available judicial manpower in the integrated trial court structure, it was felt that there was neither need nor justification for the continuation of this prac- tice. The elimination of the fee officer is a major achievement in minimiz- ing costs of litigation. (6) Allocation of Judges in Cook County The provisions in this section which provide for a numerical allocation of associate circuit judges in Cook County between the City of Chicago and the remaining area in Cook County were designed to assure equi- Art. VI, § 9 353 table area representation. The provision reflects a natural concern in both the city and suburban areas of a county containing approximately one-half the state's population that the elective process could conceivably result in too large a concentration of judges from either area of the county. Comparative Analysis Better than three-fourths (38) of all state constitutions provide for judicial districts. All but four of these states have flexible provisions allowing the legislature to draw the boundaries of the districts. Only five states, however, require at least one judge from each county, while 27 states require at least one judge from each district. Four states provide that changes in judicial districts will not affect the term of office of any judge. Only eight other states have a constitutional provision abolishing the fee system or prohibiting the use of fees. The states have done away with masters in chancery. The Constitution of the United States, having no express provisions establishing trial courts, understandably has nothing comparable to this section. The Model State Constitution provides that judicial districts may be "provided by law" but fails to mention district representation, general or special divisions, masters in chancery or other fee officers, or other items provided for in this section of the Illinois Constitution. Comment This section, in the breadth and novelty of its concept, is one of the main nerve centers of the new Judicial Article. In detail it has been subject to some criticism. Thus associate circuit judges have expressed concern over a system of classification which they believe unfairly saddles them with the stigma of inferiority. Exercising the full jurisdiction of the court, just as circuit judges, they nevertheless receive smaller salary and a somewhat less prestigious title. It is difficult to assess the problem of classification of judges. Salary differentials may be eliminated by legis- lation, thus removing a primary irritant. In other respects the problem may be simply one of failure in human relations. A fair conclusion, per- haps, is that the criticism may be valid but that it may not, in these still- formative years of the new Article, justify an amendment. This, of course, may be a controversial judgment. Otherwise the section appears to be fulfilling, albeit slowly, the great objectives claimed for it. Circuit Courts — Jurisdiction Sec. 9. The Circuit Court shall have unlimited original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be proj/ided by law. 354 Art. VI, § 9 History There is no parallel in prior Constitutions for the grant of unlimited original jurisdiction to a single trial court. No specific trial courts were created by the 1818 Constitution. Special authorization for the establishment of inferior courts by law was coupled with legislative power to determine the jurisdiction of such courts. The 1848 Constitu- tion was the first charter to designate circuit courts and to define a virtu- ally unlimited jurisdiction "in all cases at law and equity." However, that Constitution initiated county courts and also authorized justice of the peace courts, in recognition of the need for a continuously available judicial service in all counties — a service which could not be provided by a limited number of circuit judges required to sit in all the counties within the circuit. County courts were granted constitutional jurisdiction in probate matters and minor criminal offenses, and such other jurisdic- tion in civil cases as the legislature determined to confer. Justice of the peace jurisdiction was also left to legislative determination. With the expanded number of trial courts authorized by the 1870 Constitution (primarily city, village and incorporated town courts, and probate courts authorized to be established by law), the allocation of fragmented seg- ments of trial court jurisdiction was enhanced. Circuit courts, however, in addition to the constitutionally conferred general original jurisdiction in all cases in law and equity, were to exercise such appellate jurisdiction as the legislature might prescribe. This appellate jurisdiction was imple- mented primarily in respect to cases originating in the county and pro- bate courts. Re-trials de novo from judgments of the nonrecord justice and magistrate courts were not the exercise of appellate jurisdiction but rather the exercise of an original trial court jurisdiction. The proposed 1922 Constitution drew liberally on the 1870 provisions, making only relatively unimportant changes. Explanation The grant of general unlimited and original jurisdiction in all justi- ciable matters is a natural and unavoidable consequence of the single unified trial court structure. With the abolition of all trial courts of limited jurisdiction, the investiture of original and unlimited jurisdic- tion in the integrated trial court follows as inevitably as night follows day. The General Introductory History and the Explanation of Section 1 (supra, pp 338-9) have given the rationale behind the integrated trial court structure, with particular emphasis upon the elimination of vexa- tious problems of jurisdiction. There is no need here to develop that theme. Special mention should be made of the use of the term "justiciable matters" in lieu of the formal terminology of "cases in law and equity." Art. VI, § 10 355 Old-line concepts which distinguished courts on the basis of the nature of the litigation as "law" or "equity" are largely passe in terms of juris- dictional principles. Where the distinction is retained, it is primarily for procedural purposes and not for jurisdictional reasons. If a matter is justiciable, it is within the court's jurisdiction without regard to whether it is a case in law or equity. Justiciability, however, is not a simple or readily definable concept. It involves determination of the existence of legally recognized and protected rights, standing to secure judicial relief, ripeness, timing, exhaustion of remedies, and other principles which concern the rights of persons and the role of the judicial branch of gov- ernment. In the last analysis, justiciability will be defined by the courts, as has been the case in the past, and by the legislature under its power to create new rights and duties and to define them in justiciable terms. Lastly, the grant of power to exercise such powers of review of ad- ministrative action as may be provided by law is the first constitutional recognition in Illinois that administrative agencies exercise power which is commonly the subject of judicial review. The j^rovision reflects the long-standing practice and tradition in Illinois and other states. Its ex- pression as a constitutional principle was deemed important to complete the concept of the totality of the circuit courts' jurisdictional powers. Comparative Analysis No other state has provided for a single trial court with unlimited original jurisdiction. All other states have varying numbers of trial courts of limited jurisdiction. There is nothing comparable in the Constitution of the United States. The Model State Constitution provides that the general trial court shall have original and appellate jurisdiction as provided by law but also authorizes the establishment by law of courts of limited jurisdiction. Comment The section cannot be considered apart from the provisions of Sections 1 and 8 establishing a single integrated trial court. If that concept is affirmed, then this section must also be retained. The operation of the integrated trial court to date has merited the enthusiastic approval of most responsible professional, public and political analysts. It repre- sents what many believe to be the most important single advance in judicial administration effected by the 1962 Amendment. Selection and Tenure — Election or Selection Sec. 10. All of the judges provided for herein shall be nominated by party convention or primary and elected at general elections by the electors in the respective judicial districts, judicial circuits, counties, or units. Provided, how- 356 Art. VI, § 10 ever, the General Assembly may provide by law lor the selection and tenure of all judges provided herein as distinguished from nomination and election by the electors, l)Ut no law establishing a method of selecting judges and providing their tenure shall be adopted or amended except l)y a vote of iwo-ihirds of the members elected to eacii House, nor sliall any metiiod of selecting judges and providing tlieir tenure become law uinil the question of tiie method of selection be first submitted to the electors at the next general election. If a majority of those voting upon the question shall favor tiie method of selection or tenure as submitted it shall then become law. The office of any judge shall bv deemed vacant izpon his death, resignation, rejection, removal or retirement. Whenever a vacancy occurs in the office of judge, the vacancy shall be filled for the unexpired portion of the term by the voters at an election as above provided in this Section, or in sucli other manner as the General Assembly may provide by law as set out in this Section and approved by the electors. Whenever an additional judge is autliorized by law, the office shall be filled in the same manner as in the case of a vacancy. History With the exception of the 1818 Constitution, which provided for the appointment of judges by a joint ballot of the General Assembly and the issuance of a commission by the Governor, the constitutional tradition in succeeding state charters, both 1848 and 1870, provided for the jiopular election of all judges. This developed into the uniform practice of adver- sary political elections with prior nominations either by party convention in the case of Supreme and circuit court judges and primary elections in the case of county, probate and other judges in the judicial system. The 1818 Constitution was silent as to vacancies. The 1848 Constitu- tion simply authorized the General Assembly to provide a method of fill- ing vacancies. The 1870 Constitution elaborated upon this by requiring vacancies of more than one year to be filled by special election and vacancies of less than one year to be filled by appointment by the Governor. The proposed 1922 Constitution differed in several respects from the Constitution of 1870. While all judges (except appellate court judges appointed by the Supreme Court) were to be elected, the proposal con- tained an important innovation, subject to referendum approval by the voters in Cook County, providing for gubernatorial appointments to fill all vacancies on the Cook County circuit court from a list of nominees submitted by the Supreme Cotnt. All judges so appointed were to hold office "during good behavior" but could be removed by vote of the electorate at an election to be held in the sixth or seventh year after appointment. In addition, the Governor was vested with the power to "fill vacancies in elective judicial offices," with no special election limitation on this power. The referendum option for Cook County is remarkably similar to the so-called Missouri Plan which came almost 20 years later. Art. VI, § 10 357 Explanation In the long fight for constitutional retorm there was no issue more controversial or more hotly debated than the method ol selection of judges. Proponents of judicial reform insisted that the abolition of the political method of electing judges was absolutely central to any mean- ingful improvement in the structure and administration of the judicial system. They proposed the so-called Missouri Plan which provided for selection of a panel of nominees by a nonpartisan nominating commis- sion, followed by appointment by the Governor from among such nominees. The appointee would serve a short probationary term and then submit his unopposed candidacy for a full term to the voters of the appropriate district or other geographic unit which he represented. If the voters approved his candidacy on a ballot which simply asked, "Shall Judge Jones be elected to (or retained in) the office of Supreme (or cir- cuit, etc.) Court for a full term?" he would be so elected. If the vote was unfavorable, the nomination and selection process would be repeated until the office was filled. Opponents of this proposal were equally vehement in their insistence that judges, no less than other constitutional officers, should submit to adversary elections in which the voters would have a choice of candidates. The existing method was extolled as a necessary concomitant of a truly free and democratic society. It is a fair assessment that constitutional judicial reform in Illinois would at this time still l)e an unrealized objective if the contending forces had not agreed on the compromise contained in this Section 10. Under this compromise, partisan adversary elections are mandated for all judges (excluding magistrates) in every case of a vacancy, but the non- adversary retention mechanism (running unopposed against the record) is provided for incumbents who seek another term. (The retention princi- ple is contained in Section 1 1 and not in this Section 10.) The compromise further permits a change in the selection and tenure provisions by a law adopted by two-thirds of the members elected to each house of the General Assembly and aj^proved by a majority of the elec- torate at a state-wide election who vote upon the question. Under this provision, a mechanism less rigorous than constitutional amendment per- mits the replacement of the present system of adversary partisan election of judges by the Missouri Plan, or some variation thereof, by a nonpartisan adversary elective process, by appointment by the Governor, or by some other plan conceived by the legislature. In like manner, the retention provision is subject to the same legislative-referendum method of change. Unlike the 1848 and 1870 Constitutions, there is no authority for in- terim special elections or gubernatorial appointments to fill vacancies. All vacancies must be filled by the adversary partisan method of general elec- 358 Art. VI, § 10 tions (defined in Sec. l.S to mean the biennial election at which mem- bers of the General Assembly are elected, infra, p. 363), or it a method has been substituted by the combined legislative-referendum technicjue authorized in this section, by that method. Notwithstanding these explicit provisions for the filling of vacancies, the General Asssembly in 1967 en- acted a law which authorized the Governor, when notified by the Supreme Court of the existence of a vacancy, to fill the vacancy until the next general election. An exercise of this power by the Governor in 1969, shortly before the expiration of his term, was invalidated in People ex rel. Scott xK Powell (42 111. 2d 132 (1969)), as violative of this section. Comparative Analysis Only Illinois has a single constitutional provision establishing a uni- form method of electing all judges. At least five other states, through several different sections, however, establish a uniform method of select- ing all judges. A comparison of the practices, not constitutions, of all states other than Illinois reveals that only 17 states use a uniform method of selecting all judges, 14 by election and three by appointment. {See Council of State Governments, The Book of the States, 1968-69 at 1 10-1 1 1 (1968).) Seven states appoint all judges, though the method varies from court to court within a state. (Id.) Similarly, 16 states elect all judges with different methods within the state. Twenty-six states use a combination of appointments and elections. (Id-) Of the 42 states which use elections, wholly or in part, to select judges, 20 use partisan ballots, 1 7 nonpartisan, and five a combination of both. (Id.) While 15 states, in variable measure as to particular courts, use features of the Missouri Plan of a nonpartisan nominating commission followed by appointment (Id.), only eight have constitutional provisions incorpo- rating the plan. California, in addition, uses a variant of the plan. (Model State Constitution n. 1 at 79.) The methods of filling vacancies also vary a great deal from state to state, and often within a state according to the court involved. Nine states have constitutional provisions authorizing an appointment to fill judicial vacancies until a successor is qualified. Four states provide for appointments to fill the vacancy for the remainder of the term. Three states provide for filling vacancies as provided by law. All federal judges are appointed by the President wutfi the advice and consent of the Senate. The Model State Constitution provides that all judges shall be ap- pointed by the governor with the advice and consent of the legislature. As an alternative, the Model provides for appointment by the governor from a list of nominees presented to him by a judicial nominating com- mission made up of the Chief Justice of the Supreme Court, three elected members from the local bar, and three citizens appointed by the governor. Art. VI, §11 359 Comment The controversial nature of the selection and tenure provisions of this section and Section 1 1 has not diminished. Proponents of the Missouri Plan, or a variation thereof, which eliminates the adversary political elective feature, may insist that this concept be mandated by the Consti- tution rather than being made a contingent alternative by legislative action and electorate referendum. On the other hand, opposition has manifested itself in some quarters to the retention features (Sec. II) whereby the uncontested election or retention virtually assures, as it was intended to do, a more permanent, if not indeed an indefinite, tenure for incumbent judges. The issue is volatile, politically explosive and emotionally charged. The advocacy in respect to both election and tenure will probably be intense and unyielding from both sides of the issue. It is impossible to suggest an appropriate Convention resolution without being charged with bias and other lack of objectivity. In the last analysis, therefore, the resolution of this issue will depend on the Convention's sense of logic and principle as it is fashioned by the contending forces. It is important to note, however, that most recent constitutional proposals have incorpo- rated the so-called Missouri Plan of selection and tenure for all or part of their judiciary. As noted in the Comparative Analysis, there is a growing measure of acceptance of this principle. In respect to the vacancy issue, it would appear desirable to authorize a method of interim appointments (assuming the elective method of selec- tion is retained). The Bar Association proposals suggested emergency temporary appointments but, for reasons not clear, the final legislative draft in 1961 omitted any authorization for temporary vacancy appoint- ments. It seems that the issue here should not b£ controversial and that logic and principle support the inclusion of such authorization. Selection and Tenure — Retention in Office Sec. 11. Not less than six months prior to the general election next pre- ceding the expiration of his term in office, any judge previously elected may file in the office of Secretary of State a declaration of candidacy to succeed himself, and the Secretary of State, not less than 61 days prior to the election, shall certify such candidacy to the proper election officials. At the election the name of each judge who has filed such a declaration shall be submitted to the voters, on a special judicial ballot without party designation, on the sole ques- tion whether he shall be retained in office for another term. The elections shall be conducted in the appropriate judicial districts, circuits, counties and units. The affirmative votes of a majority of the voters voting on the question shall elect him to the office for another term commencing the first Monday in December following the election. Any judge who does not file a declaration within the time herein specified, or, having filed, fails of re-election, shall vacate his office at the expiration of his term, whether or not his successor, who shall 360 Art. Vi, § 1 1 be stli'( led ioi a lull urm puisuaiit to Sec lion 10 ol this Anide, shall yet have (jiialificd. Any law rccliuing the iiunibcr ol judges ol tiie A])]nllale (louri in any District or the number of C.irtuit or associate judges in any circuit shall be without prejudice to the right of judges in office at the time of its enactment to seek retention in odicc as hereinabove provided. History There is, of course, nothing in the C^onstittitions of 1818, 1848 or 1870 whicli parallels the retention features in the present Section 11. The 1922 Con\ention projjosal contained a j)rovisic:)n in some as])ects comparable to the retention feattire for circuit judges in Cook County. (See History. Sec. 10, supra, p. 356.) The history of selection, including election, and tenure, under those instruments is set forth under Section 10. The 1(S70 Constittition and the proposed 1922 Constittition hotli preserved the tentne of circtiit jtidges where a change in circuit botnidaries occurred. Explanation The Explanation imder Section 10 is ecjtially relevant here, since reten- tion is the second phase of the so-called Missouri Plan of selection and tenure. However, some brief additional observation may be helpful. Pro- ponents of the "rtmning against the record" method of retention can- didly concede that this virttially assures indefinite tenure. Experience in Illinois and in other states establishes that an incumbent is rarely voted out of office in an tmcontested submission of his candidacy. As an alter- native to the sometimes imhappy experience of tying a judge's expectancy for retention to the political process, and as a means of freeing jtidges from political influences and establishing their independence from political controls, the advocates of the retention plan are willing to accept the risk that an incompetent judge may not be subject to removal by the electorate. On the other hand, opponents of this plan cite this assured tenure as being productive of judicial "arrogance" in judges who no longer need curry the favor of political parties or the electorate. There is probably a modicum of truth in this latter charge, but to generalize and apply it to the judiciary as a whole or in significant part is assuredly inaccurate and unfair. Many judges seeking retention are indeed con- cerned with and apprehensive about voter approval and public and professional assessment of their competence in other unofficial appraisals. Thus the issue narrows to the priority to be given to the concept of judicial independence and freedom from political controls or restraints. Proponents of the retention provision give this the highest priority; they believe that the administration of justice absolutely demands a judiciary freed from traditional political controls. Opponents are equally certain that the political adversary process is an indispensable aspect of the democratic process. Art. VI, § 12 361 Several important decisions have interpreted this section. People ex rel. Barrett v. Barrett (31 111. 2d 360 (1964)) held that the constitutional requirement of a "special judicial ballot" (without party designation) precluded the use of voting machines in retention elections as authorized by law. In People ex rel. Nachman v. Carpentwr (30 111. 2d 475 (1964)), a statute which required a sitting judge to vacate his office if he sought election to another judicial office was invalidated as an unauthorized legislative addition to the constitutionally prescribed and limited quali- fications and conditions for judicial office. It is important to note that, though the new judicial Article reserves to the legislature the authority to determine the number of appellate, circuit, and associate circuit judges, this section precludes a reduction vvhich affects the status of incumbent judges or their right to seek retention in office. This provision was deemed necessary to assure incumbents that their tenure was not subject to unreasonable or whimsical legislative determinations to lessen the number of judges. It is a factor related to recruitment of competent candidates for judicial office, and to the neces- sity of providing assured tenure. The Model State Constitution, which provides for the appointment of all judges, contains no similar provision. Comparative Analysis Four other states provide for general trial court judges to run for retention unopposed. Only two states, however, provide for such run-on- record elections of appellate court judges. Siy^ states, other than Illinois, have similar constitutional provisions for re-election of incumbent high court judges. In practice, nine different states employ, at least in part, a run-on-record election at some level for judicial selection. The Consti- tution of the United States provides for tenure during "good Behavior after initial appointment." Comment The Comment under Section 10, as well as the Explanation under this section, leaves little room for additional treatment. Perhaps one yet un- remarked point should be noted. Proponents of nonpolitical selection and tenure of judges believe that tenure (running against the record) is best related to an initial nonpolitical, nonelective method of selecting judges. They are not particularly happy with a system which virtually assures lifetime tenuie for judges initially elected by the routine adver- sary political process. This factor must be considered in the overall evaluation of the selection and tenure provisions of Sections 10 and 11. Selection and Tenure — Appointment of Magistrates Sec. 12. Subject to law, the circuit judges in each circuit shall appoint 362 Art. VI, § 12 magistrates to servt- at tlicir pleasure; provided, that in C^ook County, until and unless changed by law, at least one-lourtii of the magistrates shall be appointed from and reside in the area outside the corporate limits of tiie Ciity of C;hicago. History There is no prior constitutional history which is truly relevant to the present section. The magistrates aiithori/ed by .Section 12 have no constitutional relationship to the justices of the peace and police magistrates of prior Constitutions. Those officers were elected for specified terms, exercised a very limited civil and quasi-criminal jurisdiction as established by law, were not judges of courts of record, and in the case of justices of the peace, administered justice by the much-condemned fee system which was finally legislatively abolished in 1961. Although there is a measure of similarity in respect to the kinds of cases tried, there is no other relationship. The proposed 1922 Constitution dealt with justices of the peace and magistrates in the same manner as prior Constitutions. Explanation Section 8 contains the first reference in the Judicial Article to magis- trates. As indicated in the Explanation of that section [supra, p. 350), the magistrates are a part of the three-tiered classification of trial judges which consists of circuit judges, associate circuit judges, and magistrates. The cases to be assigned to them are determined by the legislature. The legislature did act in 1963 and in subsequent sessions, and maintained, in general, the principle of assignability to magistrates of the kinds of cases theretofore handled by justice and magistrate courts. Significantly, how- ever, there has been an expansion in several areas, as well as increases in the monetary maximiun which had severely circumscribed the "jurisdic- tion" of old justice and magistrate courts. Because magistrates are now an integal part of the circuit court judi- ciary, it is no longer proper to speak of their "jinisdiction." This Article, Section 8, carefully states that the matters "assigned to magistrates" shall be determined by law. Constitutionally, however, magistrates can exer- cise the full jurisdiction of the circuit court. (Coleman v. Scott, 38 111. 2d 387 (1967).) The judgn]ents of magistrates, unlike those of prior justices of the peace and police magistrates, are judgments of record, carrying the full authority and official imprimatur of the circuit court. These judgments are thus reviewable directly by either the appellate or Supreme Court in accordance with the appellate jurisdictional prin- ciples already discussed. Magistrates differ from their judicial brethren, however, in several major respects. They are appointed and serve at the pleasure of their circuit judges (this term does not include associate judges of the circuit Art. VI, § 12 363 court) instead of being elected to office for constitutionally specified terms, and they are not within the tenure provisions of Section 11, e.g., running against their records. The "at pleasure" principle was intro- duced largely on the premise that magistrates would initially be drawn from lawyers of a lesser degree of experience and maturity than the other judges, and that their service should be subject to a continuing and closer critique and administrative supervision than other trial judges, with broader and more flexible powers of removal for incompetence or other good cause. To assure an equitable distribution of magistrates between Chicago and the Cook County area outside of Chicago, this section, as in the case of associate circuit judges in Chicago and Cook County (Sec. 8, supra, pp. 348-9) allocates one-fourth of the magistrates to the county areas out- side of Chicago. Unlike the associate judge allocation, however, the per- centage division of magistrates between the two areas of Cook County is subject to legislative change. Comparative Analysis No other state constitution contains a similar provision. As noted earlier, no other state has established a single general trial court of un- limited jurisdiction as has Illinois. The Model State Constitution is silent on the subject. Comment The "at pleasure" provision of this section has caused considerable unhappiness, not without justification, among magistrates. With a tenure wholly subject to the judgment and discretion of the circuit judges, the magistrates understandably live in a climate of constant apprehension. In Cook County the circuit judges have somewhat alleviated the problem by an administrative designation of one-year appointments. In down- state circuits the "at pleasure" status remains. The problem is more than one of effective control over the least-experienced segment of the trial judiciary. It involves recruitment and retention of qualified personnel. In most cases, qualified lawyers who are interested in a judicial career will not give up their practice for an office whose tenure is so precarious. Although there is no evidence of arbitrary exercise of the "at pleasure" principle through unwarranted dismissals from service, the problem nevertheless remains. The serious nature of this issue has led to the forma- tion of a special committee of the Illinois Judicial Conference which is now studying possible legislative or judicial approaches to strength- ening the tenure of magistrates. This issue deserves the serious consider- ation of the Convention. 364 Art. VI, § 13 Selection and Tenure — General Election Sec. 13. As used in this Article, the term "general election" means the biennial election at which nienibcrs of the General Assembly are elettecl. History There are no antecedents to this section in any prior lUinois Constitu- tion or in the proposed 1922 Constitution. Prior provisions mandated elections ol all classes ot judges (beginning in 1848) but the time or nature ot the election was not tied to any constitutional mandate. Legis- lative implementation was not consistent. Many judicial elections were held at the time ot the general elections in November ot even-numbered years. Others were lield at ditferent times. Explanation The recpiirement that judges be elected at general elections, defined as the biennial election for members of tlie General Assembly, has a purposeful relationship to the election and tenure provisions of Sections 10 and 11. Initial adversary political elections, wlien held previously at times other than the general November elections, produced little voter interest or participation. The apathy was oppressive and the percentage of voter participation alarmingly low. The result was a contest which was a poor retfection ot the desirable concept of substantial electorate paticipation. More importantly, however, with the adoption of the tenure provisions ot Section 11, e.g., a judge running uncontested against his record, the necessity for assuring a large measure of voter participation was thought to be of utmost importance for two reasons. The first was that the novel elective method, designed to assure a greater degree of tenure than was normally possible in contested elections, recjuired larger voter partici- pation to justify the judginent of retention in office or rejection of an incumbent. Secondly, since it was more than a remote possibility that an incumbent might be voted out of office by a small segment ot the electorate determined, for reasons good or bad, to be rid of trim, an election held at times other than the general election, with a minimum voter turnout, could unfairly accomplish the intended result. By requiring retention elections to be held with general elections as defined, this possibility is blunted without destroying the legitimacy ot appropriate campaigns to remove an incumbent for a cause thought to be adequate by any segment ot voters. Comparative Analysis No other state constitution contains a similar provision. The same is true also of the Model State Constitution. Art. VI, § 14 365 Comment The rationale behind this provision, whether or not elections continue initially to be adversary or the retention provision is maintained, seems sound. There is little in history or experience which commends a return to elections for judges at times other than general elections. Selection and Tenure — Terms of Office Sec. 14. The term of office of judges of the Supreme Court and of the Appellate Court shall be ten years and of the circuit judges and associate judges of the Circuit Courts six years. History All judges held office during "good behavior" under the 1818 Con- stitution. Fixed terms were constitutionally introduced in 1848 and con- tinued in 1870. Under both latter Constitutions, Supreme Court judges held nine-year terms; circuit judges (and Superior Court judges in Cook County), six years; county and probate judges, and justices of the peace and magistrates, four years; and jtidges of the Municipal Court of Chicago and of other municipal, city, village and town courts authorized by law, six years. The 1922 Convention proposal provided a ten-year term for Supreme Court judges; six years for appellate, circuit and county court judges; and two years for justices of the peace. Explanation It is generally conceded that judges, in order to assure the recruitment of competent men into service, and their independence from political ties and inffuences customarily present and acceptable for nonjudicial officers, should have a substantial measure of constitutionally prescribed tenure. This is reflected in the Federal Constitution and in the constitutions of several states which provide for tenure based on "good behavior." This, for all practical purposes, is the equivalent of life tenure. In several other states, the fixed tenure exceeds substantially the terms specified in this section. (See Comparative Analysis below.) The contrary view holds that all elective officers exercising govern- mental power, including judges, should be subjected to periodic and relatively frequent voter evaluation, lest they be tempted to abuse the power exercised by them. However one views the merits of these positions, the provisions of this section establishing ten-year terms for Supreme and appellate cotirt judges, and six-year terms for circuit and associate judges of the circtiit court, are hardly a significant departure from the long-established consti- tutional and statutory tradition in this state, as the History of this section 366 Art. VI, § 14 attests. The terms designated, however, must be viewed in the light of tlie tenure provisions of Section 1 1 which provide for the nonadversary run- ning against the record. This factor, for all practical purposes, gives added dimension and scope to the fixed terms specified in this Section 14. Also, it is again important to recall that neither the specified terms of this section nor the retention provisions of Section 1 1 apply to magis- trates of the circuit court, all of whom serve at the pleasure of the circuit judges. The only significant decision to date respecting tenure is People ex rel. Nachman v. Carpentier (30 111. 2d 475 (1964)) which, as already noted, held invalid a legislative attempt to recpiire an in- cumbent judge to relinquish his office if he sought election to another judicial office. Comparative Analysis While over three-fourths of the states have constitutional provisions respecting the terms of office of high court and general trial court judges, only one-fifth have provisions for appellate court terms. Only nine other states have provisions for terms of office for all three courts. No other state sets a ten-year term for high court judges. Terms pro- vided by the other state constitutions vary from two years in Vermont to 21 years in Pennsylvania. The most frequently established terms are six years (13 states) and eight years (eight states). Only one state provides a term of "during good behavior." Several states provide terms as estab- lished by law. Only ten other states provide a term of office for appellate court judges. These terms vary, extending to a maximum of 12 years in several other states. One state provides that the term shall be set by law. Thirty six states, other than Illinois, set a term of office for general trial court judges, ranging from two years in Vermont to 14 years in New York. Most popular are terms of four years, in 13 states, and six years, in 13 states. Three states provide terms as prescribed by law. The Model State Constitution provides that all judges shall hold office for seven years and upon reappointment during good behavior. Only one state. New Jersey, follows the Model Constitution principle. The Constitution''of the United States provides for appointment and tenure during good behavior. Comment The terms specified in this section fall within generally accepted constitutional and statutory designations and agree substantially with the pre-existing standards in this state. Apart from the relevance of this section to the tenure provisions of Section 11, and the "at pleasure" tenure of magistrates (Section 12), in respect to which analysis and Art. VI, § 15 367 comment have already been made, ihere appears to be no quarrel with the tenure provisions of this section. Selection and Tenure — Eligibilty for Office Sec. 15. No person shall be eligible for the office of judge unless he shall be a citizen and licensed attorney-at-law of this State, and a resident of the judicial district, circuit, county or unit from which selected. However, any change made in the area of a district or circuit or the reapportionment of districts or circuits shall not affect the tenure in office of any judge incumbent at the time such change or reapportionment is made. History The Constitution of 1818 contained no provisions pertaining to eligi- bility for judges. The 1848 Constitution, in contrast, dealt with eligibility in detail, prescribing for all judges a United States citizenship status, a five-year state residency requirement, and a two-year residency require- ment in the division, circuit or county in which elected for service in courts of limited geographic area. In addition, age requirements, 35 and 30 respectively, were established for Supreme and circuit court judges. The 1870 Constitution continued the 1848 requirements of citizenship and state residency, required geographic residency^ but without a mini- mum specified term, and reduced to 30 and 25 years, respectively, the age requirements for Supreme and circuit judges. In addition, all the foregoing recpiirements applicable to circuit judges were made applicable to the "judge of any inferior court." None of the prior Constitutions required a licensed-attorney status. The proposed 1922 Constitution contained no citizenship requirement, and judges were merely required to reside in the district, circuit or county for which they were selected. Judges of the Supreme, appellate and circuit courts were required to be at least 35 years of age and for ten years' a licensed and practicing attorney or judicial officer. County court judges were required to be at least age 30 and to be licensed and practicing for five years. It also contained a provision whereby alterations in circuits would have no effect upon the term of any judge. Explanation The first important observation is that the provisions of Section 15 have no application to magistrates of the circuit court. The careful restriction of the language to the "office of judge," here and in other provisions of the Article, clearly confirms this conclusion. The legislature, however, has enacted its own eligibility requirements for magistrates. (111. Rev. Stat. ch. 37, §§ 160.1-160.5 (1967).) A licensed-attorney status is required, subject to limited exceptions for justices of the peace and police magistrates in office on January 1, 1964, the effective date of the 368 Art. VI, § 15 Judicial Article Amendment, and for circuits which have no available resident attorneys. (111. Rev. Stat. ch. 37, § 1(30.3 (1967).) The present constitutional section retains the citizenship and general current geographic residency rec|uiremcnts ol prior Constitutions, elimi- nating the minimimi age and five-year state residency requirements, but adding the licensed-attorney-at-law requirement. The attorney require- ment assures, at the least, a minimum age geared to the degree and bar examination requirement, normally age 21. Pre-existing age and state residency requirements were thought to be unduly restrictive and prac- tically dubious as constitutional standards. The normal process of selec- tion or election of judges should reasonably assure a judiciary sufficiently mature in age and, hopefully, experience. Reference is again made to People ex rel. Nnchman v. Carpenlier (30 111. 2d 475 (1964)), which held that legislative attempts to add to eligibility requirements for judges under this section will not be tolerated. The second sentence of this section is not new. The 1870 Constitution contained a similar provision. It is designed to protect incumbents in their tenure against legislative changes or reapportionment in district or circuit areas. Comparative Analysis No state has an identical provision. The constitutional requirements for judicial officers not only vary from state to state, but also vary from court to court in nearly all states. Nearly half the states require that a general trial judge be an attorney. Aside from Illinois, only six states require him to be a citizen of the state. Eleven states provide that trial judges must be citizens of the United States. Eleven, including Illinois, require that he reside in the district from which he was selected. Only one-fifth of the states, however, require that an appellate judge be an attorney. Five other states provide that he nuist be a citizen of the state and three require him to be a citizen of the United States. Only two other states require that an appellate judge reside in the district or circuit from which he is selected. Seventeen states provide that all high court justices be attorneys. Nine require justices to be citizens of the state, while 13 require them to be United States citizens. Only five other states provide that a high court judge reside in the geographical unit from which he is selected. While Illinois sets no age requirements, many states do. Nearly two- fifths of the states set a minimum age for both high court and general trial judges. These qualifications range from 25 to 35 for high court judges and from 25 to 38 for general trial court judges. The most common requirement for the high court is 30 (13 states) and the most common Art. VI, § 16 369 for general trial court judges are 25 (seven states) and 30 (six states). All five states setting a minimum age for appellate court judges require him to be at least 30. The Constitution of the United States established no age, citizenship or residency requirements. The Model State Constitu- tion provides that all judges must have "been admitted to practice law before the supreme court for at least .... years." Comment It is difficult to quarrel with the eligibility provisions of this section other, perhaps, than in its inapplicability to magistrates. As to the latter, the gap, to some extent, has been filled by legislation, but the importance of the subject may deserve constitutional treatment. Professional or other criticism of this section is virtually nonexistent in its applicability to judges. General — Prohibited Activities Sec. 16. Judges shall devote full time to their judicial duties, shall not engage in the practice of law or hold any other office or position of profit under the United States or this State or any municipal corporation or political subdivision of this State, and shall not hold office in any political party. Compensation for service in the State Militia or the armed forces of the United States for such periods of time as may be determined by rule of the Supreme Court shall not be deemed "profit." History The 1848 Constitution first expressed a limitation upon judges in its provision which barred Siq^reme and circuit court judges from eligi- bility for any other state or federal office of public trust or profit during their elective terms and for one year thereafter. The 1870 Constitution, in its Legislative Article (Art. IV, Sec. 3), disqualified judges generally from having a seat in the General Assembly and, even more expansively, pro- hibited any person holding any office of honor or profit under any foreign government or the government of the United States (except post- masters earning less than $300 annually) from holding any office of honor or profit under the authority of the state. (See, however, interpretation of this provision in regard to eligibility of officers as members of the Constitutional Convention (Livingston v. Oglivie, — 111. 2d — (1969)); also. Explanation, Art. IV, Sec. 3, supra, p. 123.) In its Judicial Article (Art. VI, Sec. 16), the 1870 Constitution provided that judges of the Supreme and circuit courts could neither receive "any other compensa- tion, perquisite or benefit, in any form whatsoever, nor perform any other than judicial duties to which may belong any emoluments." Neither of the prior Constitutions contained a ban on the holding of office in any political party, but presumably such office could fall within the other general proscriptions. No judicial interpretations exist on this or other 370 Art. VI, § 16 provisions or issues raised by the 1818 and 1870 provisions. The proposed 1922 Constitution, in its specific application to judges, provided that "[n]o justice of the supreme court or judge of any court of record . . . shall receive any compensation, perquisite or benefit other than his salary or engage in the practice of law." Explanation The provisions of this section are not markedly dilicrent from the prior constitutional restraints noted in the History, with the single excep- tion of the ban on holding office in a political party. This addition reflects and emphasizes the concern explicit or iiiij)li(it throughout the Article and its history relative to the removal of judges as far as possible from political relationships and influences. The provision excluding compensation for service in the State Militia or the armed forces of the United States from the definition of profit finds a partial parallel in Article IV, Section 3, of the 1870 Constitution already alluded to in the Histoiy. This section has no application to magistrates. However, the General Assembly, in its 1963 law pertaining to magistrates (111. Rev. Stat. ch. 37, § 160.5 (1967)), enacts langtiage identical to this section of the Constitu- tion, thus applying the full thrust of the prohibitions to them. Comparative Analysis No other state prohibits all judges from engaging in all three activities: the practice of law, dual ofhce holding, and holding an ofhce in a political party. Nineteen other states, however, prohibit all judges from practicing law. One state places this restriction only on some judges. While 38 other states have a provision respecting dual office holding, only 30 prohibit all judges (with minor exceptions such as special judges and jtistices of the peace in some cases) from holding another office. Only three other states provide that all judges may not hold an office in a political party, though three others jjlace such a restriction on some judges. Those states placing similar restrictions on some, but not all, judges typically place them on higher court judges only. The Constitution of the United States has no comparable provisions. The Model State Constitution provides that Supreme, appellate and general trial court judges "shall [not] hold any other paid office, position of profit or emjjloyment under the state, its civil divisions or the United States." Comment The provisions of this section are relatively standard and no serious challenge to them has been made. Again it may be desirable, as in the case of the eligibility provisions of Section 15, to extend the constitu- Art. VI, § 17 371 tional sanctions to magistrates, rather than to rely upon legislative im- plementation. The Bar Association draft proposals in fact applied both Section 15 and Section 16 to magistrates but for reasons unknown, the legislature modified the sections to exclude magistrates. General — Judicial Salaries and Expenses Sec. 17. Judges and magistrates shall receive for their services salaries pro- vided by law. The salaries of judges shall not be diminished during their respective terms of office. Judicial officers may be paid such actual and necessary expenses as may be provided by law. All salaries and expenses shall be paid by the State, except that judges of the Appellate Court for the First District and circuit and associate judges and magistrates of the Circuit Court of Cook County shall receive such additional compensation from the county as may be provided by law. History The constitutional history of judicial salaries has followed a curious pattern. The 1818 Constitution established a temporary fixed salary for Supreme Court judges, but established a permanent principle of salaries fixed by law for all judges, which could not be diminished (increase thus permitted) during their terms of office. The 1848 Constitution estab- lished fixed and unchangeable salaries of $1,200 and $1,000 per annum for Supreme and circuit court judges, respectively, while the salaries of county judges were to be set by law. The 1870 Constitution established annual salaries of $4,000 and $3,000 for such judges, respectively, but authorized legislative change, subject to the limitation that such salaries could not be increased or diminished during a term of office. That Con- stitution also authorized supplemental compensation to be provided by Cook County for its circuit and Superior Court judges. The county board was empowered to fix the salaries of all county offices. County judges, and, inferentially probate court judges, were within this cate- gory of county officers. All other comts being established by law, the General Assembly thus fixed the salaries of the judges of such courts. The 1870 Constitution was silent as to who assumed the obligation of judicial salaries. By law the state paid Supreme, appellate (temporarily assigned circuit and Cook County Superior Court judges), and circuit and Superior Court judges (with Cook County supplement as noted). Also the state paid the salaries of city, village and incorporated town judges; shared with counties the salaries of county and probate judges, and the judges of the Municipal Court of Chicago, but saddled the burden of other muni- cipal court judges upon the cities and villages which established such courts. Until 1961, justice of the peace courts were fee offices, but there- after and until January 1, 1964, the justices' salaries were fixed by law and paid by the counties. The proposed 1922 Constitution provided for salaries to be paid by 372 Art. VI, § 17 the state tor Supreme, appellate, circuit aiul county court judges, and authorized Cook County supplementation for its appellate and circuit court judges. It omitted the provision ol the 1870 Constitution barring increases or decreases in salary dining terms ol office. Explanation The significant provisions of the existing Article are (1) the assumption, as a state obligation, of the salaries and expenses of all judges and magis- trates (retaining, however, the authorization for Cook County supple- mentation and extending its application to appellate judges elected from the Cook County judicial district, all circuit and associate circuit judges, and magistrates of that district), and (2) prohibiting decreases, but not increases, of salaries during terms of office. All salaries are left to legis- lative determination. (See also ConnncuL Art. IX, Sec. 11, infra, p. 476.) The imposition upon tlie state of the obligation for all judicial salaries and expenses gives explicit constitutional sanction to the princi- ple that judicial service, whatever may be the geographic areas from which judges are elected, is a state service. The achninistration of justice thus assumes coordinate status with constitutional state officers in Executive and Legislative Departments of government. This principle had in fact been long established under the State Judges Retirement Act, wherein the state alone was considered the governmental employer responsible for the employer contributions for the judges of all courts of record who had opted to become members of the system. Comparative Analysis Four-fifths of the state constitutions provide that judicial salaries may be fixed by law. Only one state sets a rigid salary, and only three set maxi- mums or minimums. Seven other states expressly provide for payment of expenses. More than half the states place a constitutional restriction on in- creases or decreases during a judge's term. The pattern varies substantially as to the obligation for payment of salaries, with local governments assum- ing all or part of the salary obligation in the case of trial courts. Comment The principle of state responsibility for all judicial salaries is a con- stitutional extension of what had been for the most part a combined constitutional and legislative policy under the 1870 Constitution. It may be argued with justification that county or municipal responsibility in the first instance, for judicial salaries, whether or not shared by the state, demeans the nature of judicial service and even the judicial office. The provision regarding Cook County supplementation stands perhaps on a different plane because the primary responsibility is the state's. The tradition of Cook County supplementation goes back to the 1870 Consti- Art. VI, § 18 373 tution and is based on the premise that the cost of living in Cook County is, as a generality, higher than in the remainder of the state. There is some unhappiness with this authorization among some downstate judges who believe the provision is unjustifiably discriminatory. It is not known whether this concern has created a conviction that a change is necessary. Perhaps of greater importance is the existing legislative classifica- tions which establish differentials in salary between associate and circuit judges. Again, it is hard to gauge this problem from a constitutional point of view. Unlike the county supplementation authorization which is limited to Cook County, the other problems of salary differentials are wholly legislative. Since the legislature can rectify any differential it believes to be discriminatory, the necessity for constitutional consider- ation would appear to be less evident. General — Retirement, Suspension and Removal Sec. 18. Notwithstanding the provisions oi this Article relating to terms of office, the General Assembly may provide by law for the retirement of judges automatically at a prescribed age; and, subject to rules of procedure to be established by the Supreme Court and after notice and hearing, any judge may be retired for disability or suspended without pay or removed for cause by a commission composed of one judge of the Supreme Court selected by that court, two judges of the Appellate Court selected by that court, and two circuit judges selected by the Supreme Court. Such commission shall be convened by the Chief Justice upon order of the Supreme Court or at the request of the Senate. Any retired judge may, with his consent, be assigned by the Supreme Court to judicial service, and while so serving shall receive the compensation applicable to such service in lieu of retirement benefits, if any. History These provisions have no coiuiterpart in prior Illinois constitutional history. The 1818 Constitution provided in its Legislative Article (art. II, § 23) that the Governor "and all other civil officers under this state" could be impeached for any misdemeanor in office. That this applied to judges seems clear from that Constitution's provision in its Judicial Article (art. IV, § 5) that for any reasonable cause "which shall not be sufficient ground for impeachment" judges of the Supreme and inferior courts could be removed from office by a two-thirds vote of each house of the legislature. Substantially identical provisions appeared in the 1848 Constitution. The 1870 Constitution continued the general impeach- ment provision for the Governor and "all civil officers of this State," and in the Judicial Article (Art. VI, Sec. 30) authorized the General Assem- bly "for cause entered on the journals" and after "due notice and oppor- tunity of defense" to remove any judge from office upon a three-fourths vote of the members of each house. 374 Art. VI, § 1 8 The j)roj)Osed 1922 Constitution was the same with respect to jucUcial removal as the 1870 Constitution cx(e]H the ])roposal also provided that appellate court judges (appointed l)y the Supienie Court) could be re- moved by the Supreme Comt "lor gootl cause shown oi record." Explanation The relationship of the general impeachment provision in the 1870 Constitution to the special provision for legislative removal of judges is not clear. One decision, Dounhue v. County of Will (100 111. 91, (1881)), treats the phrase "all civil officers of the state" in Article V, Section 15, and determines that it is inapplicable to all officers who by Article 10 of the Constitution are designated as comity officers. This designation included county judges who were thus inununi/ed from impeachment. The question is important since Article V, Section 15, is still very much a part of the existing Constitution. Its relation to Section 18 of Article VI, now under discussion, which authorizes a judicial commission for the suspension or removal of any judge for cause is not spelled om in Article VI. The commission is to be convened by the Chief Justice u])on order of the Supreme Court or at the request of the Senate. The ques- tion is as to the effect of this provision on the impeachment provision re- garding civil offices of the state in Article V, Section 15. On the one hand, it may be argued that the removal provisions of the new section are exclu- sive and constitute an implied repeal of the impeachment provisions in Article V as applied to judges. Authority for such an interpretation can be found in City of Chicago v. Reeves (220 111. 274 (1906)), wherein the Court held that the adoption of Article IV, Section 34, of the Consti- tution pursuant to which the office of justice of the peace in Chicago was abolished upon the establishment of the Municipal Court of Chicago, though in fact an amendment of Article VI, was not thereby invalid, the amendment toeing incidental to the primary objective of Article IV, Section 34. On the other hand, an interpretation that the suspension and removal provision in this new Section 18 left intact the wholly inde- pendent power of impeachment for misdemeanor in office would not be unreasonable, especially since "cause" for removal or suspension is not defined in Section 18. The issue probably cannot be resolved short of liti- gation or constitutional clarification. It is noted here because in recent months the role of the Courts Commission established under Section 18, and the powers to be exercised thereunder, ha\e been relevant in several instances of alleged dereliction in office by judges. In addition, the recom- mendation of a specially convened Joint Committee of the Illinois and Chicago Bar Associations for a revision of Supreme Court Rule 51 which established the Illinois Courts Commission to deal with cases of removal or suspension has been adopted by the Supreme Court. The issue may Art. VI, § 18 375 prove troublesome if at any time the General Assembly determines to invoke the impeachment provision in Section 15 of Article V. It is noted, however, that the explanatory statement of the Joint Committee on the Judicial Article of the Illinois State and Chicago Bar Associations, which provided an interpretation of the 1953 proposal, indicated that this section was not intended to disturb the legislative impeachment power. Two additionally important constitutional principles introduced by this Section 18 are (1) authorization to the General Assembly to provide for the retirement of judges automatically at a prescribed age (imple- mented by law in 111. Rev. Stat. ch. 37, §§ 23.71, 23.72 (1967)), providing an automatic retirement age of 70 subject to deferred retirements for pres- ent incumbents for certain periods), and (2) authorization to use the serv- ices of a retired judge with his consent. In addition, provision is made for retirement for disability by rule of the Supreme Court, in addition to suspension without pay or removal. Supreme Court Rule 51 covers this aspect through the Courts Commission authorized by that rule to im- plement Section 18. The composition of the Courts Commission author- ized by this Section 18 includes Supreme, appellate and circuit court judges, and, by its terminology, inferentially excludes associate circuit court judges from appointment to the commission. Comparative Analysis About half the states have constitutional provisions concerning the retirement of judges. A little more than half of these, about one-third of all states, set a specific retirement age. The remainder provide for a retirement age as established by law. Fourteen states other than Illinois provide for the assignment of retired judges to judicial service. All states provide a constitutional method of removal. Forty-six states, have an impeachment provision. Twenty other states provide for a judicial commission or similar court on the judiciary. Twenty-eight states provide for address, a formal request by the state legislature asking the governor to remove a judicial officer. Seven utilize the recall, typically a petition for a new election filed by the electorate. Only four states provide for a special board dealing with involuntary retirement of disabled judges. The Constitution of the United States provides for legislative im- peachment but is silent on suspension and removal for cause, or retire- ment for age and disability, by any judicial tribunal. The Model State Constitution provides for a retirement age of 70 and the appointment of retired judges to special judicial assignments. The Model also provides that appellate and general court judges may be removed for cause by the Supreme Court. Under the Model State Consti- tution all judges are subject to impeachment. 376 Art. VI, § 19 Comment Impeachment and the akernative removal authority by General As- sembly action (see History, above) are apparently ineffective devices tor the removal or suspension of judges for cause. The mechanism authorized by Section 18 was thought to provide a more effective device for such re- moval or retirement for disability. In fact, the existence of this device has, on several occasions, caused allegedly offending judges to resign rather than face the proceedings before the Courts Commission. It is not possible to assess the effectiveness of this method. The revision of Rule 51 seeks to strengthen the concept. The principle of a judicial removal technique appears sound and is a device more and more utilized by other states. (See Comparalive Analysis.) In the final analysis, the effectiveness of this mechanism will depend upon the vigilance of the pulDlic and the bar and the desire and dedication of the officers in tfie judicial system, in whom administrative power is vested, to make it work. The compidsory retirement provisions and the provision for volun- tary service for retired judges make good sense and are not subject to serious criticism. It may be desirable to clarify the impeachment problem discussed above. If legislative impeachment of judges is to be assured, the Constitution should be amended to remove the existing uncertainty. General — Judicial Conference Sec. 19. Tlie Supreme Court shall provide by rule for and sliall convene an annual judicial conference to consider the business of the several courts and to suggest improvements in the administration of justice, and shall report thereon in writing to the General Assembly not later tiian January thirty-first in each legislative year. History The provision that the Supreme Court convene an annual judicial conference is novel in Illinois constitutional history. The requirement that the conference suggest improvements in the administration of justice and report thereon to the General Assembly appears to be a lineal descendant of Article VI, Section 31, of the 1870 Constitution, but in fact it is quite different in scope and purpose. The f870 provision required (1) judges of inferior courts of record to report to the Supreme Court annually "such defects and omissions in the laws as their experience may suggest"; (2) judges of the Supreme Court to report annually to the Governor such "defects and omissions in the Constitution and laws as they may find to exist, together with appropriate forms of bills to cure such defects and omissions"; and (3) judges of the circuit courts to report to the General Assembly the nimdjer of days they held court in the respec- tive counties of their circuit in the preceding two years. Art. VI, § 20 377 These 1870 reporting requirements, including the Supreme Court's duty to study the Constitution and laws and prepare legislative bills for curing defects, were ignored after 1909, when, after an exchange of corre- spondence between the Governor and the Supreme Court, reported in 243 111. 9, the Court flatly rejected the notion that the Governor could compel reports from judges of the Supreme Court, asserting that advisory opinions and suggestions for constitutional and legislative changes, un- related to specific litigation, was not an appropriate judicial function and could not, despite Section 31, be demanded of the courts by the Governor. The reporting requirements became a dead letter from nonuse. (See also Explanation , Art. III.) The 1922 Convention proposal contained no similar provision. Explanation The annual judicial conference requirement and the requirement that "improvements in the administration of justice" be reported to the Gen- eral Assembly are much more modest in scope and purpose than the re- pealed 1870 reporting requirements of Section 31. Annual judicial con- ferences, both federal and state, are relatively recent phenomena and reflect a laudable judicial involvement and concern in the business of the courts. Though it seems hardly necessary to mandate an annual judicial conierence in the Constitution, the decision to do so was motivated by the belief that the importance of this mechanism was so great that it deserved constitutional status. Comparative Analysis Only two other states provide for a periodic judicial conference or coun- cil meeting similar to this. The Constitution of the United States and the Model State Constitution are silent on this subject. Comment The section establishes an important principle related to the general administrative authority vested in the Siq^reme Court. Annual judicial conferences have been held and are regarded as constructive and emi- nently worthwhile. Though we may argue with the constitutional status given this requirement, its overall importance would seem to justify its retention. General — Clerks of Courts Sec. 20. The General Assembly shall provide by law for the selection by the judges or election, terms of office, removal for cause and salaries of clerks and other non-judicial officers of the various courts; provided that a clerk shall be selected or elected for each Appellate Court District. History Constitutional designations of clerks of courts first appeared in 1848. 378 Art. VI, § 20 Popular elections were provided lor clerks ol each ol the then-existing three grand divisions ot the Supreme Court, circuit court clerks in each county of the circuit, and clerks ol county courts. Supreme Court clerks were given six-year terms and the other clerks, lour-year terms. The 1870 Constitution provided lor elc'( lions as in the 1848 Consti- tution, but added expressly the elective offices of tlie Criminal, Superior and circuit courts of Cook County. The legislature implemented the constitutional authorizations for the establishment of appellate courts, probate courts and municipal, c ity, village and incorporated town courts by providing for the election of clerks for each of such courts. In like manner, provision was made for the election of a clerk of the .Municipal Court of Chicago. The proposed 1922 Constitution provided that the Supreme Court and each appellate court shoidd apjjoint a clerk for a term of six years subject to removal by the respective court. Clerks of the circuit and county courts were to be elected as provided in the 1870 Constitution. Explanation The present section departs significantly from the pattern of prior Con- stitutions by authorization to the General Assembly to provide either for the selection of clerks by judges or for the popular election of clerks as theretofore authorized. The Generaf Assembly has not acted to accept the new afternative of selection of clerks by the judges, but the option remains wlien and if the legislature deems it advisable. Also raised to tlie levef of constitutional status, a consequence of the establishment of constitutional appellate courts, is the provision for the election or selection of one clerk for each appellate court district. The legislative authorization to establish grounds for removal of clerks for cause is new, as is the authorization to establish tlie terms of office, fn other respects, the provisions of this section pertaining to clerks and other nonjudicial officers represent no significant changes in prior provi- sions or practice. Comparative Analysis Over three-fourtlis of the states have constitutionaf provisions deafing with clerks and other nonjudicial officers. Only two other states, however, leave the method of selection to the discretion of the fegislature. The remaining states are split into three classes, approximately equal: those appointing clerks, those electing clerks, and those combining both methods. All but one of the 21 states mentioning compensation leave the amount to be set by the legislature. One allows the court to set the figure. Over half the states mention terms of office, but only two (excluding Illinois) leave the term to be set by the legislature. Nineteen states set a specific term, ranging from two to eight years. The rest leave the term to Art. VI, § 21 379 the court's discretion. Just over a fifth of the states specifically mention removal of clerks, but only two delegate this authority to the state legis- lature. The rest allow the court to remove, either for cause or at its pleasure. Neither the Constitution of the United States nor the Model State Constitution deals with this subject. Comment The most important constitutional change effected by this section is the authorization to the legislature to provide for the selection of clerks by judges (instead of popular election) and other nonjudicial officers. This provision reflects a judgment that the offices in question, being largely ministerial, should be manned by administrators whose compe- tence may more likely be assured by the selective rather than the elective method. The section also quite properly, it seems, delegates to the legis- lature the determination of terms of office, removal for cause and salaries for clerks and nonjudicial officers. The section seems soundly conceived as a matter of constitutional principle. State's Attorneys — Selection — Salary Sec. 21. There shall be a state's attorney elected in each county in the year 1964 and every fourth year thereafter for a term of four years. No person shall be eligible for such office unless a citizen and licensed attorney-at-law of this State. His salary shall be prescribed by law. History The office of state's attorney was first constitutionally established in 1848. The framers of that Constitution evidenced an uncertainty as to the nature and scope of the office by providing for an election in each judicial circuit with authorization in the legislature to substitute for that office the office of county attorney in each county, an authority which was never exercised. The 1870 Constitution established the present pat- tern of the election of a state's attorney in each county with a four-year term. Neither prior constitutional provision established a licensed-attor- ney status as a qualification for office. The proposed 1922 Constitution diflfered from the 1870 Constitution only in that the state's attorney was required to be licensed to practice law in this state. Explanation The only new aspects of the present section are the express require- ments that the state's attorney be a citizen and licensed attorney-at-law of this state and that his salary be prescribed by law. In fact, the attorney requirement simply codified prior judicial interpretations that although 380 Art. VI, § 21 the 1870 Consiitution established no such requiienient, want ol a license was a bar to eligibility due to the nature of the office. (People ex rel. Elliot V. Beneficl, 405 111. 500 (1950); People v. Munson, 319 111. 596 (192()).) In respect to salary, the Court has held that the state's attorney was not a county officer within Article X, Section 10, of the 1870 Con- stitution, and thus his compensation could be fixed Ijy the legislature. (Hoyne v. Danisch, 261 111. 167 (191 1).) For a period after the adoption of the 1870 Constitution, state's attorneys were held entitled to certain fees in addition to their salary paid by the state, but fee payments were abolished by law in 1912, with the result that salaries are paid by the state, with county supplementation. Comparative Analysis Over three-fourths of the states provide for state's attorneys. Of these, 25 set a specific term of office ranging from two to eight years; 19 states, in- cluding Illinois, provide a four-year term. Others apparently leave the term of office to the legislature. Nearly half the states mention salary, but all but three leave the amount to the legislature. Only two other states require the state's attorney to be a state citizen, while seven other states require him to be a practicing attorney. Of the 32 state constitutions specifying a means of selection, 31 require the state's attorney to be elected. Only one state specifies that he be appointed. The Model State Constitution is silent on this subject. Comment There appears to be little or no basis for suggesting any substantive changes in the present section, which, as noted, substantially reflects a long-standing constitutional tradition. Article VII SUFFRAGE Qualifications for Voting Sec. 1. Every person having resided in this State one year, in the county ninety days, and in the election district thirty days next preceding any election therein, who was an elector in this State on the first day of April, in the year of our Lord one thousand eight hundred and forty-eight, or obtained a certificate of naturalization, before any court of record in this State prior to the first day of January, in the year of our Lord one thousand eight hundred and seventy, or who shall be a male citizen of the United States, above the age of twenty-one years, shall be entitled to vote at such election. History The 1818 Constitution gave the franchise to "white male inhabitants above the age of 21 years, having resided in the state six months next preceding the election." The Constitution also said that one could vote only in the "county or district" in which he resided on election day. In the 1848 Constitution, the foregoing qualifications were preserved as of the date of the Constitution, but for the future, citizenship was added to the qualifications. This, of course, covered people moving into the state thereafter and people reaching the age of 21 thereafter. In the 1870 Convention, the principal controversy concerned the de- letion of the word "white." The Committee on Right of Suffrage proposed to continue the 1848 arrangement. Four of the nine members of the committee filed a minority report supporting "impartial suffrage." They observed that the majority feared that the proposed Constitution would be rejected if the word "white" were omitted. The minority proposed to offer the voters alternative sections, one with the word "white," one without. The minority further proposed to permit the voters to decide whether or not to omit the word "male." When these reports were first presented to the Convention, considera- tion was delayed several weeks, apparently to see whether or not the Fifteenth Amendment was ratified. (Illinois had been one of the first to ratify the amendment almost a year earlier.) A few days after the adoption of the amendment was certain, a delegate moved to recommit the committee report "because great changes have occurred in our coun- try in reference to this matter, in the brief time that has elapsed since this report was made. ..." (Debates 758.) The motion was agreed to. When 381 382 Art. VII, § 1 the committee reported again, the word "wliite" had been deleted. A minority report was filed by the same four delegates who had been in the minority before, but this time they were proposing only that a separate vote be authorized on the question of woman suffrage. Three other members filed a second minority report in favor of retaining the word "white." W'hen Section 1 was taken up in Committee of the Whole, there was no debate and the section was accepted by a vote of 32 to 18. In the Convention proper, however, an extended debate developed around the cjuestion of whether to allow aliens to vote. In part, the debate involved doubt concerning the acccj^tability under federal law of certifications of naturalization issued by county courts. It was to meet this objection that the words "or obtained a certificate of naturalization before any court of record in this state" ^vere added. The more significant argument for allowing aliens to vote A\as made by those who objected to allowing Negroes to vote. The pro-citizenship bloc prevailed and Section 1 was accepted. On two occasions, votes were taken on woman suffrage. On a motion to strike the Avord "male," there were 12 in favor and 46 against. The vote was closer on a motion to submit the question to the voters as a separate question. Twenty-eight delegates favored the submission and 32 opposed it. There was also a motion to reduce the voting age to 18, but no vote appears to have been taken on the motion. The delegate who so moved had announced earlier that he would do so because under the militia article 18 year olds were subject to a draft. (Debates 861.) The 1848 section had said that a person could vote only "in the district or countv in which" he resided "at the time of" an election. Section 1, it should be noted, shifts the wording around to say that a resident for the requisite period "shall be entitled to vote at [an] election." When Section 4 (infra, p. 392) was under consideration, it was proposed to add to that section an authorization to the legislatme to provide for absentee voting by military personnel. It was pointed out by one dele- gate that the "only in the district" language in the 1848 Constitution had prevented absentee voting and that a careful reading of the pro- posed Section 1 would show that the legislature could provide for ab- sentee voting. Another delegate pressed the point as follows: "The first section does not say one word as to the place of voting, but simply as to the necessity of residence in the election district. "The [fourth] section says that the elector shall not be deemed to have lost his residence by reason of his absence, and the General .Assembly are left free to fix where the party shall cast his vote. The only thin,^ required is, that he shall have a particular residence. Having that residence he can cast his vote at the place prescribed by law." (Debates 1295.) Art. VII, § 1 383 The proposed addition to Section 4 was rejected. It is not possible to say with certainty that the vote was a ratification of the foregoing inter- pretation of Section 1, but it seems the more Hkely understanding, for if the delegates were voting against the absentee ballot, they would have questioned the wording of Section 1. In fact, a delegate moved to reconsider Section 1 because he thought it was "left on dangerous ground." The Convention voted against him, 40 to 13. (Id.) The proposed 1922 Constitution combined Sections 1 and 7 to read: "Excepting only idiots and persons adjudged insane or convicted of infamous crime and not restored to civil rights, every citizen of the United States above the age of twenty-one years who has resided in the state one year and (unless naturalized because of military or naval service) in the United States five years shall be a qualified elector. He may vote only in the election district and county in which he has resided thirty and ninety days respectively next before such election." (art. VI, § 132.) It is to be noted that the foregoing deleted the obsolete material con- cerning electors in 1848 and 1870, but other changes were made, the most significant of which was the reversion to the "only in the district" language of 1848. The Committee on Phraseology and Style reported that the revised section was intended to make absentee voting constitutional. (Journal 294-6.) In the light of the foregoing history, it would appear that the committee had in fact endangered absentee voting. Explanation Prior to the adoption of the Nineteenth Amendment, there was con- siderable litigation concerning whether or not there were any "elections" at which women could be permitted to vote. In general, the cases per- mitted extension of the franchise to women in any election for any office not named in the Constitution and in any referendum not required or specifically authorized by the Constitution. {See Scown v. Czarnecki, 264 111. 305 (1914).) The question can be raised whether that line of cases should be relied upon in all other contexts. The courts were sympathetic to woman suffrage and undoubtedly stretched a point in authorizing legislative inroads on the mascidine ballot. Courts might not have the same attitude in the case of legislative extension of the franchise to aliens, or to people with only a few days' residence. Nevertheless, as recently as 1952, the Supreme Court said that the legislature could pro- vide qualifications for voting in school elections differing from those required by Section 1, but the Court construed the School Code in a manner consistent with Section 1. (Scofield v. Board of Educ. 411 111. 11 (1952).) The question could be presented squarely by Section 3-1 of the Election Code. (111. Rev. Stat. ch. 46 (1967).) As amended in 1963, that section permits an adult citizen to vote in a presidential election if he 384 Art. VII, § 1 has resided in the election district for 60 days and would have been eligible to vote some place else had he not moved. It seems likely at this late date that the Scown case, which was a full-chess consideration of the issue with three dissenting opinions, would be followed at least in the case of presidential elections. (See Comment below for a further discussion of the judicial interpretation of Sec. I.) In the light of the earlier discussion of absentee voting, it is interesting to note that absentee voting has been authorized by law since 1917 without, apparently, any reported constitutional challenge. (111. Rev. Stat, ch. 46, §§19-1 to 19-44 (1967).) In 1912, the Attorney General expressed some doubt that an absentee voting law would be constitutional. He noted that the courts of other states were in conflict and that until the Supreme Court spoke, no one could be sure of the result in Illinois. (1912 111. Att'y Gen. Rep. 1266.) In 1917, the legislature passed a general absentee voting law and a special one w^hich permitted military per- sonnel to vote as a unit. On the assumption that National Guard units called into the federal service would remain intact, the necessary quantity of ballots would be sent to a unit commander, polling would take place, and the ballots would be bundled up and returned to the Secretary of State for distribution. On June 16, 1917, the Attorney General rendered an opinion that Section 4 {infra, p. 392) justified permitting military personnel to vote as a unit. (1917 111. Att'y Gen. Rep. 300.) On July 11, 1918, he rendered an opinion to the Governor, concluding rather cautiously that Section 1 would authorize absentee voting for military personnel not voting as a unit. The Attorney General noted that there were no Supreme Court opinions on the validity of either the military unit voting act or the general absentee voting law previously enacted. He relied on the difference in wording between the 1848 and 1870 sections, but he did not refer to the 1870 debates concerning that dif- ference. (1918 111. Att'y Gen. Rep. 345.) The first reported Supreme Court case construing the absentee voting law was decided in 1920. (McCreery v. Burnsmier, 293 111. 43 (1920).) The second case appears to have been in 1932 (Talbott v. Thompson, 350 111. 86 (1932)), w^ith a good many more since then. No case appears to have involved an attack on the statute. In the recent case of Craig V. Peterson (39 111. 2d 1991 (1968)), however, there was an attack on the absentee voting law by absentee voters whose votes had not been coiuited because the election judges failed to initial the ballots. In that case, all voting for candidates, except for judges seeking retention, was by voting machine and only absentee ballots were capable of being initialed. The Supreme Court distinguished earlier cases, which had held initialing to be mandatory, by noting that in the case in litigation there was no Art. VII, § 1 385 allegation of fraud and initialing would have served no essential purpose. The Court concluded that to protect the right to vote, guaranteed by this Section 1 and Section 18 of Article II (supra, p. 83), uninitialed absen- tee ballots should be counted under the circumstances set forth. This case can reasonably be accepted as an affirmation of the validity of absentee voting, for a court can hardly be expected to invalidate part of a statute on the ground that that part is inconsistent with a constitutional pro- vision if the constitutional provision in fact prohibits the entire statute. There have been numerous decisions interpreting the residency re- quirements of Section 1. The courts have held that "residence" refers to a permanent abode (Coffey v. Board of Election Comm'rs, 375 111. 385 (1940)), but have noted that there is a large element of subjective intent in the permanence of a person's abode. (Sec Welsh v. Shumway, 232 111. 54 (1907).) In this respect, residence for voting purposes is somewhat like the elusive term "domicile." Because of the element of intent, someone once observed that the only truly accurate definition of domicile is that it is something a person has only one of. This is the case with voting residence, and it seems unlikely that any purpose is served in a con- stitution by trying to go beyond using the word "resident." A problem arises under a time-of-residence provision when one be- comes eligible to vote too late to comply with the administrative scheme of registration. One of the defects in one of the several invalidated primary election laws was a provision that in effect prevented voting by anyone reaching 21 or becoming a citizen within four months of the election. (People ex rel. Phillips v. Strassheim, 240 111. 279 (1909).) The Supreme Court did, however, uphold a provision that required registra- tion within three weeks of election, thus disfranchising those who be- came 21 or were naturalized in the intervening period. (People ex rel. Grinnell v. Hoffman, 116 III. 587 (1886).) The present statutory pro- vision permits registration in advance if a person will be qualified by the next election day. (111. Rev. Stat. ch. 46, §4-2 (1967).) The requirement of residence in the "election district" for 30 days preceding the election has also created some difficulty. The Supreme Court once noted that "election district" had no settled meaning and decided that a 30-day resident in a town, who was otherwise qualified, was a legal voter regardless of his length of residence in a particular election district within the town. The rationale was that any voter should be able to vote at a town meeting and that it was not consis- tent to deny him the right to vote for town officers. But the Supreme Court went on to say that in any other election, the 30-day residence requirement referred to the denominated election district. (People ex rel. 386 Art. VII, § 1 Delaney v. Markiewicz, 225 111. 563 (1907).) In a city, "election district" may be a precinct, but ii the precinct is divided into districts, then it is the district. (Donovan v. Comertord, 332 111. 230 (1928).) Section 1 limits qualifications to matters ol age, residence, and cit- izenship. Nevertheless, the Supreme Court has said that idiots and insane persons cannot vote. (Welsh v. Shumway, 232 111. 54 (1907); Behrens- meyer v. Kreitz, 135 111. 591 (1891).) Literacy is not recjuired, and the Supreme Court has said that a statute which prohibited voter assistance would he invalid, for it would deny the right to vote to an illiterate. (People ex rel. Drennan v. Williams, 298 111. 8() (1921).) Likewise, dis- abled people would be entitled to assistance. (Id.) Comparative Analysis Citizenship: There appear to be two states. New Hampshire and Texas, that have no constitutional citizenship requirement. Delaware and West Virginia require state citizenship, but the wording of the Delaware pro- vision makes it clear that a voter must be a United States citizen. Massa- chusetts simply says that a voter must be a "citizen." (The Index Digest of State Constitutions is the primary source for checking comparable provisions in other state constitutions. There are errors in the Index Digest and for this reason references to other states are usually couched in terms, of approximation. In the case of citizenship qualifications for voting, 44 states are listed, but Illinois is labeled "Ind VII I" instead of "111 VII I." Four states with citizenship requirements are not entered at all. Moreover, the Council of State Governments, The Book of the States, 1968-69 (at 30 (1968)) notes that all states require United States citizen- ship. This notation would be based, of course, on constitutional and statutory provisions.) Age: Forty-six states set the minimum voting age at 21, assuming, as is undoubtedly the case, that in West Virginia "minors" means "persons under 21." The minimum age is 20 in Hawaii, 19 in Alaska, and 18 in Georgia and Kentucky. Residency: State: According to the Book of the States, 1968-69, state residency re- quirements are as follows: Two years 1 state One year 32 states Six months 15 states Three months 1 state 90 days 1 state (Id. at 30.) Art. VII, § 1 387 County: Only 36 states have a county residency requirement, dis- tributed as follows: Six months 10 states Four months I state Three months 4 states 90 days 7 states Two months 1 state 60 days 5 states 40 days 3 states 30 days 5 states (Id.) Election District: Forty-one states have a residency requirement in an election district, as follows: One year 1 state Six months 5 states Three months 7 states 60 days 3 states 54 days I state 40 days 1 state One month 1 state 30 days 14 states 20 days 2 states 10 days 5 states By fifth Friday preceding election 1 state (Id.) In the case of residency requirements for county and election districts, the information set out above incltides both constitutional and statutory time periods and does not include various exceptions. It should also be noted that, over the past decade, residency requirements have been changed in several states. Invariably, the time has been shortened. In South Carolina, for example, the residence requirement which used to be two years (ministers, teachers and their spouses, six months) was short- ened in 1963 to one year (same six-month exemption), and under a current proposed constitutional revision wotdd be cut to six months. Literacy: Not quite half of the states include a literacy requirement among the qualifications for voting. (But apparently only 14 states re- quire a literacy test. Council of State Governments, The Book of the States, 1968-69 at 30 (1968).) Usually, the requirement is one of being able to read the English language; but in New Mexico, it is English or Spanish; in Hawaii, English or Hawaiian; and in Louisiana, English or mother tongue. In many cases, the requirement has been superseded in part by the Federal Voting Rights Act of 1965. (42 U.S.C. §§1971, 1973.) Mental Condition: Almost half the states exclude idiots from voting, and almost three-fourths exclude the insane. About ten states exclude incompetents. 388 Art. VII, § 1 Other QjtnUfications: Many states have cjualidcations that are no longer effective. For example, six states besides Illinois have not removed "male" from their suffrage article, antl a lew states still retain a poll tax requirement. Nine states disqualily paupers, three states require good moral character, and one state requires "quiet and peaceable behavior." The United States Constitution has no affirmative suffrage provisions but by the Filteenth Amendment prohibits denial of suffrage "on account of race, color, or previous condition of servitude"; by the Nineteenth Amendment prohibits tlenial of suffrage "on account of sex"; and by the Twenty-Fourth Amendment prohibits denial of suffrage in federal elec- tions "by reason of failure to pay any poll tax or other tax." Since adop- tion of the amendment, the United States Supreme Court has outlawed the poll tax in all elections. (Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).) The Model State Constitution's article on Suffrage and Elections reads as follows: "Qualifualions for Voting. Every citizen of the age of . . . .years and a resident of the state for three months shall have the right to vote in the election of all officers that may be elected by the people and upon all questions that may be submitted to the voters; but the legislature may by law establish: (1) minimum periods of local residence not exceeding three months, (2) reasonable require- ments to determine literacy in English or in another language predominantly used in the classrooms of any public or private school accredited by any state or territory of the United States, the District oi Columbia, or the Common- wealth of Puerto Rico, and (3) disqualifications lor voting for mental incompe- tency or conviction of felony." (art. Ill, §3.01.) "Legislature to Prescribe for Exercise of Su0rage. The legislature shall by law define residence for \oting purposes, insure secrecy in xoting and provide for the registration of voters, absentee voting, the administration of elections and the nomination of candidates." (art. Ill, § 3.02.) Comment The suffrage article of a constitution should do two things: it should provide for the qualifications for being allowed to \ote and it should guarantee that those who have such qualifications can vote. With one exception, the Model State Constitution suffrage article succinctly covers all of the essentials. The exception is the problem of voting in presiden- tial elections. The Model State Constitution has a short residence re- quirement, but even so, the Illinois statute for presidential voting, re- ferred to supra, pp. 383-4, probably would not be valid. It may well be that, before long. Congress will set national standards lor voting in presi- dential elections, but until then, a state suffrage provision ought to permit the waiver of state residence recjuirements for voting in presidential elections. This is especially significant if the minimum residence require- ment is six months or a year. It should be noted that, under the Model Art. VII, § 1 389 State Constitution, the legislature would be able to waive local residence requirements tor voting for state officers. Although the Model State Constitution's suffrage article contains all of the essentials, there is room for different policies on details. The Conven- tion should consider whether to shorten the present state residence mini- mum, but it is certainly not unreasonable to consider three months too short. It is also questionable whether a literacy test should be inserted at this late date. In the light of the history of the misuse of literacy require- ments in other parts of the country, a proposal to include even permis- sion for one in Illinois would undoubtedly be misunderstood. The point is that the Model suffrage article has all the necessary constitutional guarantees and qualifications for voting and all the necessary flexibility for appropriate legislative regulation of the electoral process. The old saying that "Hard cases make bad law" certainly applies to the cases in which the Supreme Court granted women the right to vote in "nonconstitutional" elections. It is clear from the debates of the 1870 Convention that the delegates intended Section 1 to cover all voting. Thus, if one follows the intent of the drafters, the decisions were wrong. If Section 1 is read strictly and literally, it says that the persons described shall be entitled to vote at "such" election, and "such" election is "any election" in the voting district. Thus, if one follows the rule of strict construction, the decisions were wrong. There is a theory that the legis- lature has all the sovereign powers of government except those with- drawn by the people through the Constitution. Under this theory, one could argue that Section 1 denies to the legislature the power to exclude from voting the persons described but does not deny the power to en- large the franchise. Under this theory, the courts could have upheld an extension of voting rights to women, but could not have distinguished between constitutional elections and other elections. The moral, other than that one should never underestimate the power of women, is that no amount of careful draftsmanship can foreclose an erroneous inter- pretation, whether for a good cause or a bad cause. A word is in order about a bit of inadvisable constitution-making in the proposed 1922 section quoted above. (Supra, p. W6.) That section pro- vided that a naturalized citizen had to have been a resident in the United States for five years before he could vote. The debates of the Convention make it clear that the purpose of this language was to prevent wives of United States citizens from voting just because, under the law as it was then, they automatically acquired the citizenship of their husband. (State of Illinois, Proceedings of the Constitutional Convention 967 (1920) [hereinafter cited as Proceedings].) The five-year residence requirement would put wives on a par with any other alien who had to live in the 390 Art. VII, § 2 United States lor fi\e years belore he could get Iiis final paj^ers. It pie- sumably did not occur to any one in ilie Convention that the United States might make any number ol changes in the Naturalization Act, and that it was not necessarily appropriate to enshrine in a semiper- manent state constitution a special exception to cover a specific lederal statutory ride. This is not to say that the provision was necessarily bad, though the actual wording raises the question oi whether a citi/en, natu- ralized or not, who had been out ol the country had to be back ior five years before he could vote. The point is that the reason for the provision was both ephemeral and beyond the control of Illinois. One of the most important attributes of good constitution decision-making is to take the long view, to rememlDcr that what is to be proposed should be good for at least a generation and preferably for longer. Ballots Required Sec. 2. All votes shall be by ballot. History The 1818 Constitution provided that voting should be viva voce until changed by the legislature. In 1848 it was provided that "[a] 11 votes shall be given by ballot." The change in verb form was made by the Committee on Revision and Adjustment of the 1870 Convention. The proposed 1922 Constitution dropped the ^vord ".\11." Explanation As the history above indicates, the purpose of this section is simply to avoid x/iva voce voting. At the time of adoption in 1870, the section did not insure secret voting. Nevertheless, in the debate on the floor, it was clear that the delegates assumed that the existing statutory system per- mitting a voter to demand a secret ballot would be preserved. In those days, the Australian ballot had not been generally accepted and a fre- quent practice was to have different colored paper for the different political parties. It was in this context that a delegate observed that it was "clearly the right of a voter, if he is offered a blue or red ticket, to procure a ticket on white paper of the kind usually employed." (Debates 1294.) In 1905, the Supreme Court upheld the use of voting machines, and in doing so announced that the real purpose of this section was to preserve secrecy in voting. (Lynch v. Malley, 215 111. 574 (1905).) Thus, to the three provided by Illinois, there are preservations of voting rights Court, so to speak, switched the meaning so that, in effect. Section 2 now reads: Secrecy in voting shall be insured. Art. VII, § 3 391 Comparative Analysis Approximately two-thirds of the states specify that voting shall be by ballot. About a third of the states specify that secrecy shall be preserved. A dozen or so states specifically authorize the use of voting machines. The United States Constitution provides that the "times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. ..." (art. 1, i^4.) The Model State Constitution instructs the legislature by law to "insure secrecy in voting" and to provide for "the administration of elections." Comment Since the Supreme Court in 1905 produced the brilliant result both of making this section guarantee secrecy in voting and of permitting the use of voting machines, it would appear advisable to leave the section alone. It would be appropriate, of course, for the Convention to make a legis- lative record to the effect that the section was retained in the light of the judicial gloss. It might also be appropriate for the delegates to "assume" formally that "voting machine" includes whatever the electronic magic of computers may make possible so long as secrecy is preserved. Freedom from Arrest — Military Duty Sec. 3. Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during their attendance at elections, and in going to and returning from the same. And no elector shall be obliged to do military duty on the days of election, except in time of war or public danger. History This first appeared in substance in the 1848 Constitution as two sepa- rate sections. In the 1870 Convention, the two sections were agreed to without discussion. The Committee on Revision and Adjustment pro- duced the combined section. The proposed 1922 Constitution retained the substance of the provision. Explanation There does not appear to have been any interpretation of this section. The only question likely to arise is the meaning of the exception of "treason, felony, or breach of the peace." (See discussion of Sec. 14, Art. IV, supra, p. 174.) Comparative Analysis Freedom from Arrest: Approximately half the states have the same provision as the first sentence of this section. Another eight states or so 392 Art. VII, § 4 have variations in the privilege, including five thai limit it to civil process. Most of the newer constitutions omit the privilege. Michigan, for example, deleted it in its new constitution. Neither the United States Constitution nor the Model State Constitution has such a constitutional privilege. Military Duty: Not quite a third of the state constitutions contain this privilege. The statements above concerning newer constitutions, Michi- gan, the Ihiited States Constitution and the Model State Constitution are applicable to this privilege, also. Comment These privileges are appropriate ones but not so fundamental as to require constitutional protection. Legislative extension of the privileges could be afforded without any specific constitutional authorization. Losing Voting Residence Sec. 4. No elector shall be deemed to have lost his residence in this State by reason of his absence on the business of the United States, or of this State, or in the military or naval service of the United States. History The civilian part of this section was first adopted in the 1848 Consti- tution. The military part was added in 1870. At that time there was a debate over whether specifically to provide for absentee voting by the military. The argument was made that legislation on absentee voting was permitted by the revised language of Section 1 (see History of Sec. 1, supra, pp. 382-3), and apparently on the basis of this representation a pro- posed addition to Section 4 concerning absentee voting was defeated. The proposed 1922 Constitution retained the substance of this section in combination with the substance of Section 5. Explanation Several cases have construed this section, but all of them have simply confirmed that the section means what it says. The Attorney General has expressed the opinion that this section may authorize absentee voting for military personnel. (1917 111. Att'y Gen. Rep. 300. See also, Explan- ation of Sec. 1, supra, p. 384.) Comparative Analysis A majority of the states spell out various circumstances when the privi- lege of voting is not lost by absence from one's residence. In addition to the three provided by Illinois, there are preservations of voting rights notwithstanding attendance at college; confinement in jail, an asylum, or an almshouse; and while navigating in state waters and the high seas. Art. VII, § 5 393 Presumably, most states with no such provision permit appropriate de- terminations by law. Michigan, ior example, deleted its comparable provision and a provision comparable to Section 5. The new Michigan Constitution has a general section on voting cjualifications that ends with the sentence: "The legislature shall define residence for voting purposes." (art. II, § 1.) The United States and Model State Constitu- tions have no comparable provision. Comment In the Comment on Section 1 (supra, pp. 388-9), it was suggested that a suffrage article along the lines of the Model State Constitution would be appropriate. Such an article would eliminate the need, if there ever was any, for this section. Military Service — Residence Sec. 5. No soldier, seaman or marine in the army or navy of the United States, shall be deemed a resident of this State in consequence of being stationed therein. History This section, in a slightly expanded form, was first adopted in the 1848 Constitution. The 1870 Convention retained the section without debate, and the Committee on Revision and Adjustment shortened the section by substituting "therein" for "at any military or naval place within the State." (One wonders why not "herein.") The proposed 1922 Constitution retained the substance of this section in combination with the substance of Section 4. Explanation In 1848, this perfectly straightforward principle may have been deemed to be of constitutional status for some reason no longer apparent. In any event, there does not appear even to have been any occasion to interpret it. Comparative Analysis Just under half the states have a comparable provision. Some states simply work out a "gain and loss" reciprocal arrangement and thus such other circumstances as attendance at college, confinement in prison, and the like, do not create residence for voting. (See Comparaiwe Analysis of Sec. 4, supra, pp. 392-3.) Again, it may be noted, Michigan de- leted a comparable provision. {Id.) The United States and the Model State Constitutions have no comparable provisions. Comment It seems doubtful that this section was ever necessary. If, as suggested 394 Art. VII, § 6 earlier (supra, pp. 388-9), a sufirage article along the lines of the Model State Constitution were used, this section would be unnecessary, for that article instructs the legislature to define residence for voting purposes. Qualifications for Civil or Military Office Sec. 6. No person shall be elected or appointed to any office in this State, civil or military, who is not a citizen of the United States, and who shall not have resided in this State one year next preceding the election or appointment. History This section was first adopted in the 1848 Constitution with the word "before" instead of "preceding." In the 1870 Convention, the Committee on Riglit of Suffrage proposed a section reading: "No person shall be elected or appointed to any civil office, public position or place of trust, profit or emolument, in this State, who is not an elector of this State." Tliis was accepted without debate, but when the section came back to the ffoor in final form from the Committee on Revision and Adjustment, the wording had reverted to tlie 1848 language with the one word change noted above. In the proposed 1922 Constitution, this parochial provision was moved to the article on Public Servants and made somewhat less restrictive in one respect but gratuitously more restrictive in another respect. It read: "To hold any office created by this constitution a person shall be a citizen of the United States, resident in this state one year and able to read and write the English language." The less restrictive lan- guage was presumably designed to conform to the McCormick case dis- cussed below. Explanation In the leading case of People ex rel. Hayne v. McCormick (261 111. 413 (1913)), the Supreme Court limited the coverage of this restrictive section to offices, state and local, provided for by the Constitution. It further held that legislation could not make the restrictions on such offices more onerous as, for example, requiring five years' residence; but that in the case of offices created by statute, it was wholly within the power of the legislature to determine the qualifications of the office. The Attorney General has ruled, however, that statutory officers must meet the citizenship and residency requirements, (1900 111. Att'y Gen. Rep. 237 (Notary Public a citizen); 1915 111. Att'y Gen. Rep. 593 (over- seer of the poor a resident); 1917 111. Att'y Gen. Rep. 108 (civil service applicant a citizen); 1926 fU, Att'y Gen. Rep. 71 (probation officer a resident).) In the 1917 opinion, the Attorney General was faced with construing the provision of the Civil Service Act that opened applications for Art. VII, § 6 395 "offices or places" to all citizens of the state. Since "offices" can be filled only by United States citizens, and since he doubted that the legislature intended to distinguish between "offices" and "places," he concluded that only United States citizens were eligible for civil service positions. That act was repealed in 1955 and replaced by the Personnel Code under which there appear to be no citizenship requirements and under which residence requirements may be waived under certain circumstances. (111. Rev. Stat. ch. 127, i^G.^blOSb.l (1967).) In the light of the McCormick case, supra, and the Wilson case, infro, it seems likely that the courts will not follow the several opinions of the Attorney General. In 1960, the Supreme Court utilized the distinction between "office" and "employment" (see Sec. 24 of Art. V, supra, p. 322) to permit Chicago to hire nonresidents as Administrator of the Police Board and Superin- tendent of Police. (People ex rcl. Adamowski v. Wilson, 20 111. 2d 568 (I960).) Comparative Analysis A restrictive provision like Section 6 is relatively rare among the states. Only five or so require United States citizenship and two or three more require state citizenship. Approximately eight states require residency, but a few of them do not appear to require residency for as long as a year. Hawaii requires three years' residence for certain positions. (This may be simply an attempt to discourage "vacationland" immigration. Cali- fornia, Arizona and Florida, for example, make it difficult for retired pro- fessional men to get a local license to practice.) Some states have weird exclusions from public office. Several states prohibit duellers from hold- ing public office. Idaho has perhaps, the weirdest provision. Excluded are polygamists, bigamists, persons who are idiotic or insane, Chinese and persons of Mongolian descent not born in the United States, and Indians not taxed who have not severed their tribal relations and adopted habits of civilization. The United States and Model State Constitutions exclude nobody from public office. Comment As indicated above, this is a parochial provision conceivably suited to the Jacksonian concept that anyone is competent to hold any govern- ment job, but not suited to today's requirements for high competence in specialized fields. It is, of course, possible to rely on the courts to exclude professional positions from the term "ofhce," but it would seem more realistic simply to confine requirements of citizenship and residency to elective positions. The McCormick case, discussed above, raises an interesting question in constitution-drafting. It seems doubtful that the drafters of this section. 396 Art. VII, § 6 either in 1818 or 1870, meant to limit the section to offices created by the Constitution. As a matter ol hindsight, it is easy to word the section to cover statutory offices. As a matter ol loresight, it is not easy to antici- j)ate a judicial refusal to read clear language to mean what it says. But in constitution-drafting, there is great danger in being loo specific. For one thing, a constitution can quickly become too nuuh like a statute. For another, the times may change and it may be a lot simpler to permit the courts to rewrite the language than it is to amend a constitution. The best way to avoid worrying over whether the courts will read sec- tions jjroperly is to concentrate on limiting constitutional provisions to princijiles that will liold good for at least two or three generations. Biu then even this exemplary outlook nuist I)e tempered by the jjolitical realities of getting a constitution adopted. The voter who reads as he runs rarely thinks in terms of two or three generations ahead. Fortunately, he is also likely to accept clear and simple language and not worry aboiu whether it can be misread. This section provides an opportunity to make a couple of "nuts and bolts" observations about constitution-drafting. The section states most explicitly that no person can be elected to any office in the state who is not a United States citizen. Section ,S of Article IV (supra, p. 120) states that a member of the legislature must be a United States citizen. Section 5 of Article V (supra, p. 267) states that the Governor and Lieutenant Governor must be United States citizens. Section 3 of the original Article VI required judges of the Supreme Court to be United States citizens and Section 17 of the same original article required circuit and inferior court judges and county commissioners to be United States citizens. (The present Judicial Article is another matter. It was put together as a self- contained package and any cautious draftsman would hesitate to rely on some other part of the Constitution to cover the judiciary. For the record, the present Sections 15 and 21 of Article VI (supra, pp. 366 and 379) require judges and state's attorneys, respectively, to be citizens "of this State." See Comment on Sec. 1 of Art. XII, iiifra, p. 538, concerning state citizenship.) There are two obvious morals here. He who drafts a blanket provi- sion ought to touch base with anyone who is affected by the provision. Presumably, no one on the 1870 suffrage committee checked with other committees concerning the diqDlication. The second moral is that the Committee on Style and Arrangement ought to add "and Consistency" to its title. In addition to the mammoth tasks of trying to impress a single writing style on the various draft sections and of trying to get everything arranged logically, the committee has to watch for inconsistencies and duplications. In the long run, the elimination of inconsistencies may be Art. VII, § 7 397 more important than style and arrangement. (Anyone interested in an even better story of drafting confusion can search out the variations in referendum wording in the Constitution. There are at least 15 references to a referendum by voters.) Infamous Crime — Loss of Franchise Sec. 7. The General Assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes. History In the Legislative Article of the 1818 Constitution, the legislature was given "full power to exclude from the privilege of electing or being elected any person convicted of bribery, perjury or any other infamous crime." In 1848, this section was retained but a shortened version was added in the new article on Elections and Rights of Suffrage, giving the legislature "full power to pass laws excluding from the right of suffrage persons convicted of infamous crimes." This latter language was in the original proposal of the Committee on Right of Suffrage of the 1870 Convention. The original proposal was referred back to the committee for resolution of disputed matters concerning Section I (see History of Sec. 1, supra, pp. 381-2), and during this period of reconsideration the Convention, in debating what is now Section 4 of Article IV, decided to spell out tlie prohibition against office-holding rather than grant power to the legislature to prohibit certain classes of people from holding ofhce. (See History of Sec. 4, Art. IV, supra, pp. 127-8.) When the committee resub- mitted Article VII to the Convention, this principle showed up in a re- vised version of Section 7. This version was accepted without debate. (One may note, however, that the Convention did not go all the way, for instead of mandating legislation, it could have provided that no person convicted of an infamous crime could vote.) In the proposed 1922 Constitution this section was combined with Section 1 in a self-executing form. Excepted from the privilege of voting were persons "convicted of infamous crime and not restored to civil rights." Explanation It is clear from the historical development of this section and from the wording of Section 4 of Article IV {supra, p. 127) that bribery and perjury are infamous crimes. This was reinforced in 1903 when the Supreme Court upheld a long-standing statute that disfranchised for a period anyone convicted of bribery in an election. (Christie v. People, 206 111. 337 (1903).) Under the current Election Code, no person legally convicted in Illinois, in any other state or in federal court, of any crime punishable by 398 Art. VII, § 7 confinement in the penitentiary may vote unless rights ol citizenship are restored by the Governor or by a court. (111. Rev. Stat. ch. 46, iijS-S (1967).) Comparative Analysis Almost every state has some constitutional restriction on voting by per- sons who have engaged in criminal activity. In some cases the restriction is spelled out on a selt-executing basis, in others in the lorm oi a com- mand to the legislature as in Illinois, and in still others in the iorm ot a permission to the legislature to act. Some 20 states use the adjective "iniamous." The United States Constitution has no comparable provi- sion. The Model State Constitution provides that the legislature may by law establish "disqualifications lor voting tor mental incompetency or conviction ot telony." Comment There is no need to spell out in a constitution what criminal activity is cause for disfranchisement, but it is necessary to give the legislature power to provide for disqualification for certain criminal activity if that is desired. Once there is a suffrage provision that says "any person who, etc., can vote," there is no legislative power of exclusion unless author- ized. (See also Comment on Sec. 1, stipni, p. >^fi8.) Article VIM EDUCATION Free Schools Sec. 1. The General Assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education. History This section of the Constitution was new in 1870; neither the 1818 nor the 1848 Constitution contained a mandate requiring the legislature to establish a state-wide school system, although as a matter of fact considerable effort had been made toward that goal before 1848. The first effective school code for a general school system in Illinois was passed in 1845. In the 1870 Convention there was a much-debated amendment to strike out all the words following "schools," and insert the words "for all per- sons in the state." This amendment was opposed on two grounds. There was a considerable immigration of southern Negroes in the southern part of the state, and it was feared that the education of these adults at public expense would be unduly burdensome. It was also felt that retaining the requirement of "common school education" would indi- cate that "academic" and "collegiate" educations were not to be sup- ported by taxation. The amendment failed. In the proposed 1922 Constitution the provision was retained unchanged. The Committee on Education proposed an additional provision that the state educate and care for defective, delincjuent, and dependent children, but this was rejected on the grounds that it was not directly relevant to the subject of public education and was adequately covered by legislation. Explanation This section grants no new powers to the General Assembly, for in the event of constitutional silence on the subject, it woidd certainly be within the authority of the legislature to create a public school system, as in fact was done prior to 1870. Rather, this section requires the legislature to provide a system of "common school education" and 400 Art. VIII, § 1 establishes tliree standards by which that system is to be maintained — that it be (1) thorough and efhcient, (2) avaihible to all children of the state, and (3) free. The question of what constitutes a "common school education" has not caused any difficulty in the courts, which have in general been content to acquiesce in whatever curricuhun requirements have been established by the legislature. In an early case where a group of taxpayers challenged the teaching of German in the elementary schools because it was not on the list of subjects required for licensing teachers, the court held that any academic subject matter could be taught in the schools so long as it was not specifically prohibited by the General Assembly. The court suggested that the only constitutional limitation would be that the medium of instruction in the schools must be English. (Powell v. Board of Educ, 97 111. .S75 (1881).) It is doubtful that such a limita- tion would be implied today. Legislative provisions for the establishment of high schools were earlier approved as a legitimate part of the common school system (Richards v. Raymond, 92 111. 612 (1879)), and indeed in later cases the courts said that it was the duty of the legislature to provide high schools. In carrying out this duty, it was proper for the legislature to organize those parts of the state which do not maintain high schools into "non-high school districts" and to authorize taxes on those districts for the payment of tuition of their qualified resident students to attend high school in neighboring districts. (People ex rel. Goodell V. Chicago & Nw. Ry., 286 111. 384 (1918); Cook v. Board of Directors, 266 111. 164 (1915)). In a recent decision, the Court held that the state schools for the mentally incompetent were charitable and hospi- tal institutions, and were not part of the common school system; hence there was no obligation to provide free school training to the mentally incompetent. (Department of Pub. Welfare v. Haas, 15 111. 2d 204 (1958).) The question of whether the school system is "thorough and efficient" has been raised in numerous cases. The trend in Illinois school svstem organization has been to simplify, consolidate and enlarge school districts as transportation and communication services improve. There has been a continuing legislative program which has resulted in substantial changes in school district boundaries, administrative structure and opera- tion, and financing through property taxes. These changes are ordinarily effected by local referendum and have frequently been challenged in the courts. Often one of the grounds of challenge is that the new organi- zation will render the schools less thorough and efficient for a variety of particular reasons. As a general matter, the Court has refused to intervene in school reorganizations on these grounds, if the reorganiza- tion conformed to statutory requirements. It has said that the "thorough Art. VIM, § 1 401 and efficient" requirement was solely a matter tor legislative discretion and the courts will not look into it. The most complete statement of this position can be found in People n. Deatherage (401 111. 26 (1948)). This principle has been applied in one case to approve annexation proceedings in which the territory annexed to a new district included the only schoolhouse in the old district and it w-as alleged that there was insufficient property valuation in the remaining old district to build a new building. (Board of Educ. v. Board of Educ, 1 1 111. App. 2d 408 (1956).) However, one recent case has invalidated annexation proceed- ings which left the remaining district in three separate islands of terri- tory on the grounds that this violated the constitutional requirement of efficiency. (People ex rel. Community Scliool Dist. v. Decatur School Dist., 31 111. 2d 612 (1964).) The language "all children of the state" has been interpreted to mean that the school system must operate uniformly throughout the state and that within a particular school district, the school system must not discriminate among students. There has been little controversy over the application of this principle. It was early established in Illinois that school boards could not separate white and nonwhite students, regard- less of whether the facilities were ecpial. (People ex rel. Bibb v. Mayor of Alton, 193 111. 309 (1901); Chase v. Stephenson, 71 111. 383 (1874).) Children who live in orphanages or foster homes were held entitled by this provision to attend schools in the districts where the homes were located, even though their legal domiciles were elsewhere. (Dean v. Board of Educ, 386 111. 156 (1944).) 1 he provision that the schools must be free has caused little difficulty. It does not require that the schools provide free textbooks. (Segar v. Board of Educ, 317 111. 418 (1925).) A statute was held unconstitutional under this provision which granted all eighth-grade graduates of a school district not maintaining a high school the right to attend high school in another district, but required parents who were financially able to pay the transfer tuition. (People v. Moore, 240 111. 408 (1909).) It is clear that under this section the pow-ers of the General Assembly to operate the school system may be delegated to local school boards. (Smith V. Board of Educ, 405 111. 143 (1950).) There have been a number of cases in which the conduct of school affairs by the General Assembly, or its authorized agency, the local school board, has been challenged as violating other provisions of the Constitution. In general, the Court has held that the broad mandate of this Article supersedes particular proscriptions of other sections. For example, a tax required by the General Assembly to be levied by local school districts for con- tribution to the state teachers' pension fund was relevant to the general 402 Art. VIII, § 2 mandate ot Article VIII, and therefore it wus not a tax levied l)y the General Assembly lor a purely "corporate pinpose" which is jMohibited by Article IX, Section 10. (People ^.v rrl Nelson v. Jackson-Highland Bldg. Corp., 400 111. br^ (1948).) And Artide IV, Section 20, prohibiting state aid to private corporations, was held not to prevent the General Assembly from making aj^projjriations to Illinois State Normal School, a private corporation, since imder Article VIII, Section 1, the state may maintain normal schools to sujjply teachers for the common school system. (Boehm v. Hertz, 182 111. 154, (1899). See also the discussion of special legislation under Art. IV, Sec. 22, supra, pp. 218-9.) Comparative Analysis Approximately '^0 states ha\e provisions substantially identical to this one. Many state constitutions go into considerably more detail than does Illinois on the structure of the public school system. It would seem that in the interests of flexibility the more general provisions are prefer- able. The Model State Constitution (art. IX) contains a similar pro- vision in somewhat different language as its only provision on the subject of education. It provides: "The legislature shall provide for the maintenance and support of a system of free public schools open to all children in the state and shall establish, organize and support such other public institutions, including public institu- tuions of higher learning, as may be desirable." Comment It is a common biu not uniform practice for state constitutions to endorse public support for education. The language of the Illinois provision could be modernized, and perhaps there should be recognition of tlie state's function in providing college and university education, though it is hardly likely that a state would today refuse to assume this obligation if there were no constitutional directive. School Property and Funds Sec. 2. All lands, moneys, or other property, donated, granted or received for school, college, seminary, or university purposes, and the proceeds thereof, shall be faithfully applied to the objects for which such gifts or grants were made. History This new section was adopted without debate by the 1870 Convention. A similar but differently worded section was approved without signifi- cant debate by the 1920 Convention. Explanation As interpreted by the Supreme Court, the major effect of this section is to prohibit taxation or special assessment of public school property Art. VIM, § 2 403 acquired by gift. Since the legislature is prevented by this section from directly appropriating public school lands and applying them to other purposes, it cannot accomplish the same purpose indirectly by taxing them. (People ex rcl. Little v. Trustees of Schools, 118 111. 52 (1886).) The Court has held that this section applies only to property acquired prior to 1870, not subsequently; and that it refers primarily to Section 16 of every township (or property acquired with the proceeds of Section 16) which was reserved for school purposes in the original federal grant of land for statehood. It is the burden of the school trustees to trace property, and in the absence of a showing that it was purchased with funds from protected property, any property acquired subsequent to 1870 is subject to taxation or special assessment under a proper statute. (Grosse v. People ex rel. Ruch, 218 111. 342 (1905).) "Proceeds" in this section includes rents and profits from protected property, even if the property is not directly used for school purposes. (People ex rel. Han- berg V. City of Chicago, 216 111. 537 (1905).) This section does not exempt the property of private educational institutions from taxation. (University of Chicago v. People ex rel. Seipp, 118 111. 565 (1886).) Where a public school board has leased protected school-owned property to a private person or corporation, the lessee's interest is subject to taxation and special assessment, regardless of who has title to the improvement. (People ex rel. Paschen v. Hendrick- son-Pontiac, Inc., 9 111. 2d 250 (1956).) Comparative Analysis Approximately 20 states have similar provisions. No analogous section is found in the Model State Constitution. Comment This provision may have been desirable to provide a fund for edu- cational purposes at a time when broad public support of schools by taxation was not as common as it is today. However, currently, the section is not applicable to the vast bulk of school property, and its main effect would appear to be the creation of bookkeeping difficulties. Article IX, Section 3 {infro, p. 435), authorizes the General Assembly to exempt school property from taxation and the exercise of this authority should accomplish whatever ends are thought to be desirable through such exemption. As noted in that discussion. Article IX, Section 3, applies to both public and private schools. Of course, leav- ing the matter of tax exemption to be covered only by that section would make it entirely a matter of legislative discretion. Because of the limited application of this Section 2, the delegation of discretion to the legislature under Article IX, Section 3, should cause little concern. 404 Art. VIII, § 3 Public Funds for Sectarian Purposes Forbidden Sec. 3. Neither the General .Assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money, or other personal property ever be made by the state or any such public corporation, to any church, or for any sectarian purpose. History This was a new section of the Constitution proposed by the Conven- tion of 1870. As originally submitted, the section ended with the word "whatever." When the point was raised that only ajjjjropriations to sec- tarian institutions were prohibited, the last clause was added to prevent any form of aid. This proposal was apparently prompted in part by what was believed to be the New York experience, where it was alleged that one-half million dollars had been appropriated to convents and semi- naries. One ground of opposition to the provision was that it injected such a note of controversy that the whole Constitution might be rejected by the public. In general, the debate centered on the pro's and con's of giving aid to parochial schools or of permitting the public schools to establish or maintain a sectarian influence if the majority of voters in a district so desired. One amendment was offered permitting the appropriation of public funds to sectarian schools to the extent of taxes paid by those members supporting the public schools. This was defeated primarily on the grounds that this would fragment and destroy the public school system, since it would not have a broad base of support and every denomination would demand equal rights. This section generated great controversy in the 1920 Convention be- cause of the Dimn decision, discussed in the Explanation below, which permitted the state to pay to sectarian institutions at least part of the cost of caring for dependent children committed to them by the state. The majority report of the Committee on Education reported out Section 3 as it now stands. Immediately, a minority report, the exact text of which is not available, was offered in substitution for the majority report. The gist of the minority report was to prohibit absolutely any payments to sectarian institutions, in effect reversing the Dunn decision, on the grounds that the rationale of that case went considerably beyond the limited problem of caring for dependent children and coidd permit a "partnership" of church and state in dealing with any social problem, including public education. Several supporters of the majority report pointed out that the rejected sentence, noted in the History of Section 1 above, amending Section 1 had been intended to remedy the problem of Art. VIII, § 3 405 caring for dependent children, and lor that reason no change was sug- gested for Section 3. In view of the Convention's rejection of the amend- ment to Section 1 (see His lory of Section 1, supra, p. 399), they now sup- ported the minority report. Initial debate focussed on the issue that the state could not afford to build its own institutions for dependent children, and there would be no care fortliem if the minority report were approved. Much concern was voiced that the charities would no longer accept the children if state aid were not forthcoming and that large numbers would be turned out into the streets. In answer to this, one delegate pointed out that of the total cost of supporting the children, including both private donations and state aid, only 12 per cent consisted of state aid to sectarian institutions. The chief problem was in Cook County, where there were large numbers of dependent children; but downstate counties feared that their dependent children were so few in number that a public institution could not be economically supported. Eventually the debate shifted to the broader implications of the Dunn decision, namely, that it could be used to justify payments to general sectarian schools so long as the payments did not exceed the costs of educating the students. Ultimately there was a compromise and as the section was finally included in the proposed Constitution, it provided that public money could not be paid to sectarian institutions when public institutions were available, and that when it was paid it was not to exceed the cost of maintenance and care of persons "temporarily committed" to such institutions. Since this was obviously not limited to schools, but included, for example, hospitals, it was placed in the Revenue Article and Section 3 was elimi- nated from the Education Article altogether. Explanation This section of the Constitution, which relates to the authority of the state and other public corporations, is often construed in conjunction with Article II, Section 3, of the 1870 Constitution and the First Amend- ment to the Federal Constitution, which relate to individual religious freedom. Although only a few cases have arisen under this section, they have been exceptionally controversial. Basically, this section poses two issues: one, the problem of religion in the public schools, and the other, the problem of aid to parochial schools. Involved in both of these problems may be two questions: (1) to what extent is the challenged state activity an "establishment" of religion; (2) to what extent is the challenged state activity a violation of the personal freedom to worship. Although the terms of this section would seem to be primarily directed at the first question, often the two issues are inextricably intermingled. The problem of religion in the public schools is most acutely demon- 406 Art. VIII, § 3 strated in the so-called "released-time" cases. Various forms of "released- tinie" programs had became popular across the United States. The essence of the plan involved the release of students from school attend- ance for one hour a week in order to attend religious education classes. In the first program to be litigated in Illinois, students who had their parent's permission were excused from classes for one hour per week to attend classes in religious instruction conducted in their own churches. The Illinois Supreme Court held that this violated neither Article II, Section 3, nor Article VllI, Section 3, because there was no discrimina- tion among sects, attendance at the classes was not compulsory, and no significant public support in terms of monetary aid was shown. (People ex rel. Latimer v. Board of Educ, 394 111. 228 (1946).) A year later the Court upheld another released-time program whose features differed somewhat from the Latimer case. In this case, the religious education teachers from the various denominations were "approved" by the Superintendent of Schools and came into the school building at the end of the school day once a week to conduct the religious educa- tion classes in the school classrooms. Attendance was taken and reported during these classes. Those students desiring not to participate were assigned to a study hall. The Illinois Supreme Court held that this was not a violation of Article VIII, Section 3, because no significant public expenditures were shown. The United States Supreme Court reversed this decision on the ground that the program constituted an "establishment" of religion in violation of the First and Fourteenth Amendments of the Constitution of the United States. The establish- ment was found, not in any monetary support given to religion, but in the use of public facilities coupled with the coercive use of state power (in this case, the compulsory school attendance laws) to encourage cooperation with the religious enterprise. (People ex rel. McCollum V. Board of Education, 396 III. 14 (1947), rev'd, 333 U.S. 203 (1948).) A few years later, the United States Supreme Court sustained a released- time program whose features were essentially the same as those of the Latimer case, the religious instruction taking place away from the school premises. (Zorach v. Clauson, 343 U.S. 306 (1952).) Critics of the Mc- Collum decision viewed Zoracfi as a victory for their cause and a reversal of the Court's position. Probably this is imjustified optimism, although from a certain viewpoint the cases are difficult to reconcile. While attend- ance was taken in the Zorach program, the Coint specifically noted that truancy laws did not appear to be enforced, and it clearly indicated that it believed the "coercive" features of McCollum were not present. Per- haps the McCollum case is more analogous to the school prayer cases (School Dist. V. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. Art. VIII, § 3 407 421 (1962).) In those two cases, the religious exercises were conducted on school property, they had the specific sponsorship ot school authori- ties, and students not specifically requesting to be excused were re- quired to participate. It should be noted here that the Illinois courts were considerably ahead of the federal Supreme Court on the issue of public school prayers and bible reading, having decided in 1910 that these practices were unconstitutional on essentially the same grounds as the later federal decisions. (People ex re]. Ring v. Board of Educ, 245 111. 334 (1910).) The problem of public aid to parochial schools has prompted little litigation in Illinois, except for one significant series of decisions around 1917. The subject has, however, been receiving renewed national at- tention and the United States Supreme Court recently rendered its first decision on the subject in more than 20 years (Board of Educ. v. Allen, 392 U.S. 236 (1968)); so it seems reasonable to assume that Illinois may again face the issue soon. Despite what would appear at first reading to be a clear constitutional prohibition against public aid to sectarian schools in Section 3 of Article VIII, a decision of the Illinois Supreme Court has cast considerable doubt on this issue. That case has already been referred to in the History of this Section, but its importance justifies a more detailed analysis. The case is Dunn v. Chicago Industrial School for Girls (280 III. 613 (1917).) Pursuant to statute, the juvenile court of Cook County was authorized to commit dependent girls to various private institutions for their care. Many of these institutions -wert owned and run by religious organizations. The state paid $15 per month to these in- stitutions for the support of each girl. In a taxpayer's suit to prevent the payment of this support, it was shown that the amount was consider- ably less than the actual cost of maintenance for the girls and that the cost for similar care in a state institution amounted to about $30. The Court upheld the validity of this arrangement on the ground that there was no "aid" to an institution where the value of services rendered exceeded the payment which was received for them. The decision was followed in a series of similar cases. This principle could well be applied to justify payments to parochial schools in proportion to the value of the educational services they perform in the community, and indeed at least one commentator has suggested that such a standard is completely consistent with the Federal Constitution. (Choper, "The Establishment Clause and Aid to Parochial Schools," 56 Cal. L. Rev. 260, 286-87 (1968).) The federal cases on this issue have not as yet drawn any defini- tive lines as to what, if any, may be the permissible extent of public sup- port of parochial schools under the First Amendment. Two kinds of "indirect" aid have been sustained. In the first case on this issue the 408 Art. VIII, § 3 United States Supreme Court held that free public bus transportation for children attending parochial schools was not unconstitutional because the statute had a general public j)urpose (satety of school children) and the "aid," if any, was tor the benefit of the child, not the school (Everson V. Board of Educ, 'iHO ILS. 1 (1947)); Illinois provides such transporta- tion. In a recent case, the Court upheld the furnishing of free textbooks at public expense to parochial school children as well as jniblic school children. Again the Court pointed out that the aid was for a public purpose, namely the general education of the children, and the aid went to the child, not the school. (Board of Educ. v. Allen, 392 U.S. 236 (1968).) In this case, the Court specifically pointed out that the parochial schools perform a real secular service under state supervision in providing a general education to their students. It is certainly conceivable that this decision may clear the way, at least as far as federal constitutional impediments are concerned, for more aid to parochial schools than has been customary in the past, although the states are not bound by such holdings in interpreting their own constitutional provisions. The latest experiment in Illinois in the field of cooperation between the public and parochial schools has been the "shared-time" arrange- ments which are becoming more common throughout the state. Under these arrangements, students take about half of their courses in the public school (usuaiily so-called "nonvalue" courses such as mathematics, science, physical education) and the remainder (literature, humanities and social sciences) in the parochial schools. This system has been challenged only once in the upper courts of Illinois where it was upheld without any significant discussion of the constitutional issues. (Morton v. Board of Educ, 69 111. 2d .S8 (1966).) Comparative Analysis Approximately 18 states have provisions similar to those of Illinois. The Model State Constitution has no similar provision, although the prohibition in its bill of rights against an "establishment" of religion woidd be applicable to some of the problems in the same way as the First Amendment of the Constitution of the United States has been applied through the Fourteenth Amendment. Comment This section of the Constitution will have to be given careful attention in conjunction with Article II, Section 3, and the First Amendment of the United States Constitution. At least three approaches can be taken. It could be eliminated altogether, leaving the restrictions of the First and Fourteenth Amendments of the Constitution of the United States applicable to needed restraints upon the legislature. If it is decided that the state as a matter of constitutional policy should impose, or have Art. VIII, § 4 409 the authority to impose, more restrictive standards upon state aid to sectarian institutions than are imposed by the Federal Constitution, then some redrafting of this provision would be necessary, in the light of the Dunn decision. Or the provision may be retained in its present form. It seems that as a practical matter this last option would have no different legal effect from the first luiless the Illinois Supreme Court were to modify the position taken in Diddi. As noted in other portions of this study, it is not thought to be desirable state constitutional policy to "abdicate" a field simply because of a holding that a comparable pro- vision in the federal Bill of Rights has been held applicable to the states through incorporation into the Fourteenth Amendment of the Con- stitution of the United States. (See Introductory and Preliminary Com- ment, Art. II, supra, pp. 5-8.) School Officers not to be Interested In School Contracts Sec. 4. No teacher, State, county, township, or district school officer shall be interested in tlie sale, proceeds or profits of any book, apparatus or furniture, used or to be used, in any scliool in tliis State, with whicli such officer or teacher may be connected, under such penakies as may be provided by tlie General Assembly. History This section dates from 1870. When the section was first considered in Committee of the Whole, the debate, with the exception of the remarks of one delegate, was of the sort one would expect to find in a legislative session — namely, an extended exposition of the evil to be legislated against, argument as to the breadth of the proposed wording, and consideration of amendatory language to provide appropriate ex- ceptions. One delegate addressed himself to the question of whether the section belonged in the Constitution, argued that the legislature could properly cope with the evil complained of, and moved to strike tlie section. His motion carried. But when the Convention voted on whether to confirm the Committee's action, a tie resulted and the proposed dele- tion was lost. On a subsequent vote to adopt the section following an amendment that added the words "with which such officer or teacher may be connected," the result was 33 to 19, with 31 not voting. The proposed 1922 Constitution pulled together the conflict-of-interest provisions of Sections 15 and 25 of Article IV (supra, pp. 176 and 230) and, in part, this Section 4. The proposed section in the article on Public Servants stated that no officer should be beneficially interested in any con- tract with the government entity of which he was an officer. Notwithstand- ing this blanket prohibition, the proposed Constitution retained a section in the Education Article reading: "No school officer shall be financially 410 Art. VIII, § 5 interested in any contract concerning any school with which he is con- nected or in any book, apparatus or turniture used in such school." Explanation No tjnestions concerning this section apjjcar to have arisen. The im- plementing statute is Section 22-5 of the School Code. (111. Rev. Stat, ch. 122, §22-5 (19()7).) That section substantially repeats the constitu- tional language and provides penalties ol lines from 3-5 to $500 and jail terms from one to 12 months. Comparative Analysis Two states, Mississippi and South Dakota, have a comparable pro- vision. West Virginia also has a comparable provision but adds a jjroviso that allows an author to receive his royalties. (The words "with which such officer or teacher may be connected" were added in the 1870 Con- vention to cover this problem in j^art. Under these words, a teacher could receive royalties from books used in any school except the one in which he taught.) The Model State Constitution has no comparable provision. Comment Prohibitions against conflicts of interest are legislative matters. As noted elsewhere (see Comment on Sec. 15 of Art. IV, supra, pp. 177-8.), conflict- of-interest coverage may be apj^ropriate in the case of legislators, but if that is done, it seems likely that the legislature will enact legislation covering conflicts of interest of other government officials. County Superintendent of Schools Sec. 5. There may be a County Superintendent of Schools in each county whcjse qualifications, powers, duties, compensation, and time and manner of election, and term of office, shall be prescribed by law. History This section dates from 1870. The section as originally proposed by the Committee on Education said that there "shall be a county super- intendent" and contained no words concerning election of superin- tendents. When the Convention first undertook consideration of the section in the Committee of the Whole, the words concerning election had been included. During the debate there was a proposal to change "shall" to "may" in the interest of flexibility, but instead the Committee voted to strike the section. In the Convention proper, the decision was to retain the section but to substitute the word "may" for "shall." This compromise solution was designed to preserve flexibility. On the one hand, it would be constitutionally possible to dispense with county super- intendents and on the other hand, there would be no danger that some- one would argue that such an office could not be created by law. This Art. VIII, § 5 411 danger arose because the article on Counties created a number of offices (see Sec. 8 ot Art. X, infra, p. 504.), and under the ancient maxim exprcssio unius est exchisio alterius— the expression of one is the exclusion of an- other— it coidd be argued that the legislature could not create a county office in addition to those listed in that article. In the proposed 1922 Constitution, this section was moved to the county part of the proposed article on Local Governments. One important substantive change was made by adding the words "or appointment" after the word "election." Explanation There have been several cases interpreting this section, but all have been relatively obvious confirmations of the meaning of the words used. There has apparently been some c]uestion as to whether "manner of elec- tion" would permit the legishitine to provide that the superintendent of schools be elected by tl^e comity board. There has been no definite answer to the cjuestion. Comparative Analysis There appear to be approximately 15 states besides Illinois that have constitutional references to county school superintendents. Half a dozen states or so mandate an elected superintendent. Some states authorize abolition of the office either by the legislature or by local vote. Several states provide flexibility in determining whether superintendents shall be elected or appointed. In general, the states with county super- itendents provide that compensation, powers and duties, and qualifica- tions shall be set by law. In most of these states, the term is fixed at either two or four years. The Model State Constitution has no comparable provision. Comment The tentative decision by the 1870 Convention not to make the county superintendent of schools a constitutional office at all was probably the better one. The compromise of permitting the legislature to create or not to create the office was the next-best solution. The additional flex- ibility of permitting appointment in place of election as proposed in 1922 was also an improvement. In reviewing the matter now, the position of county school superintendent should be considered as a part of the problems of county government and not of education. Article IX REVENUE Taxation of Property — Occupations — Privileges Sec. 1. The General Assembly shall provide such revenue as may be needful, by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property— such value to be ascertained by some person or persons, to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise; but the General Assembly shall have power to tax peddlers, auctioneers, brokers, hawkers, merchants, com- mission merchants, showmen, jugglers, inn-keepers, grocery-keepers, liquor- dealers, toll bridges, ferries, insurance, telegraph and express interests or busi- ness, vendors of patents, and persons or corporations owning or using franchises and privileges, in such manner as it shall, from time to time, direct by general law, uniform as to the class upon which it operates. Enlarging Tax Base Sec 2. The specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects to be taxed, in such manner as may be consistent with the principles of taxation fixed in this Constitution. History In the 1818 Constitution there was no Revenue Article, but Article VIII (the bill of rights), Section 20, provided: "[T]he mode of levying a tax shall be by vakiation, so that every person shall pay a tax in pro- portion to the value of the property he or she has in his or her pos- session." It was very early decided that this provision did not impose any substantial restriction on the legislative power to tax. In Saivyer if. City of Alton (4 111. 126 (1841)), the city sued to collect a penalty of $3.00 for failure to perform required road labor. Sawyer argued that this was a tax and violated the 1818 Constitution because it was levied per capita and not by valuation. The Supreme Court agreed that it was a tax, but held that this constitutional provision merely prescribed the method of levying property taxes and did not prohibit the legislature from imposing other kinds of taxes. The next significant case under this provision was Rliinehart v. Schuyler (7 111. 473 (1845)). In this case the Court held that lands could be classified for purposes of tax 413 414 Art. IX, §§1,2 levies — i.e., taxed at different rates — and that the General Assembly could assess land by statute without actual visitation of the property in question. The Rhinehart case is of particular importance because the revenue provisions of the 1848 Constitution were specifically intended to reverse both grounds of this decision. Sections 2 and 6 of the 1848 Constitution are the direct antecedents of Sections 1 and 2 of the 1870 Constitution. (liecause of the close rela- tionship between Sections 1 and 2, they are considered together.) Since the state was in very bad financial circiunstances in 1848, the matter of revenue consumed a great deal of the Convention's attention. It seems clear that the primary intent of Section 2 (which corresponds almost exactly to the present Section 1) was to prohibit the classification of property for the pur- poses of the property tax and to require individual assessment of specific parcels. Whether any further restrictions of the taxing power were intended is not clear. The author of the most thorough historical review of these provisions suggests that no other restrictions were contemplated. {See Lucas, "Nonproperty Taxes Under the Illinois Constitution," 25 U. of Chi. L. Rev. 63, 72-74 (1957).) Judicial decisions on the meaning of these sections, when examined with reference to their particular facts, are not particularly instructive. Some of the looser language used in these cases suggested that the property tax was intended as the primary system of taxation with only limited exceptions pemiitted. However, since there were no serious legislative experiments with other modes of taxation, such observations were gratuitous and the nature of any such restrictions, speculative. When the Constitutional Convention of 1870 was called, the state's financial condition was relatively satisfactory and there was practically no pressure upon the Convention for reform of the 1848 general revenue sections. These sections were reported out of committee w'ith the ob- servation that they could not be improved upon. There was remarkably little debate over them. What debate there was indicated a difference of opinion among the delegates as to whether the last clause of Section 1 was intended to operate as an exclusive limitation. The substance of the debate did nothing to clarify the issue or to define any particular understanding of the Convention. The one substantial change in the section — the addition of the last phrase "by general law, uniform as to the class upon which it operates" — was not even commented upon. Presumably, the addition was simply another manifestation of the strong feelings of the delegates against special legislation. (See Histoiy of Art. IV, Sec. 22, supra, pp. 204-5.) Since 1900, six unsuccessful attempts have been made to amend Sec- tions 1 and 2. The most comprehensive revision was the entirely new Art. IX, §§1,2 415 Article in the proposed 1922 Constitution. Among the more significant changes proposed, insofar as they related to Sections 1 and 2 ot the 1870 Constitution, were the following: (1) all property, real and personal, was to remain unclassified, with the exception that forest lands could be classified; (2) in lieu of a property tax on intangibles, a uniform tax on income from intangibles could be levied; (3) in place of the long list of business activities, and other subjects designated in Section 1, it was simply provided that taxes could be imposed on "privileges, franchises, and occupations, uniform as to class"; (4) a graduated income tax was authorized, with the highest rate not to exceed three times the lowest; (5) an exemption from the property tax of up to $500 value for household goods was authorized. Explanation Gerjeral Constitutional Principles of Taxation in Illinois. A broad outline of the constitutional structure of the tax system in Illinois may be helpful in understanding the more specific problems that have arisen. It is generally understood that Article IX, Section 1, limits the state to three kinds of taxes: (1) a general property tax; (2) occupation taxes; (3) franchise and privilege taxes. The broader language of Section 2 does not ameliorate this limitation, but merely permits the imposition of occupation, franchise and privilege taxes on subjects in addition to those listed in Section 1. It should be noted that the restrictions imposed on the state apply equally to the taxing powers of county and municipal corporations, since they are but subdivisions of the state. (See Addendum, infra, p. 435, for recent Supreme Court of Illinois decision overruling dicta establishing above three classifications as a limit on state's taxing power.) The general property tax is governed by two important principles — the uniformity and ad valorem, requirements. The Constitution requires that "every person or corporation shall pay a tax in proportion to the value of his, her or its property." This means that all property must be taxed, if any is taxed, and no property may be exempted (with certain very limited exceptions discussed in Section 3 but not relevant here). "Property" as used in this section means real and personal, tangible and intangible. The ad naloreyn principle is really just a specific application of the uniformity principle. The tax must be levied "by valuation." This means that all property must be taxed at the same rates. Property may not be classified for the purpose of taxing it at different rates nor, what amounts to the same thing, may it be assessed at different ratios when applying a tax rate. Thus, if urban residential real estate is taxed on the basis of 50 per cent of its full cash value, then rural agricultural real estate, as well as industrial real estate, must be similarly taxed; and correspondingly, all personal property, tangible and intangible, such as 416 Art. IX, §§ 1, 2 household goods, stocks and bonds, inusi be taxed at 50 per cent of full cash value. In the light of connnon knowledge of assessment practices in Illinois, the mere statement of these principles reveals the extent to which the general property tax, as a revenue measure in Illinois, epito- mizes the avoidance of, rather than the compliance with, the Constitu- tion's mandates. In contrast to the rigid uniformity rules governing the property tax, occupation, franchise and privilege taxes must only be "uniform as to the class upon which they operate." Since classification of these taxes is expressly permitted by the Constitution, it is obvious that the require- ment of uniformity means something quite different from its meaning in conjunction with the property tax. Essentially, it means that where the legislature defines and levies one of these taxes upon a class, the definition must be reasonable in relation to the purpose of the tax and in terms of the membership comprising the class; the class as defined must include only those properly within it and not exclude those reason- ably a part of it. The legislature has broad discretionary powers in this respect, including the power to prescribe subclassifications, exclusions, exemptions, graduated rates, and the like, so long as they are reasonable. Occupation and franchise taxes are traditional methods of imposing taxes on business and commerce. A franchise tax is normally imposed as a condition to legally carrying on certain kinds of business, and may be imposed for purposes of regulation or revenue, or both. On the other hand, an occupation tax is imposed merely as an incident of doing busi- ness and is primarily a revenue measure. The use of privilege taxes as significant sources of revenue is a currently expanding fiscal develop- ment. What constitutes a taxable privilege is a complex and elastic concept, the limits of whicli have not yet been defined. The General Property Tax. More than half of all revenue produced by taxation in Illinois comes from the property tax, nearly all of which goes to local governments. Approximately 90 per cent of local revenue is derived from the property tax. No general state property tax has been levied since 1932. Although it has been estimated that from one-half to two-thirds of all property in the state is in the form of personal property of various kinds, only 20 per cent of property tax revenue is produced by personal property taxes, of which only 3 per cent is from intangibles, and 80 per cent by real estate taxes. These percentages are, of course, variable annual approximations, but it is apparent, as an accurate generality, that the property tax in Illinois is tlie single most important revenue-producing tax in the state, that it is practically the sole support of local govern- ments, and tJiat it is primarily a real estate tax. The administration of the property tax depends on two factors — valid Art. IX, §§ 1, 2 417 tax levies and proper assessment procedures. The requirements for tax levies are dealt with in later sections oi this Article. The procedures for assessment of property are dependent to a large extent upon this section. Initially, it is to be noted that assessed valuation is "to be ascertained by some person or persons, to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise." The adminis- trative machinery of the assessment procedure has not of itself been a subject of much constitutional controversy. The constitutional standards are very general and the authority of the legislature quite broad. (A notable exception to this generalization is the case of Giebelhausen i>. Daley (407 111. 25 (1950)), which held that a newly prescribed method of selecting local assessors was an unconstitutional delegation of legislative power to the executive and an encroachment on the authority of local governments.) However, since the great bulk of constitutional decisions on the property tax arise out of a controversy over a particular assess- ment, it is necessary to understand the mechanics of assessment and the requirements for a successful challenge. Nearly all property assessments are made by local assessors, usually at the township level, selected in various ways. These local assessments are subject to supervision and review by administrative agencies at the county level. There are a few exceptions to this practice, tlie principal one relating to the property (both real and personal) of railroads and certain other corporations which is assessed at the state level by the Department of Revenue, with the appro- priate proportion of property value being certified to county assessing offices for purposes of local taxes. Since 1947, administrative machinery has existed at the state level designed to facilitate and assure uniformity of assessment practices among the counties throughout the state. The Department of Revenue is re- quired to investigate the assessed valuations of each county, and if it finds that property is being assessed at less than its fair cash value, it must assign a "multiplier" to the county which when applied will raise the valuations to 100 per cent. For example, if a county assesses property at 50 per cent of its cash value, a multiplier of 2.0 will raise the assessment to 100 percent. There are several reasons for such a system. Most impor- tant, the Constitution requires statewide uniformity, but, as the cases dis- cussed below reveal, the courts are unable to fashion suitable remedies, and administrative machinery is necessary to obtain the objective. This is particularly critical in the case of taxing authorities (close to 1,000 in number) whose boundaries cross county lines. Secondly, many state grant-in-aid programs, for schools, welfare and the like, are tied to the aggregate assessed valuation of the taxable property in the recipient governmental units. Third, the legal tax rate and indebtedness limits 418 Art. IX, §§1,2 of local governments are expressed in terms ot assessed property valu- ation. Finally, since some property is assessed by state procedures at 100 per cent of value, in order for this property to bear no more than its fair share of the tax burden, property must be assessed locally at 100 per cent. It should be emphasized that this state-wide administrative procedure equalizes assessments only among counties and docs not affect uni- formity within a county. This latter problem must be dealt with by appropriate procedures at the local level. Since the great majority of cases establishing the constitutional prin- ciples of property taxation arise from challenges to individual assess- ments, it may be helpful to summarize the basic requirements for judicial review of property assessment. First of all, Illinois courts will review an assessment only when it is made fraudulently. If the assessment is erroneous because of an error of judgment or difference of opinion as to value, the only remedy is administrative. Secondly, even if a fraudu- lent assessment is made, a taxpayer must first exhaust his administrative remedies before a court will hear his challenge. Finally, even a fraudu- lent assessment, through undervaluation or omission of one kind of property, will not invalidate assessments on other kinds of property. The rationale for this last principle is that dereliction of duty of an individual tax assessor should not render the whole tax void and make it impossible to collect any taxes. (Bistor v. McDonough, 348 III. 624 (1932).) It was the emergence of this last rule that finally led to the almost complete collapse of the collection of personal property taxes in Illinois, although the difficulties of collecting a flat ad valorem tax on personalty, especially intangibles, were apparent earlier. In one of the first cases on this issue, it was proved that the stock and securities of the protest- ing bank were valued at 75 per cent of their fair cash value, while real estate in that district was assessed at only 43 per cent. The Supreme Court held that this variation violated the constitutional requirement of mii- formity and, further, that the magnitude of the discrepancy was itself proof of fraud. However, the Court held that the proper remedy was not to reduce the bank's assessment, but to compel the assessor to assess other property at the proper value; it said that the former remedy would be un- fair to other taxpayers who had paid taxes on a high valuation without protest. (First Nat'l Bank v. Holmes, 246 111. 362 (1910).) While this case concerned overvaluation of intangible property in relation to real estate, the converse situation soon became a primary difficulty in collection of the property tax. Intangible property, although it accounts for well over half of the wealth of the state, contributes little to tax revenues. The inequity of this situation became especially severe during the eco- Art. IX, §§1,2 419 noniic depression of the late 1920's and early 1930's, and real estate owners sought relief in the courts by alleging that the omission of per- sonal property from the tax rolls was unconstitutional. Although this challenge was indisputable, the courts were unable to fashion an effective remedy. Reluctant to jeopardize the whole tax structure, the Court reinforced its First Natio?ial Bank rule by holding- that owners of real property could not challenge the validity of the assessment and taxation of real property on the grounds that personal property was omitted or undervalued on the assessment rolls. (Koester v. McDonough, 351 111. 492 (1933).) In another attempt to secure relief, taxpayers of Cook County sought to mandamus the assessor to add omitted property to the tax rolls and to value it properly. The petition contained very detailed allegations of property which was not being taxed, such as seats on the Board of Trade, bank deposits, estates in the probate court, boats in the harbor, and the like. Nevertheless, the Court held that in order for mandamus to issue, the petitioner must show the name and residence of the owner of the property, its situs, character, and all facts necessary to prove that it was taxable. (People ex rel. Koester v. Board of Review, 351 111. 301 (1932).) Since as a practical matter these facts cannot be obtained by a private party, mandamus is an illnsory remedy. Thus, although classification of projjerty is unconstitutional, de facto classi- fication established deliberately, even arbitrarily, by an assessor is immune from judicial attack. There has been more success in achieving the uniformity standard in the assessment of real estate than with all property generally. Grossly excessive valuation of real property in relationship to assessments on like property has been sufficient in some cases to prove constructive fraud, and the courts will provide relief. More impoitantly, it was early estab- lished that the constitutional requirement of uniformity takes priority over legislative requirements of full valuation Thus, if property values are debased for purposes of assessment in violation of legislative stand- ards, they must still be uniformly debased; and a taxpayer may challenge his assessment as being fraudulent when it is considerably in excess of the ratio of assessed value of other property in the district, even though it is not actual full value. (People ex rel. McDonough v. Illinois Cent. R.R., 355 111. 605 (1934); People ex rel. Wangelin v. Wiggins Ferry Co., 357 111. 173 (1934); People's Gas Light & Coke Co. v. Stuckart, 286 111. 164 (1918).) Despite these rules, which are often effective in providing relief from unequal real estate assessments, the principle of uniformity continues to create difficult problems. For one thing, the ride discussed above, that owners of one class of property cannot challenge the assess- ment of another class, seems to have worked its way into real estate 420 Art. IX, §§ 1, 2 taxation. In a case where plaintiffs urged the invalidity of assessments of 35 per cent of value on their agricultural property because urban property was assessed at only 25 per cent of value, the Court invoked this rule in denying relief. (Tuttle v. Bell, 377 111. 510 (1941).) Although not entirely clear, the decision appears to be based primarily on the premise that disparate classes of property are involvei.1 and that a ditlerential in assessment of one class provides no basis for equitable relief of the "unassessed" class. The decision in no way suggests a departure from or modification of the rules theretofore determined. A more critical problem, which led to the present system of state equalization of assessments, is that of inequality of assessment practices among counties. The unfairness of these practices was demonstrated in a case where three municipal taxing districts overlapped both Lake and Cook Counties. Property in Cook County was assessed at 75 per cent ol value, whereas property in Lake County was assessed at 21 per cent. Thus, property owners in Cook County paid almost three times as large a tax as property owners in Lake County for identical services and under identical tax rates. The Court conceded this to be clear violation ol the Constitution, but held that it was powerless to grant a remedy. The solution, if any, was legislative. (People ex rel. Schlaeger v. AUyn, 393 111. 154 (1946).) This situation and this decision led to the pas- sage in 1947 of the so-called "Butler Bills," which required full value assessment and state ecjualization of assessments among counties. While these provisions contributed much toward achieving uniformity in real estate taxation (they have no effect on personalty), they have not been entirely successful, as the recent so-called "railroad strike" cases showed. In these cases, the railroads proved that their property was assessed by the state at 100 per cent of full value; proportionate values were cer- tified to the counties for extension of taxes. However, local property, even after application of the equalizing multiplier, was still assessed at only 50 per cent of full value. The railroads were granted relief. (People ex rel. Kohorst v. Gulf & O. R.R., 22 111. 2d 104 (1961); People ex rel. HiUison v. Chicago, B. & Q. R.R., 22 111. 2d 88 (1961).) How- ever, instead of ordering debasement of the assessment on railroad property, the Supreme Court held that the proper remedy was reim- bursement of taxes paid in excess of what would have been extended had local property been assessed at full value. The application of this remedy is very complex and will require litigation in every county for the railroads to receive relief. Bachrach x>. Nelson — The Structure of Noyiproperty Taxes in Illinois. It is impossible to understand the structure of nonproperty taxes in Illinois without considering the pervasive influence of Bachrach i'. Nelson, (349 Art. IX, §§1,2 421 111. 579 (1932)), for this case has governed either directly or indirectly all subsequent tax legislation and litigation up to the present. (Note: The entire remaining analysis under this Explanation has been substantially affected by a recent decision oi the Illinois Supreme Court sustaining the new Illinois Income Tax Act. See Addendum, infra, p. 435.) With the ad- vent of the economic depression, the property tax ceased to be a viable source of state revenue, although it has continued to provide most local revenue. In searching for new means of support for the state government, the legislature passed a graduated income tax. This tax was immediately challenged under the limitations imposed by Section 1. The state con- tended that the tax was constitutional under the broader terms of Section 2. With the possible exception of the inheritance tax, this was the first time that the Court had been confronted with the validity of a tax which was not clearly of a kind specified in Section 1. Thus there were two significant new questions to be answered: (1) what were the exact limi- tations, if any, imposed on the taxing power by Sections 1 and 2? And (2) was the income tax within these limitations? The answer to the first question was by far the most crucial for the future development of tax policy in Illinois. The Court held that Section 1 limited the legislature to three kinds of taxes — property, occupation, and franchise and privilege. The language of Section 2 that "other subjects or objects" might be taxed was held to mean, not that other kinds of taxes might be imposed, but only that the list of permissible occupation, franchise and privilege taxes in Section 1 was not exclusive. While nearly all other aspects of the Bachrach opinion have been subject to consider- able erosion, both judicial and academic, this particular formula seems to have become accepted, if not necessarily welcomed, dogma. In reach- ing this conclusion, the Court considered a large amount of historical evidence which it said showed that the drafters of the Constitution intended the property tax to be mandatory and the main source of support for the government. The exceptions were limited and of a merely supplementary nature. Of course, this aspect of the Court's opinion is of no validity today, as there has been no state property tax since 1932, and the principal source of state tax revenue, since 1933, has been the retailers' occupation tax. In considering whether the income tax met the formula required by Section 1, the Court did not have the benefit of a complete analysis by the state. Since the state's position had been that the tax was sui generis and hence justified under Section 2, it had not argued that the tax could be sustained under Section 1 as a privilege tax. Thus the Court did not consider this possibility. But it did conclude that an income tax was a property tax and that its graduated features violated the uniformity 422 Art. IX, §§1,2 requirement. The Court is open to criticism on a number of counts, several ot which may be briefly noted. For one thing, the historical analysis was not entirely accurate, for there was a failure to perceive that alternatives to the property tax had not been seriously contemplated as constitutional issues in 1870; thus no real decision either for or against them had then been made. And of course, the • onclusion that the property tax was man- datory as the primary source of revenue is decisively rejected today. Finally, the conclusion that an income tax is a property tax was un- sound then and would certainly not be accepted in theory today. It was directly contrary to an earlier decision of the Court which held, in inter- preting a lease, that an income tax was not a property tax for which a lessee could be held liable (Young v. Illinois Athletic Club, 310 111. 75 (1923)), and the principal case on which the Court relied (Pollock v. Farmer's Loan &: Trust Co., 157 U.S. 429 (1895)) has since been in effect overruled. {See New York ex rel. Cohn v. Graves, 300 U.S. 308 (1937).) The fact that the Court explicitly failed to consider whether an income tax was a privilege tax, coupled with the presently expanding concept of what constitutes a taxable privilege, makes it an open question Avhether the Illinois Court would today validate an income tax; some constitutional law scholars believe it wovild. (For a complete discussion of this issue, see Cohn, "Constitutional Limitations on Income Taxation in Illinois," 1961 U. 111. L. F. 586.) Perhaps it should also be noted that a corporate franchise tax measured by net income, as distinguished from a personal income tax, could probably be enacted under present provisions. (See Young, "Constitutional Problems," in Report of the Commission on Revenue 354, 380-82 (1963).) Francliise, Occupatioji and Privilege Taxes. In considering these kinds of tax, it is important to keep in mind the distinction between the subject of a tax and the measure of the tax. The statutory definition of the subject of a tax, if the uniformity requirement of the last clause of Section 1 is met, will detemiine its constitutionality. For example, what is popularly known in Illinois as the "sales tax" is actually defined in the statute as a tax "on the business of selling tangible personal property at retail." So defined, it is clearly an occupation tax. At the time the statute was passed, it was believed that a tax on the sales transaction itself would not fall within the property-occupation-privilege formula required by the Constitution. The peculiar consequences of structuring the tax as an occupation tax will be discussed below. On the other hand, how- ever, if the subject of the tax is constitutional, the measure of the tax — i.e., the formula by which it is imposed — will not affect its constitu- tionality, so long as it is reasonable. With regard to occupation and Art. IX, §§1, 2 423 privilege taxes, the test of reasonableness does not come so much from the uniformity clause of Article IX, Section 1, as from the due process clauses of the state and federal constitutions. {See Bode v. Barrett, 412 III. 204 (1952). Compare Fiorito v. Jones, 39 111. 2d 531 (1968).) Thus it was soon decided that an occupation tax on brokers could be imposed as a flat fee, even though it was objected that by failing to take into account the size of the business, the tax was not uniform as to property (Banta v. City of Chicago, 172 111. 204 (1898)); that graduated features of privilege taxes were valid (Metropolis Theater Co. v. City of Chicago, 246 111. 20 (1910); Kochersperger v. Drake, 167 III. 122 (1897)); and that even a combination of the two methods was proper (McGrath v. City of Chicago, 309 111. 515 (1923)). In imposing an occupation tax, the crucial constitutional issue in terms of the uniformity requirement is the definition of the occupation to be taxed— which businesses are to be included and which are to be excluded? The case most clearly setting out standards for such a decision is Peoples Gas Light & Coke Company v. City of Chicago (9 111. 2d 348 (1956)). In this case, the city, under an appropriate state statute, passed ordinances taxing gas companies and electric companies at the rate of 5 per cent of gross receipts. The electric company was allowed a credit equal to its payment of street use taxes of 4 per cent of gross receipts so that the effective occupation tax was 1 per cent. The gas utility did not pay street use tax, so its rate was 5 per cent. The gas company challenged the tax on the ground that the tax violated the uniformity requirement of Section 1, because the distinction between the utility companies, which compete for much of the same business, was discriminatory. In rejecting this contention, the Court discussed three standards to be used in determining reasonableness. (1) Are the businesses com- petitive? Here it pointed out that there were many cases in which the utilities were not— e.g., ilkmiination. (2) Even if they are competitive, that is not conclusive if there are basic differences in the means of production, distribution and use of products— an obvious situation here. (3) Finally, classification of even similar objects may be justified under special circumstances. Here the different street taxes paid by the utilities were such a circumstance. The standards have not been referred to in all cases, but they are helpful in understanding the uniformity require- ment. Since 1933, the principal source of revenue for the state government has been the retailers' occupation tax (111. Rev. Stat. ch. 120, §§ 440- 452 (1967)) and a small group of related taxes. The history of this legis- lation is revealing of the constitutional gauntlet through which tax legislation in Illinois must run. As originally passed, the tax was imposed 424 Art. IX, §§1,2 on those "engaged in ilie business of selling tangible personal property at retail" and exempted Irom its coverage retailers of motor fuel (because that was already taxed) and agricultural producers who also sold their produce at retail. This act was held unconstitutional because the ex- emptions violated the uniformity requirement. (Winter v. Barrett, 352 111. 441 (1933).) The legislation was quickly passed again without the offending cxemj^tions, and was sustained by the Court. (Reif v. Barrett, 355 111. 104 (1933).) In this case, special note was taken of the fact that the tax was measured by gross receipts of the business; it was contended that this was an income tax and hence invalid under the rule of Bach- rack V. Nelson. But the Court held that the tax was in fact an occupation tax, that retail selling was a taxable occupation, and that gross receipts was a reasonable measure. In 1961, the Retailers' Occupation Tax Act was amended to exempt retail sales to units of the state government and to charitable organiza- tions. These exemptions were challenged as violating the uniformity provision because they made the amount of the tax dependent on the character of the purchaser rather than the occupation. Such a challenge would appear to be well founded on the basis of the ]V inter decision discussed above. But the Court held that this objection was not sufhcient to invalidate the exemption. The purpose of the exemption was to mitigate certain economic effects of the tax— /.. Hulman were not significantly different from those invalidated in the Winter case. One might simply conclude that these later cases had in effect overruled the restrictive interpretation of Winter were it not for the fact that Winter was one of the cases relied upon in invalidating the first attempt to tax retail transfers in service occupations. That attempt, while admittedly a departure from customary drafting techniques, could hardly be said to have been capricious. Since the sales in question were indisputably retail transactions, it is not at all clear why it is arbitrary to classify the sellers as being in the business of selling at retail, even if they were engaged in another kind of business as well. The fact that these very transactions were made validly taxable by means of another statute suggests that there was nothing essentially imreasonable about the legislative action. It also suggests the difficulties 426 Art. IX, §§1,2 inherent in structuring a sensible tax system under existing and uncer- tain constitutional standards. It may be seriously questioned whether the uniformity principle in Article IX performs any usetul function with regard to occupation and privilege taxes. It might appear that its main effect has been to serve as another 'mpediment to a rational tax structure. In the cases discussed above, the legislative actions were based on plausible and reasonable assumptions. In the Peoples (ias Light c> Coke Company case (9 111. 2d 348 (1956)), the effort was actually to equalize tax burdens. In the various attempts to formulate a "sales tax" under the artificial strictures of the property-occupation-privilege tax formula, care was being taken not to impose undue hardships— e.g., double taxation in the case of motor fuel— while reaching transactions which should be legitimately taxed. In the one case in which the legislature could be said to have acted un- reasonably—in discriminating between the state and federal governments —the same result could have been reached on other groimds, namely the due process clauses of the state and federal constitutions. {Sec United States V. Department of Revenue, 191 F. Supp. 723 (N.D. 111. 1961).) This last point is well illustrated in Fiorito x>. Jones (39 111. 2d 531 (1968)). In 1967, the General Assembly passed a series of amendments which significantly altered the nature of the Service Occupation Tax Act. Although the tax still purported to be taxing retail transfers, in- stead of applying to all persons who engaged in "sales of service," it was applied to four restricted service categories; and instead of being meas- ured by the value of the property transferred, it was measured by the gross receipts of the business. The Court concluded that there was no rational basis for this particular scheme. If the intent of the tax was really to reach the property transfers, which were analogous to the trans- fers taxed by the retailers' occupation tax, then the gross receipts measure was totally inappropriate because receipts from property sales were a very small amount of the gross receipts of these service businesses. On the other hand, if the purpose of the tax was to tax the value of services performed by these businesses, which was what the gross receipts measure suggested, then to discriminate among services to be taxed on the basis of whether an incidental transfer of personal property was involved was arguably unreasonable. The important point of emphasis in this decision is that, while the conclusion seems to be justified, it was founded on the due process clauses as well as the more particular uniformity requirement of Section 1. Thus, in the rare case in which the legislature does act arbitrarily, the Constitution can provide satisfactory protection without the uncertain and ambiguous hazards of the uniformity clause. Privilege taxes comprise the third category of taxes which can con- Art. IX, §§1, 2 427 stitutionally be imposed in Illinois. What constitutes a taxable privi- lege is critical to current revenue policy in Illinois, since "privilege" is the most expansive and ambiguous of the tax classifications desig- nated in Section 1 of Article IX. Considering ttje date when this pro- vision was included in the section (1848) and the context in which it was used, one could safely conclude that the privilege tax was in- tended in its classic sense as defined in these words — "[a] tax on the privilege of carrying on a business for which a license or franchise is required." (See Black's Law Dictionary 1360 (4th ed. rev. 1968).) How- ever, the concept of a taxable privilege has been substantially expanded from its connotation of a comi*nercial undertaking licensed by the state. The first significant development was the passage of the inheritance tax. Under this statute, each person who inherited all or part of a decedent's estate paid a tax according to the value of the inheritance; the tax was classified into six classes according to the relationship of the successor to the decedent, and different flat tax rates were imposed on each class. It was contended that this tax was a property tax — i.e., a tax on the estate — and the graduated rates violated the uniformity required of a property tax. The Court held that the tax was not on the property itself, but on the right of succession to the property, a right which was created and controlled exclusively by the legislature. Such a right could be taxed as a privilege and, as the classifications were reason- able, the uniformity recpiirement was not violated. (Kochersperger v. Drake, 167 111. 122 (1897).) The next significant decision came ten years later when the City of Chicago imposed a wheel tax on vehicles using the city streets. It was contended that the use of the public streets was a common right enjoyed by everyone, not a special privilege which could be bestowed or withheld by the legislature, and hence was not a proper subject of taxation. The Court disposed of this contention on two grounds. First, it held that even if this was not a taxable privilege, it was a subject or object of taxation which could be permitted under Section 2. In view of the restrictive interpretation of the taxing power which was thereafter adopted in the Bachrach case, this exceedingly liberal position must be discounted. The Court also held that since the construction and control of the public streets rested entirely with the legislature, a tax could be imposed on those who used this public benefit. •(Harder's Fireproof Storage & Van Co. v. Chicago, 235 111. 58 (1908).) In 1931, the State Motor Fuel Tax was sustained against the challenge that it, combined with the vehicle license tax, constituted double taxa- tion on the same privilege, on the grounds that the combination of the two taxes did not exceed a reasonable charge for the privilege of using 428 Art. IX, §§1,2 the highways. The license tax was measured by tlie weight and capacity of the vehicle, while the luel tax was measured by actual use ol the vehicle. (People v. Deep Rock Oil Corp., M3 111. .H88 (1931).) The concej)t oi taxable privilege has been most substantially expanded with the recent development ol "use taxes." Use taxes are designed to prevent the avoidance ol the retailers' occupation tax which occurs when personal property is purchased out ol state and hence is not sub- ject to that tax. The first use tax in Illinois was enacted in 1951, the statute imposing a tax on "the privilege ol using cigarettes in this state." (.S^^^ 111. Rev. Stat. ch. 120, §§ 453.31-453.67 (1967).) This tax was equal to the cigarette "sales" tax which was framed as an occupation tax "on the business of distributing cigarettes in this State." 1 o the extent that a dealer paid the occupation tax he was excused from paying the use tax, so that the effect of the tax was to reach only out-of-state purchasers. This tax was challenged in Johnson x>. Hal pin (413 111. 257 (1952)) on two grounds: (1) the use of cigarettes was not a right which derived exclusively from the authority of the state (as was the riglit to inherit property) nor was it a benefit conferred by the state (as was the use of the public highways) and therefore it was not a taxable privilege; and (2) no reasonable distinction could be drawn between persons who used cigarettes purchased within the state and those who used cigarettes pur- chased outside the state, and since the use tax fell only on the latter it violated the uniformity requirement. On the first issue, the Court could have premised its decision that use of cigarettes was a taxable privilege on a prior case regulating tobacco content which had said that the legislature could prohibit the use of cigarettes. However, the Court, after extensive analysis of the Illinois cases, defined taxable privilege as follows: "[T]he concept of 'privilege' with reference to the taxing power has not been limited in Illinois... to conduct previously authorized by the legislature, or which the legislature could entirely abolish, or to benefits conferred by the State.... [A] taxable privilege may involve lawful rights and conduct enjoyed without previous legal authority, but over which the legislature has some power of control or classification." (Johnson v. Halpin, 413 111. 257, 270 (1952).) While the exact limits of "some power of control or classification" are not yet certain, it is clear that there is considerable room for legisla- tive action in this area. As to the second contention, non-uniformity of classification, the Court held that even though the use tax fell primarily on out-of-state purchasers, the offsetting provisions of the Cigarette Tax Act had the effect of distributing the tax burden uniformly. It is important to note here that two separate taxes — the privilege tax on cigarette use and the occupation tax on cigarette distributors — were combined to meet the uniformity requirement of the Constitution, Art. IX, §§1, 2 429 rather than each tax having to meet that test individually. The success of the cigarette use tax prompted the legislature to adopt the same device to prevent avoidance of the retailers' occupation tax in a significant segment of retail sales — automobile purchases out of state. The Motor Vehicle Use Tax Act was passed in 1953. The tax was imposed only on out-of-state purchases of automobiles, the amount of the tax was equal to the retailers' occupation tax, and proof of payment was required before the vehicle could be licensed. In the inevitable constitutional challenge which followed (People ex rel. Schoon v. Carpentier, 2 III. 2d 468 (1954)), the state sought to justify the tax on the ground that the tax was complementary to the retailers' occupation tax, just as the cigarette use tax was complementary to the cigarette distributors' occupation tax, and should be sustained on the authority of Johnson x>. Halpin. However, the Supreme Court held that the tax was unconstitutional because it violated the uniformity require- ment in three ways. First of all, the tax depended on the tacit assumption that Illinois car dealers would pass on the retailers' occupation tax to the customer in the purchase price, and would in fact remit the tax although no proof of this payment was required. The Court said this assumption was speculative and "wholly without legal sanction." Pre- sumably it was warranted in the cigarette case because tax stamps were required to be affixed to the packages. (It must be pointed out that the very same assumption was the justification for the exemption of charitable purchases from the retailers' occupation tax which was permitted in the Holland Coal Company case discussed above.) Sec- ondly, the tax was not uniformly applied to users, since if the retailers' occupation tax were repealed, in-state purchasers would not have to pay a tax while out-of-state purchasers would. This was not true in the cigarette case because the use tax applied to all purchases but was abated to the extent that the retailers' occupation tax was paid. Finally, the two acts were not coordinated to assure that one or the other tax would be paid. An in-state purchaser would not be prevented from getting a license if the occupation tax were not paid. Following the failure of this act, the legislature attempted to prevent the erosion of the retailers' occupation tax base by enacting a com- prehensive use tax drafted to avoid the objections in the Schoon case. (See 111. Rev. Stat. ch. 120, §§ 439.1-439.22 (1967).) This tax was levied on "the privilege of using in this state tangible personal property pur- chased at retail," and applied to all retail purchases. The tax was at the same rate as the retailers' occupation tax and was basically co- extensive with that act. The tax was collected on in-state purchases by the retailer, but to the extent of the occupation tax remitted, he retained 430 Art. IX, §§1, 2 the use tax. On out-of-state purchases, the out-ol-state retailer could be licensed to collect and remit the tax; il he were not, the purchaser was required to remit it. The tax A\as uplicld in Turner r'. ]Vriglil (11 111. 2d 161 (1957)), a case which has very significant implications lor the concept ol privilege taxes in Illinois, the scojje of Section 2, and the meaning of the uniformity requirement with respect to non-property taxes. The first challenge was that using personal property was not a taxable privilege. Had the Court held stjuarely that stich a subject was a tax- able privilege, it would have been tantamount to saying that an ordinary right or legal activity — such as the right to earn income — was a taxable privilege. However, the Court declined to base its ruling quite so broadly and instead held that a tax which was supplementary to an admittedly valid tax — in this case, the retailers' occupation tax — was constitutional imder Section 2 of Article IX. To support this conclusion, the Court cited the cigarette use tax and an old case which had approved the application of the inheritance tax to inter x>ix>os gifts in contempla- tion of death. {In re Estate of Benton, 234 111. 366 (1908); it probably should be noted that this case did not in fact involve a supplementary tax, such as a gift tax, but turned on what property could constitu- tionally be included in the estate for jnuposes of the inheritance tax.) The fundamental significance of this holding is that for the first time the Court read Section 2 as being broad enough to permit a form of tax which did not fit the property-occupation-privilege formida of Sec- tion 1. As the dissent points out, the basic proposition of Schoon v. Carpentier was that any tax, allegedly supplementary or not, had to meet the constitutional requirements of a basic tax permitted by Section 1. The Court completely ignored this case. It would not require too much effort to find other kinds of taxes which might be similarly justi- fied. For example, it could be argued that a tax on income from in- tangible property was supplementary to the general property tax. Plaintiffs tried to avoid this justification for the tax by arguing that the use tax was not an actual supplementary tax, either in form or in its effect on the tax base. This argument was supported by three points: (1) the form of the tax was not complementary in that it was imposed, not alone on out-of-state purchases not reached by the retailers' occu- pation tax, but on domestic transactions as well; (2) the set-off provisions were an unconstitutional commutation of state taxes in violation of Sections 6 and 7 of Article IX; and (3) the tax bases were not identical because the use tax was collected on the basis of "selling price," includ- ing the value of trade-ins or other credits, while the retailers' occiqjation tax was collected on "gross receipts," which was defined by a 1955 Art. IX, §§1,2 431 amendment to exclude the value of trade-ins. The first two points were met by the answer that this had to be viewed as an integrated system by which only one tax was intended to reach the treasury. The Court ob- served, "it may be ciunbersome, but it is not unconstitutional." (One cannot resist remarking that it is cumbersome because of the restrictions imposed by the Schooji case.) The last point was answered by nullifying, in effect, the 1955 amendment. The example was used of a $3,000 car purchased in part with a $1,000 trade-in; the retailers' occupation tax, which excluded the value of trade-ins, would be |50, while the use tax on selling price would be $75. Since the retailer was excused from paying the use tax only to the extent of the occupation tax, he would be required to remit $50 occupation tax plus $25 use tax. Thus, there was no discrimination between purchasers. But it seems impossible to avoid the point of the dissent that such a device has the effect of the "supplementary" use tax actually increasing the base of the primary occupation tax. The final challenge to the use tax was that it violated the luiiformity requirement because the exemptions were arbitrary and discriminated between purchasers of personal property. For purposes of the retailers' occupation tax, certain occupations were held to be more of a service than retail selling and were thus exempt — e.g., a tailor selling tailor- made suits. These exemptions were carried over to the use tax. The Court admitted that considered as a use tax per se, such distinctions made no sense (a tailor-made suit is just as usable as a ready-made suit), but this flaw would not invalidate the tax because of its supple- mentary nature. It was held that such a classification attack should be directed at the main statute, not the supplementary one. This is a highly debatable holding. The plaintiff was subject to the use tax because he was an out-of-state purchaser; but he was not subject to the occupation tax because he was not a retailer. Consequently, he had no standing to challenge the classification scheme of the retailers' occupation tax. Therefore, even if his objection were valid, as the Court seems tacitly to concede, he had no remedy. This position is reminiscent of the Court's foreclosure of any effective remedy for the omission of personal property from the tax rolls. It may well be that the Constitution (as well as judicial decisions) substantially hampers legislative efforts to devise a rational tax scheme. It is an unfortunate consequence that the Court is virtually forced into strained and awkward avoidances of what appear to be valid constitutional challenges. The uniformity requirement has caused as much confusion in the area of privilege taxes as it has with occupation taxes. In the case of the use tax, in the first hearing of Turner v. Wright, the Supreme 432 Art. IX, §§1, 2 Court held the tax unconstitutioiuil l>ccause ol tlie classification scheme before reversing itscU and sustaining the tax. As has been noted, that decision is itsell unsatistactory in several respects and is particularly difficidt to reconcile with the standards oi Sclioou <'. Carpcuiicr, involv- ing the motor vehicle use tax. In neither case was the legislature acting arbitrarily; it was merely trying to equalize the tax bmclen. The tailiue of the motor vehicle use tax did not residt in any lessening of the tax burden but merely caused the enactment of an even more comprehensive tax. Thus the conclusion may he drawn that the imiformity ride, rather than providing a viable standard by which to formulate equitable tax legislation, actually serves as a somewhat crude weapon to impede tax reform. Comparative Analysis It is difficult to make exact comjjarisons oi revenue articles among state constitutions, since these are probably the most variable provisions of all, and because judicial construction of these articles is critical. However, some very rough generalizations can be made. The following information is from the Illinois Legislative Council Research Depart- ment Publication 134, Constitutional Manddlcs for Unifortuity of Taxa- tion (1959). Although the information is ten years old. and there have been a few state constitutional changes in the interim, it is believed that the basic information is still adequate to give an overall perspec- tive. (Another helpful source of comparative material is Young, "Con- stitutional Problems," in Report of the Commission on Revenue 354, 416-36 (1963), which analyzes the provisions of 14 states selected for geographical distribution and industrial development.) On the issue of classification of real property, the states appear to be about evenly divided between those whose constitutions require uniform taxation of realty and those which permit some form of classification. Twenty-four states retpiire uniformity, Illinois being included in this group. Four states permit a very limited classification, usually in the form of special treatment for forest and mineral lands, and small-home- stead exemptions. Twenty-two states permit reasonable classification, altfiough it appears that this power has not been used to any great extent. As to personal property, the situation is quite different. Only Arkansas appears to be as rigid as Illinois in requiring the uniform taxation of personal property. Nineteen states allow a limited form of classification, primarily on intangibles, automobiles, and small amounts of household goods. Twenty-nine states permit general classification. Constitutional mandates on the subject of non-property taxes vai^ considerably. About one-fourth to one-third of the states have a general Art. IX, §§1, 2 433 rule of uniformity within classes specifically applicable to taxation. In the remaining states, general rules of classification are governed only by the due process clauses. However, there are ninnerous specific rules applicable to individual cases. For example, Ohio's Constitution spe- cifically exempts food from the sales tax. Since the issue of the income tax is particularly important in Illinois, it may be relevant to review the other state provisions in this area. The following summary is taken from Advisory Commission on Inter- governmental Relations, Federal-State Coorditiation of Personal Income Taxes 154-161 (1965). It should be pointed out that these provisions vary considerably from state to state in their details, and only a general overview is presented here. In 1965, thirty-four states levied personal income taxes. Of these, 20 state constitutions contained specific author- ity for such a levy; 14 contained no reference to an income tax. Thirty of these taxes were graduated, while only four were flat rate. Of the re- maining 16 states which levied no income tax, 11 of them probably could, including four which have specific authority. In three states, including Illinois, authority for an income tax is debatable (see Addendum, infra p. 435, for change re Illinois status); and in two, Florida and Tennessee, an income tax is specifically prohibited. The Model State Constitution has an exceptionally brief article on finance, containing only the following recjuirements: (1) that no state debt may be contracted except that authorized by law for specific objects; (2) that the governor must annually submit to the legislature a budget and an appropriation bill; (3) that no obligations may be in- curred nor money withdrawn from the treasury except as authorized by law; and (4) that all expenditures, including salaries, shall be matters of public record. (See also Comparative Analysis of .\rt. IV, Sec. 18, supra, pp. 191-3.) The commentary accompanying the finance article of the Model State Constitution is reproduced here because of its relevance to the overall problem of constitutional revenue principles. Serious con- sideration should be given to the reasons expressed for avoiding constitu- tional restrictions on the revenue powers. The Model State Constitution is based upon confidence in the system of representative democracy. The finance article reflects these beliefs by leaving to the legislature and the governor, the people's elected leaders, broad respons- ibility for the conduct of the state's fiscal affairs with ample power to adjust needs to the rapid changes characteristic of modern times. Ideally, some authorities believe, a state constitution should be silent on mat- ters of taxation and finance, thus giving the legislature and the governor com- plete freedom to develop fiscal policies to meet current and emerging require- ments. . . . [T]he complex and lengthy fiscal articles found in many state con- stitutions. . .obviously are barriers to responsible government. Despite elaborate constitutional limitations upon the legislature designed to 434 Art. IX, §§1, 2 insure fiscal prudence, state revenues, expenditures, and outstanding debt have grown enormously since World War II.. . .Legislatures have been resourceful in circumventing tax and debt limitations. (Model State Constitution 91.) Comment The central problem confronting the Convention with respect to the necessary reform of the Revenue Article has been well stated by Professor Cohn: Revenue reform has been impaled upon the horns of a policy and legal dilenuna. On the one hand, the rigidity of the uniformity and ad valorem prin- ciples as applied to tangible and intangible personal property is almost uni- formly recognized as the major obstacle to an equitable tax system. On the other hand, a relaxation of these principles to authorize classification of property for tax purposes risks the danger of permitting the levy of a graduated income tax, a prospect which is viewed with abhorrence in many quarters. Underlying these alternatives is the deeper issue of the appropriate scope and content of the taxing power generallv. . . . (Cohn, "Constitutional Limitations on Income Taxation in Illinois," 196i U. 111. L. F. 586, 588.) Of course, it is the fundamental task of the Convention to frame the constitutional principles by which legislative policies are to be formu- lated. It is critical to the successful completion of this task that basic, long-term constitutional decisions do not become enmeshed in and obscured by more immediate political problems. Illinois has already experienced serious problems arising from detailed and rigid constitu- tional standards. The lessons of this experience should be seriously considered by the Convention as it formidates constitutional revenue policies. Some states have placed no direct limits on the taxing power of the legislature. (Of course, there are many indirect constitutional limits, the principal one being the due process clause.) The only requirement in the Alaska and Hawaii constitutions is that any tax imposed must be for a public purpose. The Vermont constitution has contained only one limitation on the taxing power since its adoption in 1793; it must appear that the pulic benefit is greater than it would be if the money were not collected. Connecticut has no reference to taxation in its constitu- tion. Other examples could perhaps be foiuid, but they are admittedly few in number. If such an approach is rejected and a more restricted taxing power is desired, then the following problems must be considered. With respect to property taxes, it appears that there should be some provision for reasonable classification of tangible personal property. This could be by grant of general classification powers, or by giving special attention to household goods, motor vehicles, business and industrial equipment, inventories, and agricultural property. Intangible personal property should also be given special treatment, perhaps by tax alternatives Art. IX, § 3 435 other than of an ad i>alorcm tax. Classification of real property is a more difficult problem, but one which will have to be faced in view of the de facto classification which already exists, particularly in Cook County. Also, some attention should probably be given to assessment and equali- zation standards. With respect to non-property taxes, the retention of the artificial formula of occupation and privilege and franchise taxes would appear to be questionable, since it would continue to force a strained and cumbersome tax structure. Also, the uniformity clause specifically applicable to non-property taxes could well be eliminated, since it has had little effective meaning and application. The reason- ableness of such taxes would then be tested, as in fact is now the case, by due process principles. Addendum On August 14, 1969, after this document went to press, the Supreme Court of Illinois issued an opinion sustaining the newly enacted state income tax against constitutional objections. The Court overruled its decision in Bachracli v. Nelson (349 111. 579 (1932)) that an income tax was a property tax; and it also overruled the highly influential dictum in that case that the legislature was limited to three kinds of taxes — property, occupation, and franchise and privilege taxes. It sustained the income tax on the basis of Section 2 of Article IX. (Thorpe v. Mahin, -111. -(1969).) It is not possible in this analysis to assess fully the implications of this decision. It is reasonably clear that it may open up new sources of revenue through the broadened concept of "privilege" and the more liberal interpretation of the authority in Section 2. The validation of different income tax rates for individuals and corporations is further indication of a relaxation of both the privilege and uniformity re- quirements. The decision will apparently have no effect on clearly identifiable property taxes. Classification of property, whether real or personal, tangi- ble or intangible, will remain beyond the authorizations of the Consti- tution; the ad valore^n and uniformity requirements will still be appli- cable. Tax Exemptions Sec. 3. The property of the state, counties, and other municipal corpora- tions, both real and personal, and such other property as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes, may be exempted from taxation; but such exemption shall be only by general law. In the assessment of real estate encumbered by public easement, any depreciation occasioned by such easement may be deducted in the valuation of such property. 436 Art IX, § 3 History This section derives from Article IX, Section 3, ol the 1848 Consti- tution which provided that "the property of the state and counties, both real and personal, and such other projx'rty as the general assembly may deem necessary for school, religious, and charitable purposes, may be exempt from taxation." Two important changes were made in this provision. The first required that any exemptions were to be only by general law. This was designed to correct the common abuse of includ- ing exemptions in special charters. Various schools, libraries, and reli- gious groups would receive special corporate charters which, among other provisions, exempted their property from taxation. The United States Supreme Court held that such charters were contracts between the state and the organization which could not be modified subse- quently by the state to remove the exemption, because that would con- stitute an impairment of the obligation of contracts in violation of Article 1, Section 10, of the Federal Constitution. (See the discussion in Northwestern Univ. v. Hanberg, 237 111. 185 (1908).) Requiring exemptions to be granted only by general la^v would permit subsequent modification if that was deemed desirable. The other significant change was to substitute "used exclusively" for exempt purposes for "necessary." Although Supreme Court interpretations under the prior language had tended to be restrictive, it was felt that the limited nature of the exemption should be made explicit. Property used for business pur- poses should be subject to taxation, even though the income it produced was used for exempt purposes and could be deemed "necessary" for those purposes. The new exemption of cemeteries was not commented on. The inclu- sion of the new exemption for "agricultural and horticultural societies" was primarily intended to exempt county fair grounds. There was con- siderable opposition to this exemption by members who felt that these operations were mainly for profit. The last sentence was included as a compromise over an attempted exemption of highways. Since in many instances the public highways are merely easements over private prop- erty, they are included in the assessments of that property. It became clear upon debate that any actual exemption would pose impossible survey and assessment problems, so the compromise was a concession to farmers who felt that their property containing highways was being over- assessed. Since the highways are often as much of a benefit as a detriment to the farms themselves, the problem is mainly one of accurate assess- ment. This provision has caused no litigation. There was considerable debate in the 1870 Convention over the propriety of exempting property used for religious purposes from taxa- Art. IX, § 3 437 tion. Many members felt that "churches should bear their fair share" of the property tax burden for the benefits and protection they received from the community, while others felt that there should be no "tax on religion." This is very much a contemporary concern and the issue is explored in depth in the Explauntion below. This section received only minor changes in the 1922 Convention proposal. Parsonages and societies of war veterans were added to the exempt list, as well as household furniture to the extent of $500. The great part of the debate over exemptions was concerned with what should be done with the income of exempt properties from endowments in the event that an income tax was passed as authorized by the proposed Constitution. Some members argued that since property used for exempt purposes was exempt, so should be income used for exempt purposes. Opponents of such an exemption had several bases of opposition. First, there were members who opposed any exemptions at all, except for publicly owned property. There were others who approved the limited exemption of property directly used for exempt purposes but dis- approved any extension of the exemption. Some members feared that exempting income could logically lead to exempting property producing that income which was not presently exempt — for example, school- owned property leased to businesses, where rents were applied to school purposes. Others simply felt that the burdens of taxation should be shared by these institutions to some extent. In the end, exemption from the income tax was not allowed. Explanation This section operates as a limitation on the power of the General Assembly to exempt property from taxation. The general principle estab- lished by Section 1 is that all property is to be taxed and the only exceptions to that rule are those permitted by this section. It is not self-executing, as are many similar provisions in other state constitu- tions, but requires legislation for any of the exemptions to take effect. A number of statutes providing exemptions from the property tax have been declared unconstitutional because the exemptions were not permitted by this section. Some of these attempted exemptions were for purposes not specifically mentioned in the section. {See Consoli- dated Coal Co. V. Miller, 236 111. 149 (1908) (coal companies and other corporations); International College of Surgeons v. Brenza, 8 111. 2d 141 (1956) ("philosophical" societies).) In other cases, the legislature was merely giving a broader interpretation to the constitutional language than the Court thought warranted. (People ex rel. Thompson v. First Congregational Church, 2vS2 111. 158 (1907) (exemption of parsonages unconstitutional because such a use not for religious purposes); People 438 Art. IX, § 3 ex rel. McCullough v. Deutsche Gemeinde, etc., 249 111. 132 (1911) (exemption of all school property not used for profit unconstitutional because exemption limited to property actually in use as school prem- ises). Sec also People ex rel. Lloyd v. University of 111., 357 III. 369 (1934) (discussed below). For the current statutory exemptions, see 111. Rev. Stat. ch. 120, §§ 499-500, 22 (1967).) For purposes of exemption from property taxes, this section estab- lishes two general divisions of property. First is jjroperty which is publicly owned. While the legislature has authority to exempt such property solely on the basis of its ownership, and has in a few cases exercised this authority, it has usually been more restrictive in granting exemptions and has reqiured use for a public purpose, as well as public ownership, in order to qualify for exemption. The other authorized division of exempt property is that which is used for certain specified purposes, in which case it may be exempt regardless of its ownership. Here again, the legislature has not always been as liberal as the Con- stitution permits. At one time, property used for religious purposes had to be owned by a religious organization in order to be exempt; this restriction was removed in 1909. (People ex rel. Bracher v. Salva- tion Army, 305 111. 545 (1922).) In deciding whether specific property may be exempted, the Supreme Court has adopted the general principle that it is the primary use to which the property is put which determines its exempt status, not an incidental or "secondary" use. (People ex rel. Fix v. Trustees of Nw. College, 322 111. 120 (1926).) While this principle is somewhat more liberal than the "exclusive use" required by the Constitution, still the Court in general has been strict in validating exemptions, often denying them in cases where other states have allowed them under comparable constitutional language. Where property can be physically separated into exempt and nonexempt uses, it may be partially taxed and partially exempt. (City of Mattoon v. Graham, 386 111. 180 (1944).) Whether or not the property produces income is irrelevant to the determination of its exempt status. The fact that its revenue is applied exclusively to exempt purposes will not confer exemption on property not itself used for such purposes; nor will the fact that exempt property produces revenue vitiate its exemption. It should be noted that this section relates only to general property taxation and does not authorize the legislature to exempt any property from special assessments. (South Park Commr's v. Wood, 270 111. 263 (1915).) The Court has developed working definitions of the exempt classes, the most important of which are discussed below. However, the exemp- Art. IX, § 3 439 tion of property in nearly all cases depends upon its actual use, which is primarily a tactual determination, and the relationship ol that use to the definition, which is a matter ot judgment not readily controlled by definitive standards. Therefore, many of the "borderline" cases grant- ing or denying exemptions are not easily reconcilable, and it is necessary to keep in mind that these cases cannot always be generalized to other situations. The largest class of exempt property is that which is owned by the state, counties and other municipal corporations. So far as the statutory exemptions are concerned, this class can be divided into two sub-classes — that which is exempt solely by virtue of ownership and that which is exempt because of public ownership and use for public purposes. A notable example of the first sub-class is park districts, all of whose property is exempt, even if it is located outside municipal limits and is used for nonpark purposes. (People ex rel. Curry v. Decatur Park Dist., 27 111. 2d 434 (1963).) Property owned by the state is also exempt by the test of ownership, but in this case there has been some difficulty over what constitutes state ownership. The University of Illinois claimed that certain property, which because of its restricted use was not exempt as school property, was exempt as state property by virtue of its owner- ship by the University as trustee. The Court held that in order for property to be owned by the state for purposes of tax exemption, there must be a complete title free from any legal or ecjuitable interest. In this case, the property was held in trust for the benefit of agriculture students. (People ex rel. Olmstead v. University of 111., 328 111. 377 (1927).) Following this decision, the legislature amended the statute to provide that any property of a public educational institution held for educational purposes was property of the state. This amendment was held unconstitutional in a case involving the same property on the grounds that the cjuestion of state ownership was a matter of consti- tutional interpretation. (People ex rel. Lloyd v. University of 111., 357 111. 369 (1934).) In most cases, however, the legislature has required that publicly owned property be used for a public purpose before it is exempt from taxation. In People ex rel. Laxvless v. City of Qiiincy (395 111. 190 (1946)), the Court defined "public purpose" as applied to municipal property. Where the property is located .within municipal limits, it is used for a public purpose if it is open to residents of the municipality. If it is located outside the corporate limits, it must be open on equal terms to the public generally. A municipal airport located outside the city limits meets this test; and the fact that a fee is charged for its use does not disqualify it for exemption, since the use does not have to 440 Art. IX, § 3 be free. However, where jjart ot the airport pi()j)ert\ was rented lor farming, that part was taxable even though the rents were necessary for airport operations. (Ciity of Lawrenceville v. Maxwell, (i 111. 2(1 12 (1955).) Property located outside a sanitary district (a drainage channel) has been held not to be exempt from taxation. In this case the property was not rented to private parties and the public had a right of ease- ment over the channel (i.e., boats could run on it). Hut the purpose of the sanitary district was to provide drainage and sewage treatment lor the niunicijiality, and the public outside its limits could not use its property lor this puin[)Ose. Therefore, the Court held that the proj)erty was not used for a public purpose. (Sanitary Dist. v. Gibbons, 29') 111. 519 (1920).) Property used exclusively for school purposes is also exempt from property taxation. For pinposes of this section, there is no distinction betw^een public and private schools. (People ex re I. Gill \. Trustees of Schools, 364 111. 131 (1936).) In this respect, the section should be contrasted with .Section 2 of Article VIII. {Supra, p. 402). That section applied to school purposes is subject to taxation. (People ex rcl. Gill v. to 1870, regardless of its use. Under Section 3 of Article IX, the prop- erty must be actually used for school purposes. Thus, property owned by a school but leased to business enterprises with the income being applied to school purposes is subject to taxation. (People ex rel. Gill v. Trustees of Schools, 364 111. 131 (1936).) Furthermore, this case held that so long as title is in the public school trustees, it is not property of the state for that exemption. WHiat constitutes use for school purposes fias generated considerable litigation. It has been held that residence halls, dining rooms, club houses and recreational facilities are proper to the function of a university and hence are exempt. The fact that these buildings produce income and are owned by a nonprofit corpo- ration, rather than the educational institution itself, will not remove the exemption. (People ex rel. Goodman v. University of 111. Foundation, 388 111. 363 (1944).) On the other hand, fraternity houses owned by the college but not open to the student body generally, the college presi- dent's home, and unimproved lots which were jjart of the general endow- ment, were held not exempt. (Knox College v. Board of Review, 308 111. 160 (1923).) In the most recent decision involving private schools, the Court denied tax exemption to staff housing facilities, notwithstanding that the property was owned by the colleges and was contiguous to the campus. The basis of denial was that the primary use of the facilities was residential, and the absence of a showing that residence in the facilities was required of faculty and staff because of their professional Art. IX, § 3 441 duties, coupled with the tact that a majority of iaculty and staff mem- bers resided in private non-college-owned housing of their own selection, precluded holding that a tax-exempt educational status existed for this property. (MacMurray College v. Wright, 38 111. 2d 272 (1967).) Private schools which do not provide a general course of education as that is commonly understood have usually been held not to qualify for exempt status under this section, even though they may qualify for exemption as educational institutions for purposes of the federal income tax and may be recognized for purposes of veteran's education benefits. The stated basis lor this rule is that exemption is granted the institution on the premise that it assumes responsibility for educa- tion which would otherwise be borne by the taxpayers. (Milward v. Paschen, 16 111. 2d 302 (1959) (mortuary school); People ex rel. Brenza V. Turnverein Lincoln, 8 111. 2d 198 (1956) (physical education school); Coyne Elec. School v. Paschen, 12 111. 2d 387 (1957) (electrical school).) However, property of the Association of American Medical Colleges was exempted as being used for public educational purposes, since the asso- ciation and accredited medical schools conducted numerous activities designed to improve medical education. The Court held that these were educational purposes and the fact that the organization itself did not conduct classes did not affect its exempt status. (Association of Am. Medical Colleges v. Lorenz, 17 111. 2d 125 (1959).) Cases involving exemptions for charitable uses are perhaps the most difficult to reconcile. The exempting statute requires that property be put to a charitable use and be owned by a charitable organization. While the Court has defined both tests, the application of the tests to the cases has not been uniform. A "charitable organization" is one which has no capital and makes no profits but derives its funds mainly from public or private charity and holds them in trust for the objects ex- pressed in the instrument creating the organization. (Methodist Old Peoples Home v. Korzen, 39 111. 2d 149 (1968).) A charitable use of property is one which is applied for the benefit of an indefinite number of people, either by "bringing their hearts under the influence of educa- tion or religion"; by relieving their bodies from disease, suffering or con- straint; by assisting them to establish themselves for life; by erecting or maintaining public buildings or works; or otherwise lessening the bur- dens of mankind. (Milward v. Paschen, 16 111. 2d 302 (1959).) As will be seen, there appear to have been peculiar discrepancies in the appli- cation of these tests. A school of "domestic arts and sciences" taught cooking and sewing to girls. All girls who applied were accepted up to the seating capacity of the school. Those who were able paid tuition for the classes, while 442 Art. IX, § 3 otliers were taught liee. I liere were two other sources ot income — donations troni the pubHc and a restainant open to the pubHc which served lood cooked by the girls. The school did not make a profit. It was held to be tax exempt as a charitable institution. (School ot Domes- tic Arts K; Science v. Carr, 322 111. 562 (1926).) On the other hand, a school which conducted physical education, liie-saving, and first-aid classes was denied exemption. Funds were derived primarily from membership dues and gilts irom members, but anyone who was unable to pay was forgiven the dues and it ajipeared that only about half of the members actually paid dues. The Court ai)parently viewed the "school" as primarily a recreation club. (Turnverein "Lincoln" v. Board of Appeals, 358 111. 135 (1934).) An interesting comparison can be made of two cases involving asso- ciations of surgeons, one of which was granted and the other denied exemption for its national headquarters building. The American Col- lege of Smgeons and the International College of Surgeons were both nonprofit corporations whose purpose was to advance the art of surgery. Both derived their income primarily from membership dues. Both maintained a library and museimi, although it does not appear whether International's was open to the public. So far as the Court's opinions are concerned, the chief difference seems to be that the educa- tional activities of the American College are set out in considerable detail, whereas the International College was merely said to have held "meetings." American was granted an exemption while International was denied one. (American College of Surgeons v. Korzen, 36 111. 2d 340 (1967); International College of Surgeons v. Brenza, 8 111. 2d 141 (1956).) Another interesting comparison is suggested by cases where a local chapter house of the D.A.R. which contained a "public rest room" was exempted, while the headcjuarters of the Rotary clubs was not. (People ex rel. Greer v. Thomas Walters Chapter D.A.R., 311 111. 304 (1924); Rotary Int'l v. Paschen, 14 111. 2d 480 (1958). See also Kiwanis Int'l v. Lorenz, 23 111. 2d 141 (1961).) Recently tax exemption as a charity was denied to a church-affiliated old people's home. (Methodist Old Peoples Home v. Korzen, 39 111. 2d 149 (1968).) The statute designating exempt charitable uses had been expressly amended in 1967 to include "old people's home," but the Court held that the statute was not intended to deviate from the consti- tutional requirement that the property be used exclusively for charitable purposes. Reasserting its frequently stated rule that it is the province of the courts, and not the legislature, to determine whether or not prop- erty is used exclusively for charitable purposes within the meaning of this section, the Court denied exemption because of the practice of Art. IX, § 3 443 charging residents substantial lees determined by the type of accommo- dation, without guaranteeing that an individual resident, who by other rules had to meet certain health and financial requirements prior to admission as a resident, would be permanently cared lor by the home. On similar grounds, tax exemption was denied another not-for-profit home for the aged in People ex rel. Norliind v. Association of the Wimie- bago Home for the Aged (40 111. 2d 91 (1968)). On occasion the Court has gone considerably beyond its own defini- tions in granting charitable exemptions. Public housing authorities have been granted exemption as charities (not as publicly owned property), although it is obvious that they are not supported by charitable contri- butions, nor do they lessen the burdens of government. (Springfield Housing Authority v. Overaker, 390 111. 403 (1945).) And an arboretum established by a private trust and open to the public was exempted, the Court saying, "a charitable use may be applied to almost anything that promotes the well-doing and well-being of society." (People ex rel. Hellyer v. Morton, 373 111. 72, 78 (1940).) However, such broad inter- pretations are rare. Special attention should be given to the exemption from taxation of property used for religious purposes. While such exemptions are per- mitted in all states, as well as exemptions for church income from federal income taxes, serious questions have been raised as to whether they violate the First Amendment of the Federal Constitution prohibit- ing an "establishment" of religion. Before this problem is explored in depth, the extent of the exemption in Illinois and its distinction from other kinds of exemptions should be examined. By the terms of Section 3, such property must be used exclusively for religious purposes. The Court has held that this relates primarily to church buildings actually used for public worship (People ex rel. Bracher v. Salvation Army, 305 111. 545 (1922)), and also includes funds used to pay the salaries of ministers and other church officials (Yates v. Board of Review 312 111. 367 (1924)). However, it does not apply to parsonages, even when they are supplied rent-free as part of the minister's compensation, because these are used for residential purposes and are indistinguishable from any other residence. (People ex rel. Thompson v. First Congregational Church, 232 111. 158 (1907).) By analogy, it has been held that a con- vent tor nuns who have renounced all connection with the world is used primarily as a residence and hence is not exempt, even though the property contains a chapel open for public use. (People ex rel. Car- son V. Muldoon, 306 111. 234 (1922).) Particular rules applicable to exemption of religious property vary widely from state to state, with Illinois being among the strictest in granting such exemptions. For 444 Art. IX, § 3 example, many stales cxemjH parsonages. (For a comprehensive review of state law in this area, see Van Alstyne, "Tax Exemption of Church Property," 20 Ohio St. L.j. Kil (1959).) The exemption of property used exclusively lor religious purposes should be distinguished from the exemption of property used for educational or charitable purposes, such as parochial schools or hospitals, which might incidentally be owned by religious organizations. As noted above, the traditional justi- fication for the latter exemptions is that they perform functions which would otherwise have to be born by the taxpayers, and the fact of ownership has no bearing on the grounds of the exemption. Indeed, to deny such exemptions solely on the basis of religious ownership when they are granted to others might itself be an unconstitutional discrimi- nation. However, this justification clearly cannot be applied to property used for worsliip and other exclusively religious piuposes, because this is not an activity in which the state could engage. In debating the constitutionality of this exemption, opponents and proponents have managed to agree on only one point, but that is a very fundamental one. Tax exemption in its economic effect is indistin- guishable from a direct state subsidy of reiigion, which is clearly uncon- stitutional. Taxes of all other taxpayers are raised in the exact amount that churches are exempt, and churches receive indirectly from the state an amount equal to an ap})ropriation of the taxes they would otherwise pay. Even the most recent state court decision upholding the constitu- tionality of the exemption conceded this point. (Murray v. Comptroller of the Treasury, 241 Md. 383 (1965).) Yet despite this concession, the exemptions have consistently been upheld in the state courts, and for some time the United States Supreme Court refused to review these decisions. (See Murray v. Comptroller of Treasury, 241 Md. 385 (1965), cert, denied, 385 U.S. 816 (1966); General Fin. Corp. v. Archetto, 93 R.I. 392 (1961), appeal dismissed, 369 U.S. 423 (1962); Lundberg v. County of Alameda, 46 Cal. 2d 644 (1956), appeal dismissed sub nom Heisey v. County of Alameda, 352 U.S. 921 (1956).) Recently, however, the Court has agreed to take a case involving this issue and a definitive ruling hope- fully may be expected within the year. (VValz v. Tax Comm'n, 24 N.Y. 2d 30 (1969), prob. juris, noted, 395 U.S. 957 (1969).) Some proponents of religious exemptions have argued that the exemp- tion is in fact required by the "free exercise" clause of the First Amendment. They assert that to tax church property is to tax the exercise of religion by its members. Support tor this position is found in a Supreme Court decision which held that an occupational tax on booksellers could not be applied to Jehovah's Witnesses who sold books and pamphlets as a religious duty. It was held that such a tax violated Art. IX, § 3 445 the Witnesses' exercise oi their religious beHels. (Murdock v. Pennsyl- vania, 319 U.S. 105 (1943).) The Murdock case is not entirely persua- sive in the recent instance tor two reasons. The ownership of property by an organization is not the exercise ot a duty compelled by a religious belief. And there was no issue raised in that case that the law, or exemp- tion from it, constituted a forbidden establishment of religion. Other proponents of the exemption argue that, while not necessarily required by the Constitution, it is a permissible form of accommodation to the religious needs of the community. Since it is admitted that churches perform many charitable and educational tasks beneficial to the state, it is argued that these functions cannot be entirely separated from the organization itself; and the exemption enables the churches to perform these functions without a partial diversion of their resources to the public treasury. Furthermore, churches contribute to the general welfare of the community by improving the moral climate of the public. The case of Zorach v. Clauson (343 U.S. 306 (1952)) discussed in Article VIII, Section 3 {supra, p. 406), which approved a form of released-time program for religious education classes, is frequently cited as illustrative of a principle that the state may adjust its own programs to accommo- date religious preferences of the citizenry, so long as there is no dis- crimination among religions. Finally, and this argument is perhaps the strongest of all, the universal practice of the states and Congress since the inception of the Constitution in granting these exemptions is pointed to as evidence that they are not the kind of "establishment" referred to in the First Amendment. {See Kauper, "The Constitutionality of Tax Exemptions for Religious Activities," in The Wall Between Church and State (D. Oaks ed. 1963).) In the face of these various argiuiients, opponents of the exemption make only one argument for its unconstitutionality, but it is a strong one theoretically. Churches receive all the benefits of organized govern- ment, without paying for them as does the general public. Tax exemp- tions are a substantial subsidy of religion by the state, and subsidies of any or all religions are forbidden by the First Amendment. Illinois ex rel. McColhim v. Board of Education (333 U.S. 203 (1948)), invalidat- ing released-time programs conducted on school premises, is cited in support of this. Furthermore, the United States Supreme Court in that case based its decision in large part on language from Ei'erson t'. Board of Education (330 U.S. 1, 15-16 (1947)) which is particularly relevant here: "Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion [or] aid all religions .... No tax in any amount, large or small, can be levied to support any religious activities or institutions . . . ." Since the exemptions are in- 446 Art. IX, § 3 distinguishable, economically, Ironi appropriations, it is argued that they arc unconstitutional. [Sec Note, "The First Amendment and Fi- nancial Aid to Religion: Limits on the Government's Conduct," 61 NW.U.L. Rev. 777, 787-9.S (19()()); tor similar arguments attacking the constitutionality ot federal income tax exemptions, see Korbel, "Do the Federal Income Tax Laws Involve an Establishment ol Religion?," 53 A.B.A.J. 1018 (1967).) No satisfactory conclusion can be drawn on this issue. As a matter of pure logic, the arguments against the exemption are extremely per- suasive. On the other hand, the historical evidence strongly indicates that these exemptions are not offensive under the First Amendment. While historical tradition is not decisive on questions of constitutional interpretation, in this case it is unusually explicit. Comparative Analysis Exemption provisions vary widely among the states. Ten state consti- tutions provide that the legislature may grant any exemptions so long as they are by general law. Another 1 1 states prohibit any exemptions other than those specifically permitted by the constitution. Thirty-five constitutions provide for the exemption ot charities, 35 for property used for religious purposes, and 40 tor educational institutions. In addi- tion to these common exemptions, there is a long list of special exemp- tions in a few states. In some ot these states, the constitutional exemp- tions are self-executing, while in others, as in Illinois, legislative action is necessary to make them effective. The Model State Constitution, in keeping with its policy of allowing the widest possible freedom tor legislative action in fiscal affairs, is silent on this subject. Comment What action is taken on this section depends in large part upon the Convention's decision on general taxing powers of the legislature. If it is decided to grant the legislature wide discretion in matters of taxing policy, then the need for a special section on exemption is minimal and it could well be dispensed with. On the other hand, if substantial re- strictions are placed on the taxing power, and particularly if a uni- formity requirement is imposed on property taxation, then it will be necessary to make some provision for exemptions if they are to be al- lowed. This provision could be in the form of a broad grant of power to allow such exemptions as are reasonable and promote the general welfare, or a more restricted limitation such as the present section. In any event, the last sentence of this section should be dropped, as it does not deal with a problem of constitutional dimensions. Art. IX, § 4 447 Sale of Real Property for Tax Delinquency Sec. 4. The General Assembly shall provide, in all cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments, for State, county, municipal, or other purposes, that a return of such unpaid taxes or assessments shall be made to some general officer, of the county, having authority to receive State and county taxes; and there shall be no sale of said property for any of said taxes or assessments but by said officer, upon the order or judgment of some court of record. History This section ot the Constitution and Section 5, discussed below, re- placed Section 4 of the 1848 Constitution. That section contained extremely complex provisions relating to notice and affidavit procedures required in order to obtain tax deeds to property on which taxes were in default. While the requirements of the present Section 4 were new additions to the Constitution, there was no significant debate in the Convention proceedings revealing why the delegates felt it necessary to include them. This section, together with Section 5, engendered considerable debate in the 1920-22 Convention, which ultimately proposed some significant changes. These changes are discussed below in the History of Section 5. Explanation This section imposes two limitations on the power of the General Assembly to direct a sale of property for nonpayment of taxes: (1) the sale must be conducted by the county officer in charge of collecting taxes and (2) it must be done only after a judicial proceechng. Except for these limitations, the General Assembly may enact any provisions it thinks desirable to encourage the collection of delinquent taxes. For example, it may authorize penalties for delinquency and provide for the sale of property for nonpayment of such penalties. (Chambers v. People ex rel. Fuller, 113 111. 509 (1885).) The requirements of this section, as well as of Section 5, apply only to proceedings in rem against the property for collection of back taxes. They do not apply to executions on property enforcing in personam judgments, even where those judgments are based on delinquent taxes. In order to enforce an in personam judgment for delinquent taxes, the procedures applicable to ordinary judgment enforcement must be followed — e.g., the sale is conducted by the sheriff, not the county col- lector, and there is a different period of redemption. (Langlois v. Peo- ple, 212 111. 75 (1904).) Perhaps it should be noted that while general property taxes are a personal liability of the owner, special assessments are not. (Craw v. Village of Tolono, 96 111. 255 (1880).) Also, while public property is not exempt from special assessment, it cannot be sold for payment of delinquent assessments. The proper remedy in this 448 Art. IX, § 4 case is mandamus to compel payment Irom the treasury. (County of McLean v. City of IMoomington, 106 111. 209 (188.8).) The provisions of Section 4 are self-executing and repeal all statutes in conflict. Thus, prior to 1870, sales foi delincjiKiu taxes in Chicago were made by the city collector, hut following the adoption of the Constitution, a county officer was required to discharge this duty. (Gar- rick V. Chamberlain, 97 111. 620 (1880).) This section recjuires only that tfie sale be made by the county collector; the application for a judicial order of foreclosure and sale may be made by any interested taxing au- thority, such as a municipality. (Village of Downer's Grove v. Glos, 307 111. 293 (1923).) The requirement that a sale of property for nonpayment of taxes can be held only after a court order reflected a very common practice prior to the adoption to the 1870 Constitution, but aj^parently it was not universal. There is one case suggesting that the 1861 charter of a board of water commissioners authorized sale of property for delinquent assessments in a summary manner. The Supreme Court held that this provision was invalidated by the 1870 Constitution. (Board of \Vater Comm'rs v. Conkling, 113 111. 340 (1885).) The authority of a court to supervise tax sales includes the power to disapprove a sale because of the inadequacy of the price; and a board of coimty commissioners can- not compromise taxes due so as to bind the court and force approval of the sale. (People v. Schwartz, 397 111. 279 (1917).) The fact that there is a court order for a sale of property for non- payment of taxes and a subsequent attempt to sell it does not mean that the property will actually be sold to the highest cash bidder. There may be no cash bidders at all, in which case the property is forfeited to the state; or wliere the cash bids are not sufficient to cover the taxes due, the county may acquire the jjroperty under certain circumstances by a noncash bid of the amount of taxes. In either case, there may be a subsequent sale of the land in order to pay the taxes, and the question has arisen whether the subsequent sale must also be imder a court order. The Supreme Court held that it is not necessary, so long as there is proper notice of the sale to interested parties. (Keilty v. Chicago Real Estate Co., 25 111. 2d 581 (1962); People v. Wrage, 20 111. 2d 55 (I960).) Comparative Analysis This constitutional requirement is unique to Illinois. Most state con- stitutions are entirely silent on the subject of sales of property for non- payment of taxes. Three states expressly permit sales without judicial proceedings, where certain notice requirements are followed. Comment While there is nothing fundamentally objectionable about this sec- Art. IX, § 5 449 tion, it is primarily legislative in nature. There may well be more effi- cient ways of collecting taxes on delinquent property than requiring judicial sales, and it might be desirable to permit the legislating more flexibility. It is doubtful if the provisions of this section merit consti- tutional status. Redemption from Tax Sale Sec. 5. The right of redemption from all sales of real estate for the non- payment of taxes or special assessments of any character whatever, shall exist in favor of owners and persons interested in such real estate, for a period of not less than two years from such sales thereof. And the General Assembly shall provide by law for reasonable notice to be given to the owners or parties in- terested, by publication or otherwise, of the fact of the sale of the property for such taxes or assessments, and when the time of redemption shall expire: Provided: that occupants shall in all cases be served with personal notice before the time of redemption expires. History As noted in the History of Section 4 (supra, p. 446), this section replaced Section 4 of the 1848 Constitution which contained very complicated notice requirements. Although several unsuccessful attempts were made in the 1870 Convention to reinstate the former section, there was no substan- tial debate revealing why one section was preferred over the other. The major substantive change introduced by this section was the fixing of the redemption period at not less than two years. Several amendments were introduced lengthening the period to as much as five years, presumably in an effort to benefit economically destitute owners who lost their land for unpaid taxes. These amendments failed because of determined opposition which pointed out that the longer redemption period woidd not neces- sarily benefit the small landholder because the increased interest and penalties over the longer period of time would resiUt in a greater financial burden to redeem, and that the longer period would encourage specula- tors to withhold taxes even more than was already the case and would also discourage buyers at tax sales who would have an even more difficult time obtaining a valid title. In both cases, loss of tax revenues would increase. The Committee on Revenue of the 1920-22 Convention was concerned with the problem of delinquent taxes and proposed several substantial changes in these sections. At that time, there was a large amount of de- linquent property on the tax rolls which remained unsold for a number of reasons. Decisions of the Illinois Supreme Court had made it almost impossible to obtain a good tax title, so that a purchase at a tax sale was a highly speculative investment. In addition, the General Assembly had substantially reduced the amount of interest and penalties that could 450 Art. IX, § 5 be collected by the tax buyer, llie lower rate ot return on this invest- ment, combined with the difhculty in obtaining a valid title, sidjstantially restricted the number oi buyers who were willing to bid at a tax sale. And the small number ot tax buyers, combined with the invalidity ot tax titles, encouraged tax delinquency, so that collection ot taxes became more difficult. In an effort to remedy this situation, the proposed 1922 Constitution made two substantial changes in tlie requirements. For ordinary tax sales, the provisions were retained that the sale be made by the county treas- urer after a court order, with a two-year redemption periocf. How- ever, the only notice required was "notice as provided by law." This eliminated the compulsory notice to occupants which was cited as one of the chief obstacles to obtaining good title under the Supreme Court's strict requirements. It was argued that compulsory notice to occupants served no essential purpose. Where the occupant was also the owner, his interests were sufficiently protected by serving notice on the owner, although there were cases in which the owner-occupier had been served notice as owner wliich was constitutionally defective because it tailed to specify him as the occupant also. Where the occupant was merely a tenant, it was argued that his interests in the tax sale were not substan- tial enough to mandate a constitutionally required notice. And where the property contained a large number of tenants, as in the case of an office building, or where the tenants were ot a transient nature, the consti- tutional mandate was impossible to fulfill. The other major change proposed in the 1922 Constitution was a provision that the tax buyer could waive his title accjuired at the tax sale, be subrogated to the state's tax lien and foreclose the lien in equity. This procedure would eliminate the two-year redemption period. It was be- lieved, perhaps over-optimistically, that this would effectively assure the acquisition of good title to the property. A large number of members of the 1920-22 Convention recognized that these provisions were essentially legislative in nature, and there was considerable opposition to including anything at all on the subject of tax sales in the proposed Constitution. At one point in the debate, a motion to eliminate the section altogether faded by only one vote. Explanation In Illinois, there are three primary methods of selling land in order to collect delinquent taxes. The requirements of Section 5, as well as Section 4, apply to all of them, and a brief explanation ot these methods may be helpful in understanding the cases. Taxes and special assessments become a lien on the property as of April 1 in the year for which they are levied. Proceedings by any of the three methods may be commenced only after Art. IX, § 5 451 entry ot a judgmenL ior the delinquent taxes and an order oi sale in accordance with the requirements of Section 4. The most common procedure is the annual tax sale. All delinquent property is offered ior sale annually at a public auction. The property must be sold for the full amount of taxes due, and the bidding is to de- termine the amount of penalty which will be charged for redemption. Thus, the successful purchaser at the tax sale is the bidder who is willing to accept the lowest penalty. Payment of taxes by the bidder extinguishes the lien. Redemption may be made within two years for the amount of taxes plus penalties. If there is no redemption in this period, the purchaser is entitled to a tax deed upon fulfilling certain notice requirements. If there are no bidders on the property at the annual tax sale, the property is forfeited to the state. The second method is the tax foreclosure. Where taxes are delinquent on the property for two or more years and there has been a forfeiture to the state at the tax sale, proceedings may be instituted by the state to foreclose the tax lien. Under a decree ordering foreclosure of the lien, the property is sold to the highest bidder regardless of whether the amount is sufficient to pay all the taxes due. The lien is merged in the foreclosure decree and is extinguished by the sale. The right* of redemption exists for two years from the time of the sale, and at the expiration of that period the purchaser is entitled to a deed, again after fulfilling certain notice requirements. The third method of collecting taxes by a sale of property is a proceed- ing under the so-called "Scavenger Act." Where taxes have been unpaid for ten or more years, the county treasurer, upon approval by the court, may offer the delinquent property for sale at the annual tax sale. In this case, hoAvever, the property is sold to the highest bidder, whether or not that bid is for the full amount of taxes. As in the above proceedings, there is a two-year period of redemption, at the expiration of which the buyer is entitled to a tax deed if he fulfills the notice requirements. (For a thorough treatment of this subject, see Harbert, "Tax Foreclosures and Tax Titles," 1952 U. 111. L. F. 209.) It is extremely difficult to obtain a valid tax title to property in Illinois under any of the foregoing methods. The reason is that the Illinois Supreme Court has evidenced a consistently hostile attitude toward the sale of property for delinquent taxes and as a result has required very strict compliance with the mechanics of obtaining a tax deed. The chief obstacle to obtaining a valid deed has been the notice requirements prior to the expiration of the period of redemption. Under Section 5, only personal service of notice on occupants is constitutionally mandatory; otherwise the General Assembly is free to specify any kind of notice it likes. (Frew v. Taylor, 106 111. 159 (1883).) The service of notice must be 452 Art. IX, § 5 on occupaius at the time ol the expiration ol the period oi redemption. In one case, the notice was served on Fred Meyers, owner and occupier ot the land at the time it was sold. This was tlelective because it did not specify that Meyers was the occupier at the time ol service ot notice. The attorney's affidavit that Fred Meyer was the owner and occupier at time of service did not cure the defect because of the discrepancy between the two names. (Gonzalia v. Bartelsman, M3 111. 634 (1892).) It has been held that a statute directing in the words of the Constitu- tion tliat notice be served on owners, occupiers and "j:)arties interested" in the property confers no right to notice on anyone other than the owners and occupiers, since it is impossible to determine who is meant by "parties interested." Thus a mortgagee has no right to notice of the expiration of the period of redemption under this statute. (Glos v. Evanston Bldg. & Loan Ass'n, 186 111. 586 (1900).) In order to acquire a valid tax title, every statutory requirement must be strictly complied with, and it is irrelevant that the defects are neither harmful nor misleading. Numerous examples could be given of the ex- tremes to which this proposition has been carried, but two will sufhce for illustration. One tax deed was held invalid because of two defects in the notice. It stated that the period of redemption expired October 18, when in fact it expired September 8; obviously there was no harm here, since the o^vner was given an extra month in which to redeem. Another defect was that the owner was stated to be in possession on April 19 antl served on May 20. The notice should have stated who was in possession on May 20, even though other evidence in the case showed that possession had not changed. (Wisner v. Chamberlain, 117 111. 568 (1886).) The notice must specify whether the property was sold for taxes or special assess- ments. A notice that the property was purchased at a "sale of lots and lands for taxes and special assessments" does not meet this requirement because the words refer to the sale and not to the property. This notice was also deficient in specifying the date for expiration as November 3, 1878, because that day fell on Sunday, and the owner could actually still redeem on Monday, November 4, even though there was no attempt to redeem. (Gage v. Davis, 129 111. 236 (1889).) The economic depression of the 1930's caused a substantial increase in tax delinquency. And the difficulty of obtaining valid tax titles to delinquent property discouraged buyers at tax sales. Thus, in the decade beginning in 1940, there were large amounts of property in the state which produced no tax revenue because of chronic delinquency of the owners, and which the counties were unable to sell to buyers in order to return them to revenue-producing status. In an effort to mitigate this situation, the legislature in 1943 passed the so-called Art. IX, § 5 453 "Scavenger Act" (111. Rev. Stat. ch. 120, § 716a (Supp. 1968)), which provided that property which was delinquent for as long as ten years or more should be sold at the annual tax sale to the highest bidder. The act specifically stated that it was to be given a liberal construction so as to enable conveyance ot a merchantable title. Notice was to be provided under the statute applicable to other tax sales. There have been few cases decided under this act; but the first one construing the notice provisions held that since the same statute governed all tax sales, the requirements relative to the Scavenger Act would be applied in con- formity with the rules governing other sales — i.e., strict compliance would be required. (Gaither v. Lager, 2 111. 2d 293 (1954).) In that case, the owner of the land had continuously occupied the property and was delinquent in his taxes for more than 15 years. He was per- sonally served with the notice ot the correct expiration date of the period of redemption, but the notice was held defective because it failed to specify for what years' taxes the property was sold and whether it was for general taxes or special assessments. Again, it was clear from the other evidence that the owner had this information. Section 5 secures the right of redemption to owners and gives a mini- mum of two years in which to exercise that right. The General Assembly has always observed this provision, and there have been no cases holding that the right of redemption has been violated. (See, e.g., Ziccarelli v. Stuckart, 277 111. 26 (1917).) However, the right of redemption is favored over the rights of purchasers at tax sales, and the General Assembly may enlarge the right of redemption beyond the protection afforded by the Constitution. By this justification, a statute was sustained against due process objections which provided that if the tax buyer failed to take possession of property within one year from issuance of the tax deed, the prior owner could still redeem. (Elmhurst State Bank v. Stone, 346 111. 157 (1931).) The right of redemption under Section 5 exists in favor of owners and "persons interested" in the property. In recent years there has been some confusion as to who has the right to redeem. The difficulty stems from a 1961 Illinois Supreme Court decision which held, four to three, that a stranger to the record title could not redeem from a tax sale. (Weiner v. Jobst, 22 111. 2d 11 (1961).) In that case, a bank claimed title to the property under a deed of trust and attempted to redeem by its agent-attorney. The bank's record title was incomplete because of a 1937 conveyance which was not recorded. As the dissent points out, the Court's decision denying redemption was not consistent with prior decisions (see Franzen v. Donichy, 9 111. 2d 382 (1956)), and re- sulted in no one being able to redeem from the sale. Later decisions of 454 Art. IX, § 6 an Illinois appellate court have cast considerable doubt on the via- bility ot the Weiner decision. In one case, the appellate court ignored the express language of the majority in Weiner and held that record title was not a prerequisite to the right to redeem, but that cc|uitable owners could also redeem, in this case the delect in title consisted ol a contract to convey which was recorded and marked paid in iull, but with no deed having issued. {In re County Treasiner, 63 111. Ajip. 2d 135 (1965).) In a later case, the executor of an estate was allowed to redeem, even though at the time of redemption he had not yet received his appointment as executor and hence was technically a stranger to the title. {In re County Collector, 72 111. App. 2d 272 (1966).) Neither of these cases was reviewed by the Supreme Court. While the question is still unsettled, one may infer that owners of equities in property and certainly equities of which there is some record notice, may redeem ironi tax sales. Comparative Analysis Four states besides Illinois guarantee the right of redemption in their constitutions; in three states the right is protected for two years and in one for three years. West Virginia's Constitution specifies that the right is not to extend beyond 20 years. Notice requirements are men- tioned in only three other constitutions: in one, as in Illinois, notice must be given to occupants; in another, notice is required for owner; and in the third, notice is to be provided by law. The Model State Constitution is silent on the subject. Comment Like Section 4, this section deals with problems that are primarily of legislative concern, and very few states find it necessary to treat them in their constitutions. It is extremely difficult to suggest any com- pelling reasons which justify a continued constitutional status for this section. Release from Taxation Forbidden Sec. 6. The General Assembly shall have no power to release or discharge any county, city, township, town or district, whatever, or the inhabitants thereof, or the property therein, from their or its proportionate share of taxes to be levied for State purposes, nor shall commutation for such taxes be authorized in any form whatsoever. History This section of the Constitution was adopted in 1870 for the express purpose of forbidding legislation of questionable merit which had taken several forms. For example, acts had frequently been passed Art. IX, § 6 455 exempting communities from state taxes in order to permit them to construct levies and embankments tor protection Irom river flooding. In 1869, an act had been passed partially exempting communities which had subscribed to railroad stock in order to facilitate their payment for the stock. (See discussion of Ramsey v. Hoeger, below.) There was widespread opposition to such legislation, and this section resulted. The substance of this section was retained without significant debate in the 1922 Convention proposal. The language was considerably sim- plified to read, "Taxes levied for state purposes shall never be released, discharged, or commuted." Explanation There has been little significant litigation over this section, probably because its provisions are relatively clear and the legislature has appar- ently made no attempt to circumvent them. An 1875 case held that the section applied retroactively to repeal all inconsistent legislation. In that case, an 1869 act of the General Assembly attempted to ease the tax burden on communities which had incurred indebtedness by sub- scribing to railroad stock. The act required the State Auditor, before assessing state taxes, to deduct a certain proportion of the property valuation in those counties which had subscribed to railroad stock. This was held to be a partial release of state taxes and a violation of this section. (Ramsey v. Hoeger, 76 111. 432 (1875).) In only one case has a law passed after 1870 been held unconsti- tutional because of this section. Under the school law as it stood in 1915, all eighth-grade graduates were entitled to attend a high school. In those school districts which did not maintain a high school (a non- high school district), the district was required to pay the tuition of its students attending school in other ciistricts. The state school tax was distributed by the county superintendents of schools to the various township school districts in proportion to the number of school-age children residing in them. In 1915, the legislature passed a statute directing the superintendents first to pay the tuition of non-high school district students and then to distribute the tax as above. The effect of this mode of distribution was to increase that portion of the state school tax returned to the non-high school districts, while decreasing that returned to the high school districts. This was held to be the equivalent of the commutation of the state school tax and a violation of this section. (Board of Educ. v. Haworth, 274 111. 538 (1916).) The Supreme Court's decision in the Haxvorfh case seems question- able. It is extremely doubtful that this section should be applied to a dispersal of state funds, as distinguished from their initial collection. 456 Art. IX, § 6 Any time that state lunds are dispersed to a coiniminity in an amount greater than that which is collected Irom them, there is a "commtita- tion" ol state taxes in the vague sense in which that concept was used in the Hdivortli case. Adherence to this view could jeopardize any pro- gram of state aid which is related to the taxable wealth of conmuniities. Fortunately, Hoiuorth has not pro\cd to be a viable precedent, although it has not been overrided. When the legislature drafted the Use Tax Act, in an effort to avoid constitutional problems under Article IX, Section 1 (sec discussion, supra, pp. 327-31), it provided that the use tax must be collected on all sales, but did not have to be remitted to the extent that the retailers' occupation tax was paid. This was attacked as a release of the use tax in \iolation of this section, liut the Court held that the two taxes were to l^e viewed as an integrated system, that only one tax was in- tended to reach the treasury, and that the purpose of the use tax was to reach only out-of-state sales. Viewed in this light, the method was cum- bersome, but not a violation of Section (i. (Tinner v. Wright, 1 1 111. 2d 161 (1957).) Section 6 applies only to commutation of state taxes and does not prevent connnutation of local taxes. Thus, a 1944 case held that it was not a violation of this section to sell land for less than the amount of delinquent taxes because state taxes were not involved. In addition, the purpose of the proceeding was remedial — to return the land to active tax-paying status. (Schreiber v. County of Cook, 388 111. 297 (1944).) However, Sections 9 and 10 (see discussion, injra, p. 462) have been construed to prohibit commutation of local taxes. (Raymond v. Hartford Fire Ins. Co., 196 111. 329 (1902).) It is not clear whether the remedial objective sustained in Schreiber is precluded under Sections 9 and 10 by virtue of the earlier Hartford Fire Insurance Co. case. Comparative Analysis Seven other states have constitutional provisions prohibiting commu- tation of taxes. The Model State Constitution has no similar provision. Comment While the principle of this section is certainly not objectionable, nor a serious imj^ediment to fiscal operations, consideration might Avell be given to eliminating it from the Constitution. Forty-three states do with- out it. The chief evil at which the section was directed was the commu- tation of the state property tax. This, of course, is now and for the fore- seeable future, a moot issue since a state property tax is not likely to be revived. The policy of this section can be assured, if deemed neces- sary in any given case, by legislative action. Finally, in this area, as in Art. IX, § 7 457 others, serious abuses ot power could be controlled by the due process clause. If this provision is to be retained, the language used in the proposed 1922 Constitution (see History, supra, p. 454) is much simpler in form. State Taxes Paid into State Treasury Sec. 7. All taxes levied for State purposes shall be paid into the State treasury. History This section dates from 1870. In explaining this section to the- Con- vention, the Chairman of the Committee on Revenue said that it was "simply to carry the intent of the [sixth] section more fully into ef- fect . . . ." The section was accepted without debate. The proposed 1922 Constitution left the section unchanged. Explanation Section 6 (supra, p. 454) forbids release by the legislature of any state taxes due from any political subdivision. Prior to 1870, the legislature sometimes would authorize the diversion of state taxes due from a par- ticular subdivision in order to pay for some local improvement. Section 7 is designed to prevent this sort of diversion. (The background is set out in the dissenting opinion in Green v. Black, 352 111. 623 (1933).) It is to be noted that this section requires taxes, but not all moneys, to be paid into the treasury. This is, of course, the other side of the coin referred to in the Explanation of Section 17 of Article IV (supra, pp. 182-3), where it was pointed out that under certain circumstances, operations may be carried on without the benefit of an appropriation. There is, however, an exception to the requirement that all taxes be paid into the treasury. The tax that supports unemployment compen- sation is not paid into the treasury. The statute relative to the payment of state moneys into the state treasury provides that it is not applicable to the Unemployment Compensation Act. (111. Rev. Stat. ch. 127, § 176a (1967).) This is undoubtedly the case because of the interrelationship between the state tax and the federal tax. In any event, this aspect of the unemployment compensation system does not appear to have been attacked constitutionally. Comparative Analysis There appear to be six states besides Illinois with a comparable provi- sion. The United States Constitution and the Model State Constitution have no comparable provision. Comment This section was probably not necessary when adopted. The type of 458 Art. IX, § 8 diversion referred to above is clearly prohibited by Section 22 of Article IV. (Supra, pp. 203-4.) The unemployment compensation practice demon- strates the need for more fiexibility than is permitted by the literal wording of the section. County Tax Limit Sec. 8. County authorities shall never assess taxes, the aggregate of which shall exceed seventy five cents per one hundred dollars' valuation, except for the payment of indebtedness existing at the adoption of this Constitution, unless authorized by vote of the people of the county. History This was a new section in the 1870 Constitution and was adopted with- out debate. The lack of debate is particularly interesting in view of the fact that an attempt to impose a similar limitation on the tax rate of the state met with vigorous opposition and was ultimately defeated. The principal argument of the opponents of the state limitation was that it would be ineffective because it would only serve as an impetus to increase the assessment ratio which was then 25 per cent. The limitation was retained in the proposed 1922 Constitution, but was included in the article on Counties and was phrased as % of 1 per cent of assessed valuation. A new provision of that section permitted counties which were the unit for road taxation to levy up to an addi- tional 34 of 1 per cent. At that time, the townships, which are not limited by this section, were the governmental units priinarily res{X)n- sible for roads, but it was felt that with the coming of the automobile and hard roads it would be more efhcient for the counties to control road-building. If they were to assume that responsibility, however, they w'ould need considerably more taxes than the 75-cent limit provided. There was considerable opposition to the inclusion of tliis limitation in the 1922 Constitution on the ground that there were no constitutional rate limits on other governmental units, and the counties should be regulated only by statute just as the others were. There were three votes taken on the issue, and the vote was against inclusion of the limit the first two times, but on the third vote it was adopted. Explanation Counties derive their taxing powers from the legislature, and the legislature is free to place any conditions on that power it likes; this section only specifies the upper rate limit which may be levied without a vote of the people. But the legislature may fix a county rate limit lower than the constitutional limit. (People ex rcl. Bothfuhr v. Chicago &: E. 111. Ry., 305 111. 454 (1922).) This section in no way governs the assessment of property against which the constitutional limit may be extended; Art. IX, § 8 459 and the counties may be required to use the assessment value determined by the State Board of Equalization, instead of their own county board of review, even where this results in less revenue. (Chicago, B. & O.R. R. V. People ex rel. Sonnet, 213 111. 458 (1904).) When a county tax is improperly levied in excess of the 75-cent limit, only the excess is invalid. (Mix v. People ex rel. Pierpont, 72 111. 241 (1874).). The problem of what qualifies as a county tax for pmposes of this section was settled by early decisions. Taxes levied by the county board for funds administered by the county are county taxes; and the legislature may not designate any such tax as not a county tax so as to exempt it from the 75-cent limit. (People ex rel. Lusk v. Cairo, V. & C. Ry., 266 111. 557 (1915).) On the other hand, taxes levied and administered by townships are township taxes, and they do not become county taxes merely because they are certified by the township trustees to the county board which directs the county collector to extend them. (Wabash, St. L. & P. Ry v. McCleave, 108 111. 368 (1884). Compare Wright V. Wabash, St. L. & P. Ry., 120 111. 541 (1887).) When an election is held to authorize a tax rate above the constitutional limit, either the statute, the notice of the election, or the ballot itself must specify that the tax to be voted on is above the constitutional limit. If such notice is not given, an affirmative vote on a particular tax leferendum will be inter- preted as authorizing the particular levy up to, but not over, the con- stitutional limit. (People ^'x rel. Hileman v. Missouri P.R.R., 319 111. 433 (1925); People ex rel. Flick v. Chicago, B. & O. R.R., 291 111. 502 (1920); People ex rel. Graff v. Wabash Ry., 286 111. 15 (1918).) In order to authorize a rate above the constitutional limit, a majority of votes cast at the election (not a majority of electors voting on the proposition) must be recorded in favor of the proposition; where the vote is merely to exceed the statutory limit, a majority of votes on the proposition is sufficient. (People ex rel. Lawrence v. Cleveland, C. C. & St. L. Ry., 339 111. 169 (1930).) This section of the Constitution is in no way a limitation on the power of counties to incur debt, and it is not a valid objection to the assumption of a county obligation that it will require a tax levy over the constitutional limit; the only limitation on debt incurrence is Section 12. (County of Coles v. Goehring, 209 111. 142 (1904).) The exception to this section for debts existing prior to its adoption is, of course, obsolete now. (For interpretations, see County of Pope v. Sloan, 92 111. 177 (1879); Chiniquy v. People ex rel. Swigert, 78 111. 570 (1875).) 460 Art. IX, §9 Comparative Analysis There are 27 states, including Illinois, which have some sort ol propert) tax rate limitations in their constitutions. These provisions vary so widely that only the most general comparisons can be made. It might be noted that many states have statutory limitations which have not been included in this analysis. Five states have overall limits on the rate ot taxes which can be assessed against property lor both state and local purposes. Another 18 states have specific limits on the rate of state property taxes; six ot these states do not limit local taxes. Sixteen states limit the rates ot local property taxes; but ot these, tour states do not limit state property taxes, while 13 limit both county and municipal rates, and three limit only the county rates. Illinois is in the rattier unique position ot being one ot only tour states which limit county taxes but not state taxes, and one of only three states which limit county taxes but not municipal taxes. The Model State Constitution is expressly opposed to such limitations. Comment Property tax rate limits have had a long statutory history in Illinois, in addition to this constitutional provision. There have been many attempts to establish overall limits to the property tax, most ot which were notably unsuccessful for two reasons — the vicissitudes of the assess- ment procedure and the increasing demands tor services. (For a general review, see Howards, "Property Tax Rate Limits," in Report ot the Commission on Revenue 521 (1963).) Most authorities oppose these limits in any form and particularly oppose their inclusion in a constitution. Regardless of the general merits of the argument, this particular limit standing alone in the Illinois Constitution seems highly illogical. Local Municipal Improvements Sec. 9. The General Assembly may vest the corporate authorities of cities, towns and villages with power to make local improvements by special assessment, or by special taxation of contiguous property, or otherwise. For all other cor- porate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform in respect to persons and property, within the jurisdiction of the body imposing the same. History This section of the Constitution derives from the Constitution of 1848, Article IX, Section 5, which provided in part: The corporate authorities of counties, townships, school districts, cities, towns and villages may be vested with power to assess and collect taxes for corporate purposes; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. Art. IX, §9 461 The most significant decision of the Illinois Supreme Court under the 1848 Constitution, in respect to its effect on Section 9 ot the 1870 Consti- tution, was City of Chicago v. Lamed (34 111. 203 (1864)). That case held that municipalities had no powers of special taxation for making local improvements. These projects came under the power of eminent domain for which compensation had to be made. While such compensa- tion could be made by benefits conferred, such benefits had to be speci- fically assessed against the individual properties benefitted, with the right of judicial review, and any excess cost of the improvements had to be paid for by general taxation. Although this position seemed sound in theory, as a practical matter it made the construction of many local improvements, particularly sidewalks, exceedingly complex and expen- sive. This case was the main concern of the 1870 Convention with regard to Section 9, and it was finally determined to grant cities, towns and villages the authority to make local improvements by special assess- ment, special taxation or otherwise. The distinction between these methods is discussed below. The 1922 Convention proposal took the first sentence of Section 9 and made it a separate section of the Revenue Article and included park districts in the list of municipal authorities which could construct local improvements by special assessment. There was some discussion as to whether the provision restricting special taxation to contiguous property should be removed, but it was finally retained. Another change per- mitted municipalities to join together to make local improvements. The remainder of Section 9 was combined with Section 10 into one section with some change in wording, but the essential features were retained. Explanation This section and Sections 10 and 12 form the basis of the taxing powers of local governments for local purposes. In addition to these sections, local governments derive taxing powers from the General Assem- bly through a delegation of its authority under Sections 1 and 2. The authority of cities to prescribe license taxes, for example, is such a delegated power and is governed by principles already discussed in Sec- tions 1 and 2; it is not affected by this section. (Harder's Fireproof Stor- age Van Co. v. City of Chicago, 235 111. 58 (1908); Banta v. City of Chicago 172 111. 204 (1898).) Of course, these powers are also governed by the limitations of the due process clause and the police power. (Condon v. Village of Forest Park, 278 111. 218 (1917).) Thus, the princi- ples of this section relate only to property and can be analyzed under two main classifications, (1) special assessment and taxation for local im- provements, and (2) general property taxation tor corporate purposes. Before these general problems are investigated, it would be well to 462 Art. IX, § 9 delineate the relationship ol these sections to the powers ol the General Assembly. The authority to grant taxing powers to municipalities under this section is permissive only and not self-executing. Thus in creating municipal governments, the legislature has discretion in deciding whether or not to give them the power ot taxation, and in fact often has not. (People ex rel. Tuohy v. City of Chicago, 399 111. 551 (1948).) But once it is decided to grant the power, certain restrictions must be observed. It has been held that this section, together with Section 10, prevents the legislature from commuting local taxes. Otherwise, taxes would not be uniform within the jurisdiction. Therefore, insurance companies could not be exempted from their local personal property taxes upon payment of a state tax on their premiums collected. (Raymond v. Hartford Fire Ins. Co., 196 111. 329 (1902). Note: Section 6 of Article IX prevents commutation of state taxes, but has no effect on local taxes. Supra, p. 451.) And when the power is granted, it must be granted to the proper author- ity. The power to levy special assessments and special taxes for local improvements is limited to a small list of municipalities, and the power of general taxation for corporate purposes is limited to "corporate authorities." The exact definition of authorities who can exercise each power is discussed below in the analysis of the respective taxing powers. Finally, it should be noted that the legislature's power to grant taxing authority under this section is often construed in conjunction with the restriction in Section 10 preventing the legislature itself from imposing local taxes on municipalities for corporate purposes. While the two ques- tions are often involved in the same case, analytically they can be distin- guished and the latter issue is discussed in the analysis of Section 10. The power to make local improvements is authorized for cities, towns and villages, and the Supreme Court has held that this list is exclusive. Thus a statute which enabled drainage districts to make such improve- ments by special assessment {i.e., to charge lands which are drained with the whole cost of draining) was held unconstitutional. (Updike v. Wright, 81 111. 49 (1876).) Article IV, Section 31, was amended specifically to over- rule this decision for drainage districts. The general principle of Updike was followed later when it was held that counties could not be given this power. (People ex rel. Van Slooten v. Board of Comm'rs, 221 111. 493 (1906).) However, by an accident of constitutional history, park districts had also been given this power and had exercised it unchallenged for many years. When a case finally reached the Supreme Court, it held that because many rights had already become settled, the power would be up- held, but this was recognized as an exception to the general nde. (VanNada v. Gocdde, 263 III. 105 (1914).) One further apparent devia- tion from this principle is worth noting. In 1925, the Supreme Court Art. IX, § 9 463 held that it was within the police power of the state to authorize sanitary districts to construct local improvements by means of special assessment. (Taylorville Sanitary Dist. v. Winslow, 317 111, 25 (1925).) While the opinion is rather unclear, the basis of this decision appears to be that the activities of sanitary districts are not local corporate purposes, but part of the general health and welfare of the state, and therefore not covered by the restrictions of this section. The broad implications of this decision have not been tested; it would appear to modify the Updike decision. One further very important restriction has been judicially grafted onto this provision of the Constitution. In order to be financed as a "local improvement," a project must be entirely under the control of one municipality. Chicago and Cicero attempted to construct one continuous sewer, with the outlet in Cicero because there was no suitable location in Chicago. Although the cost of the sewer construction in Chicago was only one-fifth of that in Cicero, two-thirds of the cost was apportioned to Chicago. This excess represented primarily the cost of the outlet, plus an administrative assessment that the property in Chicago would be more greatly benefitted than that in Cicero. Applying the rule of single muni- cipal control, the Court held the project unconstitutional. (Loeffler v. City of Chicago, 246 111. 43 (1910).) Obviously, this restriction greatly hampers efforts of municipalities with contiguous boundaries to coordinate their municipal services. The most recent decision limiting the authority to make local im- provements to the municipalities designated in this section is Com- mittee of Local Improvements %'. Objectors to the Assessment (39 111. 2d 255 (1968)), wherein the Court interpreted "towns" to mean "incorpo- rated towns" and not "townships," and in consequence held invalid a statute authorizing townships to levy special assessments for local im- provements. The definition of a project which constitutes a local improvement has not caused any difficulty, although it is important because it deter- mines the method of financing which a municipality may utilize for its projects. It has been said that a local improvement implies a permanent benefit which will significantly enhance the market value of property affected by the improvement. This encompasses, tor example, the con- struction of streets, sewers, and lighting; but it does not include the mere maintenance and repairs of existing streets (Crane v. West Chicago Park Comm'rs, 153 111. 348 (1894)); nor does it include the removal of noxious weeds (People ex re I. Van Slooten v. Board of Comm'rs, 221 111. 493 (1906)). The taking of land for a park is a local improvement which may be financed by special assessment. (Winnetka Park Dist. v. Hopkins, 371 111. 46 (1939).) Local improvements are to be distinguished from 464 Art. IX, § 9 projects of general utility to the coninumity. Thus, in constructing a city waterworks system, the reservoir, wells, pumping stations, etc., are general improvements which nnist be pdid lor by general taxation, while the laying of main lines along streets is a local improvement which may be financed by special assessment or taxation. (Hughes v. Clity of Momence, 163 111. 535 (1896).) The most important constitutional questions with regard to local improvements lie in the area of financing. Three methods of financing are authorized by Section 9: (1) special assessment, (2) special taxation of contiguous property, and (3) general taxation within the "or other- wise" provision. General taxation needs no attention here, since the principles governing it in regard to local improvements are no different from those in any other taxing problem. Special assessment and special taxation must be distinguished. In either case, the city passes an ordinance describing the improvement to be made and specifying the method of financing. In the case of special assessment, each piece of affected property is individually assessed to determine the increase in market value conferred upon it by the improvement, and the cost of the im- provement is apportioned among the properties in relation to these benefits. In no case may the charge on the property exceed the actual value of the benefits, and the determination of this value is subject to the right of trial by jury and judicial review. Where the method of financing is by special taxation, the municipality determines in advance and declares in the ordinance the method of apportioning the cost. The most common way of doing this is by foot frontage on the improvement. In this case, the determination of benefits and costs by the city is con- clusive and there is no right of judicial review, except on due process grounds. (Kuehner v. City of Freeport, 143 111. 92 (1892).) It has been held that a statute passed in 1897 giving the right of review in cases of special taxation did not abolish the distinction between the t^\o methods (see 111. Rev. Stat. ch. 24, ^59-2-41 (1967)); it merely required that the special tax not exceed the benefits actually conferred, which question is subject to review. l)ut it does not require that the tax be in proportion to the benefit conferred, and the ordinance itself is prima facie evidence of the benefit. (City of Nokomis v. Zepp, 246 111. 159 (1910); Pfeiffer v. People ex rel. McCormick, 170 111. 347 (1897).) Special taxation is limited to property contiguous to the improvement, while special assessment is made of all property benefitted, whether or not contiguous. (Guild v. City of Chicago, 82 111. 472 (1876).) In financing local improvements, municipalities may combine either special assessment or special taxation with general taxation for part of the costs, and indeed this combination is often necessary in the case of Art. IX, § 9 465 special assessments because the cost of the improvement may exceed the specific benefits to individual property. But special taxation and special assessment may not be combined, since this would be an unequal and unfair discrimination among taxpayers paying for the same improve- ment. (Kuehner v. City of Freeport, 143 111. 92 (1892).) However, while combination methods of financing are permitted, once the decision is made on how the improvement is to be financed and is prescribed by ordinance, the municipality cannot later change its mind and adopt another method, at least after the project has been completed. The City of Chicago issued local improvement bonds which were to be paid for out of the proceeds of a special assessment. When it subsequently appeared that delays in collection of the assessment would prevent pay- ment of the bonds on time, the city purchased the bonds out of its general funds, making provisions to reimburse itself out of the final assessment collections. The city argued that this action was justified because it had the power to finance the improvement by combining both special assessment and general taxation. The Court held that the proced- ure was unconstitutional because it was unfair to the property owners who had already paid their assessments in full. (City of Chicago v. Brede, 218 111. 528 (1905).) The Court's reasoning in this case seems clearly erroneous. So far as property owners who pay their assessments in full are concerned, it is immaterial to their position of equality whether nonpaying owners default on the obligation to the bondholders or on an obligation to the general fund of the city; it is a default in either case, and this decision affords the paying owner no protection whatsoever in that regard. Furthermore, the collection remedy in the case of either obligation is the same — levy and execution on the assessed property in default. Thus the question resolves itself to whether the bonds will be paid on time, with the city ultimately reimbursing itself for costs and interest and a consequent saving of its financial rating, or whether they must be dishonored, with a consequent impairment of the city's borrow- ing power even though they would eventually be paid. In addition to combining methods of financing a local improvement, it is within the power of a municipality to make local improvements, such as the laying of sewer lines, in one part of the city by general taxa- tion and in another part by special assessment or special taxation. (Murphy v. People ex rel. Weiennett, 120 111. 234 (1887).) This is com- monly done, for example, in street lighting where major traffic arteries are lit by general taxation while residential areas are lit by one of the special methods. The other major division of municipal taxing powers is the authority to levy general property taxes for corporate purposes. Since this section 466 Art. IX, § 9 j-equires that such power can be vested only in corporate authorities, the initial problem in this area is the definition ol "corporate authori- ties." The general rule is that corporate authorities are those officers whom the people have elected or to whose manner ot ajjpointment they have assented. Thus where the original charter of a park district organ- ized by election of the voters of the district specified the appointment of commissioners to be by the judge ot the circuit court, the legislature could not later change the method ol appointment without the consent of the voters. That would be vesting the taxing power in other than corporate authorities. (Cornell v. People ex rel. Walsh, 107 111. 372 (1883).) Officers can be corporate authorities only of territory imder their jurisdiction; thus where territory is detached from the school dis- trict, the school board is no longer a corporate authority of that territory and cannot levy taxes on it even for indebtedness incurred while the territory was part of the corporation. (People ex rel. Bergan v. New York Cent. R.R., 390 111. 30 111. (1945).) The difficult question is what constitutes an exercise of taxing power by a particular body. It is clear that the power to create a debt is the equivalent of the power to tax. A municipal corporation cannot be empowered to undertake projects for its own corporate purposes and then charge the cost of those projects to another municipality. For ex- ample, a drainage district had the authority to build bridges to connect adjacent land to public highways where they were separated by a drain- age ditch. The cost of the bridges was to come from the road and bridge fund of the town. This was held unconstitutional because it vested tax- ing powers of the town in other than the corporate authorities. (Morgan v. Schusselle, 228 111. 106 (1907).) This situation should be distinguished from one in which municipal corporations jointly undertake projects where the participation of each is not compulsory. Projects of one muni- cipal corporation may be entirely financed by the taxes of another, so long as the taxing municipality determines voluntarily the extent of its financial participation. For example, the Land Clearance Commission, a corporation which had the power to create its own debts and could be sued, was authorized to acquire land for slum clearance. It had no taxing power and its finances were obtained from taxes of the City of Chicago and state matching grants. This was held not to vest the taxing power of the city in other than corporate authorities, because the city itself determined the extent of its appropriations to the commission. (People ex rel. Tuohy v. City of Chicago, 339 111. 551 (1948). Compare People ex rel. Gallenbach v. Franklin, 338 111. 560 (1944) xvith McFarlane v. Hotz, 401 III. 506 (1948).) Taxes levied by corporate authorities must be for corporate purposes. Art. IX, § 9 467 With one significant exception, the Supreme Court has not interpreted this provision to impose any substantial restriction on municipalities. A tax for corporate purposes is one which promotes the general prosperity and welfare of the municipality which levies it; it must be germane to the objects of the creation of the municipal corporation. A tax levied by the city for civil defense purposes meets this test. (People v. City of Chicago, 413 111. 83 (1952).) The two significant cases, in which the requirement that taxes must be for corporate purposes was held to invalidate municipal levies, both involved attempts to maintain credit ratings of Chicago. In order to understand the more important of these decisions, it is necessary to explain the use of tax anticipation warrants as a method of financing local governments prior to actual collection of a levied tax. A full dis- cussion of this problem can be found in Section 12. {Infra, p. 484.) Here it is sufficient to note that the warrants are interest-bearing "i.o.u.'s" issued by the municipality following the levy of a tax and payable only from the receipts of that particular tax. These warrants have been held not to be a debt of the municipality and therefore not to be com- puted in determining debt limits under Section 12. However, it is obvious that if a city were to default on the warrants, its future ability to borrow, either by the issuance of warrants or bonds, would be sub- stantially impaired. Such a situation occurred in 1929 when the City of Chicago issued warrants in the amount of 60 per cent of anticipated tax revenues. A reassessment of property in the interval between levy and collection, coupled with the effects of the economic depression, caused the actual tax receipts to be wholly inadequate for payment of the warrants. The resulting default on the 1929 warrants made it practically impossible to find buyers for warrants in ensuing years; and the city, especially in its school system, was virtually bankrupt. In an attempt to remedy the situation, the city issued bonds to- redeem the outstanding warrants. However, the Supreme Court invalidated the bond issue, hold- ing the enabling statute unconstitutional on the grounds that since the warrants were not a debt which could be enforced against the city, the issuance of bonds to pay them was not for a corporate purpose. (Berman V. Board of Education, 360 111. 535 (1935).). This position was reinforced a few years later when it was held that bonds could not be issued to pay outstanding judgments against the city, where the judgments repre- sented actions on the warrants. (Leviton v. Board of Educ, 374 111. 594 (1940). See Comment "Judicial Treatment of Tax Anticipation Warrants in Illinois," 45 111. L. Rev. 653 (1950).) A similar situation occurred where Chicago attempted to pay local improvement bonds out of its general funds, when it appeared that the collection of the special assessment to pay the bonds would be delayed. It was held that since the bonds on 468 Art. IX, §9 their lace specified liability only out ol ihe special assessment, payment out of the general luncl was not tor a corporate purpose even if it would ultimately be reimbursed. (City of Chicago v. Brede, 218 111. 528 (1905).) In each oi these cases, the Court seemed to be unconcerned with the financial facts of life. Maintenance of a numicipality's credit rating should be a valid corporate j^urpose, and no protection whatsoever is offered to a taxpayer by preventing such transactions. Comparative Analysis Six other states have constitutional provisions similar to this section. Another 1 1 states have one section which combines the substance of Sections 9 and 10 of the Illinois Constitution. The Model State Consti- tution contains no similar provision. Comment What action is taken on this section depends, in large part, upon deci- sions made in two other areas of constitutional revision — home rule for local governments, and the taxing powers of the General Assembly. If significant reforms are adopted in the area of local self-government per- mitting extensive home rule, the taxing powers necessary to implement such government should be included in those provisions. Of course, to be consistent with the principles of home rule, such powers should be substantially independent of legislative control. If home rule is not in- corporated into tlie new Constitution, then the taxing powers of local governments would rest on the same relationship to state government as exists now — i.e., they are derived solely from grants by the state legislatvne, subject to whatever restrictions are imposed on that body by the Constitution. If it is decided to leave the legislature substantially unrestricted in matters of fiscal policy, then the need for a section such as this would be minimal. But if substantial restrictions are imposed on the legislature, then consideration must be given to the relationship of these restrictions to the needs of local governments for taxing authority. If a special provision relating to local taxation is included, several alternatives may be pursued. One would be simply to give the legislature broad authority to vest local governments with such taxing authority as may be needed. Another would be to adopt a more restrictive provi- sion such as the present section, making some attempt to ameliorate the specific problems inherent in the present section. Still another would be the recommendation of the Chicago Home Rule Commission that authorization be requested of the legislature either for a permissive tax statute listing a series of tax powers, with authority in the city govern- ment to levy any or all of the taxes specified, or, alternatively, power to levy one or more, but less than all, of the taxes specified. (Chicago Home Art. IX, § 10 469 Rule Commission, Modernizing A City Government 327-28 (1954).) Among the more serious problems of this section, the most numerous are those pertaining to the making of local improvements. The restricted list of governments permitted to make local improvements should be changed to allow any municipality to undertake such projects so long as they are consistent with its governmental functions. Joint participa- tion in the construction of local improvements by two or more munici- palities should be permitted. Consideration could be given to removing the restriction that special taxation be limited to contiguous property, thereby allowing special taxation for projects benefitting more than contiguous property. Finally, attention should be given to the possibility of allowing methods of financing local improvements other than special assessment, special taxation, or general taxation — for example, user charges. In the area of general property taxation, two questions are of primary concern. The uniformity requirement of this section is subject to all the problems and defects discussed above in relation to Section 1. Also, the maintenance of confidence in the financial integrity of local governments should be recognized as a valid "corporate purpose" for which taxes could be levied, thus avoiding, for example, the rigid treatment of tax anticipation warrants. In the last analysis, consideration may well be given to the repeal of this section in its entirety, leaving the resolution of tax authority for local purposes to legislative judgment, where in fact it largely rests anyway. Municipal Taxation Sec. 10. The General Assembly shall not impose taxes upon muncipal cor- porations, or the inhabitants or property thereof, for corporate purposes, but shall require that all the taxable property within the limits of municipal cor- porations shall be taxed for the payment of debts contracted under authority of law, such taxes to be uniform in respect to persons and property, within the jurisdiction of the body imposing the same. Private property shall not be liable to be taken or sold for the payment of the corporate debt of a municipal cor- poration. History Section 5 of the 1848 Constitution contained the provision that property shall be taxed for the payment of debts contracted by muni- cipalities under authority of law. Apart from this provision, this section is a product of the 1870 Constitution. Although the section was adopted without debate or explanation, it has generated considerable litigation. The 1922 Convention proposal retained the essence of this section, with a minimum of debate. 470 Art. IX, § 10 Explanation The two most important questions which arise under this section are what constitutes the imposition ol ;i tax by the legislature and tor what purposes a tax may be imposed without violating this section. The concept of the imposition ot a tax is not confined to the actual levy. It extends to the imposition ot a debt which must be paid by taxation and to the specification of amounts and purposes which must be included in a municipal budget, such as the fixing of minimum wages. (See cases discussed below in regard to the purposes of a tax.) In exceptional cases, and where the levy of a tax is optional with the local government, the legislature may direct the disposition of receipts without violating this section. For example, in one case both cities and townships were authorized to levy library taxes. When both governments levied such taxes and the township was located within the city, it was required to pay over to the city a proportion of its tax collection relative to the amount of its territory in the city; the city was required to abate its library tax by that amount. The township contended that this was the imposition of a debt in violation of this section, but the Court held that the requirement was valid because it was in the township's discretion whether to levy the tax in the first instance. (Board of Library Directors v. City of Lake Forest, 17 111. 2d 277 (1959).) Also, the creation of a cause of action against a muni- cipality, which may or may not materialize in the future, is not the imposition of a debt. An act of 1887, known as the Mob Law, gave a property owner the right to collect from the city damages to his property caused by a riot. In a suit to recover under this statute, the Court held that there was no imposition of a debt. (City of Chicago v. Manhattan Cement Co., 178 III. 372 (1899).) Furthermore, the Court said that even if it were conceded to be the imposition of a debt, it would not be prohibited by this section because it was an exercise of the general police power of the state to promote peace and tranquility rather than a tax for a corporate purpose of the municipality. This last aspect of the Court's opinion raises the other important question under this section — what kinds of taxes fall within the pro- scription? This section prohibits the imposition of taxes for local corpo- rate purposes; it does not prevent the imposition of taxes relating to general governmental functions of the state which may be delegated to and required of a municipality. Municipalities are subdivisions of the state and may be required to perform functions related to the admini- stration of general public policy as well as their own local functions. Thus, for example, general elections are part of the welfare and security of the state, and municipalities may be required to bear the expense Art. IX, § 10 471 of them even if they are not directly benefitted by the elections. (People ex rel. Sanitary Dist. v. Schlaeger, 391 111. 314 (1945).) Even the special corporate purpose of a municipality may be so related to the public welfare that the state may require the municipality to per- form its duties more thoroughly though this results in an increase in taxes. A sanitary district's obsolete facilities resulted in raw sewage being discharged into a river. A district referendum held in 1957 to authorize the issue of bonds for modernization was defeated. There- upon, a private party sued the sanitary district, charging that the pollu- tion was a nuisance and seeking an order of abatement. If such an order was issued, then a statute permitted the district to issue bonds without a referendum in order to comply. The district defended the suit on the grounds that this constituted the imposition of a debt by the state for a local corporate purpose. The Court held that the treatment of sewage was directly related to the health and welfare of the public, and that a municipal corporation could be required to perform that duty adequately, even when this resulted in additional taxes. (Ruth v. Aurora Sanitary Dist., 17 111. 2d 11 (1959).) In nearly all cases which have challenged a statute under this section, the Court has upheld the law on this ground that it relates to the general welfare of the state rather than to a local corporate purpose. There are some cases, however, in which the application of the principle appears to be inconsistent. Usually these cases involve a construction of this section in conjunction with the provision of Section 9 prohibiting the granting of taxing powers to other than corporate authorities. Hefjner V. Cass ir Morgan Comities (193 111. 439 (1901)) concerned an action in trespass against a drainage district which had removed a bridge across a road while constructing a ditch. The complaining counties sought damages in the amount of the cost of replacing the bridge. The drainage district relied on a statutory provision which required the counties to replace the bridge at their own cost. The Court accepted this defense, holding that the statute was not a violation of this section because the construction and maintenance of bridges was a general public purpose of the state, and not a local corporate purpose. How- ever, in a later case on the same issue, the Court overruled the Heffner case and held that such a procedure violated Section 9, vesting taxing power in other than corporate authorities, as well as Section 10 because it imposed a debt without consent. (People ex rel. Burow v. Block, 276 111. 286 (1916).) But in a still later case, the Court held that the legislature can compel counties to contribute to the cost of constructing bridges near the county line, even though the bridge is located wholly within the one county which undertakes the construction. The Coiat 472 Art. IX, § 10 again adopted the rationale that this was for a general piibHc purpose not ])rohibited by Section 10, and rclictl in pait on the presumably overriUed Heffuer case. (County ol Staik \. County ol Henry, H26 111. 535 (1927).) Another situation in which Section 9 has caused confusion in con- junction Avith Section 10 is the fixing of compensation for municipal employees, it has been clearly established that prescription of minimum wages, while it does impose a debt, does not violate Section 10 because it is for a general public purpose. (Sec, e.g., Peojjle ex rel. Cannon v. City of Chicago, 351 111. .H96 (1933) (minimum salary for probation officers): People ex rel. Moshier v. City of Springfield, 370 111. 541 (1939) (minimum salary for firemen).) There ha\e also been a number of cases upholding, ioi the same reason, statutes requiring municipal con- tribution to retirement funds. (See, e.g., Board of Trustees v. Com- missioners of Lincoln Park, 282 111. 348 (1918) (pension fund for park policemen); Peoj)le ex rel. Nelson v. Jackson-Highland Hldg. Corp., 400 111. 533 (1948) (teachers' retirement fund).) However, in one case the Court invalidated a system set up to administer a firemen's retire- ment fimd on the ground that it violated Section 9. (People ex rel. Callenbach v. Franklin, 388 111. 560 (1944).) Although the issue seems to correspond with the Lincoln Park case above, the Court simply dis- missed that case as not being in point. In any event, the bridge cases, together with these retirement fund cases, illustrate the confusion which sometimes arises when Sections 9 and 10 are construed together. In the area of curative tax legislation, this section has caused serious difficulties for municipal taxing authorities. In order to pass a valid tax ordinance, municipal authorities must comply with statutory require- ments which are exceedingly complex. These requirements range from the very fundamental, such as what authorities may levy taxes, to the rather trivial, such as tlie manner of publication of an ordinance; and the statutory prescriptions are subject to constant change. Mistakes in this situation are inevitably made, most of them of a minor nature which do not affect the basic issues of the fairness of the tax or the important pro- cedures employed in the levy. In most states, as well as in the federal gov- ernment, such mistakes can be corrected by cmative tax statutes so as to validate the tax. In Illinois, however, a number of such validation efforts have been held to violate this section, with the result that municipalities are often faced with serious losses of revenue, ft is difficult, if not impos- sible, to reconcile all the cases, many of which have sustained curative legislation. The general rationale is that the legislature may validate a de- tective exercise of power but cannot remedy a total absence of power. For a statement of this position, see People ex rel. ]Vard v. Chicago ir E. III. Art. IX, § 10 473 Ry., (365 III. 202 (1936)). In that case, a county board was directed by statute to make its tax levy tor the year in September. It did not make the levy until December, and the legislature attempted to validate the levy after it had been made. The Court held that the county board had no power to make the levy in December, and the curative act could not vali- date the levy without violating this section. It is again emphasized that the procedures under attack are not usually ot a nature that go to the fundamental fairness of a tax; serious abuse of the taxing power can and should be prevented by the due process clause. What may be needed, perhaps, is greater power to pass curative tax statutes in those cases where the defect in the exercise of the taxing power is insubstantial and not prejudicial. The cases in the area are voluminous, and it would not be particularly helpful to detail the complexities of the litigation. Two good sources which deal with the problem in detail are Comment, "Curative Tax Legislation," 32 111. L. Rev. 456 (1937) and Blomquist, "Effect of Curative Statutes on Taxation in Illinois," 27 Chi. -Kent L. Rev. 211 (1949). There are several minor points in this section which may be dealt with briefly. The last sentence specifying that private property may not be taken in payment of corporate debts has not been a cause of litiga- tion; the principle is so well settled that it would seem not to necessitate an express constitutional statement. The clause in the first sentence requiring property to be taxed for the payment of debts was last con- strued in 1873; that case held that the General Assembly could require the State Auditor to levy taxes on property in towns which had sub- scribed to railroad stock in order to pay the bonds funding the sub- scription. (Decker v. Hughes, 68 111. 33 (1873).) The clause does not seem to be of much contemporary utility. There was a dictum in another early case that this Section 10 does not apply to counties and town- ships (Wetherell v. Devine, 116 111. 632 (1886)); and this point was commented on favorably in a more recent case (People ex rel. Lind- heimer v. Gaylord Bldg. Corp., 369 111. 371 (1938)). However, that is contrary to a prior holding of the Supreme Court (Sleight v. People, 74 111. 47 (1874)); and in nearly all subsequent cases in which this issue could have been raised, the Court apparently preferred to rely on the general principles discussed above rather than on a distinction in the type of governmental unit. Comparative Analysis As noted above, nine states have constitutional provisions which combine the essential provisions of Sections 9 and 10. Only one state appears to have a separate section comparable to Section 10. The Model State Constitution contains no comparable section. 474 Art. IX, § 11 Comment The useiulness of this section is doubtful and it could well be elimi- nated. To the extent that it merely reinforces the recjuirement of Section 9 (that taxing power for local corporate purposes is vested only in corporate authorities), it is superfluous; and there are many situations in which its relationship to Section 9 has caused considerable confusion. Given the nebulous, perhaps even nonexistent, distinction between a purely local corporate purpose and a purpose of general state concern, the section seems to deal with what is largely an anachronism. The one situation in which this section has exerted an independent influence — in curative tax statutes — has occasionally caused undesirable results and should be corrected. Two of its requirements, that the legislatine require property to be taxed for the payment of debts and that private property not be taken for the payment of corporate debts, have not been the subject of significant litigation. They, surely, can be safely repealed. Municipal Officers — Defaults — Compensation Sec. II. No person who is in default, as collector or custodian of money or property belonging to a municipal corporation shall be eligible to any office in or under such corporation. The fees, salary or compensation of no municipal officer who is elected or appointed for a definite term of office, shall be increased or diminished during such term. History The Schedide to the 1818 Constitution had a section comparable to but broader than the first sentence of Section 11. The 1818 section said that no sheriff or collector of public moneys in default was eligible "to any office in this State." This prohibition was moved to the Legislative Article of the 1848 Constitution and rephrased to cover a seat in the legislature and "any office of profit or trust in this State." (See Art. IV, Sec. 4, supra, p. 127.) Neither of the earlier Constitutions contained a provision comparable to the second sentence of Section 11. Section 11 was offered to the 1870 Convention as two separate sections, each of which was modified slightly in the Committee of the Whole. Apart from a discussion of technical modifications, there was no debate. They were combined into one section by the Committee on Revision and Adjustment and placed in the Revenue Article, presumably because there was no other place to put it. In the proposed 1922 Constitution, the section was split in two and placed in an article on Public Servants. In both cases, the section was an amalgam of several sections dealing with the same subject matter. In the one case, the section included matter from Sections 3 and 4 of Article IV and the first sentence of Section 11; in the other case, one section on increasing or diminishing compensation covered a principle Art. IX, §11 475 expressed in some eight different sections of the 1870 Constitution. (Sections 21 and 22 ot Article IV; Section 23 of Article 5; Sections 7, 16, and 25 of the original Article VI; Section 10 of Article X; and this Section 11.) Explanation Default: The first sentence of this section is probably redundant be- cause it seems unlikely that any situation would arise that is not covered by the broader language of Section 4 of Article IV. (Supra, p. 127.) In any event, no question appears to have arisen under this sentence. Compensation: The courts decided long ago that this section was to be the catchall for prohibiting salary increases and decreases. As noted above in the History, therfe were originally seven other sections in the Constitution that expressed the principle that those "officers" elected or appointed for a definite term should neither receive an increase in compensation nor suffer a decrease. (See Comment below for a dis- cussion of the broad principle.) Whatever the meaning of "municipal officers" in the minds of the delegates to the 1870 Convention, the courts decided the words were "intended to include all officers not specifically mentioned in other provisions of the constitution, occupying offices created by the laws of the State in and for any of xhe political subdivi- sions of the State . . . ." (Wolf v. Hope, 210 111. 50, 61 (1904).) Con- sequently, all sorts of positions not normally thought of as "municipal officers" are covered by Section 11. (See People ex rel. Judge v. Board of Comm'rs, 260 111. 345 (1913) (board of election commissioners); People v. Williams, 232 111. 519 (1908) (state's attorneys); Wolf v. Hope, 210 111. 50 (1904) (city judge); Jimison v. Adams County, 130 111. 558 (1899) (county superintendent of schools); County of Cook v. Sennott, 136 111. 314 (1891) (probate court clerks).) On various occasions, the Attorney General has followed the catchall approach of the courts. {See 1926 111. Att'y Gen. Rep. 123 (county highway superintendent); 1915 111. Att'y Gen. Rep. 318 (county oil inspector); 1912 111. Att'y Gen. Rep. 447 (county commissioners); 1912 111. Att'y Gen. Rep. 564 (county commissioners); 1910 111. Att'y Gen. Rep. 900 (drainage commissioners).) Apart from the all-inclusive construction given to this section, the courts have generally drawn routine lines within its bounds. Thus, re- imbursement of expenses would not be an increase in compensation, but pinporting to fix a sum in lieu of audited expenses would be. (Peabody v. Forest Preserve Dist., 320 111. 454 (1926).) An "officer" who holds his position at the pleasure of a superior can, of course, re- ceive a salary increase or suffer a decrease. (Village of Forest Park V. Collis, 329 111. App. 273 (1946) (village attorney); Morgan v. County of DuPage, 371 111. 53 (1939) (assistant county superintendent of 476 Art. IX, § 11 schools).) A statutory classification ot salaries tied to federal census figures does not run aloul ol Section 1 1 11, alter a census, an officer's salary is cut Ixcausc his county dropped in j)opulation. (Brissenden V. Howlett, 30 HI. 2d 247 (1964).) The same rule would apply to a salary increase, init presumably no taxpayer has sued to j)rc\xiu the increased payment. The pesky problem ol j)cnsions, discussed more lully in con- nection \\ith Section 19 ol Article I\' (supra, pp. 19.')-r)), has shown up here. Pensions are valid under this section. (DeWoll v. Rowley, 355 111. 530 (1934); People ex rd. Kroner v. Abbott, 274 111. 380 (1916).) One problem has arisen under this section that shoidd delight a law professor and anyone else interested in the finer weaving of judicial logic. The president of a \illagc board, serving without compensation, was reelected, following which his board adopted an ordinance fixing his compensation at .$2,000 per year retroactive a few months to the beginning of his new term. The Supreme Court said he could not be paid. (Baumrucker v. Brink, 373 111. 82 (1939).) One judge dissented on the ground that many years earlier the Supreme Court had held that to create a salary w4iere none had existed before was not an increase. In reply, the majority opinion simply said that the earlier case arose under Section 10 of Article X (infra, p. 509), and this case arose under Section 11 of Article IX, a distinction which the dissenting judge could not comprehend. Comparative Analysis Default: See Coinparative Analysis of Section 4 of Article IV. (Supra, p. 129.) Compensation: Only a few states appear to have a comparable pro- vision. Alabama prohibits increases or decreases during the term of an incumbent, Missouri prohibits an increase, Louisiana prohibits a de- crease, and Kentucky and Washington say that compensation may not be changed. California says no increase, except (1) during wartime by two-thirds' vote of the legislature, or (2) in the case of a board or com- mission, the members of which are chosen for staggered terms, w4ien one or more members becomes eligible for an increase at the beginning of his term. The Model State Constitution is silent on the subject of compensation. Comment There are two simple principles involved in this increase or decrease in salary business, but in the welter of litigation the principles sometimes seem to be forgotten. One principle is that the man ^vho determines the amount of a salary should not be allo^ved to use that power to influence someone who is not responsible to him. Thus, it is appro- priate — indeed, essential — to prohibit decreases in salaries of judges, for Art. IX, § 11 477 that could destroy the independence of the judiciary. If judges are appointed or elected for relatively short terms, a prohibition of an increase is acceptable, but, particularly today, if the terms are longer than four years, even a "normal" increase in the cost of living results in a salary cut. (Note that United States judges are appointed for life, and the United States Constitution prohibits only a salary cut for them, whereas the salai-y of the President may be neither increased nor de- creased during his four-year term. Note also that under Section 17 of Article VI, salaries may be increased but not diminished during the judicial term of office, whereas under the 1870 Constitution, salaries could be neither increased nor diminished. See History and Explanation of Sec. 17 of Art. VI, supra, pp. 370-2.) Where compensation is set by a legislative body for executive and administrative officials, the principle is applicable to any officials who are elected by the voters, for under the theory of separation of powers, the fact of election means that they are supposed to be independent of the leg- islature. The principle is not applicable in the case of appointed officials who are answerable to an elected official. Notwithstanding the theo- retical possibility that, for example, the legislature might try to influence the Governor by decreasing the salaries of stenographers so low that he could find no one to type his letters, in general such pressure is sufficiently remote that the danger is outweighed by the need for flexi- bility in adjusting salaries. The close question of principle is the case of officials appointed for a term of years where the purpose of the term of years is to make them independent. If there were a policy that independence would be the only reason for having a set term for an appointive position, the inclusion of such appointive positions in a constitutional prohibition on increases and decreases in compensation would make sense. The very fact that the foregoing sentence is in the subjunctive suggests the weakness in the theory, for a constitutional prohibition ought not to rest on an assumption that people will follow a policy that is not mandatory. The second principle is that a man ought not to be able to increase his own salary. Thus, it is appropriate to prohibit those people who make appropriations — legislators, supervisors,, commissioners, council- men, aldermen — from increasing their own salaries during the term for which they are elected. The foregoing, by implication, rejects two other arguments in support of a no increase or decrease in pay provision. One is the argument that a man running for office, or accepting an appointment, ought to know definitely what his remuneration will be. The other is the argument — probably the one uppermost in the minds of the delegates to the 1870 478 Art. IX, § 12 Convention — that il kit alone, government officials will raid the treasury. This may very well have been a problem in the middle of the Nine- teenth Century. In today's complex world, there are problems galore in finding money enough in the treasury to do all the things people desire of their government. The amount of money saved by an unneces- sarily broad constitutional prohibition on salary increases is a drop in the bucket. Limitation of Municipal Indebtedness — Debt Retirement Sec. 12. No county, city, township, school district or other municipal cor- poration, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for state and county taxes, previous to the incurring of such indebtedness. Any county, city, school district, or other municipal corporation, incurring any indebtedness as aforesaid, shall before, or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same. This section shall not be construed to prevent any county, city, township, school district, or other municipal corporation, from issuing their bonds in compliance with any vote of the people which may have been had prior to tiie adoption of this constitution in pursuance of any law providing therefor. History This section limiting municipal indebtedness was new in the 1870 Constitution. The reasons for its adoption are not entirely clear from the debates, but apparently the main concern was over the large debts which had been incurred by counties anci municipahties for subscrip- tions to railroad stock. The issue of railroad debts was a very heated one at this Convention and was reflected not only in the debates on this section, but also in those on Section 6 (see discussion, supra, pp. 454-5) and on the Separate Section on loaning municipal credit to private corpo- rations see discussion, infra, p. 576). There was evidenced a considerable downstate feeling that Chicago was attempting to impose these restric- tions to prevent those areas from getting railroads. In any event, the pro- ponents of this section advocated the view that excessive indebtedness led to high taxes and that a restriction on debt-incurring power would serve as a means of limiting taxes. Opponents of the section argued that the people should have the right to determine their own indebtedness. Several amendments were offered changing the amount of the limit, but all were defeated. As originally proposed, the limitation for retirement of the debt was ten years; this was amended to 20 years with little debate. The saving clause for the existing debt was added to the committee report for purposes of clarity. Many Convention members felt that the section was so controversial that its inclusion would endanger the whole Art. IX, § 12 479 Constitution. They unsuccessfully advocated that it be submitted as a separate section. The proposed 1922 Constitution made several changes in this section. Counties, towns, and school districts retained the 5 per cent limit, but other municipal corporations had a 6 per cent debt limit. The mandatory tax to retire the debt in 20 years was to be levied in "substantially equal annual installments," except that provision could be made to retire it before maturity. The last sentence of the secction was omitted as obso- lete. Also, because of the extensive special provisions which were made for Chicago and Cook County, the section did not apply to them. As to the special sections on Cook County and the municipalities within it, their debt limit was to be 7 per cent of assessed value. If the municipali- ties undertook consolidation as provided for, then the limit was to be 7 per cent of the full value of real property. Most of the debate on debt limits in the 1920-1922 Convention was devoted to the problems of Chicago. Debate was minimal on the more general provisions. The requirement that the tax to retire the debt be levied in substantially equal annual installments was inserted to prevent the practice which had become prevalent of deferring payments on the principal until close to the bonds' maturity dates, and then refunding them upon maturity. It is entirely unclear from the Proceedings how or why the debt limit for "other municipal corporations" was raised to 6 per cent. The original committee report proposed the 5 per cent limit. Possibly the change represented a compromise resulting from the defeat of another proposal authorizing cities to issue utility bonds in the amount of 15 per cent of assessed value, the bonds to be paid for out of revenue from the utilities. Explanation The limitations of this section apply only to municipal corporations which are local governmental units; they do not apply to administrative units of the state government which have state-wide jurisdictions. (People V. Illinois Toll Highway Comm'n, 3 111. 2d 218 (1954).) This section limits the powers of the General Assembly in one respect — it cannot authorize a debt for a municipal corporation in excess of 5 per cent of assessed valuation. However, in creating those corporations, it may specify a limit under 5 per cent and may increase or decrease that limit without the consent of the voters of the municipality. (People ex rel. Adamowski v. Metropolitan Sanitary Dist., 14 111. 2d 271 (1958).) There is a further indirect limitation on the power of the General Assembly to control the taxing authority of municipal corporations. Since the section requires the levy of a tax sufficient to pay bonded indebtedness, the General Assembly may not restrict the taxing power so as to make this 480 Art. IX, § 12 requirement impossible to meet. (See the discussion below in respect to the necessity to levy a tax.) This section in no way restricts the General Assembly in fixing the assessment ratio for pinjjoses of taxation. In fact, it has been a not unusual practice for the General Assembly to increase assessment ratios while at the same time adjusting tax rates so that no more revenue is produced, the sole purpose of the change being to in- crease the fjorrowing power of numicipalities. (People ^.v rel. Camjje v. Board of Review, 290 111. 467 (1919).) Although the language of this section is negative, it has been inici- preted as conferring upon numicipalities the power to borrow money, at least in the absence of any statutory restriction. The City of Chicago extended taxes to pay for general expenses up to the statutory limit. This left a budget deficit of $8,000,000, and the city issued bonds to cover this amount. The bond issue was attacked by taxpayers as being without statutory authority and merely a scheme to get around the tax rate limit. The Court held, however, that the city could borrow money under this section for whatever corporate purposes it desired so long as the constitutional limit was not exceeded. (People ex rel. Carr. v. Chicago &: N.W. Ry., 308 111. 54 (1923).) This section does not restrict the power of municipalities to levy taxes. Where a school district issued bonds up to the constitutional limit and the proceeds were not sufficient to complete the building, it was proper for the district to levy taxes up to the statutory maximum in order to finish it. (People ex rel. Trobaugh V. Chicago &: T.R.R., 223 111. 448 (1906).) It was clearly understood by the 1870 Convention that this section was a limitation only on the indebtedness of municipal corporations, and was not a limitation of the amount of indebtedness as applied to particular property within those corporations. Thus it was frequently pointed out in the debates on this section that although municipalities had a 5 per cent debt limit, property itself might bear a municipal debt of 20 per cent if all of the enumerated governments incurred the maximum debt. What the Convention probably did not foresee was the extent to which this section would encourage the creation of numerous overlapping municipal corporations, each with a limited function, in order to evade the debt limitations. The Supreme Court sanctioned this trend in an early decision which held that functions which ordinarily w'ere per- formed by the city (in this case, construction and maintenance of a sewer system) could be vested in an independent mimicipal corporation which would have its own taxing powers and debt limit. (Wilson v. Board of Trustees, 133 111. 443 (1890).) In many cases, the proliferation of over- lapping municipalities, particularly of school districts, led to extremely inefficient administration. Efforts to effect consolidation were hampered by problems of distributing existing debt between the old and new dis- Art. IX, § 12 481 tricts and required continuous legislative supervision. (For a thorough treatment of this problem in relation to school consolidation, see McLain v. Phelps, 409 111. 393 (1951); People ex rel. Community High School Dist. V. Hupe, 2 111. 2d 434 (1954). See also Kocsis v. Chicago Park Dist., 363 111. 24 (1935).) The problem of ascertaining the limit to which a municipality may become indebted has not created much difficulty. The SujDreme Court originally held that the assessment value to be used as the basis for the 5 per cent limit was that of the county board of review, not the State Board of Equalization. (People ex rel. Standerfer v. Hamill, 134 111. 666 (1888).) However, four years later, without reference to the Hamill case, the Court held that the state's ecjualized value was the proper base, and this rule has since been followed. (Wabash R.R. v. People ex rel. Reed, 202 111. 9 (1903).) For purposes of determining the constitutionality of a debt, the limit is figured as of the time of the incurring of the debt; thus a subsequent drop in property assessment value does not cause a debt that was legal when incurred to become illegal. (Kocsis v. Chicago Park Dist., 362 111. 24 (1935).) Where there is an outstanding debt, a sinking fund which may by law be applied only to the reduction of that debt may be set off against that debt tor purposes of determining the amount of additional debt which may be incurred. (People ex rel. Lindeheimer v. Hamilton, 373 111. 124 (1940).) But general funds in the treasury may not be set off against the debt limit, since the question is one of indebted- ness, not insolvency. (City of Chicago v. McDonald, 176 111. 404 (1898).) Municipal obligations may take a wide variety of forms and may be incurred in many ways. For purposes of analyzing the effect of this sec- tion, these obligations may be divided into three classifications. First are those obligations which are voluntarily assumed and for which the general credit of the municipality is pledged; such obligations are debts within the limits of this section and may not be incurred in excess of the constitutional limit. The second classification includes obligations for which the general credit of the municipality is liable, but which are not voluntarily assumed; these are debts for purposes of determining the limit to which further indebtedness may be voluntarily incurred, but this section is not a bar to their incurrence by the municipality. The final classification includes a group of obligations which are volun- tarily incurred by the municipality, but the municipality's liability is substantially restricted; these obligations are not subject to any of the restrictions of this section. Each of these classifications will be discussed individually. Voluntarily assumed obligations which fall within the restrictions of this section can be of many different types. The most obvious debt which this section sought to control is long-term, general-obligation bonded 482 Art. IX, § 12 indebtedness, and the incurrence of such indebtedness is subject to the 5 per cent Hniit. In determining the amount ol bonds wiiich can be issued within this limit, the amoimt ol interest which the bonds will carry is not to be included; the 5 per cent limit applies to the principal amount only. (Goodwine v. County ot Vermilion, 271 111. 126 (1915).) Also, con- tracts which are to be paid tor solely out of the proceeds of bond issues are not considered as debts; otherwise, the projects to be funded by the bonds could not be undertaken. (Hartmann v. Pesotum Community Consol. School Dist., 325 111. 268 (1927).) Other than this exception, long-term contracts and leases are debts within this section; and the total amount of the contractual liability must be included in determining the debt limit. (People ex rel. Adamowski v. Public Bldg. Comm'n, 11 111. 2d 125 (1957) (long-term lease of space for municipal ofhces); Wade v. East Side Levee & Sanitary Dist., 320 111. 396 (1926); Baltimore & O. Sw. R.R. v. People ex rel. Gaston, 200 111. 541 (1903) (13-year contract with private power company to furnish city lights culminating in purchase of power plant).) Mortgages of municipal property are debts within this section (City of Joliet v. Alexander, 194 111. 457 (1902)), and at one time it was thought that this ride applied to pledges of future income from revenue- producing municipal property (Schnell v. City of Rock Island, 232 111. 89 (1908)). However, this latter position has been overruled; see the discus- sion below of revenue-producing projects. The public benefits assessed against a city in a local improvement project are also debts under this section if they are to be financed by credit; however, if they can be paid for out of current taxes, they are not debts. (People ex rel. Toman v. Crane, 372 111. 228 (1939).) One of the most difficult questions was whether the liabilities for current operating expenses of a municipality constitute debts within the meaning of this section. Tax levies and budget appropriations are made by the municipality at the beginning of the year, but taxes are not actually collected until the end of the year. To carry on normal opera- tions in the interim, unless there is a huge surplus carried over from the prior year (a rare occurrence in municipal finance), the municipality must rely on temporary credit in some form, either contingent contracts or outright loans. In deciding whether such credit is a debt within this section, the Court faced a dilemma. On the one hand, to hold it a debt subject to the 5 per cent limit would mean that a very large number of municipalities already indebted to the limit would simply have to cease carrying on their governmental functions. On the other hand, if it were not considered a debt, the opportimity would arise to carry over such ostensibly "temporary" debt from year to year, possibly resulting in a total indebtedness greatly in excess of the 5 per cent limit. Most states with similar constitutional debt limits had decided that they applied only Art. IX, § 12 483 to long-term debts. While the 1870 Convention had not addressed itself to this question, directly, there is considerable evidence in the debates that these long-term debts were what it had in mind. Furthermore, this posi- tion was buttressed by the provision requiring an annual tax sufficient to pay off the principal and interest of the debt within 20 years; obviously such a requirement could apply only to a long-term debt. However, after due consideration in a series of cases, a divided Court held that even current liabilities of a municipality were to be considered debts within the requirements of that section. (City of Springfield v. Edwards, 84 111. 626 (1877); Law v. People ex rel. Huck, 87 111. 385 (1877); Prince v. City of Quincy, 105 111. 138 (1882); Prince v. City of Quincy, 105, 111. 215 (1883^; City of Chicago v. McDonald, 176 111. 404 (1898).) The harsh restilts of this conclusion on municipalities which have reached their debt limit are mitigated to some extent by the Court's decisions permitting tax anticipation warrants, a restricted form of short-term borrowing. This subject is discussed below in relationship to obligations which do not fall within this section. There is a large group of obligations which a municipality may incur and for which it is generally liable even though it is already indebted beyond the 5 per cent limit. These generally may be classified as "obliga- tions imposed by law." It is not accurate to say that these obligations do not constitute debts within the meaning of this section, for they must be included in the amount of existing indebtedness when determining whether a municipality has reached its constitutional limit, and the requirement that an annual tax be levied to pay them is also applicable. However, they must be distinguished from ihe obligations discussed above in that this section cannot be invoked as a bar to their aquisition by a municipality, whereas with obligations voluntarily incurred, both the municipality and the taxpayer have numerous remedies based on this section by which to avoid them. (See the discussion of remedies below.) Probably the most common kinds of obligations within this classifi- cation are funding and refunding bonds — general obligation bonds issued to finance unfunded debt or to refinance funded debt. Such bonds can be issued if the underlying debt was valid when incurred, even though at the time of issuance the debt limit has been reached. (Kocsis V. Chicago Park Dist., 362 111. 24 (1935).) The reasoning here is that since the underlying debts are valid and enforceable, a municipality should not be denied rational means of retiring them, and no additional new debt is created by the funding mechanism. For the same reason, bonds issued to fund valid judgments are not barred by this section. (Elmhurst Nat'l Bank v. Village of Bellwood, 372 111. 204 (1939).) Judgments, of course, can represent a wide variety of obligations im- posed by law, and the cases give numerous examples of these obligations. 484 Art. IX, § 12 Municipalities are responsible lor their torts (City ol Blooniington v. Perdue, 99 111. 329 (1881)); statutory liability may be imposed for lailure to maintain the jjeace ((>ity ot Chicago v. Manhattan Cement Co., 178 111. ,S72 (1899) (property damage resulting Irom riot)); and general liability may result Irom a breach ol fiduciary duty as trustee of a special fund (Indiana Harbor Belt R.R. v. City of Calumet City, 391 III. 280 (1945) (misaj^jMopriation of special assessment funds)). A munici- pality may not enter into voluntary contracts which are illegal because of this section and by collusion have them reduced to judgements to be funded by judgment bonds. (See the discussion of remedies below.) How- ever, where valid contracts are made, they must be jjerformed in good faith; and where the municipality by its own fault breaches those con- tracts, liability may still be imposed on a (jutnitinn inrriiit or contract tlieory, whichever is appropriate, Avithout regard to this section. (City of Chicago V. Sexton, 115 111. 230 (1885); DeLeuw, Cather R: Co. v. City of Joliet, 327 111. App. 453 (1945).) There is finally to be considered a group of municipal obligations which, while they are debts in the ordinary sense of that term, are not debts within the meaning of this section; that is, they need not be included in determining the amount of municipal indebtedness, and there is no constitutional limit on the amount which may be incurred. In general, the liability of a municipality for these debts is very strictly limited, and the rationale for excluding them is that this section was designed to prevent property from being overburdened with taxes which would have to be raised in order to support excessive debt. Hut where the liability of the municipality is very strictly limited, so that creditors cannot force a resort to general taxation in order to collect the debt, then the reason for the restrictions of this section disappears and it should not apply. One of this kind of indebtedness is local improvement bonds which are financed solely from special assessments on the property benefitted. The theory here is that there is no taxation in the general sense, but merely an equal exchange of values; and so long as the municipality is liable to the bondholders only from the special assessment fund, there is no debt. \\'^hile there appear to be no direct holdings on this subject in Illinois, the doctrine was already established in 1870 and has been commented on favorably in a niuiiber of cases. Indeed, the 1870 Convention itself recog- nized that many projects which were then financed by general taxation, and hence subject to this section, could be financed by special assessment and escape its restrictions. From the standpoint of municipal finances, probably the most impor- tant form of obligation in this classification is tax anticipation warrants. Art. IX, § 12 485 As was noted above, taxes are levied early in the year bvit are not collected until much later, usually the following year. In the interim, some way must be found of paying for governmental operations. There may be a cash surplus, or there may be enough ordinary debt-incurring power to carry on credit transactions. But if neither of these situations obtains, resort is usually had to tax anticipation warrants. If these warrants conform to a strictly prescribed form, they will not be con- sidered debts within this section. The taxes must already have been levied for the year in question, and the warrants must clearly state on their face that the only liability is out of the tax funds collected for that year. If the warrants do not follow this prescription, they are considered ordinary debts and are subject to the requirements of this section. (City of Springfield v. Edwards, 84 111. 626 (1877); Law v. People ex rel. Huck, 87 III. 385 (1877); Hodges v. Crowley, 186 111. 305 (1900); Holmgren v. City of Moline, 269 111. 248 (1915).) Local improvements which are revenue-producing may be financed by long-term contracts which pledge only the revenue from the project in payment of the debt. At one time the Court held that only revenue from new projects could be so pledged; to pledge revenue (which was available to the general fund) from existing municipal property was thought to constitute a mortgage of existing property and thus a debt. Hence, a sewer extension could not be financed out of charges from the existing system plus the new one. (Schnell v. City of Rock Island, 232 111. 89 (1907).) However, in a later case involving the expansion of a water supply system, the city undertook a joint venture with a private company in which the revenue from the whole system was pledged as payment; and this was upheld without reference to the Schnell case. (Maffit v. City of Decatur, 322 111. 82 (1926).) Maffjt has since been cited as "modifying" Schnell, and such projects are uniformly upheld as not being debts within this section. (Ward v. City of Chicago, 342 111. 167 (1930); Poole v. City of Kankakee, 406 111. 521 (1950).) By the same token, bonds issued to fund revenue-producing projects, whose payment is to be solely from the revenue of the project, are not Section 12 debts. (City of Edwardsville v. Jenkins, 376 111. 327 (1941); see the discussion of state debt under Art. IV, Sec. 18, supra, pp. 189-91).) The requirement of this section that an annual tax be levied to pay the interest and principal within 20 years is self-executing. How- ever, it does not apply to every obligation which is a debt under this section. It applies only to debts whose payment is deferred to a fixed future date and whose amoimt is certain. (Town of Kankakee v. McGrew, 178 111. 74 (1899); County of Coles v. Goehring, 209 111. 142 (1904).) The levy should include an amount sufficient to cover loss and coUec- 486 Art. IX, § 12 tion expenses. (People ex rel. Korzen v. Engleinann, 32 111. 2d 196 (1965).) Because ol its seli-executing nature, the constitutional pro- vision may override a statute. For example, sanitary districts were authorized to levy bond taxes tor two years in advance. Because there had been considerable delays in tax collection for lour years, a district levied tor two and one-half years in order to be sure of a sutficient amount to pay maturities. The Court held that because of the Section 12 requirement, the district was justified in exceeding its statutory author- ity, and the tax was legal. (People ex rel. Gill v. 110 S. Dearborn St. Corp., S6S HI. 286 (1936).) Where a statutory tax rate limit is too low to produce an amount sufficient to pay the bonds, the municipality may validly exceed the statutory limit. (People ex rel. Henry v. New York Cent. R.R. Lines, 381 111. 490 (1942).) The question arises as to what remedies arc available to enforce the provisions of this Section 12. In general, those who deal with a munic- ipal government are bound to know its powers, and if it exceeds its powers in contracting indebtedness, the debt is void and there can be no recovery. This section may be pleaded by a municipality as a bar to collection of a debt. Thus, a city contracted with a plaintiff to con- struct a waterworks system which the city was then to lease for 30 years. After several years, the city broke its lease, and in the subsequent suit pleaded that the contract was void because it violated this section. This was held to be a complete defense to the claim, and in a later suit between the same parties on the same facts, the plaintiff was denied a recovery based on quantum meruit. (Prince v. City of Quincy, 128 111. 443 (1889); Prince v. City of Quincy, 105 III. 215 (1883).) Recovery on ordinary instruments of indebtedness may be denied where at the time of issuance the municipality was indebted over the limit. (East St. Louis Gas Light & Coke Co. v. City of East St. Louis, 45 111. App. 591 (1892).) A more common situation is for a municipality to attempt voluntarily to exceed the constitutional debt limit, and in this situation the most effective means of enforcing this section is by taxpayers' remedies. An objection to the collection of a tax on an illegal debt will be sustained. (Baltimore & O. Sw. R.R. v. People ex rel. Allen, 195 111. 423 (1902).) The shortcoming of this method is that it gives relief only to the object- ing taxpayer. Broader remedies are to enjoin the issuance of illegal bonds or the making of illegal contracts (Village of East Moline v. Pope, 224 111. 386 (1906), or to enjoin the extension and collection of taxes on illegal debts (Green v. Hutsonville Townshij) High School Dist., 356 111. 216 (1934). Compare Austin v. Healy, 376 111. 633 (1941)). Comparative Analysis Constitutional limitations on municijjal and county indebtedness are Art. IX, § 13 487 very common. For purposes of general analysis here, restrictions on municipal corporations may be divided into six categories, with several qualifications to be noted. (1) Twenty-nine states have no constitutional restrictions on debt of municipal corporations. (2) In three states, there is no limit to the amount of debt which can be incurred, but the debt must be approved by a referendum. (3) In five states, the authorities may incur debt up to a certain limit (usually low) without referendum approval; above that limit there must be a referendum, and in any event indebtedness cannot exceed a maximum upper limit. (4) In three states, there is a maximum upper limit, but any debt incurred within this limit must be submitted to a referendum. (5) In ten states, including Illinois, there is a maximum limit, but no referendum is required. The above breakdown applies to municipal corporations generally. Many constitutions have provisions applicable only to specific munici- palities, such as school districts or counties. For example, while only 21 states restrict municipalities generally, 31 restrict counties, with these provisions distributed generally among the categories discussed above. The details of these requirements, such as the amount of the limit and the vote required in the referendum, vary widely. In addition, it should probably be noted that many states having no specific constitutional debt limitations have enacted statutory limits. The Model State Constitution is silent on this subject. Comment The merits of a constitutional debt limit can be questioned on three counts. First of all, its effect on holding down taxes is doubtful. To the extent that necessary (or even desired) municipal services cannot be financed by boiTOwing, they must be financed by higher taxes. Secondly, the limits can be evaded to a large extent. Despite a statutory requirement of full-value assessment, j^roperty is currently equalized at the state level at about 50 per cent of value. Thus municipal borrowing power could be administratively doubled. The large number of overlapping municipali- ties, often with resulting inefficiency of administration, is directly attributable in part to the need for evading the debt limit. And the many devices discussed above for limiting municipal liability and thus avoid- ing Section 12 altogether enable municipalities to conduct large amounts of credit transactions in excess of the 5 per cent limit. But this situation raises the third objection. To the extent that liability on borrowed funds is limited, the cost of that credit is much more expensive than with ordi- nary borrowing, thus increasing the net cost to a municipality. There are at least three possible alternatives which the Convention may consider. First, the section may be eliminated entirely. This would not necessarily leave municipalities with unlimited borrowing power, for 488 Art. IX, § 13 the legislature could still impose statutory limitations to the extent thought desirable. The second possibility would be to retain the limit, but allow it to be exceeded by relerendum aj^proval. Ol course, the pro- vision could simply be retained as is, with possible consideration being given to increasing the amount ol the limit. World's Columbian Exposition Sec. 13. The corporate authorities of the city of Chicago are hereby author- ized to issue interest-bearing bonds of said city to an amount not exceeding five million dollars, at a rate of interest not to exceed five per centum per annum, the principal payable within thirty years from the date of their issue, and the proceeds thereof shall be paid to the treasurer of the World's Columbian Exposition, and used and disbursed by him under the direction and control of the directors in aid of the World's Columbian Exposition, to be held in the city of Chicago in pursuance of an act of Congress of the United States: Proxndcd, that if, at the election for the adoption of this amendment to the constitution, a majority of the votes cast within the limits of the city of Chicago shall be against its adoption, then no bonds shall be issued under this amendment. And said corporate authorities shall be repaid as large a proportionate amount of the aid given by them as is repaid to the stockholders on the sums subscribed and paid by them, and the money so received shall be used in the redemption of the bonds issued as aforesaid: Provided, that said authorities may take, in whole or in part of the sum coming to them, any permanent improvements placed on land held or controlled by them: And provided further, that no such indebtedness so created shall in any part thereof be paid by the State, or from any State revenue, tax or fund, but the same shall be paid by the said city of Chicago alone. History This section was added by the fifth amendment to the 1870 Constitu- tion. The amendment was necessary because at the time the City of Chicago had reached its constitutional debt limit. The proposed 1922 Constitution omitted this section. Explanation The Supreme Court subsequently held that the Columbian Exposition bonds did not have to be counted in computing the city's debt for pur- poses of determining whether the constitutional limitation had been reached. (Stone v. City of Chicago, 207 111. 192 (1904).) Comparative Analysis Obviously, no other state has a provision just like this one. Presum- ably, other states with rigid debt limits have had to amend their consti- tutions to permit additional borrowing. Comment This section is obsolete and should be dropped. Article X COUNTIES New Counties Sec. 1. No new county shall be tormecl or established by the General Assem- bly, which will reduce the county or counties, or either of them, from which it shall be taken, to less contents than four hundred square miles; nor shall any county be formed of less contents; nor shall any line thereof pass within less than ten miles of any county seat of the county or counties proposed to be divided. History This section first appeared in the 1848 Constitution and only minor stylistic changes were made in 1870. At the Convention, however, there was extended debate on lour occasions. The principal battle was over a proposal to include an exception permitting any city over 200,000 in population — i.e., Chicago — to form itself into a separate county. This was apparently objectionable to the delegates from that part of Cook County outside of Chicago and at almost the last moment the words were deleted under a suspension of the rules. The proposed 1922 Constitution considerably shortened the section but retained its substance. The proposed section was part of a block of sections with a subheading "Comities other than the County of Cook." Another block of sections covered "County of Cook" and contained a specific authorization for legislation consolidating the city and the county subject to a referendum and approval by a majority of those vot- ing on the question both within and outside the city. Explanation In 1851, the legislature combined two counties into one. In a case attacking the statute, the Supreme Court held that consolidation could not be effected without the concurrence of the people affected. Although the Court noted that the thrust of this section and Sections 2 and 3, all of which were substantially the same under the 1848 Constitution, was to prevent division of counties and shifting of parts from one county to an- other, it ruled that the legislature coidd not by indirection thwart the interests of coimty residents. (People ex rel. Stephenson v. Marshall, 12 111. 391 (1851) (A. Lincoln and R. Wingate for the winning party).) 489 490 Art. X, § 1 The present statutory system for consolidating counties provides, first, for a petition by not fewer than 200 voters, "one-half of such members being freeholders," residing in a county desiring to be annexed; second, for a vote in each county at a county or state regular election; and, third, for ratification by a majority of the votes "polled" in each cotmty "at such election." (111. Rev. Stat. (h. 34, §151 (19G7).) No case appears to have arisen under this section, and it is not known whether this statutory scheme meets all constitutional requirements. The only serious question arises under the second half of the first sentence of Section 3. (Infra, p. 492.) That calls for ratification by a majority of the voters of any county to which territory is to be added. Section 151 of Chapter 34 requires only a majority "polled" in the election. The Attorney General has stated that the ten mile minimum distance from county line to county seat is measured from the municipal line and not from the county buildings in the county seat. But he went on to state that subsequent extension of a numicipal boundary has no con- stitutional significance, that the critical boundary is that of the time of establishment as a county seat. (1908 111. Att'y Gen. Rep. 706.) In 1954, the Supreme Court held that the Chicago Regional Port District, a municipal corporation, is not a "county." (People ex rel. Gutknecht v. Chicago Regional Port District, 4 III. 2d 363 (1954).) Comparative Analysis Approximately 22 states have constitutional geographical limitations on making little comities out of big counties. Just over half of them use the magic number of 400 square miles. Except for Tennessee, the remain- ing states require larger areas, from 432 square miles (12 townships), to 900 square miles. Tennessee permits the formation of a county of not fewer than 275 square miles, biu the old county's area may not be reduced below 500 square miles. Approximately ten states have provisions con- cerning proximity of the comity seat to the county line. \'irginia has an interesting exception to a 600 squaie mile minimum. It is provided that any county which is three times as long as its mean breadth or any county more than 50 miles long can be divided at the legislature's discretion. The Model State Constitution requires the legislature by general law to pro- vide for "methods and procedures of . . . merging, consolidating and dissolving [counties] and of altering their boundaries . . . ." Comment There are only five states that have more than 102 counties. Originally, counties tended to be no larger than would recpiire a one-day trip l)y horse and buggy to the county seat. With modern transportation, this traditional limitation has no meaning. Ne\ertheless, there are many Art. X, § 2 491 factors inhibiting rational consolidaton of counties and it is not likely that great strides in reducing the number of counties would take place even were the Constitution silent on the subject. In the light of this practicality, it is arguable that a provision substantially as flexible as the Model State Constitution's requirement quoted above should suffice. The Convention must weigh, however, the desirability of flexibility for the future against the danger that the very interests that inhibit county con- solidation might oppose any constitutional revision that even potentially makes consolidation easier. Nevertheless, the Convention should be able to combine this section and Sections 2 and 3 into one simple provision comparable to the 1922 proposal quoted in the History of Section 2 below. Such a provision could, of course, contain a minimum allowable area for new counties, but even though the foregoing argument indicates that the wave of the future is believed to be consolidation of counties, there is no necessary virtue in constitutionally foreclosing alternatives that could result in smaller counties or even more counties. Division of Counties — Referendum Sec. 2. No county shall be divided, or have any part stricken therefrom, with- out submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of tiie county, voting on the question, shall vote for the same. History This section was first adopted in the 1848 Constitution and carried over unchanged into the 1870 Convention. An unsuccessful effort was made on the floor to permit the legislature to switch one or two town- ships from one county to another without the affirmative vote called for by this section. The proposed 1922 Constitution combined this sec- tion and Section 3 into a concise section, the first sentence of which read: "No county shall be changed in area unless the change is approved by a major- ity of those voting on the question in each county and each part affected." (art. Vlll, §168.) In most situations, this wotdd appear to require four separate approv- als: (1) by the group moving from one county to another; (2) by the entire old county; (3) by the people left in the old county; and (4) by the county to which the move is to be made. Under Sections 2 and 3 as they stand, approval (3) above is not required. Explanation No problems appear to have arisen under this section. There were 102 counties in 1870, and of these only 15 are large enough to permit division 492 Art. X, § 3 into two (oiinties, since Section 1 woukl iccjuiie each (oinity to contain no fewer than 400 square miles. Moreover, 30 counties are already below the minimum ol 400 square miles, and imder the restrictions of Section 1 no territory can be taken from them. Another 18 counties have more than 400 square miles of territory but fewer than 500, and this limits the feasibility of transfer of area. All in all, considering these geographical limitations, the stringent petition recjuirement in Section 3 below, and the traditional reluctance to change, it is no surprise to find o\cr the past century a lack of activity in altering comity lines. Comparative Analysis Approximately 24 states have a constitutional provision limiting the division of counties. In most instances, a referendum is required, usually of the voters of the areas affected, biu in some cases only the voters in the area to be stricken have to approve. In some states, a majority of those voting on the question is sufficient; in others, a majority of the voters is required. In at least four states, the requirement is a two-thirds' vote, of those voting (two states) or of the voters (two states). The Model State Constitution has no referendum provision. Comment .\lthough counties are theoretically only convenient administrative subdivisions of the state and not necessarily to be frozen into the Constitu- tion, it is consistent with democratic principles for county residents to have some voice in their fate. It would seem appropriate to preserve this principle by a simple referendum provision along the lines of the pro- posed 1922 Constitution quoted earlier. It does not seem appropriate to put a premium on the preservation of the status quo, which is the effect of a requirement that a majority "of all the legal voters of the county" approve a geographic alteration. This assumes, of course, that "voting on the question" means "at an election." The sentence can be read to mean a "majority of those voting on the question at an election open to all the legal voters of the county." At the very least, it is appro- priate, if not imperative, to tidy up the referendum language. Counties — Territory Added or Taken Sec. 3. There shall be no territory stricken from any county, unless a major- ity of the voters living in such territory, shall petition for such division; and no territory shall be added to any county without the consent of the majority of the voters of the county to which it is proposed to be added. But the portion so stricken off and added to another county, or formed in whole or in part into a new county, shall be holdcn for, and obliged to pay its proportion of the in- debtedness of the county from which it has been taken. Art. X, § 3 493 History The first sentence of this section appeared in the 1848 Constitution in the same form. The second sentence is new. Tliere was a related section in the 1848 Constitution, but it simply stated that if a new county did not organize within the prescribed period, the county remained a part of the old county until otherwise provided by law. In the 1870 Convention, the section proposed by the Committee on Counties consisted of the first sentence only. The second sentence was added by an amendment agreed to without debate. Tlie proposed 1922 Constitution contained the sen- tence quoted in the History of Section 2. (Supra, p. 491.) A second sen- tence provided that "[a]ny territory taken from a county shall be liable for its proportion of the debt of such county." Explanation In an early case, the Supreme Court held in effect that Section 2 and this section could not be bypassed by legislation purporting to settle a boundary dispute but in reality taking land from one county and adding it to another. (Rock Island County v. Sage, 88 111. 582 (1878).) The Attor- ney General was asked whether in proposing to form a new county out of parts of two existing counties, the petition must be signed by a major- ity of the voters of each part. He suggested that it would be advisable so to do. (1908 111. Att'y Gen. Rep. 706.) Comparative Analysis The Comparative Analysis of Section 2 (supra, p. 492) is applicable to the underlying principle of this section. Only two states besides Illinois appear to require a petition by a majority of the voters of an area that wishes to move out of a county. Approximately 20 states have a provision for apportionment of debt. Three states optimistically pro- vide for apportionment of assets. There is no comparable provision in the Model State Constitution. Comment The requirement that a petition contain the names of a majority of the voters of an area that wishes to move from one county to another seems luiduly harsh. It would seem sufficient to provide in the Constitu- tion for referenda along the lines of the provision quoted earlier. (Supra, p. 491.) It would seem unnecessary to include words giving the legisla- ture authority to set up the ground rules, but in an abundance of caution, the words "in such manner as shall be provided by law" could be inserted at the appropriate place. The legislature could provide for an appro- priate initiating petition and for such details as apportionment of debt. In short, it is suggested that Sections 1, 2 and 3 could easily be compressed into one simple sentence. 494 Art. X, § 4 Removal of County Seats Sec. 4. No tounty seal shall be removed iiiitil tiie [joint lo uliith it is pro- posed to be removed shall be fixed in pursuance of law, and ihrce-fifths of the voters of the county, to be ascertained in such manner as siiall !);■ provideil i)y general law, shall have voted in favor of its removal to such point; and no per- son shall vote on such cjueslion who has not resided in the county six months, and in the election precinct ninety days next preceding such election. The ques- tion of the remo\al of a county seat shall not l)e oftener submitted than once in ten years, to a vote of the people. But when an attempt is made to remove a county seat to a point nearer to the center of the county, then a majority vote only shall be necessary. History The first lialf of the first sentence of this section appeared in the IHIH Constitution with two differences. Tlie required vote was only a niajoi;- ity and the words "to be ascertained in such manner as shall be provided by general law" were not included. In the 1870 Convention this section produced extended debate. As one delegate remarked: "1 have known of no more violent or lasting quarrels than those arising from attempts to remove county seats." (Debates 1331.) The debate centered on two issues: how difhcult should it be to make a county seat change and how frequently should an effort to change be permitted. After several alternatives were considered, the Convention agreed on frecjuency of efforts to change county seats. How difficult change should be was left up to the voters. The referendum on the Con- stitution included a separate vote on whether the required approval should be three-fifths or a majority. The voters chose three-fifths. (There were only 1 1 counties in which the vote was in favor of a majority for changing the county seat. See Debates 1894-95.) The proposed 1922 Constitution changed the substance of the section only in regard to the required vote. The vote was increased to three- fourths, but of those voting on the question and not of the "voters of the county," and the exception for "nearer to the center of the county" was made a majority of those voting on the question. Explanation There are some fascinating wrinkles in the statute implementing this section. In order to start the ball rolling, a petition to remove the county seat must be filed with the clerk of the circuit court. One particularly significant requirement is that the petition must be signed by a number of voters equal to two- fifths of the votes cast in the county in the pre- ceding presidential election, but no one who lives in the existing county seat may sign the petition. (111. Rev. Stat. ch. 34, §203 (1967).) As of the 1960 census, there would appear to be nine counties, including Cook, in which 60 per cent or more of the population lives in the existing county Art. X, § 4 495 seat. Assuming equal distribution of voters between the county seat and the balance ot the county, it would be mathematically impossible to change any of those county seats. In another eight counties, over 50 per cent of the population lives in the county seat. On the same assumption of distribution of voters, it would be impossible, as a practical matter, to produce a petition that would have to contain the names of at least 80 per cent of the voters living outside the county seat. It should be noted, how- ever, that this stringent petition rec^uirement is not constitutionally re- quired, but is consistent with the stringent three-fifths' vote requirement. The implementing statute provides that the number of legal votes cast at a county seat election, which by the tenor of the statute is expected to be a special election on the county seat issue alone, shall be taken as prima facie evidence of the number of legal voters of the county. The statute further provides that if the election is contested, the court "may ascertain the number of such voters by taking or causing to be taken, legal evidence tending to show the actual number of legal voters . . . ." (111. Rev. Stat. ch. 34, §213 (1967).) This provision is in accordance with the words, added in 1870 as noted above, "to be ascertained in such manner as shall be provided by general law." Those words were added because under the 1848 Constitution, the courts had had difficulty in determin- ing how many voters there were in a county. Interestingly enough, the method used by the legislature is the same as that devised by the courts. (People ex rel. Mitchell v. Warfield, 20 111. 160 (1858).) The Supreme Court has held that "county seat" means the county town of the seat of government and not the county buildings. (Dunne v. County of Rock Island, 283 111. 628 (1918).) Comparative Analysis Just under half of the states require a referendum on changing the county seat. Some states require a two-thirds' vote of all voters, and some only of those voting on the question. Three states use the three-fifths' rule, but only of those voting. One of the three states also requires a two-thirds' vote of those voting in the city or town to which the county seat would be moved. One state besides Illinois permits a lower vote if the new seat is nearer the center of the county; one state, if it is from more than five miles from the center to within five miles; and one, if from not on a rail- road to a "railroad seat." Approximately 12 states limit the frequency of referenda, but only Oklahoma requires as long as a decade. There is no comparable provision in the Model State Constitution. Comment It can be argued that, if there is little reason in the last half of the Twentieth Century for constitutionally enshrining the existing county 496 Art. X, § 5 lines, there is even less reason to enshrine county seats. l>ut as the cjuota- tion from tlie 1870 Convention illustrates, there may be a \ariani of Parkinson's Law of Triviality operating in the constitutional area: the less fiuulamental a constitutional issue, the more controversial it becomes. W^hether or not this is the case with county seats today, a cautious dis- position of the county seat issue would be a simple section along the follo\\ing lines: Xo comity seat shall be changed without the approval of a majority of those voters of the county \oting on the question in such manner as shall be provided by law. Counties under Township Organization Sec. 5. The General Assembly shall pro\icle, b) general law, lor township organization, under which any county may organize whenever a majority of the legal voters of such county, voting at any general election, shall so determine, and whenever any county shall adopt township organization, so much of this constitution as provides tor the management of the fiscal concerns of the said county by the board of county commissioners, may be dispensed with, and the affairs of said county may be transacted in such maimer as the General .Assembly may provide. .And in any county that shall have adopted a township organiza- tion, the question of continuing the same may be submitted to a vote of the electors of such county, at a general election, in the manner that now is or may be provided by law; and if a majority of all the votes cast upon that question shall be against township organization, then such organization shall cease in said county; and all laws in force in relation to counties not having township organization, shall inmiediately take effect and be in force in such county. No two townships shall have the same name, and the day of holding the annual township meeting shall be uniform throughout the State. History In order to understand the significance of this section and the next section, it is necessary to recall a little general history of the state. The county as the principal unit of local rural government developed in the South. In New England, the town was the princii^al unit. When the 1818 Constitution was adopted, the county form of rural government was in place and the Constitution reflected this system. By 1848, the northern part of the state had been largely settled by people from New England and other northern areas where town/ township government was tradi- tional. This northeastern inlliience resulted in a section substantially the same as the first sentence of Section 5. It is ^vorth noting that today only 17 counties are not under to\vnshi]) oiganization. Fourteen of these are in the southernmost portion of the state and the other three are south and west of Springfield. In the 1870 Convention, there was considerable debate over whether to go beyond the 1848 provision and spell out the details of township government, but in the end the delegates were content to j^rovide con- Art. X, § 5 497 stitutional protection to the privilege ot abandoning township govern- ment. The final sentence of the section was accepted without debate. The proposed 1922 Constitution contained three new sections that, presumably, were to take the place of Sections 5 and 6, but to what extent the Convention intended to make substantive changes is not clear. The official explanation states as to each section, "This section is new." (P.N.C. 38.) One section provided that the board of supervisors in township counties, the Cook County commissioners, and the commissioners of non- township coimties "shall constitute the county board of their respective counties." (art. VIII, § 163.) The second section authorized changes in organization "by law uniform as to classes of counties; but any such law shall become effective in a county only after approval by a majority of those voting on the question." (art. VIII, § 166.) The third section stated that no county could abandon or adopt any form of organization unless ratified by a majority of those voting on the question, (art. VIII, § 167.) Explanation It is to be noted that to adopt township organization requires a major- ity vote of the legal voters of a county, voting at a general election, but to abandon it requires only a majority vote of those voting on the ques- tion at a general election. Interestingly enough, the required majority was the same for both adoption and abandonment when the Convention referred the "Township Article" to the Conmiittee on Revision and Adjustment, but the present language appeared when that Committee reported back the Article on Counties. There does not appear to be any explanation of the substantive change. (See Debates 882, 1835.) The implementing statute for adoption and abandonment is 111. Rev. Stat. ch. 139, §§ 1-24 (1967). Chapter 34 of the Revised Statutes (111. Rev. Stat. ch. 34 (1967)) covers the manner in which the "affairs of said county may be transacted" on the comity level. The balance of Chapter 139 (§§ 25ff) covers the manner in which the "affairs of said county may be transacted" in the townships. One would assume that the legislature's power over the affairs of townships, like its power over cities, towns and villages, is an attribute of general state power, but the courts have held otherwise. The Supreme Coint has said: "A town organized under the township organization laws of the State is, as be- fore said, a political or civil subdivision of a county. It is created as a subordinate agency to aid in the administration of the general State and local government. The distinction between such a town and other chartered municipal corpora- tions proper, sometimes denominated towns, is, that a chartered town or village is given corporate existence at the request or by the consent of the inhabitants thereof for the interest, advantage or convenience of the locality and its people, and a town under township organization is created almost exclusively with a view to the policy of the State at large for purposes of political organization and as an agency of the State and county, to aid in the civil administration of 498 Art. X, § 5 affairs pertaining to the general administration of the State and county govern- ment, and is imposed upon the territory inchidcd within it without consulting the wishes of the inhabitants thereof." (People ^'.v rcl. Dencen v. Martin. 178 111. 611, 621 (1899).) Accordingly, the quotetl words ironi Section 5 are the constitutional basis for legishuion concerning township government. Although the quoted words do not include the phrase "by general law," the legislature is required to provide for the government of townships by general law, but reasonable classifications are permitted. {E.g., People ex rel. Hatfield V. Grover, 258 111. 124 (1913).) Comparative Analysis There appear to be three other states that specifically provide for the adoption of township organization with approval by referendum. Two states require the legislature to provide for township organization. Oklahoma provides for abolition of township organization by referen- dum and for re-establishment by referendum, the implication being that all counties were under such organization when the Constitution was first adopted. Several states call for a general law covering the govern- ment of townships. No other state appears to have a provision compar- ale to the last sentence of this section. The Model State Constitution provides: "Section 8.01. Organization of Local (jovcrunient. The legislature shall pro- vide by general law for the government of counties, cities and other civil divi- sions . . . including provisions: (1) For such classification of civil divisions as may be necessary, on the basis of population or on any other reasonable basis related to the purpose of the classification; (2) For optional plans of municipal organization and government so as to enable a county, city or other civil division to adopt or abandon an authorized optional charter by a majority vote of the qualified voters voting thereon; (3) For the adoption or amendment of charters by any county or city for its own government, by a majority vote of the qualified voters of the city or county voting thereon, for methods and procedures for the selection of charter commissions, and for framing, publishing, disseminating and adopting such charters or charter amendments and for meeting the ex- penses connected therewith." Comment Notwithstanding the judicial theory that this section grants power to the legislature to legislate concerning township government, it seems likely that the delegates to the 1870 Convention meant only to cover the subject of type of county government. Otherwise, it would seem likely that there would have been some grant of power concerning or- ganization of cities and incorporated villages. A section including such Art. X, § 6 499 language was offered in a minority report of the Committee on Munici- pal Corporations in the 1870 Convention but was not accepted. (De- bates 1672-74.) But whatever the constitutional theory accepted by the 1870 Convention, it is important that agreement be reached on the operative theory for the next Constitution. For purposes of the present discussion, it will be assumed that the Convention will proceed on the theory that there is no need to grafit power to the legislature, but that there is a need to limit power. This is, of course, the purpose of a bill of rights and of limitations on taxation and indebtedness. It is also the purpose of the first four sections of Article X and of this section. In all of these sections, except Section 1, the limitation is in the nature of local home rule. It would be appropriate to consider all local govern- ments together and to frame an article that includes the following: (1) a requirement that applicable legislation be general, but with reasonable classifications; (2) a general grant of power to local governments to govern them- selves subject to legislative limitation by general law; (3) a limitation on legislative power to impose forms of government without the consent of the local unit; (4) a mandate to the legislature to provide suitable mechanisms by which alternate forms of government may be adopted by local units; and (5) such constitutional limitations as may be desired — for example, debt limits, taxing power, and the like. Such an approach — and this is only an approach, for under (5) above, the substance of power can be controlled — has two important advan- tages. First, it ends such conceptual distinctiojis as set forth by the Court in the Martin case; and second, it kills off the "Dillon rule" that, as creatures of the state, the powers of local governments should be strictly construed. The Dillon rule has been relied on as recently as 1967, when the Supreme Court said: "County boards may exercise only such powers as are expressly granted by the State or arise by implication from these granted powers or are indispensable to the purpose of their existence." (Crumpler v. County of Logan, 38 111. 2d 146, 149 (1967).) In this con- nection, it should be noted that the provision from the Model State Constitution quoted in the Comparative Analysis of Section 34 of Article IV {supra, p. 251) is specifically designed to kill off the Dillon rule. Counties not under Township Organization Sec. 6. At the first election of County Judges under this Constitution, there shall be elected in each of the counties in this State, not under township organ- ization, three officers, who shall be styled "The Board of County Commissioners," who shall hold sessions for the transaction of county business as shall be pro- vided by law. One of said commissioners shall hold his office for one year, one for 500 Art. X, § 6 two years, ami one lor three years, to be (Icterinined in lot; aiul every year there- after one such oHicer shall be elected in each of said counties for the term of three years. History The Schedule ol the 1818 Constitution provided that each county shotdd have three elected county commissioners to transact county busi- ness, with term ol service, power and duties to be regulated and defined by law. As noted in the History ol Section 5 (supra, p. 496), the 1848 Constitution authorized township coiuity government. For counties not opting for such government, tlic management of the fiscal concern ol the county rested with the county court in accordance with a section of the Judicial Article that provided: "The county judge, with such jus- tices of the peace in each county as may be designated by law, shall hold terms for the transaction of county business, and shall perform such other duties as the General Assembly shall prescribe. . . ." (art. V, § 19.) Both the Committee on Counties and the Committee on the Judiciary of the 1870 Convention proposed to replace the county court with a board of county commissioners in nontownship counties. The Con- vention adopted the language proposed for the Judicial Article, but the Committee on Revision and Adjustment transferred the material to the Article on Counties and rearranged it in the manner now appearing in Section 6. The Schedule, Section 4, continued the county court system until boards of county commissioners could come into existence. Since the original language was proposed by the Committee on the Judiciary, it is not surprising to find that county commissioners were in- cluded in the eligibility section that required judges of lower courts to be at least 25 years old, a United States citizen, and a resident of the state for the preceding five years. Commissioners are not included in the new Judicial Article and presumably the only existing eligibility re- cjuirement is that contained in Section 6 of Article VII. (Supra, p. 394.) The pioposed 1922 Constitution continued the staggered three-year terms of commissioners. (See also, History of Sec. 5, supra, p. 497).) Explanation Seventeen counties continue to operate under boards elected pursuant to this section, but there do not appear to have been any problems in construing the section. The implementing statute required by this section is contained in Sections 801-804 and 806 of C^lhapter 34 of the Revised Statutes (1967). Comparative Analysis There appear to be about 17 states besides Illinois that refer to a board of county commissioners. Approximately seven states have refer- Art. X, §7 501 ences to a board oi supervisors, l)ut not all of those states appear to oper- ate exclusively by such boards in all comities. Six states appear to con- tinue to operate under the traditional county court system, but one of them combines the county court and the commissioners for the trans- action of county business. Another five states appear to authorize the legislature to determine the form of county government. The balance of the states presumably do not specify in their constitutions the form of county government. For the Model State Constitution, see Comparative Analysis of Section 5. {Supra, p. 498.) Comment In a sense this section is an historical anachronism. In the 1870 Con- vention, the delegates decided to end the county coint system of admin- istration in comities not mider township organization and did so by this section. It would seem appropriate today, at the very least, to permit the legislatme to have the same power for the 17 coimties not under town- ship organization that it has for the 84 counties under township organ- ization. At most, the comments above on Section 5 are in part applicable here. (See discussion, supra, p. 499.) Cook County Government Sec. 7. The county affairs of Cook county shall be managed by a Board of Commissioners of fifteen persons, ten of whom shall be elected from the city of Chicago, and five from towns outside of said city, in such manner as may be provided by law. History At the time of the 1870 Convention, Cook County was organized as a township county. It was pointed out to the Convention that the Board of Supervisors of Cook County was almost as large as the Convention, which consisted of 88 delegates. It was also pointed out that Chicago contained seven-eighths of the population of the county, but a majority of the Board of Supervisors came from otitside of the city. The delegate who pointed out the foregoing noted that he came from an agricidtural area of tlie cotinty and had no hesitation in saying that the limited representation of Chicago was tuifair and tuijust. He proposed to add what is now Section 7 to the Article on Counties which, he hoped, would be adopted unanimously and withotit debate. Upon completion of his explanation, the Convention, sitting in Committee of the Whole, adopted the pro- posal by voice vote. (Debates 1366-67.) The proposed 1922 Constitution retained the substance of this section. Explanation Very early, the Supreme Court field that this section did not remove Cook County from the class of counties under township organization. 502 Art. X, § 7 (People ex rel. Miller v. liri^liii, 80 111. 428 (1875).) But the Supreme Court has also held that by virtue ot the words "in such manner as may be provided by law," the legislature could adopt special legislation con- cerning the management ot Cook County, notwithstanding the prohibi- tion on special legislation contained in Article IV, Section 22, supra, pp. 203-4. (People ex rel. Stuckart v. Day, 277 111. 543 (1917).) The legisla- ture cannot, however, change the size oi the boaid or its ten and five apportionment. (See Connnoit below concerning the dralting problem exemplified by this case.) Although the legislature can legislate tor Cook County alone, the Supreme Court has assured the Board ot Conmiissioners that it has some implied powers. In Nye v. Foreman (215 111. 285 (1905)), the Court permitted the board to appropriate money for assistant state's attorneys in the absence of legislative authorization therefor. Almost 40 years later, however, the Court denied the board the power to engage private attor- neys to collect delinquent taxes even though the state's attorney and his assistants were too busy to do so. (Ashton v. County of Cook, 384 111. 287 (1943).) Moreover, notwithstanding legislative authorization to man- age county property, including such powers as were deemed necessary for the proper maintenance and operation of all buildings, the Court held that because the common law duties of a sheriff include those of custodian of courthouses and because he is a constitutional officer, he cannot be de- prived of the power to select and appoint the janitorial force for the courthouses. (People ex rel. Walsh v. Board of Comm'rs, 397 111. 293 (1947.) See also Dahnke v. People, 168 111. 102 (1897).) The implementing statute provides for four-year terms, no staggering of terms, election of the ten from the city and the five from the towns at large, respectively, and filling vacancies in either group by appoint- ment by the remaining members of the group. (111. Rev. Stat. ch. 34, §901 (1967).) Prior to 1914, terms were for two years. Comparative Analysis Obviously, there is no comparable provision in any other state. In New York there is a "county" exception for New York City because there are five counties wholly inside the City. In Washington there is a county exception for counties that are a combination of city and county. In Missouri, St. Louis is an independent city and not part of St. Louis County. The same is true of Baltimore, Maryland. For the Model State Constitution, see Comparatwe Analysis of Section 5. [Supra, p. 498.) Comment No matter how it is looked at, Cook County is a difficult problem. As noted in connection with Section 1 (supra, p. 489), there was an abortive Art. X, § 7 503 effort in the 1870 Convention to permit Chicago to be a separate county. The adoption of Section M of Article IV {supra, pp. 246-7) reinforces the complex status of the city. The comments concerning home rule (supra, p. 499) must be tailored to the Cook County problem, for so long as Cook County includes a city containing an estimated 65 per cent of the popula- tion of the county, it is not feasible to grant total home rule to the county. The "one man-one vote" rule would, of coiuse, preclude a home rule charter that gave the city more representation in county government than its share of the popidation warranted. Indeed, it is remarkable that, a century later, the mandated distribution of seats on the county board is still fair. Remarkable though that may be, it is arguable whether a specific form of government for Cook County should be frozen in the Constitution. It should be sufficient to permit the legislature to set the ground rules for Cook County government subject to a veto power by referendum of the people of the city and the county. It has been observed from time to time in comments on various sec- tions that the principles of good constitution-writing must be tempered with political realities. "Tempered" is, ))erhaps, an luiderstatement so far as Chicago, Cook Comity, and the remainder of the state are concerned. There are formidable political difficulties facing any Convention that has to deal with Chica"o and its relation to the rest of the state. This was true in 1870 and 1920, and will be true in 1970. In advance of a Convention, there are just two comments to be made, one by way of caution, one by way of principle laced with caution. Everyone concerned with the Convention should be alert to the danger that uncompromis- ing rigidity on any proposed constitutional solution to the Chicago-Cook County-downstate problem can spell disaster for the Convention's prod- uct or its acceptability to the people, or both. But whatever the com- promises demanded by the political realities, they shoidd be flexible. That is, they should be limited to determinations of who sliares in the decision-making process on forms of government through time. If at all politically possible, the structure of government for Chicago and Cook County should not be frozen in the Constitution. And in no event should compromises be in terms of the substance of government. For example, it would be most unfortunate to have a constitutional requirement either that state aid to public schools must be on the basis of average daily at- tendance or nuist be on the basis of initial enrollment. That sort of com- promise, even if in trade for something of constitutional significance, is mixing apples with oranges. The result is to give constitutional status to a legislative compromise on an ephemeral problem. It is worthwhile to conmient on an interesting drafting ambiguity in Section 7. As noted earlier, the Supreme Court held that the final clause. 504 Art. X, § 8 "in such iiKiiinei as ina\ be provided 1)\ law, " jjennits special legislation tor Cook County. This is based on ihe premise that the clause modifies both "managed by a Board ol C^onmiissioners" and "elected." The Court explicitly rejected the ecjually, perhaps more, appropriate reading of the clause to modily only "elected." No great harm has come trom this am- biguity. Indeed, the ambiguity was uselul, lor special legislation lor Cook County makes good sense, and it the 1870 Convention had meant otherwise and expressed itselt clearly, the courts might not have been able to get around the language. Nevertheless, as a general rule, this sort of drafting imj^recision is to be avoided. County Officers — Term of Office Sec. 8. In each county there shall be elected the following County Officers at the general election to be held on the Tuesday after the first Monday in November A.D. 1882, a County Judge, County Clerk, Sheriff and Treasurer, and at the election to lie held on the Tuesday after the first Monday in November A.D. 1884, a Cioroner and Clerk of the Circuit Court (who may be ex-ofjuio recorder of deeds, except in Counties having 60. (KM) and more inhabitants, in which Counties a Recorder of deeds shall be elected at the general election in 1884) each of said officers shall enter upon the duties of his office, rcsi)ecti\ely on the first Monday of December, after his election, and they shall hold their respective offices for the term of four years, and until their successors are elected and qualified. Provided that no person ha\ing once been elected to the office of SherifT or Treasurer shall be eligible to reelection to said office for four years after the expiration of the term for which he shall have been elected. History The only elected county officials provided for in the 1818 Constitution were the sheriff and coroner, both of whom had two-year terms. The 1818 Constitution also provided that circuit court judges were to appoint their own clerks. The 1848 Constitution continued the election of a sheriff every two years, but provided that no person coidd be eligible to serve more than once in any four years. The coroner was dropped as a constitutional officer. County jtidges and clerks of the circuit court were to be elected in each county for four-year terms. In the 1870 Convention, the Committee on Comities proposed a sec- tion not differing greatly from Section 8. Considerable debate and many amendments occinred before the section reached its final form \\hich, of coinse, differed from the present amended section. In that form it provided for the election of all the officers now listed in Section 8 plus a surveyor. The sheriff, treasmer and coroner were elected for two years and the rest for four years. There were no prohibitions on re-election. The significant changes made by the amendment adopted in 1880 \\ere to drop the surveyor, to extend all terms to four years, and to make the treasurer and sheriff ineligible for re-election. Art. X, § 8 505 Several changes were proposed in the 1922 Constitution. All of the elective county offices were continued as elective lor tour-year terms except for the county judge, whose term was extended to six years. (Ac- tually, the county judge was covered in the Judicial Article, and other changes were made concerning the county court but are not pertinent here.) The task of collecting taxes was shifted from the sheriff to the treasurer, and the sheriff, but not the treasurer, was allowed to succeed himself. In counties other than Cook, the proposed Constitution man- dated an assessor but left details up to the legislature. Likewise, in coun- ties over 50,000 population, an auditor was authorized but not mandated. (An auditor is a statutory elected official in all counties over 75,000 popu- lation except Cook County. (111. Rev. Stat. ch. 34, § 1501 (1967).) Beginning in 1944, tour amendments to this section were put to the voters. All received a favorable plurality, but all failed to receive a con- stitutional majority. The first three efforts, voted upon in 1944, 1952 and 1958, simply omitted the proviso against re-election of the sheriff and treasurer. The fourth try, voted upon in 1966, left the proviso in as to the sheriff, but omitted the treasurer. The new Judicial Article adopted in 1962 abolished the office of county judge. A county clerk and a clerk of the circuit court continue to be elected in each coimty. (For some strange reason, the amendment voted upon in 1966, which was after the abolition of the office of county judge, still called for his election.) Explanation The most important judicial gloss put upon this section is the proposi- tion that duties of a constitutional ofhcer may be added to by statute, but traditional duties, especially those known at the common law, may not be taken away. (Peoj)le ex rel. Walsh v. Board of Comm'rs (379 111. 293 (1947)), discussed supra, p. 502. See also People ex rcl. Nelson v. West Englewood Trust k Sav. Bank, 353 111. 451 (1933) (county treasurer).) The Attorney General has had occasion to make many rulings con- cerning the prohibition against succession in office. He has ruled that a sheriff can run for treasurer where the treasurer's term begins at the ex- piration of the sheriff's term (1925 111. Att'y Gen. Rep. 408); that the wife of a treasurer may succeed him (1925 111. Att'y Gen. Rep. 184); that a person appointed to fill out an unexpired term as treasurer imtil the election could succeed himself (1928 111. Att'y Gen. Rep. 51; 1912 111. Att'y Gen. Rep. 69()); that a change from commission form to township organization does not permit succession in office (1926 111. Att'y Gen. Rep. 85); and that a person elected to fill out an unexpired term as sheriff or treasurer is not eligible to succeed himself. (1925 111. Att'y Gen. Rep. 187; 1918 111. Att'y Gen. Rep. 778, 798.) 506 Art. X, § 8 Comparative Analysis The lollowing table ajjproxiniates the constitutional county officers in the several states. Many other states may elect one or more oi these county officers, hut jnirsuant to statute or home rule charter. Number of States Office Elected Appointed County judge 11 2 County clerk 11 — Sheriff 32 — Treasurer 17 — Circuit court clerk 19 1 Coroner 14 7 Recorder of deeds 15 — Assessor 10 1 Auditor 5 — Surveyor 12 2 Tax collector 2 — In some nine states there are limitations on how long one can be a sheriff, but in only five of them is the prohibition one of immediate suc- cession. West Virginia is one of those five, and it also prohibits a deputy sheriff from becoming the next sheriff and prohibits the sheriff from serv- ing as a deputy to his successor. Two states join Illinois in prohibiting a treasurer from succeeding Iiimself and tliree other states limit terms to two. There are no constitutional county officers under the Model State Constitution. Comment There are many good reasons for not freezing in the Constitution a collection of mandated local offices. Among the reasons are the disad- vantages of a long ballot, the dispersal of administrative authority, the inability to try out new governmental forms, and the Procrustean nature of the administrative structure. This last was recognized in 1870 by the limitation on a mandated recorder of deeds to counties of 60,000 and more inhabitants. The Supreme Court has added a new reason by virtue of its decision in the Walsh case (supra, p. 502) that constitu- tional officers retain their common law duties and that no such duty can be given to another governmental unit. Notwithstanding the good arguments against preservation of a section like this one, the utmost caution is in order. There are a great many strong political interests behind these several county positions and any disturbance of the status quo may raise considerable opposition. Preser- vation of a few outmoded offices may be a small price to pay for a success- ful campaign for adoption of a new constitution. One possibility would be to preserve the constitutional offices but authorize a county to adopt Art. X, § 9 507 a county charter under which any or all of the constitutional offices could be abolished. In any event, it would seem most desirable to include language that would blunt the thrust ot the Walsh case. It is one thing to preserve some historical offices; it is another to preserve almost the entire county system of the Eighteenth Century. Salaries of Officers — Cook County Sec. 9. The clerks of all the courts of record, the Treasurer, Sheriff, Coroner and Recorder of Deeds of Cook county, shall receive as their only compensation for their services, salaries to be fixed by law. which shall in no case be as much as the lawful compensation of a Judge of the Circuit Court of said county, and shall be paid, respectively, only out of the fees of the office actually collected. All fees, perquisites and emoluments (above the amount of said salaries) shall be paid into the county treasury. The number of the deputies and assistants of such officers shall be determined by rule of the Circuit Court, to be entered of record, and their compensation shall be determined by the County Board. History This section, in a slightly different form, was presented to the 1870 Convention as part of the Article on the judiciary. The only significant debate was over whether excess fees should be paid into the county treas- ury. Delegates from downstate, relying on the complaints of Cook County delegates that county officers were earning fantastic sums, asserted that once compensation was cut back to reasonable amounts, a large surplus would be paid into the county treasury and that this would benefit the taxpayers of Cook County at the expense of the many nonresidents who paid fees. Debate became fairly acrimonious in the Committee of the Whole and the matter was referred back to the Convention without recommendation. At a later date, a substitute section in substantially the present form was offered and accepted with a minimum of debate. (Debates 1172-78; 1480-81.) The Committee on Revision and Adjustment transferred the section to the Article on Counties. The proposed 1922 Constitution retained much of the substance of this section, but removed the fee limitation as to the source of compensation and made the section applicable to all county officers. Explanation This is the first of five consecutive sections which the 1870 Convention developed to end the abuses of the fee system of compensation for county officials. For the purpose of the discussion of this and the next four sec- tions, it is essential to consider the ambiguity of "fee." One meaning of fee is that charge made directly to the person for whom a service is rendered as, for example, the fee charged for recording a deed. A second meaning is that of a compensation based on a percentage of some value 508 Art. X, § 9 related to the service perlonned, as, lor example, j)aying a tax collector a fee of 2 per cent of- the amount of his collections. A third meaning is anal- ogous to salary, as in the case of paying part-time officials a per diem for each day worked, it is not crystal clear, but it would appear that "fee" is used only in the first two senses in this section and Section 10, but in all three senses in Sections 11, 12 and 13. This separate and potentially more flexible section for Cook County presumably was adopted in recognition of the development of Chicago as an inban center which would recjuire a larger and costlier govern- mental structure than the rest of the local governmental units. Never- theless, the section both retains state control over compensation and con- stitutionally preserves some indirect control over what the state can permit. Compensation for the named officers is set by law but the amount cannot equal or exceed that of circuit court judges, and it seems unlikely that the legislature would raise judicial salaries solely to raise the ceil- ing on county salaries. It woidd appear that the delegates to the 1870 Convention were also worried about overstaffing, presumably either for patronage purposes or to permit a county officer to delegate all work and collect pay for doing nothing. Thus, the section gives the staffing author- ity to the circuit court judges. As might be expected, disputes arose over this administrative tangle and the courts had to resolve them. The Supreme Court has pointed out that tlie Board of County Commissioners must appropriate the funds necessary to pay deputies and assistants and must set a reasonable level of compensation. (People ex rel. Meyering v. Whealan, 356 111. 402 (1934).) The Court also held that the Cook County sheriff was entitled to a writ of mandamus commanding the circuit court to determine the number of assistants required by the sheriff, but such writ could only command some action, not what action. (People ex rel. Walsh v. Board of Comm'rs, 397 111. 293 (1947).) It is also to be noted that the rules of compensation under this section apply only to the named officers and their deputies and assistants. Sec- tion 10 sets forth the rules for all other county employees. Thus, the legislature cannot set the compensation of the Board of Commissioners of Cook County. (Wulff v. Aldrich, 124 111. 591 (1888).) A great many other cases have involved questions arising under this section, but only one of them need be cited here. The Supreme Court has noted that the limitation on payment of compensation out of fees actually collected applies only to the named officials and not to their deputies and assistants and that, by virtue of the "except" clause of Section 10, the limitation therein is inapplicable to Cook County. (County of Cook v. Hartney, 169 111. 566 (1897).) Art. X, § 10 509 Comparative Analysis Although no other state has a section like this, there are some states that have a provision that singles out a specific county for special rules ot compensation. Alabama, tor example, requires laws regulating lees, commissions, or allowances to be applicable to all counties, but there are 22 amendments with detailed exceptions for named counties. Florida added a section in 1956 requiring all fees of county officers of Escambia County to be paid into the treasury and calling for special legislation to compensate such officers. There does not appear to be any other state that puts the control over the number of assistants and deputies in the hands of the general trial court judges. In Idaho, the control is in the hands of the county commissioners. In West Virginia, the assessor must get the approval of the county court when appointing assistants. Comment It would seem that the time has come to drop most of what is con- tained in this and the next four sections. As the History of the several sections demonstrates, they constitute a quasi-statute to end or regulate an evil in the system. That purpose has been served. The most that could be worth saving is a prohibition on local legislation as to fees, a requirement that fees be paid into the treasury, a statement concerning who sets compensation levels, and, in the case of elected officials, a prohi- bition against salary increases or decreases during the term. As for a pro- hibition on local legislation, it is more appropriately covered in the Legis- lative Article. Details on compensation levels depend on the extent to which the principle of home rule is accepted. Fees and salary changes can be adequately covered in two simple sentences. (See also Comment on Sec. 11 of Art. IX, supra, pp. 476-7.) It almost goes without saying that the last sentence of Section 9 should be dropped. Under all sound principles — separation of powers, inde- pendence of the judiciary, professional personnel management — circuit court judges should not be given any power over county nonjudicial personnel matters. Salaries of Officers — Other Counties Sec. 10. The county board, except as provided in Section 9 of this article, shall fix the compensation of all county officers, with the amount of tlieir neces- sary cleric liire, stationery, fuel and otiier expenses in sucli manner and subject to such limitations as may be prescribed by law, and in all cases where fees are provided for, said compensation shall be paid only out of, and sl\all in no instance exceed, the fees actually collected; Provided, that tlie compensation of no officer sliall be increased or diminished during liis term of office. All fees or allowances by tliem received, in excess of tlieir said compensation, shall be paid into the County Treasury. 5 1 Art. X, § 1 History This section dates in part troni an amendment adopted in 1952. That amendment added the words "in such manner and subject to such limi- tations as may be prescribed by law," and deleted the tollowing maximum compensation limitations, shown in tabulai lorin: County Population Maximum Compensation Up to 20,000 $1,500.00 20,000 to 30.000 2.000.00 30,000 to 50.000 2,500.00 50,000 to 70,000 3,000.00 70,000 to 100,000 3,500.00 100,000 to 250.000 4,000.00 For eacli 100,000 For an additional over 250,000 1.000.00 The original section was "dreamed up" by the 1870 Convention as a device to eliminate the evils ol the tee system ot compensation. As pro- posed by the Committee on Counties, the section, so tar as is pertinent here, ditlered trom the section as finally adopted only in omitting the limitation on compensation to fees actually collected and the incre- mental compensation scale tor counties over a cjuarter of a million. Not- withstanding the limited nature of the changes made, there was a pro- longed debate on this section. It is clear that the delegates were deejjly incensed over the existing system. One evil of the system was that, in the more poj^idous counties, officials drew down excessive sums. This section was aimed at that problem. Sections 11, 12 and 13 dealt with other evils that will be discussed in connection with those sections. The drafters of the proposed 1922 Constitution disposed of this entire problem by simply ending fees on the cotmty level. In one section, county officers were forbidden to receive to their own use any fees, fines, costs, and the like; and in another section, the county board in all counties other than Cook was empowered to .set the compensation of all officers, othier than school superintendents, and the munber and compensation of their employees. Long overdue relief from the stringencies of Section 10 came, of course, with the adoption of the Ninth Amendment in 1952. Explanation This is the second of the five consecutive sections dealing with abuse of the fee system. Prior to amendment in 1952, it was obviously the most obnoxious of the stringent controls devised by the 1870 Conven- tion. The error was in setting up a scale of maximum salaries in absolute dollars. (Today, with a large number of elderly people living on fixed incomes and watching the inexorable increase in the cost of living, it seems unlikely that sucli a mistake will be made again.) Presumably, the Art. X, § n 511 section as amended in 1952 is tolerably workable. At least, there does not appear to have been any litigation involving construction of the amended section. Prior to 1952 there was an incredible amount of litigation concerning this section. Reading between the lines, one can easily discern various devices adopted in an effort to get around the unreasonably low maxi- mum salaries allowed under the original section. With the underlying causes eliminated, it seems pointless to review these cases. It is worth noting, however, that the constitutional power of the county board to fix the compensation of all county officers is limited to the constitu- tional county officers provided for in Section 8. {See McFariane v. Hotz, 401 111. 506 (1948).) The foregoing was not applicable to the county judge. Evidently, the courts put him under Article VI to get away from the salary limitations of the unamended Section 10. But this is all aca- demic, since there is no longer a county judge. Likewise, the "no change in compensation" proviso applies only to constitutional county officers, but it must be recalled that statutory county officers, in effect, liave been brought under the proviso by judicial gloss on Section 11 of Article IX. (See supra, pp. 474-5.) Comparative Analysis Among those states providing for constitutionai county officers there is a profusion of provisions concerning compensation, running from a flat maximum of |5,000 in one state to a simple "shall be fixed by faw." A few states have a "no change during term of office" provision. Some seven states require all fees to be paid into the treasury and another three states modify this with some iegisiative authority. A few states limit payment of compensation to the amount collected in fees. In Kentucky, the sheriff in any county with a population over 75,000 is to be paid a salary, but his salary, that of his deputies, and office expenses may not exceed 75 per cent of all fees collected. Several states call for classification of counties for purposes of setting salary levels. At least two states speci- ficafly permit special or local legislation for fixing compensation. A few states provide for focat determination of salaries, usually for counties that liave adopted a home rule charter. There is no comparable provi- sion in the Model State Constitution. Comment See the Comment for Section 9. (Supra, p. 509.) Fees of County and Township Officers Sec. 11. The fees of township officers, and of each class of county officers, shall be uniform in tlie class of counties to which they respectively belong. The compensation herein provided for sliall ajjply only to officers hereafter elected. 512 Art. X, § 12 but ;ill ices establislied by spcciiil laws shall tease al the adoption of this Cloii- stitutioii. and muIi officers shall receive only siuh fees as are pro\ ided by general law. History One of the abuses ot the iec system thai a])pears to have been particu- larly galling to the delegates in 1870 was the practice ol local officials lobbying for special acts that increased the tees to be charged tor services in their county. There was apparently general agreement that the new Constitution sltould forever end this abuse, but devising a methoci proved difficult. .Since the effort in this section and the next section was to de- stroy a body ot statute hnv, the delegates got tangled up in all sorts of legislative problems, such as repeal by implication, uncertainty as to whether their new "statute" covered all existing legislative schemes, and the like. There was also, apparently, a recognition of the need for some flexibility in the limited authority to be granted to the legislature. The end result of the deliberations was the adoption of .Sections 11 and 12, wliich together comprise a constitutional scheme for legislating fee sclied- ules and a quasi-statute repealing existing laws and providing for a transition to new laws to be enacted. The proposed 1922 Constitution discarded the obsolete matter in the two sections and substituted one simple sentence reading: "Fees of county and town officers, as provided by law, shall be uniform as to classes of counties or towns and for this purpose there shall not be more than three classes of counties." (art. Vltl, § 165.) Explanation It appears from the litigation invohing this section and Section 12 that "fees" refers to any system of compensation other than a salary for a full-time employee. (See, e.g., People ex rel. Olson v. Atchison, T. R: S.F. Ry., 889 111. 204 (1945). But see Board of Supervisors v. Johnson, 64 111. 149 (1872) (per diem for days w'orked was compensation, not "fees.").) "Fees" presumably also refers to the fees that are charged to the public. (See the discussion of the meaning of "fee" in the Explana- tion of Sec. 9, supra, p. 507.) Comparative Analysis No other state has a comparable provision. Several states prohibit special legislation concerning fees. Comment See the Comment for Section 9. (Supra, p. 507.) Regulation of Fees by General Laws Sec. 12. All laws fixing the fees of State, County and Township officers shall terminate witli the terms, respectively, of those who may be in office at tlie Art. X, § 13 513 meeting of the first General Assembly after the adoption of this constitution; and the General Assembly shall, by general law, uniform in its operation, pro- vide for and regulate the fees of said officers and their successors, so as to reduce the same to a reasonable compensation for services actually rendered. But the General Assembly may, by general law, classify the counties by population into not more than three classes, and regulate the fees according to class. This article shall not be construed as depriving the General Assembly of the power to reduce the fees of existing officers. History This is the fourth of the five consecutive sections aimed at ending the abuse of the fee system of compensating government officials. As noted in the History of Section 11 (supra, p. 512), these two sections must be read together. Except for limiting classes to three, this section speaks solely to the immediate transition after adoption of the Constitution. This is reflected in the comparable section of the proposed 1922 Con- stitution. (Supra, p. 512.) Explanation In view of the limited purpose of this section, it is hardly worthwhile to trace its judicial gloss. Nevertheless, it is worthy of note that the 1870 Convention left a loophole in the section, for the Supreme Court upheld a statute granting the City Council of Chicago the authority to fix municipal court fees. The Court pointed out that the clerk of the municipal court is not included in "State, County and Township of- ficers." (People ex rel. Soble v. Gill, 358 111. 261 (1934).) There has, of coiuse, been litigation over whether more than three classes of counties have been created. (See e.g.. People ex rel. City of Peoria v. Weston, 358 111. 610 (1934).) Comparative Analysis No other state has a comparable provision. Several states authorize classification of counties, and, in one instance, of townships, for the purpose of setting compensation levels. Comment See the Comment for Section 9. (Supra, p. 509.) Reports by Fee Officers Sec. 13. Every person who is elected or appointed to any office in this State, who shall be paid in whole or in part by fees, shall be required by law to make a semi-annual report, under oath, to some officer to be designated by law, of all his fees and emoluments. History This is the last of the sections designed to end abuses in the fee system. 514 Art. X, § 13 In the manner of good statute-drafting, it simply talis for reports to assure proper sujiervision of the constitutional j^olicy. The section was offered on the floor of the Convention, was quickly amended to add "under oath," and accepted wittiout debate. In contrast to the simplifi- cation of Sections II and 12 (see Histoty of Sec. 11, supra, p. 512), the proposed 1922 Constitution not only preserved tliis section in substance but added a recjuirement that evei^ such officer pay over "at least monthly to some official designated by law all public moneys and interest thereon received by or for liim." Explanation The Supreme Court has held that this section apj)lies to constituitonal officers and not statutory officers. (People ex rel. North Am. Restaurant v. Chetlain, 219 111. 248 (1905) (statute need not require official court reporter to report his fees).) Comparative Analysis Approximately nine states provide for accounting by county officers, eitlier in detail or by mandating appropriate legislation. Three states require accoimting by township officers. Comment See the Comment for Section 9. (Supra, p. 509.) Article XI CORPORATIONS Organization of Corporations Sec. 1. No corporation shall be created by special laws, or its charter extended, changed, or amended, except those for charitable, educational, penal or reforma- tory purposes, which are to be and remain under the patronage and control of the State, but the General Assembly shall provide by general laws, for the organization of all corporations hereafter to be created. History The first section of the Corporations Article of the 1848 Constitution provided that corporations, not possessing banking powers or privileges, could be formed under general laws, and in the last section of the Article instructed the legislature to "encourage internal improvements, by passing liberal general laws of incorporation for that piupose." The first section also prohibited creation of corporations by special acts, except for muni- cipal purposes, but ended with a glorious loophole in the form of an exception "in cases where, in the judgment of the general assembly, the objects of the corporation cannot be attained under general laws." From the fact that, in the 1870 Convention, the Committee on the Legislative Department included corporate charters in its section pro- hibiting special acts on various subjects (see History of Sec. 22 of Art. IV, supra, p. 205), and the Committee on Miscellaneous Corporations in- cluded a like prohibition, it is evident that the practice under the 1848 Constitution was to grant corporate charters by special act. There was no debate on either of the proposals, and although the Convention chose the Legislative Article wording, the Committee on Revision and Adjust- ment placed the section in Article XI. In the proposed 1922 Constitution, the prohibition on special acts of incorporation and the exceptions thereto were placed in the section pro- hibiting local and special legislation and the mandate to the legislature to provide for corporations by general law was dropped. Explanation Judicial interpretation pertinent to this analysis consists of (1) cases concerning reasonableness of classifications as a factor in distinguishing 515 516 Art. XI, § 2 between general and special legislation, a subject discussed in the analysis of Section 22 of Article IV (supra, pp. 212-15); (2) a determination that only private corporations are covered, thus permitting special legislation, not otherwise prohibited, chartering public corporations other than those specifically exempted in this section (Owners ol Lands v. People ex rcl. Stookey, 118 111. 296 (1885) (Drainage District)); and (.H) cases holding that corporations chartered by special acts under the 1848 Constitution continued in existence, and were subject to ajiplicablc provisions ol that Constitution (Chicago Home lor Girls v. Carr, 300 111. 478 (1921)). Comparative Analysis Approximately three-fourths of the states authorize the formation of corporations by general law and almost as many forbid formation by special acts. About ten states have a "charitable, educational, penal or reformatory" exception to the general law recjuirement. The Model State Constitution is silent as to corporations but has a general pro- hibition on special legislation. (See Comparative Analysis of Sec. 22, Art. IV, supra, p. 224.) Comment There is no need for any affirmative statement about legislative power to authorize the creation of corporations. Nor is there any need for a specific section prohibiting the creation of corporations by special act. (For that matter, there really is no need for an Article on Corporations at all. This argument will be developed in the Comments to the various sections of Art. XI.) The problem of special legislation is generic, and such limitations as are appropriate should appear in a comprehensive section in the Legislative Article. (See Comtnent to Sec. 22 of Art. IV, supra, p. 226.) Revocation of Certain Special Charters Sec. 2. All existing charters or grants of special or exclusive privileges, under which organization shall not have taken place, or which shall not have been in operation within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever. History This section is the result of a protracted debate in the 1870 Convention over a section designed to undo what the delegates evidently thought was the damage previously done through the granting of corporate char- ters by special acts. The section as originally proposed included, in ad- dition to a slightly different version of Section 2, a provision that no existing special act could thereafter be changed except by a two-thirds' vote of the legislature. A learned discussion on constitutional principles Art. XI, § 3 517 ensued and it was eventually agreed that the United States Constitution's prohibition on states' impairing the obligation of contracts, as well as the general uncertainty oi the effect of such a limitation on legislative power of amendment of special charters, made it advisable to be content with killing off special charters that existed only on paper. The proposed 1922 Constitution omitted the section. Explanation Since this section is now obsolete, it serves no purpose to discuss the judicial interpretations in the early years following adoption of the 1870 Constitution. Comparative Analysis There are apparently about 15 other states that had the same need to kill off unused special act charters as did Illinois in 1870. There are three states with a continuing provision covering revocation of unused charters, but this would cover charters issued under a general corporation act. Comment This section is obsolete and should be dropped. Election of Directors Sec. 3. The General Assembly shall provide, by law, that in all elections for Directors or managers of incorporated companies every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock, shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner. History When this section was brought up for consideration in the Committee of the Whole in the 1870 Convention, the delegate from Greene County said: "As this is a matter for the Legislature to dispose of, I move to strike it out." Joseph Medill, who, it will be recalled, was the principal architect of cumulative voting in the House of Representatives (see supra, pp. 136-8) immediately arose and said, in part: "Mr. Chairman: I hope the committee will consider and reflect a little on this section, before striking it out. My friend from Sangamon [Mr. Hay] suggests to me that it is 'legislation.' Well, we have been doing a good deal of that, all along, and this is not the first, nor will it be the last 'legislation.' A very large portion of our work is 'legislative.' In one sense, it is all legislative in character. "The object of this section is simply to protect the rights of stockholders in 518 Art. XI, §3 incorporated companies — to protect the right of every stockholder, and to pre- vent the formation of rings to control absolutely, to abuse and plunder the prop- erty of the minority of every incorporated conii)any. The object of this section is not to take away any rights of the majority of the company, but to protect the minority." Another delegate from Cook County spoke vigorously in favor ol the section, ending with these comments: "I admit that it is a new principle sought to be incorporated in our Constitu- tion, in the management of corporations. But with the reflection I have given it, and the thought I have bestowed upon it, I believe that it is the assertion of a principle of right, the insertion of wliich in the fundamental law can wrong nobody. . . . "I hope it will not be stricken out, but that we will give honest minorities protection against the rapacity and dishonesty of reckless majorities in the man- agement and control of all corporations within the limits of our authority. "Mr. ENGLISH. Mr. Chairman: I withdraw my motion to strike out the section. Having no interest in the matter myself, and supposing it was a matter the General Assembly could provide for and control, I made the motion. But inasmuch as gentlemen interested in it desire to have it adopted, I, having no other objection to it than I have stated, withdraw the motion to strike out." (De- bates 1666-67.) No one spoke against the section and it was agreed to by voice vote. The proposed 1922 Constitution preserved cumulative voting for banks only. Explanation Since, as Mr. MecHlI conceded, this section is legislation, it is not surprising that there has been considerable litigation arising out of the section. The landmark case is Wolfscm i'. Avery (6 111. 2d. 64 (1955)) involving the battle for control of Montgomery Ward. There the Su{)reme Court outlawed staggered terms for directors. Tlie Court has also out- lawed nonvoting (for directors) preferred stock (People ex rel. Watseka Tel. Co. V. Emmerson, 302 111. 300 (1922)); a bylaw allowing bondholders to vote for directors (Durkee v. People ex rel. Askren, 155 111. 354 (1895)); a contract among stockholders giving one stockholder a long-term ir- revocable power to vote all their stock (Luthy v. Ream, 270 111. 170 (1915) (but the Court probably would have held the contract contrary to public policy even without Section 3)): and a statute permitting directors to fill vacancies on the board (Peojjle ex rel. Weber v. Cohn, 339 111. 121 (1930)). The Court has, however, upheld irrevocable voting trusts created as part of a reorganization under the Bankruptcy Act. (Rittenberg v. Murnighan, 381 111. 267 (1942).) The section is not applicable to not-for- profit corporations. (Westlake Hosp. Ass'n v. Hlix, 13 111. 2d. 183 (1958).) The Court has even stated that a corporation may vote its stockholding in another corporation notwithstanding a statute prohil)iting such voting Art. XI, § 4 519 where the effect might be to lessen competition. (Hall v. Woods, 325*111. 114 (1927) (but the Court noted that it the result was to lessen competi- tion, such result would be unlawful under Illinois laws).) Comparative Analysis There appear to be another ten states with comparable cumulative voting requirements. It would appear at first glance that these are all in constitutions adopted after 1870 and are presumably copied after the Illinois provision. At least two states have adopted amendments cutting back the blanket coverage of the section. In one of those cases, West Virginia, the cutback did not include banking institutions. Comment Notwithstanding the fact that a few states appear to have copied this unusual constitutional brain-child of Joseph Medill, it seems inadvisable to preserve it. The intricacies of corporation law call for the flexibility available only to the legislature. Moreover, the competitive nature of state corporation laws tends to j)ut a state with unusual restrictions at a disadvantage. There may very well be good arguments for cumulative voting — several "professional" stockholder gadflies constantly recom- mend it — but at the very least it seems to be a matter for legislative, not constitutional, consideration. Street Railroads Sec. 4. No law shall be passed by the General Assembly, granting the right to construct and operate a Street Railroad within any city, town, or incorporated village, without requiring the consent of the local authorities having the control of the street or highway proposed to be occupied by such street Railroad. History This was one of the sections proposed by the Committee on Miscel- laneous Corporations. It was accepted without explanation or debate. The proposed 1922 Constitution broadened the provision to read: "The general assembly shall not grant the right to occupy the streets or public grounds of any municipal corporation without its consent." (art. Ill, § 61.) Explanation It is to be noted that this section is not a referendum provision. The operable words are "local authorities." These are the officials chosen by the community to act for them in a formal manner, as, for example, by ordinance duly adopted in accordance with the city charter. (See Potter v. Calumet Elec. St. Ry., 158 F. 521 (7th Cir. 1908).) This requirement for local consent gives the local authorities power to impose reasonable conditions on the street railway company, but these conditions can be 520 Art. XI, § 5 superseded l>y ihe state. {See City ot Chicago v. O'Connell, 278 111. 591 (1917).) The section conlers absolute power only to determine whether or not the railway may operate and il so, upon wliich streets. (Id.) It is also to be noted that the section is limited to street railways. Elevated lines, for example, are not covered. (Hoyne v. Chicago R; O.P. Elev. R.R., 291 111. II. S (1920).) Comparative Analysis There appear to be only a couple ot states with comparable require- ments for local authority consent. (Strangely enough, the Index, the source for comparable provisions, does not list Section 4 under the ap- propriate heading.) Comment The underlying principle ot this provision is home rule. It houie rule is to be given any significant status, it shoidd be by some general state- ment, not by such limited, specific protections as evidenced by this sec- tion. (Compare the 1922 proposal quoted above.) In any event, street railroads are a thing of the past and this section as such can be con- sidered obsolete. State Banks Forbidden — Bank Laws — Referendum Sec. 5. No State Banlc shall hereafter be created, nor shall the State own or be liable for any stock in any corporation or joint stotlc company or association for banking purposes, now created, or to be hereafter created. No act of the General Assembly authorizing or creating corporations or associations, with banking powers, whether of issue, deposit or discount, nor amendments thereto, shall go into effect or in any manner be in force, unless the same shall be submitted to a vote of the people at the general election next succeeding the passage of the same, and be approved by a majority of all the votes cast at such election for or against such law. History A section of the bill of rights of the 1818 Constitution provided that there should be "no other banks or moneyed institutions in this state than those already provided by law, except a state bank and its branches." This was followed by a grant of power to the legislature to establish and regulate the state bank. The 1848 Convention stomped on the state bank with a vengeance. In the Legislative Article, as noted earlier (supra, p. 234), the section prohibiting lotteries also denied to the legislature the power "to revive or extend the charter of the state bank, or the charter of any other bank heretofore existing in the state." In the 1848 Article on Corporations, one section was the same as the first sentence of Section 5 ex- cept for the omission of the words "now created, or." A second section was the same in substance as the second sentence of Section 5 except for the Art. XI, § 5 521 omission ot the words "whether ot issue, deposit or discount, nor amend- ments thereto." The Committee on Banks and Currency ol the 1870 Con- vention proposed as two sections what is now Section 5, that is, inchiding the words noted above as omitted Irom the 1848 Constitution. When the two sections and the otlier sections on banking were taken up in Commit- tee of the Whole, the Chairman ol the Banknig and Currency Committee did not discuss the several sections, which he said were "plain and simple," but contented himself with the observation that the United States was providing currency and would presumably continue to do so, but just in case the United States might change its mind, his Committee thought it best to place "a necessary amount of limitation on the Legislature, that they might not at any time inaugurate a State banking system that might prove as disastrous as the banking law under which we organized our banks in 1851 — for fear that the disastrous results might follow that we experienced in 1857 and 18(")1, when our banks broke." (Debates 1678). The proposed 1922 Constitution indicated total confidence in the con- tinued issuance of currency by the Ignited States. In place of the first sentence was the following: "No law shall be passed authorizing any bank of issue or authorizing the state to conduct, own any interest in or incur any liability for any banking business." (art. Ill, §49.) The referendum sentence was omitted. That sentence, of course, permits the legislature to authorize banks with powers of "issue." Not long after national banks were authorized, Congress enacted a tax on state bank notes. That killed oif all state currency "issue." This was the state of affairs in 1870, equally so in 1922, and continues to be so. Explanation There has been no occasion for an interpretation or ruling on the first sentence of the section. As can be imagined, a lot of problems have arisen under the second sentence, but they have substantially all concerned the one question — Is the legislation at issue of the type recjuired to be submitted to referendum? There seems to be little point in reviewing the many cases. Assuming a general consistency over the years, the essence of the judicial gloss is that a referendum is required only for those legislative acts that affect "banking powers" as commonly understood. Thus, on the one hand, a statute regulating corporations generally might have to be read as not covering banks because the regula- tion would affect corporate banking powers, whereas, on the other hand, legislation specifically regulating banks might not be subject to referen- dum because the regulations did not atfect banking powers. (Represent- ative cases include Gorham v. Hodge, 6 111. 2d 31 (1955); American Legion Post No. 279 v. Barrett, 371 111. 78 (1939); People v. Gould, 345 111. 288 (1931); Boor v. Tolman, 113 111. App. 322 (1904).) 522 Art. XI, § 6 Comparative Analysis State Bank: Two stales, Missouri and Oregon, sj^ecifically prohiijit a state bank. Four more states prohibit state ownership ol bank stock. Iowa specifically authorizes a state bank, i)ui only on an aduai specie basis. Rejerenda: Ihree other states, Iowa, Kansas and Ohio, also require a popular relerendinn on banking laws. Three states re(juirc a two-thirds vote lor legislative passage ol banking bills. Comment It would seem ajjpropriate to take a leal Irom the proposed 1922 Con- stitution and have confidence that the United States will continue to provide a monetary system. It hardly seems necessary to go so tar as to prohibit banks of issue, but the restriction, being so obviously unneces- sary, is certainly harmless. It would also seem unnecessary these days to prohibit the state from buying bank stock, but retention ol the pro- hibition woidd be relatively harmless. It is possible to imagine a crisis situation when the state might have to rescue state banks, and in such a situation the state ought to have the power to secure any loans by such a device as a pledge of the bank's stock, or the like. But the realities of bank- ing today are national in scope, and in any crisis only the Federal Govern- ment will be able to cope with the situation. It would also seem appropriate to take a second leaf from the proposed 1922 Constitution and drop the referendum recjuirement. The voters have enough to worry about without getting snarled up in the intricacies of banking, a subject about which precious few people have even a little knowledge. Moreover, with two coexisting banking systems, national and state, it ill serves the state system to make it less flexible than the national system. A word about the ambiguity at the end of the section is appropriate. The required majority appears to be of those voting on the question — i.e., "votes cast at such election for or against such Laws." The Index, page 51, states that the majority rec[uired is that of all votes cast at the election. Professor Garvey, in his treatise on Illinois government, makes the same statement. (N. Garvey, The Government and Administration of Illinois 438 (1958).) The Banking Act of 1965 requires only a majority of those voting on the question. (Law of July 23, 1965, §82, [1965] 111. Laws 2071.) Liability of Bank Stockholders Sec. 6. No stockholder of a banking corporation or institution shall be indi- vidually responsible or liable to its creditors for the liabilities of such banking corporation or institution under any constitutional or statutory provisions hereto- fore creating or declaring such stockholder responsibility or liability, provided, Art. XI, § 6 523 however, that any rights of creditors existing at the date of the adoption hereof shall not be impaired hereby, provided that action to enforce such stockholder responsibility or liability with respect to any existing bank liability which is payable on demand or for which a cause of action has already accrued shall be commenced within one year from the date of the adoption hereof, and with respect to any other existing bank liability shall be commenced within one year from the time when the cause of action therefor first hei»eafter accrues against such banking corporation or institution, or could so accrue by demand. No law creating or declaring any such stockholder responsibility or liability shall be passed. History Hie original section as adopted in 1870 provided lor the traditional donble liability of stockholders in banking institutions. The section was a modification of a section in tlie 1848 Constittition which provided for doidjle liability if the banking institution issued bank notes, "or any kind of paper credits to circidate as money." On the floor of the 1870 Convention, three delegates proposed to make stockholders' liability iMiIimited, but it Avas quickly pointed out that double liability was the usual requirement and that unlimited liability would totally destroy the possibility of corporate banking. Indeed, the Chairman of the Committee on Banks and Cinrency said that the entire Article as proposed by his Conmiittee "is almost a prohibition against starting banks in Illinois." Unlimited liability was rejected by voice vote. (Debates 1679.) When the Convention considered the action of the Conmiittee of the Whole, un- limited liability was again proposed and under the rides a roll call vote was taken. The proposed change was defeated 44 to 11, with 28 absent or not voting. The proposed 1922 Constitution retained the principle of double liability, but a change was made to permit the legislature to regulate the manner in which bank creditors could enforce their rights. The 1952 amendment was designed simply to kill double liability, but the amended section contains the detail necessary to avoid any im- pairment of creditors' rights as of the time of adoption of the amend- ment. Explanation In view of the fact that the 1952 amendment ended double liability, there is no point in discussing the voluminous litigation produced by the original section. No problems of interpretation appear to have arisen imder the amendment. Comparative Analysis There is, of course, no constitutional provision concerning banking as such in the United States Constitution, but it is worth recalling that the 524 Art. XI, § 7 oii^inal Sctlion (> was moilclcil on ihc original National liaiik. Act, aiul that the (loiil)le liability provision thcrcol was dropped as to new stock in I9:i1, permissibly as to old stock in 19:'.7, and tully in 195.8. (See 12 U.S.C Sec. ()la (19(vl).) Six states appear to tontinue donble liability, bnl in lour ol ilicni double lial)ilii\ is lilletl so Ion" as the bank is insined through the Federal Deposit Insuiance Cx:)rporation. A seventh state empowers the legislatine to impose doidjle liability. Comment This section, and the residting amendment, are an object lesson in the dangers implicit in putting statutory material into a constitution. Specie Payment — Bank Reports Sec. 7. The suspension ot specie payments by Ijaiiking institutions, on tlieir circulation, created by the laws of this State, sli;ill niver be permitted or sanc- tioned. Every banking association now, or which inav hereaiter be, organi/xcl imder the laws of this State, shall make and publisii a full and accurate cpiartcrly statement of its affairs, (which shall be certified to, under oath, by one or more of its officers) as may be pro\ided by law. History This section is a combination of t\vo sections proposed to the 1870 Convention. The first sentence, which was one of the sections, was, as a practical matter, inoperative when adopted because the federal tax on state bank notes made state currencv uneconomical. Fhe delegates were aware of this, but as noted earlier {supra, p. 521), the restriction was in- cluded jirst in case the United States Government changed its mind. In presenting the second sentence, which was the other section, the Chair- man of the Committee on Hanks and Ctnrency pointed out that in Illinois theie were a lot of banking institutions, "in regard to the financial con- dition of which nobody, except the parties engaged in them, know any- thing." He went on to say: "A law recpiiring a publication of the business affairs of the institution \vill give the people some idea of their soimd- ness and of their financial condition, which I regard as very important." (Debates 1678. Emphasis added.) The two sentences \\ere accepted with- out debate. (Actually, when the Convention considered the action of the Committee of the Whole, a previous amendment to correct a grammatical error was ratified. This means that there is an omission in the Debates as printed. See 1679 and 1685.) The projjosed 1922 Constitiuion omitted this section. In the light of that Constittition's prohibition of banks of issue (supra, p. 521), the first sentence woidd have been meaningless. The second sentence is not limited to publication of data concerning note issues, and it is not immediately obvious why this sentence was also dropped. (The Official Explanation makes no reference to omitted sections.) Art. XI, § 8 525 Explanation The only judicial interpretation ot this section appears to be an ancient case in which the Supreme Court said that the opening phrase ot the second sentence cHd not legalize all banks in business in 1870, that is, did not include those not legally constituted prior to 1870. (People ex rel. Badger v. Loewenthal, 93 111. 191 (1879).) The implementing statute lor the second sentence is Section 147 of Chapter 161/9 of the Revised Statutes. Comparative Analysis Specie Payments: Four other states have a comparable provision. Quarterly Report: Only one other state, Alabama, appears to require a report, and that is a semi-annual report not specified to be under oath. Comment The first half of tliis section is clearly unnecessary in today's world, and the second half is hardly earth-shaking in its fiuidamental nature. Indeed, it is perhaps appropriate to point out that in any case where, as here, there is an inijilementing statute on the books, the need for continuing a constitutional reporting requirement seems nonexistent. Surely, no legislator woidd seriously entertain a recpiest from Illinois bankers to repeal the reporting rec^uirement once the constitutional com- mand was removed. It is inconceivable that legislators would put them- selves in the position of saying, in effect, "There is no need for quarterly banking reports; the only reason we used to require them was that the 1870 Constitution forced us to." Requirements of General Banking Law Sec. 8. If a general banking law shall be enacted, it shall provide for the reg- istry and countersigning, by an officer of State, of all bills or paper credit, designed to circulate as money, and require security, to the full amount thereof, to be deposited with the State Treasurer, in United States or Illinois State Stocks, to be rated at ten per cent below their par value; and in case of a depreciation of said stocks to the amount of ten per cent below par, the bank or banks owning said stocks shall be required to make up said deficiency, by depositing additional stocks. And said law shall also provide for the recording of the names of all stock- holders in such corporations, the amount of stock held by each, the time of any transfer thereof, and to whom such transfer is made. History This section, modeled after the requirements of the National Bank Act, was proposed in the 1870 Convention as a contingency in case the national banking system was ever disbanded. (As noted earlier, supra, p. 521, it was not feasible under the national system for state banks to 526 Art. XI, §9 issue paper currency.) There was an impassioned debate on the door over this section, but the argument was between the Populists and the sound money people. The latter won, which is to say that so far as Illinois was concerned, locally issued currency would have to l)e l)acked 100 per cent plus by United States or Illinois bonds. Since the proposed 1922 Constitution lorbade local currency, this sec- tion was necessarily omitted. Explanation No occasion has ever arisen lor the first sentence ol this section to come into operation and there has been no interpretation oi it. It is not clear whether the requirement lor recording the names of all stock- holders "in such corporations" is operative since there are no banks of issue. (See Comment below.) The fact is that Section 115 (8) of Chaj)ter I61/2 of tlie Revised Statutes (19G7) requires such recording, including all transfers "not later than thirty days after such transfer." Comparative Analysis Money: Several states specifically prohibit the circulation of state cur- rency. Approximately eight states have provisions comparaI)le to Illinois, but these are, of course, also inoperable. Stockholder Records: No other state appears to have a comparable con- stitutional requirement. Comment The first sentence of this section is fairly obviously obsolete. The Com- ment under Section 7 concerning reporting {supra, p. 525) is equally applicable here. It is appropriate to note a bit of careless draftmanship in the second sentence of this section. The reference is to "such corporations." (At least in this sentence, the grating word "said" was not used as in the first sentence.) The problem is that "such" is a referent and there are no "corporations" mentioned in the first sentence. If one is to go back to Section 7, an improj:>er assunqjtion, the only references are to banking "institutions" and "association." If one is to go all the way back to the original Section 6, the reference is "banking corporation or institution." Although this is an equally improper assumption, Section 6 is probably the correct reference because there is an obvious need to have an accurate list of stockholders for purposes of imposing double liability. Railroad Corporations Sec. 9. Every railroad corporation organized or doing business in this State, under the laws or authority thereof, shall have and maintain a public office or place in this State for the transaction of its business, where transfers of stock Art. XI, § 9 527 shall be made and in which shall be kept, for public inspection, books, in which shall be recorded the amount of capital stock subscribed, and by whom; the names of the owners of its stock, and the amounts owned by them respectively; the amount of stock paid in and by whom; the transfers of said stock; the amount of its assets and liabilities, and the names and place of residence of its officers. The directors of every railroad corporation shall, annually, make a report, under oath, to the Auditor of Public Accounts, or some officer to be designated by law, of all their acts and doings, which report shall include such matters relating to railroads as may be prescribed by law. And the General Assembly shall pass laws enforcing by suitable penalties the provisions of this section. History This section, as offered, was the first section ot the Article proposed by the Committee on Railroad Corporations of the 1870 Convention. When the Committee of the Whole took up the Article, the first words after the reading of the section by the Clerk were: "Mr. HAINES, of Lake. Mr. Chairman: The word 'railroad' seems to have been omitted before 'corporations.' I move to insert it." "Mr. ALLEN, of Crawford. The section was intended to embrace all corpo- rations." (Debates 1637.) After a short debate, Mr. Haines' motion was agreed to. Three other changes were made before the section reached its present form. One added the requirement for a transfer office in Illinois, one added the sentence requiring an annual report under oath, and the third removed a command that the legislature pass the penalty laws referred to "at its first regular session after the adoption of this Constitution." In connection with the last-mentioned change, Mr. Fox, a delegate from Schuyler County, irioved to strike the whole sentence, saying: "I think the provision is merely mandatory, and will amount to nothing, as there is no power to enforce a mandatory constitutional provision. I am certain it will amount to nothing, if the Legislature has no more respect for this Con- vention, than the Convention has shown for the Legislature." (Id.) There was some parliamentary by-play, but no one responded to Mr. Fox. By voice vote, they rejected his motion. (Id. at 1638). The section was omitted from the proposed 1922 Constitution. Explanation The Supreme Court has noted that this section, and the remaining sections of Article XI, are aimed at "steam trunk line" railroads and not commuter lines. (People v. City of Chicago, 349 111. 304 (1932).) The requirements of the first sentence of this section are implemented by Sections 7 and 30 of Chapter 114 of the Revised Statutes (1967) in substantially the language of the Constitution. Section 31 provides for a fine of not less than $ 4,000 for failure to carry out the statutory require- ments. The reporting requirement of the second sentence, including 528 Art. XI, § 10 appropriate penalties, is now covered by Section 19 ol C^hapter 114-/> of the Revised Statutes (1967) which calls ior annual reports to the Com- merce Conniiission Irom all pul)li( utilities. Prior to 19.H9, there were provisions in Chajiter 114 specifically imj^lenKnting the second sentence ol this section, including suitable penalties. Comparative Analysis Approximately six states have some or all ot the several requirements contained in the first sentence of this section. About eight states require reports to be made to an appropriate state office. Comment Inasmuch as all of the requirements of this section are embodied in existing statutes, it seems appropriate, for the reasons set forth earlier (supra, p. 525), to drop this section. Railroads — Personal Property Sec. 10. The rolling stock, and all other movable property belonging to any railroad company or corporation in this State, shall be considered personal property, and shall be liable to execution and sale in the same manner as the personal property of individuals, and the General Assembly shall pass no law exempting any such property from execution and sale. History This was the second section of the Article proposed by the Committee on Railroad Corporations of the 1870 Convention. The section was ac- cepted unchanged, without debate, and without a recorded vote. The proposed 1922 Constitution shortened the section to read: "Rolling stock and other movable property of common carriers shall be sub- ject to execution sale." (art. XII, § 227.) Explanation Prior to 1870, the Supreme Court had held that rolling stock was realty, at least for the purpose of coverage by railroad mortgages. (Titus v. Mabee, 25 111. 232 (1851).) Apparently, the sole purpose of this section was to overrule the Court. The United States Supreme Court did not so read the section, however, and went right ahead and included rolling stock under an equity decree of foreclosure and sale under a mortgage of an entire railroad. (Hammock v. Farmers' Loan & Trust Co., 105 U.S. 77 (1881).) Presumably, this section has had no significant effect on the body of private law governing creditors' rights. Comparative Analysis Apparently, some ten states besides Illinois have a comparable pro- vision. Art. XI, §11 529 Comment Whatever value this section may have had in 1870, it surely has long since outlived its usefulness. In the high finance of railroad operations, including the practice of mortgaging rolling stock by ecjuipment trusts, a provision like Section 10 is probably no more than an inconvenience to the financial lawyers who arrange for and draft the many papers in- volved in railroad financing. Railroad Consolidation Sec. II. No railroad corporation shall consolidate its stock, property or franchises with any other railroad corporation owning a parallel or competing line; and in no case shall any consolidation take place except upon public notice given, of at least 60 days, to all stockholders, in such manner as may be pro- vided by law. A majority of the directors of any railroad corporation, now incorporated or hereafter to be incorporated by the laws of this State, shall be citizens and residents of this State. History Early in the deliberations of the 1870 Convention, it was evident that there were unusually strong feelings about the power of railroads. Several resolutions were offered, one of which included the concept of preservation of competition. This was, of course, more than a decade before the passage of the Interstate Commerce Act and more than two decades before passage on the Sherman Act. The Article submitted by the Committee on Railroads included a section consisting of the first sentence of what is now Section 11. In Conmiittee of the Whole, the proposal was accepted without debate. When the section was taken up by the Convention proper, proposals were made to prohibit all consolidations. After much debate, in the course of which several delegates, particularly Joseph Medill — "It is a mere sieve, through which everything can run, without any trouble at all. . . ." — , pointed out that there was no real way to prevent consoli- dations, the Convention accepted the original section with the addition of the sentence concerning Illinois directors. (Debates 1718-20.) The section was omitted from the proposed 1922 Convention. Explanation Notwithstanding Mr. Medill's pessimistic observation quoted above, the first half of the first sentence operated to prevent a merger of two competing belt line railroads in the East St. Loins area. (East St. Louis Connecting Ry. v. Jarvis, 92 F. 735 (7th Cir. 1899).) No other significant case appears to have arisen, but since the railroad world is essentially interstate and regulated by the United States Govern- ment, this is not surprising. 530 Art. XI, § 12 Comparative Analysis Competing Lines: About a do/en states join Illinois in prohibiting the consolidation of "parallel or competing" lines. A few states have other restrictions on consolidation, jjarticidarly with foreign corporations. Kentucky and Wwishington also prohibit a railroad's combining with another common carrier whereby the earnings of the one doing the car- rying are shared with the one not doing the carrying. Public Notice: Four other states recjuire at least 60 days' public notice of a proposed consolidation. Residence of Directors: No other state has a comparable provision. Comment In the light of the wave of railroad mergers, as well as every other kind, which the orthodox anti-trusters have been imable to stem, it seems inilikely that this little local prohibition will have much effect. In any event, it seems tuilikely that in the foreseeable future the railroads of Illinois will have such political power that the legislature would fail to protect the public against monopolistic practices. As was proposed in 1922, this section could safely be omitted. Railways as Public Highways — Regulation of Rates Sec. 12. Railways heretofore constructed or that may hereafter be constructed in this State, are hereby declared public highways, and shall be free to all persons, for the transportation of their persons and property thereon, under such regula- tions as may be prescribed by law. And the General Assembly shall, from time to time, pass laws establishing reasonable maximum rates of charges for the transportations of passengers and freight on the different railroads in this State. History The essence of this section was accepted by the 1870 Convention, sitting in Committee of the Whole, as a substitute for a section proposed by the Committee on Railroads. (That proposed section eventually was adopted as Sec. 15. See infra, p. 534.) When the proposed Article on Railroads was considered by the Convention proper, there was a learned debate that, paradoxically, ran in opposite directions. Some delegates thotight the section added nothing, that it really only was declarative of the com- mon law rules for common carriers. Other delegates were worried that the section went too far, that it purported to give the legislature power that, under the United States Constitution, would be invalid. At the conclusion of the debate, the section was accepted and referred to the Committee on Revision and Adjustment, including a final clause for forfeiture of charters. (See the final clause of Sec. 15, infra, p. 534.) For some unexplained reason, that clause was omitted when the Corporation Article was reported back for final action. Art. XI, § 13 531 The proposed 1922 Constitution retained the substance of this section. Explanation Judicial interpretation of this section has, in the main, dealt with tech- nical matters. The first sentence, of course, adds up to the declaration that railroads are common carriers and as such, to use the honored term, are "affected with the public interest." That term became distorted in the decades of judicial interference with economic regulation and is now of little significance. But the concept that some businesses are not privi- leged to pick and choose their customers is still valid, and the first sentence ot this section is one way of expressing that concept in the area of trans- portation. The foregoing comment reinforces the remarks of some dele- gates in 1870 that the sentence did not in fact add anything to the tradi- tional common law. The only important case dealing with the second sentence held that the legislature could both set a maximum rate for transportation and authorize an administrative agency to fix a rate lower than the legislated rate. (State Pub. Util. Comm'n ex rel. Mitchell v. Chicago &: W. T. Ry., 275 111. 555 (1916).) Judicial review of the reasonableness of any rate set has traditionally been a matter of due process of law. (See discussion of Sec. 2 of Art. II, supra, pp. 9-14.) Comparative Analysis Public Highivay: Some 17 states declare railroads to be public high- ways. Thirteen of the states pile Pelion on Ossa by also declaring rail- roads to be common carriers. Two states are content to declare them com- mon carriers. Maximum Rates: Four states have comparable provisions. Oklahoma sets a maximum rate of two cents per mile for "first class" passenger fares, "unless otherwise provided by law," with a proviso that the Corporation Commission can exempt any railroad that offers satisfactory proof that it cannot earn a "just compensation" unless it charges more than two cents per mile. Comment In the light of the comprehensive statutory system for the regulation of all public utilities provided in Chapter 111% of the Revised Statutes (1967), this section seems unnecessary. Railroads — Stock — Bonds Sec. 13. No railroad corporation shall issue any stock or bonds, except for money, labor or property, actually received, and applied to the purposes for which such corporation was created; and all stock dividends, and other fictitious 532 Art. XI, §14 increases of the capital stock or indebtedness of any such corporation, shall be void. The capital stock of no railroad corporation shall be increased for any purpose, except upon giving sixty days public notice, in such manner as may be provided by law. History The essence of the first sentence of this section was proposed by the Committee on Railroads of the 1870 Convention and was initially ac- cepted with a minor change to make it applicable only to railroads. 1 he second sentence was proj^osed from the floor as an additional section and was accepted without debate. The two sentences were accepted by the Convention proper after one minor technical correction. The Com- mittee on Revision and Adjustment combined the sentences to make Section 13 of the Corporations Article. The section was omitted from the proposed 1922 Constitution. Explanation There have been some important cases construing this section, but, interestingly enough, they probably say no more than would have been said without the section. For example, the Court held that a prima facie case under the section is not made out by an allegation that more secur- ities had been issued than "money, labor or property actually received." Fraud must be alleged. (People v. Union Consol. Elev. Ry., 263 111. 32 (1914). Fraud was alleged the next time around. People v. Union Elev. R.R., 269 III. 212 (1915).) It is' not possible to be certain what courts would have done in the absence of Section 13, but it seems fairly clear that the law would have developed as it did had the Constitution been silent. The foregoing comments do not, of course, apply to the second sentence of the section. Comparative Analysis This provision appears to be unique to Illinois. Comment Except for the honor of having a unique provision, there seems to be no reason for keeping this section. Railroads — Eminent Domain Sec. 14. The exercise of the power, and the right of eminent domain shall never be so construed or abridged as to prevent the taking by the General As- sembly, of the property and franchises of incorporated companies already orga- nized, and subjecting them to the public necessity the same as of individuals. The right of trial by jury shall be held inviolate in all trials of claims for com- pensation, when, in the exercise of the said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right. Art. XI, § 14 533 History At the conclusion oi the consideration ot the proposal oi the Committee on Railroads in the 1870 Convention, a rejjort was received from the Committee on the Judiciary proposing the addition ol three sections, the first two of which arc the two sentences of Section 14. The third proposed section purported to preserve the right of users of railroads to have a jury trial in cases where the railroads denied service. There was consider- able confusion among the delegates concerning this third proposal and some disposition to feel that the bill of rights would provide adequate protection to the public. In the end, the proposal was rejected. The other parts were accepted ^vith little opposition. With a minor reservation, this section was dropped from the proposed 1922 Constitution. In one of the sections concerning the powers of the City of Chicago, the proposed Constitution made it clear that the City's power of eminent domain covered "public utilities and the privileges or licenses held in connection therewith." Explanation The Constitution as printed at the end of the proceedings of the 1870 Convention did not have headings for each section. The print did have the word "Railroads" inserted at the end of Section 8 and before Sec- tion 9. (The word "Banks" appears between Sections 4 and 5, and the word "Corporations" heads the Article.) (Debates 1877.) The inter- esting thing about this is that of the seven sections following the word "Railroads," all except Section 14 are by their terms clearly limited to railroads. Section 14 refers in the first sentence to "incorporated com- j:)anies already organized" and in the second sentence to "any incorpo- rated company." It is clear from the debates that, at least as to the first sentence, the delegates were thinking only of railroads. For example: "Mr. ROSS. I would ask the gentleman whether that refers to railroads here- after to be built, as well as those now built? "Mr. CHURCH. In the case of railroads established under this Constitution, there will be no necessity to apply the provision, as the whole power of regu- lation will be reserved by the clause in tlie bill of rights, 'No irrevocable franchise or privilege shall be granted.' Also, by the reservation in the legislative article, which provides for full control in the General Assembly of all charters hereafter granted." (Debates 1656.) There was no clear indication of the delegates' understanding of the words "any incorporated company." The Supreme Court has spoken as if the second sentence is not limited to railroads. (See e.g., Wabash R.R. V. Coon Run Drainage & Levee Dist., 194 111. 310 (1901).) The difficulty with that case, and others, is that the complainant was, in fact, a railroad. Moreover, the statute in question was held defective in its jury trial 534 Art. XI, § 15 provisions under both Section 11 and Section 1 :> ol Article II {suj)ra, pp. ')(), ();■;), which also call lor trial by jury in (ondenmation cases. Comparative Analysis Some 20 states authorize the taking ol the jjroperty ol cor|)orations. Only Illinois limits such power to corjjoralions "already oigani/.ed." The I'oregoing reads as it the Illinois power ol eminent domain is less extensive than that ol the other states. This is not true, just as Section 11 was lui- doubtedly unnecessary wlien adopted, so the reservation ol powei over corporations in tlie other states \vas j^robably unnecessaiy. Approximately ten states provide lor trial by jury in condenniation cases. Another five states limit the privilege ol jury trial to cases otlier than a taking by the state. Two states limit the prixilege to cases ol the taking ol jm ivate roads. Comment An eminent domain jjrovision is essential, i)ut it belongs in the bill ol rights. There are important [iolicy cjuestions in the determination ol both the substance and procedure ol the jnovision, but these have already been considered. (See Sec. 1-^ of Art. II, .supra, p. !'}(').) There is no earthly need lor a separate section concerning "any corpoiation," already organ- ized or not. In all fairness to the 1870 Convention, the foregoing categorical dis- missal of this section would not have been an appropriate comment at that time. As the c^tioted explanation by Mr. Church indicates, the dele- gates were worried about the status ol then-existing corporations that might have received special privileges by special acts. The thrust ol the section was to try to kill off any claim that such an existing corporation's property coidd not be taken by the state. Under the provision of the United States Constitution forbidding the impairment of the obligation of contracts (art. I, § 10.), Section 14 probably did not in fact add any- thing, but the delegates were certainly justified in trying. Regulation of Freight and Passenger Rates Sec. 15. The General Assembly shall pass laws to correct abuses and prevent unjust discrinu'nation and extortion in the rates of freight and passenger tariffs on the different railroads in this State, and enforce such laws by adecjuate penal- ties, to the extent, if necessary for that purpose, of forfeiture of their property and franchises. History As noted earlier (supra, p. 5.^0), this was one ol the sections proposed by the Committee on Railroads ol the 1870 Convention. \V^hat is now Section 12 was substituted on the lloor, but, as the Convention was com- pleting action on the railroad provisions, this section was proposed again. Art. XI, § 15 535 The argument was that the courts might decide that the legislature had no power to set maximum rates, as provided tor in Section 12, and that this Section 15 would give the legislature something to fall back on. The argimrent was convincing enough to lead to adoption ot the section by a vote ol 32 to 27, with 24 not voting or absent. The stibstance ot this section \vas retained in the proposed 1922 Con- stitution. Explanation In an early case, the Supreme Court substantially emasculated this section. First, the Court noted that under the legislature's inherent "police power," it could enact laws prohibiting unjust and tmreasonable dis- crimination in rates. Second, the Court noted that, at common law, com- mon carriers had to charge reasonable rates and cotUd not unjustly discriminate. Third, the Court said that all this section did was to tell the legislature to carry out the traditional policy. Fointh, the Court said that the common law prohibited only unjust and imreasonable discrim- inations and by implication, theretore, the legislature could not prohibit discriminations not luijust and unreasonable by common law. Finally, the Court held that a statutory provision recjuiring the torteiture of all franchises for a first otfense violated this section since the penalty of forfeitine should be invoked only in cases of extreme necessity, after more lenient penalties, stich as graduated fines, had proved to be ineffectual. (Chicago & A. R.R. v. People ex rel. Koerner, 67 111. 11 (1873).) Comparative Analysis Approximately 14 states have a comparable provision concerning unjust discrimination. Comment Since the Supreme Court made it clear over a century ago that this section was both unnecessary and substantially ineffective, no harm can come from omitting it. Article XII MILITIA Membership Sec. 1. The militia of the State of Illinois shall consist of all able-bodied male persons, resident in the State, between the ages of eighteen and forty-five, except such persons as now are, or hereafter may be, exempted by laws of the United States, or of this State. History The substance of this section first appeared in the 1818 Constitution and was carried over into the 1848 Constitution unchanged. There was one significant difference between that section and the present one: only "free" persons were in the militia and "negroes, mulattoes and Indians" were specifically excluded. The Committee on Military Affairs of the 1870 Convention proposed the section in substantially its present form, but a minority report was filed which specifically preserved the old provision limiting militia service to white men. There was a short, sharp debate in the Committee of the Whole and upon a division, the committee voted 23 to 18 against the white only proposal. There was also a motion to change the minimum age from 18 to 21. The delegate so moving observed that "while we will not permit a young man to vote, we shoidd not compel him to do military service." The motion was defeated by voice vote. (Deljates 8(31.) The proposed 1922 Constitution retained the section unchanged except for the removal of some of the commas. Explanation No problems appear to have arisen luider this section. In the early case of Dunne v. People (94 111. 120 (1879)), the Supreme Court upheld the constitutionality of the section against the claim that Congress had exclusive power over militias. The present statutoi-y scheme, as provided lor in Chapter 129 of the Revised Statutes (§220.01 (1967)), first defines those subject to military duty in the Illinois State Militia as "[a]ll able-bodied citizens of this State and all other able-bodied residents in this State who have declared their intention to become citizens of the United States, between the ages of 18 and 45, except such as are expressly exempted by the laws of the United States and the State of Illinois...." The Illinois State Militia is then 537 538 Art. XII, § 1 divided into tlie Organi/cil and ilic linorgani/cd Militia. Tlie loinier is the National Guard and the Naval Militia; the latter are all others within the definition. When the Organi/cd Militia is called into federal service, the Governor by proclamation may call into existence the State Guard to serve initil the emergency is over. The State Guard woidd be formed out ol the Unoiganized Militia and oihei \oIunteers. The State Guard is strictly a war-time expedient. Comparative Analysis Approximately 19 states have a j)rovision nuuh like that of Illinois. A couple of states have different age limits, and a few states leave details up to the legislature. The new Michigan (Constitution omits the detailed article on the militia, one section of which was similar to Section 1, and sidistitutes the following: " Fhe militia shall be organized, ecjuipped and disciplined as provided by law." (art. ill, i^ 1.) New York had a detailed article on the militia which was removed by an amendment in 1962 that states that everyone has an obligation to defend the state, and provides for statutory imj^lcmentation as in the new Michigan Constitution. The Model State Constitution is silent on the subject except for the "'Commander-in-C^hief' provision of the Executive Article. (See Coinparalh'c Analysis of Sec. 14, Art. V, supra, pjx 291-2.). Comment In the Compnratix>e Analysis of the Micliigan Constitution, prepared in 1961, the chapter on the Militia Article was written by Brigadier General (Retired) Philip C. Pack, a former Judge Advocate General of Michigan. After discussing the several federal laws on the subject, he conclutled that "to all practical intents annd [sic] purposes, the United States has taken over the organized militia" and that the United States "has placed such an inclusive priority label upon the unorganized, in- choate militia by [tfie Universal Military Training and Service Act of 19.51] as to leave the states virtually without any manpower pool potenti- ally responsive to state military draft." (C.A.M.C. at xv-3.) In his study, State Constitutions: The Shape of the Document (19()8), Professor Robert B. Dishman concludes a discussion of the militia with this recommendation: "Even if the militia provisions in our state constitutions were not so archaic, it would be well to drop them altogether. If this were done, only two references to the militia would be needed in the constitution. One would simply declare the governor to be the commander-in-chief of the National Guard (or organized militia), except when called into the service of the United States. . . . The other would simply empower the legislature to provide for the organization, equipment and regulation of an adequate militia in conformity with federal laws governing the armed forces of the United States. This has already been done in Missouri and a few other states." (Id. at 47.) Art. XII, § 2 539 A comment is in order concerning the statutory definition. It difi:ers Irom the constitutional definition in two respects: the word "male" is omitted, and "persons" has become citizens or aliens who have taken out first papers. From the context ot the definition, one can conclude that "citizen oi the State" means "citizen oi the United States who resides in this State." This meaning grows out ot the Fourteenth Amendment which. provides that all "j^ersons born or naturalized in the United States, and subject to the juridiction thereof, are citizens of the United States and of the State wherein they reside." It is a logical fallacy, however, to conclude that citizens of Illinois can only be United States citizens resi- dent therein. All that the Fourteenth Amendment commands is that a state's definition of "citizen" must include United States citizens resident therein. To be sure, the distinction is technical, but, as always, it is appropriate to be accurate, and unless Illinois specifically defines and limits state citizenshi]j to United States citizenship and residency in Illinois, it is better to avoid the undefined term "citizen of this State." Organization — Equipment — Discipline Sec. 2. The General Assembly, in providing for the organization, equipment and discipline of the militia, shall conform as nearly as practicable to the regula- tions for the government of the armies of the United States. History At the end of the section that is now Section 1, the 1818 and 1848 Constitutions added the words "and shall be armed, ecjuipped and trained as the general assembly may provide, by law." Section 2 as proposed to the 1870 Convention purported to gi\e the legislature power to act in con- nection Avith the militia, but only in conformance with federal regula- tions. A delegate protested that it was unnecessary to grant such power and moved to strike the section. The Committtee Chairman argued that the section was important because of the conformance limitation on the legislature's power, but when the protesting delegate then proposed a substitiue not essentially different from Section 2, he was voted down. In some unexplained way, the Committee on Revision and Adjustment changed the section to meet the original objection. (As a general ride, a Committee on Revision and Adjustment, or Style and Arrangement, is not permitted to make substantive changes in the Articles referred to it by the Convention. The change made in this instance was not a change in substance in constitutional fact, but it was a change that the Con- vention sitting in Committee of the Whole had specifically rejected.) The race question came up again in the consideration of this section. An amendment was proposed that would have required segregated troop 540 Art. XII, § 3 units. This was voted clown. A proposal was also made to add a section prohibiting a Negro troni ever coinnianding white militia. This was also voted down. (Debates 865. There is an error ot some sort in the transcript, lor ihc loll call vote shows the proposal passing. The vote may have been on a motion to table.) The proposed 1922 Constitution omitted this section. Explanation No questions appear to have arisen under this section. The statute governing the militia contains a similar section. (111. Rev. Stat. ch. 129, i^ 220. 41 (1967).) Comparative Analysis Five states substantially dujjlicate the Illinois section. Another nine states have minor variations in wording, and four states use the negative lormulation ot providing that the legislature shall act in a manner not inconsistent with federal requirements. Comment The very fact that a section like this one is included in an Article on the Militia reinforces the recommendation c[uoted earlier, supra, pp. 538-9, that the rest of the Article be drojjpcd. Officers Sec. 3. .\11 militia officers shall be commissioned by the Governor, and may hold their commissions for such time as the General Assembly may provide. History The 1818 Constitution provided that officers should hold their com- missions "during good behavior, or until they reach the age of 60 years." The 1848 Constitution read "for such time as the legislature may pro- vide." The section as originally offered to the 1870 Convention combined the two earlier ideas by providing that commissions be held "during good beiiavior, or for such time as the General Assembly may provide." A proposal to strike "during good behavior, or" was immediately accepted by the Chairman of the Committee on Military Affairs, and the section sailed through without debate. The proposed 1922 Constitution removed the comma from the sentence. Explanation The implementing statute. Section 220.40 of Chapter 129 of the Revised Statutes, provides that officers in the Organized Militia must have United States Commissions. (See also 111. Rev. Stat. ch. 129, §§ 220.37, 237, 240-242 (1967).) Art. XII, § 4 541 Comparative Analysis Eleven states provide that all officers are commissioned by the governor. Some states make distinctions bet^veen low-ranking and certain high- ranking officers, ret;[uiring the latter to be confirmed by the legislature, or the senate. In a few states, certain officers are to be elected by their men. In at least one state, the adjutant- and inspector-general are elected by the voters for toin-year terms. Three states join Illinois in leaving the term of commissions to the legislature. One state provides that the term shall not be longer than six years. Comment Since the Organized MiUtia is effectively controlled by the United States, the many state provisions are not significant. Presinnably, most of those states have a comparable statutory provision making a federal commission a condition precedent to a state commission. Except for the very highest ranks, particularly the adjutant-general, the Governor's com- missioning act is probably pro fortna. Freedom from Arrest Sec. 4. The militia shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during ttieir attendance at musters and elections, and in going and returning from the same. History This section is in substance the same as the section originally adopted in 1818 and carried unchanged into the 1848 Constitution except for the omission of t^vo words. Under the earlier Constitutions, the words "of officers" followed "elections." Under those Constitutions, commanding of- ficers from captains through major generals were elected to their positions by the members of the units from companies through divisions, respec- tively. The committee report in the 1870 Convention omitted these provisions. In order to make Section 4 consistent wath the omission, the committee dropped the words "of officers." No one mentioned the fact that this change turns the section in part into a suffrage section duplicating Section 3 of Article VII. (Supra, p. 391.) The proposed 1922 Constitution retained the section, but inserted the word "military" in front of "elections." Interestingly enough, the Official Explanation states that the "section is the same as Sec. 4, Art. XII, constitution of 1870." (P.N.C. 45.) Explanation The only interpretation of this section appears to have been the opinion of the Attorney General discussed earlier in connection with Section 14 of Article IV. (See Explanation, supra, p. 174.) 542 Art. XII, § 5 Comparative Analysis Seven otiier states have a prixilege from arrest section. Only one other state refers to "elections," but three states refer to "elections of officers." Comment Apait from the meaningless inclusion of "elections," there is nothing- wrong with the i)ro\ ision excejjt that it is unnecessary and j^rohahly in- effective in any real sense. (See discussion of the "treason, felony or breach of the peace" exception, supra, p. 174.) Preservation of Records Sec. 5. The military records, banners and relics of the State, shall l:)e preserved as an enduring memorial of the patriotism and valor of Illinois, and it shall be the duty of the General Assembly to provide by law for the safe -keeping of the saine. History This hortatory salute to the men in blue was offered by the Committee upon Military Affairs to the 1870 Convention without explanation or justification. U)Jon the reading of the section by the Clerk, the following "debate" took place: "Mr. FOX. Mr. Chairman: f object to that section because it is a species of special legislation. 1 am opposed to all legislation in the organic law. "The cjuestion being upon the adoption of section five, it was agreed to." (Debates 863.) The proposed 1922 Constitution, coming on the heels of World War I, preserved the sentiment in an aj^propriately plural wording: "The military records, banners and relics of the state shall be preserved as enduring memorials of the patriotism and valor of the men of Illinois." (art. XI, § 215) Explanation Obviously, there have been no problems in interpreting the section. In accordance with the constitutional command, the legislatiae has pro- vided for the "safe-keeping of the same" in Section 220.25 of Chapter 129 of the Revised Statutes (1967). Comparative Analysis Seven states join Illinois in directing the legislature to provide for preservation of records, banners and relics. Comment This section is both unnecessary and harmless. Since no one wishes to appear to be opposed to patriotism and valor, it may not be possible to drop the section. Art. XII, § 6 543 Conscientious Objectors Sec. 6. No person having conscientious scruples against bearing arms, shall be compelled to do militia duty in time of peace: Provided, such person shall pay an equivalent for such exemption. History The substance ot this section appeared in both the 1818 and 1848 Con- stitutions. In the 1870 Convention, the Committee on Military Affairs omitted the section from its proposed Article. The delegate who had ob- jected to the inclusion of Section 5 (supra, p. 542) offered the conscientious objector section as it had appeared in the 1818 and 1848 Constitutions. According to the transcript there were shouts of "That's right" wlien the Clerk read the section, and it was accepted by voice vote without debate. The final wording came from the Committee on Revision and Adjust- ment. Tlie proposed 1922 Constitution added this section to Section 1 and changed the thrust from the positive to the negative, thus: "No person, because of conscientious scruples against bearing arms, shall be exempted by the laws of this state from any military service declared by the gover- nor to be noncombatant." (art. XI, § 212) Explanation There has been no direct interpretation of this section, but there was an ironic case involving a conscientious objector who was denied admis- sion to the bar because he could not conscientiously swear to uphold Section I of this Article. (In re Summers, 325 U.S. 561 (1945).) Comparative Analysis Some 19 states provide for conscientious objectors, either by a self- executing provision or by providing for mandatory or permissive legis- lative action. Eleven of those states include a requirement for payment of an equivalent. Only four other states appear to limit the exemption to peacetime. Comment In the light of the comprehensive federal system concerning consci- entious objectors, it seems pointless to preserve a constitutional provision such as this one, particvdarly one with a "payment of equivalent" ana- chronism. Article XIII WAREHOUSES Public Warehouses Sec. 1. All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses. History In the 1870 Convention, the Chairman ot the Connnittee on Miscel- laneous Corporations offered an Article on Warehouses consisting ot seven sections, each ot wliich was somewhat different trom the section as finally adopted, but all ot which covered the same grotmd as the final product. In order to understand the occasion tor the adoption ot an Article like this one, it is appropriate to quote at some length trom the opening de- bate, beginning with the remarks ot the committee chairman: "Mr. GARY: Mr. Chairman: This is a matter of very great importance to every grain producer, grain dealer and farmer in the State of Illinois, who has anything to do with selling or shipping grain. Elevators and warehouses have got to be great monopolies. The elevator men control the whole grain trade of the north- west, and control it in such a manner that it becomes necessary, for the welfare of the people of this State, and of all who do business with the grain dealers of the State, that they should have some protection. "It has been said, sir, that there is too much legislation in this article. But, sir, there is no more legislation here than in many other articles that we have passed. And if there is legislation in it, it is legislation for the great mass of the people of the State." (Debates 1622.) "Mr. BROWNING: Mr. Chairman: This is a subject of difficulty, and one that I tliink the Convention ought to enter upon with very great circumspection, if it touches it at all. In my opinion, we ought not to touch this subject. There are very few of us who know anything of these complications of trade. There has been no investigation here, and I am sure that I am not so informed as to be able to give a vote that will satisfy myself. It is a subject that is completely under the control of the General Assembly. Why not leave it to the General Assembly? ". . . It is not a matter for a Constitution; it is not elemental or fundamental law. It is mere police regulations, that has (sic) no more place in the Constitution than the provision of penalties for selling liquor. ". . . The General Assembly will possess one advantage that we have not, as they can appoint committees, and enter upon an investigation. They can send for worehousemen (sic), for members of the board of trade, for grain-brokers, for 545 546 Art. XIII, § 1 farmers, elicit all tlie inloiniaiit)!! tliat can be elicited upon this complicated subject, and then be prejKired to prescribe just and proper remedies for the evils that exist." {Id. at 1624-25.) "Mr. COOLB.AUGH. Mr. Chairman: . . . "Gentlemen may say this is a species of legislation. Well, ii it is, I am glad we are legislating for once in the interest of the people against the extortions of corporations. Whenever we do that, and raise that issue, I desire to put myself O'n the side of the people. But I tleny that it is any more legislation than the people of the State require." {Id. at 1626.) •MR. UNDERWOOD. Mr. Chairman: . . . "The misfortune, in undertaking by constitutional provision to regulate ware- houses, is that we may go too far or not far enough. A Constitution is not flex- ible, but the Legislature may change the law from time tcj time so as to meet the dishonesty of men in any kind of business. It is one of those subjects over which the General Assembly should, with the greatest care and circumspection, legislate. 1 do not believe we have time enough to fully examine the subject in all its aspects so as to legislate wisely on tiie subject." {Id. at 1628.) Section 1, at least, is a statement oi general principle, and even il not of constitutional stattne, is, one would asstnne, not particidarly contro- versial. Nevertheless, there ^vas considerable debate over the wording. Apparently, a statute passed in 18()7 had made a distinction between private and public warehousemen in teims ol whether grain was kept in separate bins or was mixed in a connnon bin. Although the section as jjroposed appeared to cover both types, an amendment \\as proposed and accepted that added the words "whether the property stored be kejn separate or not." Warehouses and grain elevators \ve)e still a touchy item in 1920, and the proposed 1922 Constitution preserved the Article on Waiehouses not- withstanding a general recognition that it was ptncly legislative. (See Proceedings 3862-63.) In the'case ol Section 1, the statement of princijile was shortened, principally by removing the clatise which had been added on the floor ot the 1870 Comention. Explanation In some respects, the courts ha\e recognized the legislative nattne ol this Article and treated it as il it \\ere a statute. For example, the Stipreme Cotnt has said that the iegisiatine's power to regulate -warehotises is not derived from this Article, but is part of what is commonly called the "police power." (State Pub. Ltil. (^ounnn \. .Monarch Refrig. Co., 2(i7 111. 528 (1915).) Moreover, the declaration ol what constitutes a public warehotise is not necessarily accepted by the cotirts. For example, one may occasionally store property for compensation and not become a puij- lic warehouseman. (.See Mayer \'. Springer, 192 111. 270 (1901).) Art. XIII, § 1 547 But to the extent that this "statute" sets loi th a pohcy, the legislature has no power to change it. In Central EleTtilur Company xk People ex rel. Moloney (171 111. 2.03 (1898)), the Supreme Court had decided as a matter of equity that the owner ot a public warehouse could not store his own grain in his own warehouse. W^hile the Central Ele~i>ator case was in the Supreme Court, the General Assembly authorized the practice in a carefully worded amendment to the implementing statute. The amend- ment provided in effect that there shoidd be additional assistant grain inspectors in any warehouse where the owner conniiingled grain with that of others, that the Railroad and W^arehouse Commission had lidl power to issue regulations governing such connningling to the end that the warehouse owner shotdd have no benefit or advantage over others, and that the assistant inspectors shotdd take care to assure compliance with such regulations. When the case came back up, the Supreme Court held the act void as in conflict with the policy of Article XIll. (Hannah v. People ex rel. Attorney General, 198 111. 77 (1902).) In 1965, the legis- lature again opened the door to permitting warehousemen to commingle their own grain with depositors' grain, but the new statute has not yet been tested. {See Eaton, "Present Problems of Article XIll," 17 De Paul L. Rev. 545, 551 (1968).) As with banks, there is a national system of warehouse regulation, and the United States Supreme Court has held that a warehouseman who complies with the requirements of the United States Warehouse Act can- not be regulated by the state in any area covered by the federal statute. (Rice V. Santa Fe Elevator Corp., 331 U.S. 218 (1947).) Comparative Analysis California has a comprehensive provision concerning the regulation of public utilities. Any private corporation, individual or association di- rectly or indirectly furnishing storage or wharfage facilities to or for the public is declared to be a public utility. Kentucky has a definition sub- stantially the same as Section 1. Except for a provision in North Dakota empowering the legislature to create state-owned or -operated grain ele- vators and an Oklahoma provision concerning railroad connections to grain elevators, no other state appears to have any constitutional provi- sion specifically covering warehouses. The Model State Constitution has no substantive provision in the area of economic regulation. Comment Mr. Eaton concludes his article on warehouses with this observation: "In conclusion, Article XIII has caused serious problems making it more dif- ficult for a large industry to function as it should. Experience under the "United States Warehouse Act" which does authorize grain warehouses to mix their own grain with c'epositors' grain should alleviate concern over authorizing elevators 548 Art. XIII, § 2 licensed by the State of Illinois to engage in the same practice. Article XIII is an excellent example of detailed constitutional provisions wiiich have outlived con- ditions whicli existed at the time they were written. If the provisions of Article XIII had been written into statutory law, the legislatiuc cf;uld have corrected the problem. .\s a part of our Clonstitution, even if obsolete, the legislature and the grain industry are witlioul power to correct llie ])rob]em. (Eaton, Mtj>y(i at 553.) Warehouses — Grain — Reports Sec. 2. 1 he owner, lessee or manager of each and e\ery public warehouse situated in any town or city of not less than one hundred thousand inhabitants, shall make weekly statements under oath, before some ofhcer to be designated by law, and keep the same posted in some conspicuous place in the office of such warehouse, and shall also file a copy for public examination in such place as shall be designated by law, which statement shall correctly set forth the amount and grade of each and every kind of grain in such warehouse, together with such other property as may be stored therein, and what warehouse receipts have been issued, and are, at the time of making such statement, outstanding therefor; and shall, on the copy posted in the warehouse, note daily such changes as may be made in the c|uantity and grade of grain in such warehouse; and the different grades of grain shipped in separate lots, shall not be mixed with inferior or superior grades, without the consent of the owner or consignee thereof. History This, the first oi the detailed, stibstaiuive, self-executing provisions in this Article, was olFered to the 1870 Convention wilhotit the 1()(),()00 popu- lation limitation. A delegate Ironi W^arren Connty exi^ressed the fear tiiat the Convention, "by assuming to this extent legislati\e functions," might put into the organic law provisions "which may prove stumbling blocks and embarrassments in all future legislation." (Debates 1()97.) He indicated that he imderstood the princij>al e\ils to ix- in the opera- tion ol the large grain elevators, and to piotect the small-to\vn warehouse- man from complicated paper work, he offered the limitation, but with the population figine left blank. He stated that he left the figure out because he was not sufficiently knowledgeable to choose a mininumi popu- lation. Alter the Convention settled on 1()(),00(), an eliort was made to substitute a section that simply commanded the legislatiue to pass appro- priate regulatory legislation and a motion was made to strike the entire section, not only because it was legislative in natine, btit because it was a species of special legislation by virtue of the popidation limitation. The motion to strike was defeated 39 to 11 on a roll call, and the substi- tute was rejected by voice vote. The section as originally projiosed did not contain the final provision for consent before mixing dillerent grades of grain. This addition was proposed by Mr. Medill of Cook County and after an explanation by him, was accepted by voice vote. Art. XIII, § 2 549 The proposed 1922 Constitution retained the substance of the section and made one significant change. In connection with the 100,000 popu- lation limitation, the words "or such population as may be provided by law" were added. (See Connncul , infra, p. 550, lor a discussion of this change.) Explanation It is fairly clear from the 1870 debates that the delegates believed that the 100,000 population figure was a dividing line between the constitu- tional self-executing regulation and the legislature's power to enact the same, or similar, regulations lor other parts of the state. Unfortunately, in the early case of People x>. Harper (91 111. 357 (1878)), the Supreme Court read the section otherwise. The Court said that Section 2 "dis- criminates between public warehouses in cities of not less than 100,000 inhabitants, and those in cities of less population, and recognizes that there is a necessity for regulations in respect to the former, not necessary to the latter." (Id. at 370.) But since the Court was answering an argu- ment that it was unconstitutional to put the big city warehouses in a separate class in the implementing statute, too much should not be read into the quoted sentence. Prior to 1955, the statutory scheme for regulating warehouses was an amended version of the original act passed in 1871 pursuant to the re- quirements of Article XIII. The first section of the 1871 statute divided public warehouses into three classes, and the second section defined those classes in a manner that was imchanged until 1935, when warehouses for the storage of personal property were excluded from the definition. Under that definition. Class A and Class B warehouses were those in which grain was stored in bulk and commingled;.and for A, located in cities of 100,000 and iq:); and for B, located somewhere else. Class C embraced all other public warehouses. (Act of April 25, 1871, ch. 114, §2, [1871] 111. Laws 762 (repealed 1955).) Under the 1955 scheme, the Public Grain Warehouse and Warehouse Receipts Act, the class distinctions are abolished, and in all respects ex- cept one, the 100,000 limitation has disappeared. In order to comply literally with Section 2, the act requires a warehouseman with a ware- house in a city of not less than 100,000 inhabitants to make the required weekly statements under oath. (111. Rev. Stat. ch. 114, §214.15 (1967). The act begins with Section 214.1. In 1961, Illinois adopted the Uniform Commercial Code and in connection therewith repealed the warehouse receipts' portion. Sections 233-292 of Chapter 114.) Comparative Analysis No other state has such a provision. 550 Art. XIII, § 3 Comment In the 1920-22 Convention, ellorts were made to take out the 100, 000 limitation or to substitute 50,000. in the course ol the debate, there was a learned discussion on implied limitations — the judicial doctrine that a grant ol detailed power to the legislature implies a denial ol power to go beyond the detailed grant. No relerertce was made to the Harper case quoted from above. The compromise solution was the addition of the words quoted above, "or such ])ojjulation as may be provitled by law." (See Proceedings 3863-61.) It should be noted that this solu- tion did not get around the implied limitations problem, if there is one. The solution would have permitted the legislature to extend the coverage of the stated requirement, but not to set up a tlifferent require- ment. If anything, the added words increased the likelihood that a court would be tempted to invoke the doctrine of implied limitations. Whether there is any need for weekly postings under oath ought to be a question of legislative determination. And if there is a need, the legis- lature ought to be able to decide the appropriate classification of ware- houses to which it shoidd ajjjjly. Population of the community in which the warehouse is located is not necessarily the most appropriate classifi- cation. Right to Examine Property Sec. 3. The owners of property stored in any warehouse, or holder of a receipt for the same, shall always be at liberty to examine such property stored, and all the books and records of the warcliouse in regard to such property. History This section, as originally proposed by the Committee on Miscel- laneous Corporations, was somewhat more detailed than it is now, but the additional details were dropped almost before debate began, and it seems unnecessary to disctiss the earlier wording. It shovdd be noted, however, chat the usual complaint was made that the section, in any event, was "special legislation," and was unnecessary. The proposed 1922 Constitution retained the substance of the section in a still further sim- plified version. Explanation The section seems self-evident and, indeed, appears never to have been litigated. Actually, the privilege accorded the receipt holder is a normal one, and it is not far-fetched to say that all the section really does is pre- vent the legislature from depriving the receipt holder of his normal privi- lege. (111. Rev. Stat. ch. 114, §214.16 (1967) provides for examination.) Art. XIII, § 4 551 Comparative Analysis No other state has such a provision. Comment Since there is a statutory protection for examination that is not hkely to be taken away, this insignificant section could certainly be dropped. Grain Shipments — Weighing — Liability of Carrier Sec. 4. All railroad companies and other common carriers on railroads shall weigh or measure grain at points where it is shipped, and receipt for the full amount, and shall be responsible for the delivery of such amount to the owner or consignee thereof, at the place of destination. History The section as originally proposed in the 1870 Convention read as follows: "All railroad companies and other common carriers shall be required to weigh grain into the cars at points where it is shipped, and receipt for the amount, and be held responsible for the delivery of the amount received, at the place of destination." The changes made by the Convention can be demonstrated by the fol- lowing composite in which omitted words are in brackets and added words are italicized. All railroad companies an other common carriers on railroads shall [be re- quired to] weigh or ineasiire grain [into the cars] at points where it is shipped, and receipt for the full amount, and shall be [held] responsible for the delivery of [the] such amount [received,] to the oivner or consignee thereof, at the place of destination. Of the several changes, only two were made by the Committee on Re- vision and Adjustment. These were the grammatical shifts to direct commands to "weigh" and "be responsible" from the third party iriethod of wording the commands. All other changes were made by the delegates in the course of debating the proposal. In almost all cases, the delegate proposing the change was either aiming at removing a specific evil or was seeking to grant an exemption to someone. For example, "or measure" was added because, a delegate pointed out, some shipments, particularly by steamboat, were by the bag rather than by weight. At the second round of debate, a delegate argued that the river carriers ought to be excluded because they could not afford to maintain the necessary weighing equip- ment, and so the words "on railroads" were added. (For the full flavor of the "legislative process" in operation, see Debates 1632-33, 1700-01.) The proposed 1922 Constitution made a substantive change by remov- ing the words "on railroads," and otherwise greatly simplified the wording. 552 Art. XIII, § 5 Explanation The courts appear to have heeded the strong feehngs against railroads exhibited by the 1870 delegates. Although the Supreme Court observed that the carrier is not an absolute insurer oi the grain, it did rule out any limitation of liability lor leakage, shrinkage or discrepancies in elevator weights. In so ruling, the Court made inapplicable in Illinois a limitation apparently permitted by the Unilorm Bills oi Lading Act. (Shellabarger Elevator Co. v. Illinois Cent. R. R., 278 111. 3.S3 (1917).) Comparative Analysis No other state has such a provision. Comment In the last hall of the Twentieth Century, one would assume that most people in business, including most farmers, are sufficiently knowlegeable to require appropriate determination of the cj^uantity of a product in- volved in a transaction and to know the significance of who bears the risk of loss. On this assumption, it seems unnecessary to have a constitutional command to weigh grain or a constitutional allocation of risk of loss. It should be sufficient for the legislature to provide for regulation of the accuracy of weighing devices and to forbid unconscionable shifts in risks. Railroads — Delivery of Grain Sec. 5. All railroad companies receiving and transporting grain in bulk or otherwise, shall deliver the same to any consignee thereof, or any elevator or public warehouse to which it may be consigned, provided such consignee or the elevator or public warehouse can be reached by any track owned, leased or used, or which can be used, by such railroad companies, and all railroad companies shall permit connections to be made with their track, so that any such consignee, and any public warehouse, coal bank or coal yard may be reached by the cars on said railroad. History This section appears to have been aimed at one specific evil as explained by the Committee Chairman to the delegates at the 1870 Convention: "Many of the elevators are built along the sides of that public track, and I was shown, when there, an elevator that was built on the supposition that all the railroads running on that track would deliver grain at this warehouse or elevator, but the owner of that elevator could not get the grain he had pur- chased in the country, shipped in the cars, and sent to Chicago to his own eleva- tor, without having it shipped to other elevators, and first paying tribute to them, as I understand." (Debates 1634.) There were several amendments from the floor of the Convention, but none of them represented any substantial change. The one significant Art. XIII, § 6 553 alteration was a proposal to extend the section to cover coal yards. The extension was defeated on a roll call vote. Coal yards were presumably added by the Committee on Revision and Adjustment. The proposed 1922 Constitution made one change of substance by limiting the jirivilege of spur connection to public warehouses, coal banks and coal yards. The present section allows "any such consignee," that is, any consignee of grain, to demand a spur connection. Explanation It is interesting to find that half the reported cases arising under this section concerned those coal yards that were slipped into the section at the last moment. But the several coal cases, as well as those involving warehousemen and elevators, are of such limited technical natme that no purpose is served in digesting them here. Comparative Analysis Oklahoma has a provision that, with the ajjproval of the Corporation Commission, any owner or operator of a grain elevator, a coal, lead, iron, or zinc mine, or sawmill, or other industry, may connect a spur with a railroad provided that the railroad is reimbursed for the cost of the connection. Comment In these days of ubiquitous concrete ribbons all over the landscape with mammoth tractor-trailers whizzing by, it is inconceivable that any railroad would turn away a proj:)Osed spur connection or refuse to deliver grain to the consignee. Warehouse Receipts Sec. 6. It shall be the duty of the General Assembly to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and to give full effect to this article of the constitution, which shall be liberally construed so as to protect producers and shippers. And the enumeration of the remedies herein named shall not be construed to deny to the General Assembly the power to prescribe by law such other and further remedies as may be found expedient, or to deprive any person of existing common law remedies. History The original proposal offered to the 1870 Convention simply said that the legislature should pass all necessary laws to give full effect to the Article, which, of course, was to be liberally construed. In a bewildering series of rapidly accepted amendments, the section evolved to its present wording. (The Committee on Revision and Adjustment made no changes in the wording.) One delegate rather timidly suggested that the liberal construction clause could just as well be stricken. It "means nothing in 554 Art. XIII, § 6 law," he observed, "aiKl is at the most liiit a stump speech." (Debates 16.85.) The delegates did not agree with him. This section caused a great deal of trouble in the 1920-22 Convention. \Vlien the section was under consideration in Connnittee of the Whole, an amendment was offered and accepted to include "consumers and other interests" imder the "liberally construed" clause. (Proceedings 1765.) When the Article came back from the Connnittee on Phraseology and Style in tlie customary greatly shortened wording, the Chairman of the Agricultural Committee asked to have "consumers and other inter- ests" removed. He explained that under the existing Warehouse Article, warehousemen could not mingle iheii own grain in their own warehouse. (See Explanatioyi for Sec. i, supra, p. 547.) He further explained that inclusion of "consumers and other interests" might open the door to a change in the Supreme Court's ruling. The chairman was unsuccessful in his argument and after losing, served notice that he would move to reconsider. (Proceedings 3876-79.) On a subsecjuent day, he was success- ful in his motion to reconsider. {Id. at 4035.) He then moved to retain Sections 6 and 7 exactly as they appeared in the 1870 Constitution rather than in the shortened, combined wording of the Committee on Phrase- ology and Style. After much debate, the Convention accepted Section 6. {Id. at 4039.) When Section 7 was taken up, an effort was made to include consumers in the list of people to be protected, but the effort failed and Section 7 went back in unchanged. {Id. at 4045.) Explanation Since the entire section is not much more than a "stump speech," the appellation suggested for one portion of it, it is not surprising to find that, with one exception, the section has had no life of its own. That exception was a case in 1945 wherein it was argued that the section pre- cluded a local licensing ordinance designed to prevent spontaneous com- bustion or dust explosions in grain elevators. The argument was unsuc- cessfid. (Edward R. fiacon Crain Co. v. City of Cliicago, 325 111. App. 245 (1945).) Comparative Analysis No other state has such a provision. Comment The hassle in 1920 over including "consumers or others interested" is instructive on two scores. It demonstrates the inadvisability of tampering with constitutional language with an accepted meaning. This was not a case where someone wanted to improve on the wording for its own sake, but the proposal to add consumers was almost as irrelevant, and certainly was not sufficiently significant to jeopardize an accepted and settled inter- Art. XIII, § 7 555 pretation ot the entire Article. (For purposes oi this discussion, it is not pertinent whether that interpretation was a good one then or now.) It was presumably in recognition ol the importance of not changing language that the Chairman ol the Agricultural Committee used the gambit ot trying to restore the original language ot Sections 6 and 7. The other point to be made is that a group that has a vested interest in a particular constitutional doctrine, whether spelled out in the docu- ment or the result ot judicial decisions and whether appropriately in the Constitution or not, can be expected to exert great pressiue to preserve their interest. One can read bet^veen the lines ot the debates in 1922 and see that there was great pressiue trom shippers and dealers to preserve the policy ot prohibiting connningling ot warehousemen's grain with de- positors' grain. But having said all this, the moral is only partly helptul. One shoidd not put into constitutions provisions that give rise to such vested interests. Once in a constitution, the damage is done and it may be next to impossible to remove the provision. Inspection of Grain Sec. 7. The General Assembly shall pass laws for the inspection of grain, for the protection of producers, shippers and receivers of grain and produce. History The essence ot this section was oflfered on the floor of the 1870 Conven- tion by a delegate who explained: "Having caught the animal and built a pen to keep him, this section is needed to tie him." (Debates 1636.) An- other delegate observed that there were serious complaints about inade- quate grain inspection and that the legislature ought to be charged with cioing something about the complaints. The section was agreed to. The foregoing occurred while the Convention was sitting in Committee of the Whole. Just before the Committee rose, a delegate offered an addi- tional section, as follows: "This act shall be deemed a public act and shall be in force from and after its passage." (Debates 1637.) The proposal was voted down. As the Convention proper was subse- quently about to refer the Warehouse Article to the Conmiittee on Revi- sion and Adjustment, another delegate offered an additional section, reading: "Be it enacted by the people of the State of Illinois, in Conven- tion assembled." The proposal was ruled out of order. The proposed 1922 Constitution inserted the word "and" after "inspec- tion of grain" and before "for the protection." The Official Explanation states that the section is the same as Section 7, but this is arguable. (P.N.C. 47.) Incidentally, the same assertion is made concerning Sections 4 and 5 (Id.), but these were clearly changed. (See supra, pp. 551 and 553.) 556 Art. XIII, § 7 Explanation This section appears to tell the legislature to pass laws for the inspec- tion ol grain, the purpose of \\liich inspection is to protect producers, shippers and leceivers ol grain and produce. This is the way the section was paraphrased in the liaco)! case. (Supra, p. 551.) The addition ot the word "and" as proposed in the 1922 C^onstitution would ha\e told the legislatiue to pass laws tor the inspection ot grain and to pass other laws lor the protection ot producers, shippers and receivers. This is the way Clhiel' Justice W'aite paraphrased the sentence in the tanious case oi Munn x>. Illinois (94 U.S. 11.1, \:V1 (1876)). .Actually, the ditference is academic since there is no way to torce the legislature to act. Moreover, the Supreme Court noted that the legislature under its police power could jjass grain inspection laws without this section. (People v. Harper, 91 III. 357 (1878).) As noted above, it is not possible to torce the legislature to act under one of these mandatory instructions. It is also not possible to knock out the legislature's effort on the ground that it has not done a good enough job. See Board of Trade x'. Coxcen (252 111. 554 (191 1)), where the Supreme Comt turned aside an argument that tlic inspection law was unconsti- tutional because the legislature did not approj^riate enough money for adecjuate inspections. Comparative Analysis No other state has such a provision. Comment In addition to the ambiguity caused by the absence of the word "and," there is the curious inclusion of the word "produce." It may be that the two ambiguities make a clear sentence. It the sentence has the meaning suggested at the beginning of the Explanation, then "jModuce" is mean- ingless. But it the sentence should be read as it "and" were included, then "produce" makes sense. Article XIV AMENDMENTS TO THE CONSTITUTION Constitutional Convention Sec. 1. Whenever two-tliirds ol the members ol each house of the General Assembly shall, by a vote entered upon the journals thereot, concur that a Con- vention is necessary to revise, alter or amend the constitution, the cjuestion shall be submitted to the electors at the next election. If a majority voting at the election vote for a convention, the General Assembly shall, at the next session provide for a con\ention, 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 General Assemblv shall, in the act callino the Convention, desig- nate the day, hoin- and place of its meeting, fix the pay of its members and officers, and provide for the payment of the same, together with the expenses necessarily incurred by tlie Convention in the performance of its duties. Before proceeding the members shall take an oath to support the Constitution of the United States, and of the State of Illinois, and to faithfully discharge their duties as members of the Convention. Ilie qualification of members sliall be the same as that of members of the Senate, and vacancies occinring shall be filled in the manner provided for filling vacancies in the General Assembly. Said Convention shall meet within three months after such election, and prepare such revision, alteration or amendments of the Constitution as shall be deemed necessary, which shall be submitted to the electors for their ratification or rejection, at an election appointed by the Convention for that purpose, not less than two nor more than six months after the adjournment thereof: and unless so submitted and approved, by a majority of the electors voting at the election, no such re- vision, alterations or amendments shall take effect. -History The 1818 Constitution provided that, upon the initiative of "two- thirds of the General Assembly," the question of calling a convention should go to the voters. If a "majority of all the citizens of the state, voting for representatives," voted lor a convention, tlie General Assem- bly at its next session was to provide for one. Tliere were to be as many delegates as members of the General Assembly, "to be chosen in the same manner, at the same place, and by the same electors that choose the General Assembly." There was no provision for a referen- dum on tlie product of the Convention. Tlie 1848 Constitution made tliree changes. First, it was specified that two-tliirds of the members elected to each liouse had to vote for a convention. Second, tlie word "electors" was substituted for "citizens" 557 558 Art. XIV, § 1 in defining the majority ie(jiiiied to approve the calling ol a conven- tion. Ihird. tlu' number ol delegates was to ecjiial the number ot representatives. In the 1870 Convention, the Clonnnittee on Future Amendments split three ways over the issue ol an oath to be taken by delegates to a convention, and three \ersions ol a convention section were placed before the Connnittee of the Whole. The majority proposal was silent as to oaths, one minority jiroposal cmpo\\ered the delegates by major- ity vote to })rescribe an oath to be taken, and the other minority pro- prosal contained the oath sentence now apjjearing in Section 1. This problem of an oath ^vas taken most seriously by the delegates. In fact, three of the first lour days of the C>onvention were spent in what Joseph Medill described as "one of the ablest debates . . . which it has been my pleasiue e\er to have heard." (Debates ,^7.) The immediate subject of debate was whether oi not a delegate coidd swear to sujjport the Illinois Constitution, but the substance of the debate was over the philosophical cjuestion of how delegates chosen to "revise, alter or amend" the Illinois Constitution could properly take an oath to sup- port it. A sidjsidiary question was whether the legislature, which fiad mandated the oath in the Enabling Act, could exercise such control over delegates. The debate concluded \vith the adoption of an oath to support the Illinois Constitution, "so far as its provisions are com- patible with, and applicable to my position and duties as a member of the Convention." Following the taking of this oath, consent was given to permit any delegates so desiring to rise and take a second oath in the words of the Enabling Act. Both in Committee of the Whole and in the Convention proper, the various proposals on oaths were brought up, but there was no debate to speak of. The arguments had been amply aired at the outset of the Convention. It is interesting to note, however, that most delegates had refused to take an oath in the form which they subsecpiently put into Section 1. One of the other changes made in 1870 also grew out of the experi- ence of the delegates. This was the addition of the words "and vacancies occurring shall be filled in the manner provided for filling vacancies in the General Assembly." In the course of the Convention, several dele- gates died and there was considerable debate over whether the Con- vention shoidd "order" an election, "invite" an election, recommend to the Governor that he order an election, or simply announce that if the voters of the deceased delegate's district elected someone, the Conven- tion would seat him. The decision \\as to in\ ite the district to hold an election on a stated date. Art. XIV, § 1 559 The 1870 Convention made two other additions to the 1818 provision. One was instructions to the General Assembly concerning material to be included in the Enabling Act. The other, which was the subject of debate, was the size ot the C^onvention — whether, in effect, there should be ajjproximately 50, 100, or 150 or more delegates. The choice was "double the niuiiber ot members ol the Senate." The only change made in the proposed 1922 Constitution ^vas to add seven members at large from Cook County to "double the niuiiber" ot Senators. This addition is related, of course, to the 1922 permanent apportionment of 19 senate seats to Cook County and 38 seats to the rest of the state. (See Histoiy of Sec. 6 of Art. IV, supra, p. 132.) Under the 1922 proposal. Cook County would have had 45 delegates and the rest of the state would have had 76. Explanation Prior to July 10, 1969, there were no definitive rulings concerning Section 1. At the time of the 1920-1922 Convention, there was a belief that delegates could not be elected on a nonpartisan basis and the Attorney General is reputed to have issued an opinion to that effect. (The opinion is cited in Annotation 284, but no one has been able to find the actual opinion.) l^he same Attorney General is reported to have issued an opinion to the effect that a member of the General As- sembly could run as a delegate but if elected, he would vacate his legis- lative seat when he c^ualified as a delegate. (Annotations 283. This opinion has never been foimd, either.) Apparently, some legislators were elected and qualified as delegates, but retained their legislative seats. No objections appear to have been raised and no lawsuit appears to have contested the dual office holding. The crucial words in Section 1 that raise the two problems discussed at the time of the 1920-1922 Convention are the reference to election of delegates "in the same manner" as senators are elected, and the state- ment that the "qualification of members shall be the same as members of the Senate." In the first case, the question is whether "in the same manner" covers party primaries, since senators are so nominated. In the second case, the question is whether a legislator serving as a dele- gate would be holding a "lucrative office" contrary to the prohibition in Section 3 of Article IV. {Supra, p. 120.) The Enabling Act for the forthcoming Convention provides for non- partisan primaries and elections, and also provides that "legislators and other public officials, so long as they retain their elected or appointed offices and serve as members of the Convention, shall receive no com- pensation for their Convention services other than [expenses]." (Act 76-40, Laws 1969.) A test case, Livingston v. Ogilvie ( - 111. - 2d (1969)), 560 Art. XIV, § 1 was broii<^lu to dclci iiiiiic the const ilulionalil) ol tlu-sc two parts of tlie Knablint; Ad. riic test case also included {]uestions concerning the leceni one man-one \<)te cases liaiuletl down 1)\ the Ignited States Supreme Court, discussed in connection with Scciion 7 ol Article 1\' (siipid. J))). 138-9); the requirement that a delegate be a c|uali(ied voter; the non-Conmumist afhda\ it recpiired ot a candidate; and the provision purporting to terminate the authority ol the Convention on fune 30, 1971. The Supreme Court handed down an opinion in I.i\'i}i(j;s(on ?'. Ogilx'ie on July 10, 1969, upholding the Enabling Act in almost all resj)ects. The decision was unanimous as to all decided issues excejjt eligibility to be members ol the Conxention, and on that the Court split five to two. Two ot the original issues in the suit — voter stattis and termination date — aie not mentioned in the oj:)inion ol the Court, but the dissenting judges make use ot the tact that the Enabling Act has a termination date without addressing themselves to its constitutionality. Even though these t\\o issues were not discussed, a \vord about them is in order. Actually, even in a declaratory judgment action, which this suit was, it is appropriate to a\oid issues that are, so to speak, speciUa- tive, and both voter status and date ot termination are speculative. As a practical matter, no one ^vho is not a \oter is likely to rtm tor delegate, but it stich a jjerson does, he alone has sufficient interest to litigate the issue ot his qualification. W^ere such litigation to arise, the decision should be that the recjuirement is invalid. Voter status is not a quali- fication tinder Section 3 of Article IV, and the Supreme Court has said that the constitutional qualifications lor membership in the legislature cannot be added to. (See ExpUuKiiioji of Sec. 3, supra, p. 122.) The effort to set a termination date for the work ot the C^onxention — a laudable effort, to be sure — will not be significant legally tmless the Convention in fact continues to work past June 30, 1971. (See Comvicut below tor the theoretical issue involved.) The Court came down with all tour feet on the issue of the non- Comnumist affidavit. The Court first observed that Section 1 provides for the oath to be taken by the membeis of the Convention, and held that the Enabling Act was unconstitutional because it went beyond Sec- tion 1 in including loyalty provisions other than that of supporting the United States and Illinois Constitutions. The Court went on to say that the loyalty oath was also unconstitutional imder the Fourteenth Amend- ment of the United States Constitution. The Court disposed ot the other minor issue — one man-one vote — in a straightforward but not wholly convincing manner. Relying upon cases from other states, the Court concluded that the one man-one vote Art. XIV, § 1 561 principle is not relevant to a constitutional convention because a con- vention can do no more than propose something to the voters. This is an example ot disposing ot a difficult problem by a too-simple answer. If, as an extreme example, the Constitution had been silent on appor- tionment of delegates and the legislature had provided tor a convention with no delegates trom Chicago, the Court's argument would not fly. In all fairness to the Court, one nuist concede that it was in a box. The present senatorial districts were court-created and it is a little diffi- cult for the Court to condenni its own handiwork. There is a way around the recent one man-one vote cases, but it is a sophisticated argument that is not particularly becoming for a court to spell out. The recent United States Supreme Court cases are designed to close avenues by which legislatures can give the appearance ot honoring the one man-one vote rule but simultaneously subvert it. Courts are not likely to engage in the same devious maneuvers, and this alone should protect the exist- ing judicially determined senatorial districts in Illinois. But, as sug- gested above, this is not an argument that a coint would find it easy to make. The end result in the Liinno^stu)! case is undoubtedly a good one, and, as a matter of practicality, it is unlikely that the Court's reasoning will ever return to haunt it. On the major question of nonpartisan elections of convention mem- bers, the Court discussed the intricate arguments that revolve around "manner" — that is, convention members are to l)e elected in the same "manner" as senators — but came up ^vith the simple, straightforward conclusion that the word means no more than "elected by the people" in "free and equal" elections by "ballot." The Court brushed aside all invocations to political parties, party primaries, and legislative imple- mentation of the party system. These, the Court implied, are simply not essential parts of the Constitution. On the remaining major issue, that of eligibility to serve as a member of the Convention while holding another state office, the Court reached a conclusion that is clear enough but by a route that is most confusing. The conclusion, in short form, is that legislators can be members of the Convention without giving up their seats in the legislature, that judges may be members if they give iqo their judgeships, that the Governor and the other executive officers listed in Section 5 of Article V {supra, p. 267) cannot be members, and that any other office-holder may be a member of the Convention. For present purposes, nothing is gained by explaining the way in which the Court reached its conclusion, or the way in which the dissenting judges said the Court should have reached a different conclusion. 562 Art. XIV § 1 Comparative Analysis It may tome as a bLiipii>>c lo man) to Icaiii that the constitutions ol a fifth of the states have no provision for the caUint^ of a constitutional convention, it may be equally surprising to know that two of these states, Pennsylvania antl Rhode Island, recently had constitutional con- ventions, and that one of them, Arkansas, has a convention underway now. (The Connnentary to the Model State Constitution (p. 109) states that all except one of tliese "no convention" slates have held at least two conventions.) As a matter of constitutional tlieory, it is generally accepted that the absence of specific authoritv for a convention is no insurmountable oi)stacle. Indeed, it can ])e argued that if a legislature adopts an entirely new constitution and submits it to the people and the) ratify it, the new constitution becomes the organic law of the state. The argument is particularly approjjriate if no machinery for a conven- tion is provided in the existing constitution. The theory is, of course, that the people have the inherent power to change their government. When, however, the people have provided the machinery for a conven- tion, the theoretical argument is "stickier," and in any event hypothetical. All other states provide for constitutional conventions, usually on the initiative of the legislatine but std^ject to a referendum by the elector- ate. In approximately a do/en states there is a mandatory requirement that every so often, usually either every 20 years or every ten years, the cpiestion of whether or not to hold a convention goes on the ballot auto- matically. In Maryland, this is the only road to a convention; in the other states, the method is in addition to legislative initiative. Two states, Georgia and Maine, permit the legislating to call a convention without a referendum. Legislative initiati\e for calling a convention usually requires a two-thirds' \ote, but a half dozen states require only a simple majority. In Kentucky, the simple majority is required of two successive legislatures. In a number of states, the size of the legislative majority is not specified. In most states, the referendum on whether or not to hold a convention must take place at a general election. The states are about ecjually divided between those retjuiring ap])roval by a majority of those voting on the question and those recjuiring a majority of those voting at the election. In Kentucky, the simple majority must be at least 25 per cent of the vote cast at the preceding gubernatorial election, and in Nebraska the majority must be at least .^5 per cent of the votes cast in the election. There are so many variations among the several states in the details concerning a constitutional convention that only a few generalizations can be made. There is, for example, a great range in the quantity of detail provided. The ne\\- Connecticut Constitution simply says that Art. XIV, § 1 563 the legislature, by a two-thirds' vote, shall prescribe by law the manner ol selecting delegates, the date ot convening a convention and the date of final adjournment. The New York Constitution goes to the other extreme and provides such abundant detail that an Enabling Act is almost unnecessary. A good many states specify the size of a conven- tion, or a maximum or minimum ninnber of delegates, but only a few join Illinois in ])redetermining the districts from which the delegates are to be chosen. Two states, iMissomi and New York, provide for elec- tion of 15 delegates at large, a number that is 18 per cent of the total size of a Missouri convention but only 8 per cent of the New York membership. The requirements for ratification of the results of a convention's work are spelled out in detail in some states, left up to the convention in other states, and in still other states, including Illinois, are spelled out in part and in part left up to the convention. The United States Constitution provides that "on the Application of the Legislatures of two thirds of the several States," Congress shall call a convention for proposing amendments. Recently, this mode of amend- ment has been much in the news, for there is a proposal for a convention going the rounds of the several states. Since an "application" has never before been made, there is a great deal of controversy concerning what happens if two-thirds of the states do act. There are several interesting suggestions in the Model State Consti- tution. The Model provides, as would be expected, for legislative ini- tiative of a referendum for a convention and for automatic submission of the question, but only if 15 years have passed since the last referen- dum. Then appears this sub-section: "The legislature, prior to a popular vote on the holding of a convention, shall provide lor a preparatory conniiission to assemble inlormation on constitu- tional questions to assist the voters and, it a convention is authorized, the com- mission shall be continued for the assistance of the delegates. If a majority of the qualified voters voting on the question of holding a convention approves it, delegates shall be chosen at the next regular election not less than three months thereafter unless the legislature shall by law iiave provided for election of the delegates at the same time that the cpiestion is voted on or at a special election." (art. XII, §12.03.) The Model continues with provisions for any qualified voter to be eligible as a delegate and for a single delegate from each district of the imicameral legislature. The Model also sets forth a limited number of convention rules, such as that proposals nuist be upon the desks of dele- gates three days before final passage, and a self-executing provision for adoption of convention proposals. The Model's article on constitutional revision ends with the following section: 564 Art. XIV, § 1 "If conllit liiii^ constitiitioiKil aiiiciulincuis or revisions suljinittcd to the voters at the same elec tion are appro\e(l, the amendment or revision receiving llie high- est nimiber of alhrmative votes shall prevail to the extent of such conlliti." (art. XII, 4? 12.01.) One state, New York, has an analogous section to the effect that a convention proposal snhniitiecl at the same election as an amendment proposed by the legislature shall, il adopted, supersede the legislative proposal. In the inisiiccessfid proposed 1967 (Constitution, this provision woidd have been altered to be ojierative only il the proposals were "inconsistent" and then only to liic "extent ol stub inconsistency" \v()uld one supersede the other. Comment As jjointed out above in connection with the oath debate in 1870, there is a nice, but rather theoretical, c|uestion concerning the extent to which a constiliuional convention is a "sovereign" body, a free agent, not subject to any limitation imposed by the legislatine or by a pre- ceding constitution. But, as noted, the cjuestion is mainly theoretical. For one thing, the supposed restrictions on the "sovereign" convention usually are not too bindensome to live with. For another thing, a con- vention would be a bit rash and insensitive to the needs of its constitu- ency to jeopardize its work product solely to flaunt its "sovereign" power. Finally, most restrictions are likely to i)e sensible ones. For example, the section of the Enabling Act that repeals it on Jiuie 30, 1971, is a sensible nudge to make sine that the Convention proceeds with all delib- erate speed, ft woidd be foolhardy, to say the least, lor tlie Convention to set out on a deliberate plan to sit past Jiuie .HO, 1971. But if imforeseen events forced the Convention past that day, the theoretical argument that a constituent assembly is "sovereign" would probably serve to vali- date the work of the CCopvention. One minor point about a constitutional convention provision is that delegates shoidd hesitate before spelling out details for the next con- stitutional convention. As noted above in connection with the 1870 Con- vention, two changes in the convention provision arose out of problems confronting that Convention. This projjensity to insert solutions to known problems for the benefit of a futine generation has two drawbacks: it is likely to clutter up a constitiuion, probably producing an inibalanced provision; and it projects a problem of the jjast into the relatively distant future when things may be so clianged that the provision ends up in- cluding nonsolutions to nonproblems. By far the best route is to tell the legislatine to set up a convention and stop. The legislature in, say, 1990 or 2010, is likely to be better qualified to anticipate convention Art. XIV, § 2 565 problems ol that day than are the most prescient convention delegates ot 1970. It was noted above that the Model State Constitution covers the un- likely event ot duplicate constitutional proposals lacing the voter at a single election. The Model Commentary concedes that this is "not com- mon," but "may happen." (Model State Constitution 111.) The tact that the New York 1967 Comention tiissed around "pertecting" the New York provision is evidence enough that this is the sort of constitutional provision that is dreamed up by a perlcciionist overly anxious to antic- ipate every possibility. Constitutional Amendments Proposed by Legislature Sec. 2. Amendments to this Constitution may be proposed in either House of the General Assembly, and if the same shall be voted for by two-thirds of all the members elected to each of the two houses, such proposed amendments, to- gether with the yeas and nays of each house thereon, shall be entered in full on their respective journals, and said amendments shall be submitted to the electors of this State for adoption or rejection, at the next election of members of the General .Assembly, in such manner as may be prescribed by law. Each proposed amendment shall be published in full at leasj three months preceding the elec- tion, and if either a majority of the electors voting at said election or two-thirds of the electors voting on any such proposed amendment shall vote for the pro- posed amendment, it shall become a part of this Constitution. But the General As.sembly shall have no power to propose amendments to more than three articles of this Constitution at the same session, nor to the same article oftener than once in four years. The proposition for the adoption or rejection of the proposed amendment or amendments shall be printed on a separate ballot or in a separate column on the ballot as tlie General Assembly by law may provide and the votes thereon shall be cast by voting upon such separate ballot or in such separate column as the case may be. History The 1818 Constitution did not provide tor amendment by legislative proposal. With two major exceptions, the section in the 1848 Constitu- tion was stibstantially as Section 2 appeared before adoption of the Gate- way Amendment in 1950. One major difierence was a recpurement that a proposed amendment be passed a second time after an intervening general election. The second vote was to be by a majority of the elected members of each house. The second major difference was that, in the 1848 Constitution, there was a prohibition against proposing amend- ments to more than one article at a time, but there was no requirement for a four-year gap between submissions. In the 1870 Convention, the principal debate was on whether the "one article evei^ four years" limita- tion was too restrictive. Notwithstanding the assertion that no other con- stitution in the United States had such a limitation, the Convention up- 566 Art. XIV, § 2 held it. The section as adopted in 1870 differed from the present Section 2 in the omission of the "two-thirds of the electors voting" on the amend- ment, in the limitation of amendments to a single article, and in the omission of the last sentence. After five failures, a Gateway Amendment was finally adopted in 1950 following an unusually vigorous campaign. The "majority of those voting at the election" problem did not even exist imtil after 1890. In fact, the first five amendments proposed were all adopted. The turning point was the adoption of the Australian ballot in 1891. I*rior thereto, each political party printed its own ballot and a \oter who used a party ballot and marked the party circle was counted as voting for any amendment that was on the ballot. W^ith the adojjtion of an official ballot, the amend- ment question was separately stated and separately counted. A Gateway Amendment Avas the first amendment to appear on the ballot following adoption of the Australian ballot. Almost 80 per cent of the voters failed to vote, but the 20 per cent who did vote rejected the amendment. It would have permitted amendments to two articles at a time, but otherwise made no change. Four years later another effort was made, this time to authorize amendments to three articles at a time and resubmission every two years. This one was favored two to one, but again, almost 80 per cent failed to vote. In the midst of the Gateway Amendment efforts came the proposed 1922 Constitution. It included a proposal to permit amendments to two articles at a time and the four-year-gap requirement was changed from amending an article to amending a section. The majority required to adopt was changed from those voting at the election to those voting for members of the House of Representatives. (This was designed to "overrule" the Stevenson case discussed below.) After defeat of the pro- posed Constitution, a third Gateway Amendment was proposed. This one increased coverage of permitted simultaneous amendments from one to two articles and left the four-year gap unchanged, but provided that no constitutional amendments could be "proposed or voted on during the time that the United States is engaged in Avar or within one year following the declaration of peace." The favorable vote was almost two to one, but 57.3 per cent failed to vote on the amendment. The fourth Gateway Amendment was submitted in 1932. It increased coverage of simultaneous submission from amendment of one to amend- ment of three articles, but made no other change. This was favored al- most four to one, but 60.9 per cent did not vote. The fifth effort was in 1946. For the first time, other than the minor 1922 proposed change, atten- tion was given to the required majority problem. The proposal was to drop the majority voting at the election and substitute tA\o-thirds of those Art. XIV, § 2 567 voting on the question. Amendment ol three articles simultaneously was also proposed. Again, the tavorable vote approached four to one, but 55 per cent failed to vote. The sixth and successfid Gateway Amendment is the current Section 2 with its alternative recj[uired majorities. The favor- able vote was better than three to one, and the absolute majority was better than 67 per cent. Only 13 percent of those voting failed to mark their blue ballot. Explanation The Gateway Amendment is clear and explicit and few questions ap- pear to have been raised about it. The Supreme Court did rule that a direction by statute that a voter must mark his ballot with a cross re- quired the voiding of ballots marked with a check or the word "Yes." (Scribner v. Sachs, 18 111. 2d iOO (I960).) Presumably, the legislature could revise the direction and permit alternative markings. The most important case under the earlier Section 2 was People v. Stevenson (281 111. 17 (1917)), where the Supreme Court held that "electors voting at said election" must include those who did not vote for members of the General Assembly. As noted above, the proposed 1922 Constitution ^vould have changed this. In the light of this history, it would be normal for a court to construe the Gateway Amendment wording the same way as the Court did in the Stex>enson case. In City of Chicago v. Reeves (220 111. 274 (1906)), the Supreme Court ruled that the original limitation of amendment of a single article at a single session was not violated because an amendment explicitly amending one article amended other articles by implication. (Compare the discus- sion of "Revival and Amendment" under Sec. 13 of Art. IV, supra, p. 165-6.) The rule of the Reeves case has recently been reaffirmed. (People ex rel. Engle v. Kerner, 32 111. 2d 212 (1965).) The Attorney General once ruled that the limitation could not be evaded by proposing additional amendments at special sessions. ('1912 111. Att'y Gen. Rep. 1102.) An amendment becomes a part of the Constitution upon approval by the voters. In an early case, the Supreme Court said that an amendment is operative at least from the moment it is proclaimed operative by the proper canvassing authorities and, in theory, from the moment the polls close. (People ex rel. Lynch v. Board of Supervisors, IOO 111. 495 (1881).) For the record, the fate of amendments since the adoption of Gateway in 1950 can be summarized as follows: Fifteen amendments have been submitted to the voters. Six carried and nine failed, but only one of the nine had more votes cast against it than for it. Five of the six that carried received a two-thirds' vote of those voting on the question, but three of them also received a majority vote of those voting in the election. One, 568 Art. XIV, § 2 the judicial Article, recei\ecl a majority vote ol those voting in the election but tailed to receive two-thirds ol the votes cast on the amend- ment. So tar, at least, the two-thirds' alternative has tacilitated the adoption ot only two out ot 15 jiroposed amendments. (See Kitsos, Consti- tutional Amendments and the V^oter, \9y2-]9C)C) at 4 (1968).) Comparative Analysis InitiatiJig the Amendmcut: Illinois is one ol 35 states that permit an amendment to be submitted to the voters alter one passage through the legislature. Eleven states ret[uire passage twice, almost invariably with the reqiurement that a general election tor the legislature intervene. Three states have alternatives ot two passages by simple majority or one passage by an extraordinary majority, as tollows: Connecticut (three- fourths); Hawaii (two-thirds); and New Jersey (three-htths). Delaware requires passage by two-thirds' vote by two consecutive legislatures, but no ratification by the voters. The 35 states requiring only one passage ot a proposed amendment divide, as to size ot vote, thus: two-thirds— 18, including Illinois; three- fifths — eight; simple majority — nine, but in at least t\\o of the states there are certain circumstances when an extraordinary majority is re- quired. All except three of the states requiring double passage call for only a simple majority vote each time around. (The three exceptions have combinations of majority and two-tliirds as between houses of the legislature and between first and second passage.) Restrictions on Initiation: Only three states join Illinois in limiting the frequency with which the same article may be amended: Kentucky (every five years); Pennsylvania (same); New Jersey (every three general elections). Five states join Illinois in limiting the niuiiber of amend- ments to be submitted at any one election: Arkansas, Kansas and Montana (three); Colorado (six); Kentucky (two). Three states, Florida, Missouri, and Oklahoma, have an ecjuivalent of the "one subject to a bill" rule — i.e., a single amendment may apply to only one article or one general subject. (This restriction is different from the claim in the Reeves case discussed above, for Section 2 used to allow onh one article to be amended at a time. Today, presimiably, a single amendment coidd amend three articles at once.) Vermont permits the legislature to propose amendments only every tenth year. Prior to 1964, New Hampshire did not authorize initiation of amendments by the legislature. J'oter Ratification: About 30 states call for approval by a majority of the voters voting on the amendment and 1 1 appear to require a major- ity of those voting at the election. Rhode Island requires a 60 per cent majority of those voting on the question, and Hawaii and Nebraska Art. XIV, § 2 569 require that the majority on the question be at least 35 per cent of the total vote cast. (A 35 per cent requirement would have constituted ap- proval of all but one of the amendments that have failed since the Gate- way Amendment was adopted and that one, in 1956, had more votes against it than in favor of it.) New Mexico allows approval by a majority of those voting on any amendment except one applying to or affecting either the Suffrage or the Education Article, in which case three-fourths of those voting in the election and two-thirds of those voting in each county must ratify. No other state appears to have the jjrecise requirements of the Gateway Amendment. Uriited States Constitxiiion: Article V provides that Congress by two- thirds' vote of each house may propose amendments subject to ratifica- tion by the legislatures or conventions of three-fourths of the states, "as the one or the other Mode of Ratification may be proposed by the Con- gress . . . ." There is also a proviso "that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The only amend- ment ever proposed for ratification by convention was the Twenty-first, repealing prohibition. Model State Constitution: The Model provides for legislative initiation of amendments by a simple majority of all the members and approval in a referendum by a majority of those voting on the question. Amendynent by initiative: A third method of amendment is by initi- ative petition. Fourteen states authorize this method. There are, of course, a great many possible details involved in an initiative system, but for present purposes, it seems sufficient to quote the language of the Model State Constitution: "Amending Procedure: Proposals. " (a) Amendments to this constitution may be proposed by the legislature or by the initiative. " (b) An amendment proposed by the legislature shall be agreed to by record vote of a majority of all of the members, which shall be entered on the journal. " (c) An amendment by the initiative shall be incorporated by its sponsors in an initiative petition which shall contain the full text of the amendment pro- posed and which shall be signed by qualified voters equal in number to at least .... per cent of the total votes cast for governor in the last preceding guberna- torial election, fnitiative petitions shall be filed with the secretary of the legislature. " (d) An amendment proposed by the initiative shall be presented to the legis- lature if it is in session and, if it is not in session, when it convenes or reconvenes, ff the proposal is agreed to by a majority vote of all the members, such vote shall be entered on the journal and the proposed amendment shall be submitted for adoption in the same manner as amendments proposed by the legislature. " (e) The legislature may provide by law for a procedure for the withdrawal by its sponsors of an initiative petition at any time prior to its submission to the voters." (art. Xlf, §12.01.) 570 Art. XIV, § 2 "Amendmcnl Proccdinc: Adojyhon . "(a) Ihe question of tlie adopuOn of a constitutional anundiiK'nt sliall he submitted to the voters at the first reguhir or special statewide election Iield no less than two months after it has been agreed to by the vote of the legislature and, in the case of amendments proposed by the initiative which have failed to receive such legislative approval, not less ihan two iiioiitlis alter the end of tiie legislative session." (art. XII, §12.02) Comment It has been argued that a decision on whether to make amendment difficult or easy depends upon whether a constitution is limited to trtdy fundamental matters or includes statutory details. It has also been said, in eftect, that the foregoing argument confuses cause and effect, that con- stitutions with statutory detail get amended frequently whether or not the amending process is difficult and that true constitutions do not get amended frequently no matter how easy amendment is. It is not neces- sary to choose between these propositions, and it is probably not possible to settle the matter, anyway. The imjjortant thing to do is to keep one's eye on the ball by keeping statutory detail out of the constittitions. A less controversial argtunent in constitutional theory is that, since a constitution is the people's fundamental law, they ought to retain the power to change it. Such a power exists, of course, in those states that mandate a periodic cpiestion on the ballot: Should there be a constitu- tional convention? But some wotdd argue that this "all or nothing" power is not sufficient and that selective amendment by initiative peti- tion is a proper supplement to the power to call a convention. At the turn of the century, "initiative, referendum and recall" was all the rage as the latest thing for bringing democracy to the people. Over the years, the bloom has worn off and there is much less interest in initiative, referendum and recall as the answer to the ills of society. Indeed, it is ironical that the proponents of 70 years ago were the Populists and the radicals whereas today one is likely to find ultra- conservatives advocating initiative. This is simply to say, perhaps, that legislatures tend to be less unrej^resentative of majority opinion than many critics claim. Some may say, however, that the initiative's "black eye" has come from ill-advised legislation and that it remains appropriate to preserve initiative for constitutional amendments. This argument had a great deal more ap- peal before the one man-one vote cases came down, for it did seem dif- icidt to induce legislators to commit political suicide by redistricting in a manner that the voters would undotd^tedly prefer. But today, with that problem taken care of, the dangers of initiative seem to outweigh the claimed advantage of a bypass around an insensitive legislature. For the danger of the initiative route to constitutional amendment is that it Art. XIV, § 2 571 will be used to adopt ill-advised legislation. In short, if you close the door to "crack-pot" laws but leave the constitutional window open, they will get in anyway. (By way of analogy, a behind-the-scenes develop- ment at the 1967 New York Constitutional Convention is instructive. New York is a "two session" amendment state, and it was proposed in committee to adopt the Connecticut approach of permitting submission after one session upon a three-fourths' vote of the total membership of each house. At the last minute, some legislative leaders suggested that such a change was ill-advised on the ground that frequently the first vote was taken under such pressure that an almost unanimous vote could be obtained for a "bad" amendment, whereas two years later things would have quieted down and there would be no difficulty in killing the proposal. It is this sort of high-pressure, emotional situation that creates problems in a state permitting initiative.) In the discussion of Section 18 of Article IV (supra, p. 190), it was pointed out that a pending lawsuit attacks the "majority voting in the election" requirement for bond issues. If that lawsuit is successful, it does not necessarily follow that Section 2 would fall by the wayside since, under the Gateway Amendment, there is an alternative vote count for adoption under which failure to vote on the question is not a vote against the amendment. Nevertheless, consideration should be given to changing the rule here so that under no circumstance does a failure to vote necessarily count as a vote against the amendment. If a simple majority voting on the question is not deemed a high enough hurdle, then the requirement could be an extraordinary majority or an affirma- tive vote that was also equal to or in excess of some percentage, less than 50, of course, of those voting in the election. (As noted above, the per- centage in Hawaii and Nebraska is 35.) In neither case, does a failure to vote necessarily count as a vote against the amendment. SECTIONS SEPARATELY SUBMITTED Illinois Central Railroad No contract, obligation or liability whatever of the Illinois Central Railroad Company, to pay any money into the State treasury, nor any lien of the State upon, or right to tax property of said Company, in accordance with the pro- visions of the charter of said company, approved February tenth, in the year of our Lord one thousand eight hundred and fifty-one, shall ever be released, suspended, modified, altered, remitted or in any manner diminished or impaired by legislative or other authority; and all monies derived from said company, after payment of the State debt, shall be appropriated and set apart for the payment of the ordinary expenses of the state government, and for no other purposes whatever. History For several years prior to 1851, Illinois had attempted without success to get a railroad built in the state. Because of its unhappy financial con- dition it was unable to finance such a project. Finally in 1851, with the aid ot the federal government, the Illinois Central Railroad project was undertaken. Over two and one-half million acres ot lands were granted from the federal government to the state for railroad purposes. The state chartered the Illinois Central Railroad to build two lines totaling approximately 700 miles across the state. The charter gave to the com- pany the lands received from the federal government plus a right of way across state lands. In return for these grants. Section 18 of the charter required the company to pay 5 per cent of its gross receipts to the state treasiay. Section 22 of the charter fixed the tax liability of the company. All lands of the company were exempted from taxation until they were sold. Stock and other property ot the company was exempted for six years, and after that was to be listed with the State Auditor and taxed tor state purposes. If the state tax exceeded three-fourths of 1 per cent, the excess was to be deducted from gross receipts. The total of payments under Sections 18 and 22 was to be at least seven per cent of gross receipts. Sec- tion 22 expressly provided: "The said corporation is hereby exempted from all taxation of every kind, except as herein provided tor." The reve- nue from the railroad was to be applied to the payment of the state debt. This section was included in the 1870 Constitution for two reasons. The state debt had by then largely been retired and there was soine fear that political pressure from the railroad might persuade the legislature to amend the charter and reduce the payments required of the railroad. 573 574 Separate Sections Secondly, and more importantly, there was considerable agitation from the counties through which the railroad passed to have some oi the rail- road revenue retm ned to them since it was exempt from local taxes. But the majority of delegates felt thai the liiiul should be applied solely to state purposes. The section was retained in identical form in the proposed 1922 Con- stitution, although the question \\as again debated in that Convention as to whether the counties should receive part of the revenue. Explanation This section of the Constitution has not been judicially interpreted, since there has never been any legislative attempt to depart from its pro- visions. However, the charter provisions of the railroad have been liti- gated several times. The issues have concerned the method of accounting and the formula for the assessment of the tax. (See People v. Illinois Cent. R.R., 273 111. 220 (191G); State v. Illinois Cent. R.R., 246 111. 188 (1910).) It should be pointed out that the 1851 charter applies only to the so-called "charter lines" of the original grant. They do not apply to the lines and property acquired subsequently to the original charter, which of course constitute the bidk of the company's holdings and revenues. This property is subject to ordinary taxation. The most recent decision of the Supreme Court in regard to the tax status of the railroad was in 1921 and is worthy of attention here because of its implications shoidd it be determined not to retain the present section in the proposed new Constitution. (Illinois Cent. R.R. v. Emmer- son, 299 111, 328 (1921).) In 1919 tJie legislature passed a comprehensive corporate franchise tax. With respect to railroads, the tax was measured by the percentage of its lines within the state in relation to its total length, averaged with the percentage of its business within the state to its total business. The Court held that while the tax could be applied to the Illinois Central's noncharter lines (about 1400 miles) it could not be applied to the charter lines (about 700 miles). Four reasons were given for this holding. (1) The franchise tax was a property tax from which the corporation was exempt by the terms of its charter. (2) Even if it were not a property tax, the language "taxation of every kind" would exempt it from the tax. (3) The charter was a contract between the state and the corporation, protected by Article II, Section 14, which forbids impair- ment of contracts, thus precluding a legislative change in the tax pro- visions. (4) By the same token, on the authority of Citizen's Bank x>. Parker (192 U.S. 73 (1904)), the charter and its tax provisions were pro- tected by Article I, Section 10, of the Constitution of the United States which prohibits state impairment of the obligations of contract. Separate Sections 575 Two questions of current interest arise in connection with the tax status of the Illinois Central Railroad. The more immediate one is whether the newly enacted state income tax is applicable to the charter lines. If the Emmerson case is to be taken literally, namely, that taxation of any kind other than as specified in the charter is forbidden, one would have to conclude that it is not. However, it might be argued that all of the Illinois Central litigation, including the Emmerson case if read nar- rowly, established only that the railroad was exempt from property taxes; and that property taxation was the only form of tax exemption which the legislature intended in its charter grant, as this was the only common form of taxation in 1851. Of course, the broad language of the Article II, Section 22, exemption militates against this interpretation. If the charter lines are exempt from the income tax, substantial accounting and legal problems will arise. The other question posed by Einincrsoti is what the powers of the state would be with respect to the charter in the absence of this section of the Constitution. Here the Court was probably correct in its conclusion that the provisions of the state and federal constitutions protecting the obligations of contract would prevent the state from taking any unilateral action to amend the charter. Comparative Analysis There are no comparable provisions in other state constitutions. Comment This section could be retained as is. It might be thought desirable now to amend the section so as to permit distribution of the revenue from the railroad tax to the counties through which it passes. At the time this section was adopted, the railroad tax represented as much as 15 per cent of the state revenue. However, in 1961, the tax was only 3.6 million dollars out of total state revenue, not includ- ing federal grants, of over one billion dollars. Today the percentage is unquestionably lower. Thus, it is currently a much less important item in state finances than formerly. The revenues would be of considerable value to the counties. Such an amendment would be permissible, since no contractual obligations under the charter would be impaired. Finally, the section might be eliminated altogether. This would open the way for renegotiation of the charter between the state and the railroad if mutually agreeable terms could be found, or for unilateral action by the state to the extent permitted by the contract clauses of the state and federal constitutions. The elimination of the section would- probably be vigorously opposed by the railroad. 576 Separate Sections Municipal Subscriptions to Railroads or Private Corporations No countv. ciiv, town, township, or other municipality, shall ever become subscriber to the capital stock, ol any railroad or pri\ate corporation, or make donation to or loan its credit in aid of, such corporation: Provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption. History Under the Constitution ot 1848, Article III, Section 38, the state was prohibited from aiding private corporations. (See Art. IV, Sec. 20, supra, p. 197.) But this did not prevent counties and other municipalities from such undertakings, the principal form of which was subsidies to rail- roads. (Prettyman v. Supervisors of Tazewell County, 19 111. 406 (1858).) The competition among communities for railroads reached such propor- tions that many projects were very unsound financially and many muni- cipalities were on tlie verge of bankruptcy. This section was proposed by the 1870 Convention to put an end to such practices, but was submitted separately so as not to endanger the rest of the Constitution. Although it engendered considerable controversy in the Convention debates, it was adopted by a large majority in the election. This section was omitted in the proposed 1922 Constitution and the Proceedings of the Convention do not reveal wliy. Explanation This section is largely self-explanatory and was effective in stopping the practices complained of. For many years, the only litigation under this section involved the question of what subscriptions were valid under the saving clause. {See Louisville v. Savings Bank, 104 U.S. 469 (1881); Williams v. People ex rel. Wilson, 132 111. 574 (1890); Richeson v. People ex rel. Jones, 115 111. 450 (1886); People ex. rel. Springfield, E. &: S. R.R. V. Town of Bishop, til 111. 124 (1884).) Since 1900, the section has been used sporadically to attack various public projects undertaken by municipalities, but these attacks have uniformly failed for one or more of three reasons. First, the section does not prohibit all dealings between municipalities and private corpora- tions. If there is a fair exchange of values between the municipality and the corporation — i.e., if the corporation gives consideration for the bene- fits it receives — then there is no violation of this section. (People ex rel. Gutknecht v. City of Chicago, 414 111. 600 (1953); City of Chicago v. Pittsburg, C.C. & St. L. Ry., 244 111. 220 (1910). Compare Schuler v. Board of Educ, 370 111. 107 (1938), where there was no consideration; this is the Separate Sections 577 only modern case finding a violation of this section.) Secondly, it does not violate this section tor municipalities to allow private corporations to use public facilities to carry on their business, where a reasonable charge is made for that use. (People ex rel. Curren v. Wood, 391 111. 237 (1945) (airports); People v. City of Chicago, 349 111. 304 (1932) (sub- ways).) Finally, the section prohibits municipal aid only to corporations having a capital stock or being organized for profit; it does not apply to nonprofit organizations or miniicipal corporations. (People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 14 111. 2d 230 (1958) (municipal services made available to mimicipal corporation); People ex rel. Adamowski v. Public Bldg. Connn'n, 11 111. 2d 125 (1957) (loan of municipal personnel and grant of property to public corporation); People ex rel. Royal v. Cain, 410 111. 39 (1951) (public hos])ital districts not within section); Cremer v. Peoria Housing Authority, 399 111. 579 (1948) (subsidy to nonprofit housing development)). Comparative Analysis Eighteen state constitutions have provisions similar to the Illinois pro- vision. In two states, municipal aid to corporations is prohibited unless approved by referendum. In one state only aid to railroads is prohibited, while another state prohibits aid to all private corporations except rail- roads. The Model State Constitution does not consider the subject. Comment This section seems harmless, although its contemporary utility might be doubted. Consideration could be given to eliminating it for the sake of simplicity. The subject coidd, of course, be covered by legislation. Canal The Illinois and Michigan canal or other canal or waterway owned by the State may be sold or leased upon such terms as may be prescribed by law. The General Assembly may appropriate for the operation and maintenance of canals and waterways owned by the State. History This section was amended in 1954, replacing the separate section on canals as originally adopted in 1870 and amended in 1908. The Illinois and Michgian Canal, connecting the Illinois River with Lake Michigan, was open for navigation in 1848. Its operation was highly successful, and in 1871 its original cost was paid off. The original section on canals prevented the General Assembly from leasing or selling the canal, unless approved by a referendimi. This was designed to prevent the railroads from obtaining control over the canal and drying it up to suppress competition. The original section also prohibited the General 578 Separate Sections Assembly Ironi approj^riating iunds or lending cretlii in aid ol railroads or canals. This was inicndcd to make the canal sell-suppoi ting. The 1908 Amendment allowed a bond issue lor the consli lu lion oi a deep waterway irom Utica to Lockport. The 1922 (vonvention proposal dealt extensively with canals and waterways, providing, among other tilings, lor an additional .$10, 000, 000 appropriation, payable by a bond issue, lor dee])ening the waterway; prohibiting sale or lease ot a state-owned waterway or canal without reterendinn aj)proval, except as a lease ol all or part ol the Illinois and Michigan C^anal was permitted to provide terminals with the Illinois Waterway or other navigable channels. Explanation This section as it now stands has never been the subject oi litigation. Decisions interpreting the prior provisions were few and have no current relevance. By its terms, the present section gives the General Assembly full control over the subject. Comparative Analysis Eleven other states have constitutional provisions regulating canals in some way, none of which is comparable to the Illinois provision. Comment As it now stands, this section is entirely legislative in nature and can be safely eliminated. Convict Labor Hereafter it shall be unlawful for the Commissioners of any Penitentiary, or other reformatory institution in the State of Illinois, to let by contract to any person, or jiersons, or corporations, the labor of any convict confined within said institution. History There seems to have been some confusion in the 1870 Convention about convict labor. A Stonecutters' Association sent in a petition pro- testing the use of convict labor on pidjlic works. The petition was re- ferred to the Committee on Penitentiary and Relormatc:)ry Institutions. A petition from another Stonectitters' Association endorsing the first petition was referred to the Committee on Mines and Mining. A dele- gate's resolution on the same subject was referred to the Committee on State Institutions and Pid:)lic Buildings. There were two other resolu- tions objecting to the use of convict labor, both of which were referred to the Committee on Penitentiary and Reformatory Institutions. Nobody appears to have taken any action on any of the petitions and resolutions. The separate section was proposed by the General Assembly in 1885 Separate Sections 579 and ratified by the voters at the general election in November, 1886. In the proposed 1922 Constitution the wording was simjilified and the sec- tion was placed in the Legislative Article. Explanation No questions appear to have arisen over this section. Comparative Analysis About eight states have constitutional prohibitions against contracting out convict labor. The Model State Constitution is silent on the subject. Comment Although this sort ol provision should never have gone into the Con- stitution and is clearly unnecessary now, it is just the sort ot provision that probably cannot saiely be taken out. Although it is poorly dratted as a constitutional provision, it is probably not advisable to tamper with the wording. If it does seem safe to fix up the language, the proposed 1922 provision is a good one to start with. It read: No law shall be passed authorizing the labor of any convict confined witliin any penitentiary or other reformatory institution to be let to any corporation, association or person, (art. Ill, § 50.) SCHEDULES SCHEDULE — Year 1870 That no inconvenience may arise from the akerations and amend- ments made in the constitution of this State, and to carry the same into complete effect, it is hereby ordained and declared: Existing Laws Continued Section 1. That all laws in force at the adoption of this Constitu- tion, not inconsistent therewith, and all rights, actions, prosecutions, claims, and contracts of this State, individuals, or bodies corporate, shall continue to be as valid as if this Constitution had not been adopted. Accrued Items Due State Preserved Section 2. That all fines, taxes, penalties and forfeitures, due and owing to the State of Illinois under the present Constitution and laws, shall inure to the use of the people of the State of Illinois, under this Constitution. Existing Recognizances and Bonds Preserved — Prosecutions Continued Section 3. Recognizances, bonds, obligations, and all other instruments entered into or executed before the adoption of this constitution, to the people of the State of Illinois, to any State or County officer or public body, shall remain binding and valid; and rights and liabilities upon the same shall continue, and all crimes and misdemeanors shall be tried and punished as though no change had been made in the Constitution of this State. Existing County Courts Continued Section 4. County courts for the transaction of county business in counties not having adopted township organization, shall continue in existence, and exercise their present jurisdiction until the board of county commissioners provided in this Constitution, is organized in pursuance of an Act of the General Assembly; and the county courts in all other counties shall have the same power and jurisdiction they now possess until otherwise provided by general law. Other Courts Continued Section 5. All existing courts which are not in this Constitution specifically enumerated, shall continue in existence and exercise their present jurisdiction until otherwise provided by law. 581 V^IICUWICS Existing Offices Continued Section 6. All persons now filling any office or appointment shall continne in the exercise oi the duties thereof, according to their respec- tive commissions or appointments, unless by this Constitution it is other- wise directed. Election of Judges Section 7. On the day this Constitution is submitted to the people for ratification, an election shall he held for judges ol tlic Supreme Court in the second, third, sixth and seventh judicial election districts desig- nated in this Constitution, and for the election of three judges of the Circuit Court in the County of Cook as provided for in the article of this Constitution relating to the judiciary, at which election every person entitled to vote, according to the ternrs of this Constitution, shall be allowed to vote, and the election shall be otherwise conducted, re- turns made and certificates issued, in accordance with existing laws, except that no registry shall be required at said election: Provided, that at said election in the county of C>ook no elector shall vote for more than t^vo candidates for circuit judge. If, upon canvassing the votes for and against the adoption of this Constitution, it shall appear that there has been polled a greater number of votes against than for it, then no certificates of election shall be issued for any of said Supreme or Circuit Judges. Date and Method of Submission Section 8. This Constitution shall be submitted to the people of the State of Illinois for adoption or rejection, at an election to be held on the first Saturday in July in the year of our Lord one thousand eight hundred and seventy, and there shall be separately submitted at the same time for adoption or rejection, sections nine, ten, eleven, twelve, thirteen, fourteen and fifteen, relating to railroads, in the article en- titled "Corporations;" the article entitled "Counties;" the article en- titled "VV^arehouses;" the question of requiring a three-fifths vote to remove a county seat; the section relating to the Illinois Central Rail- road; the section in relation to minority representation; the section re- lating to Municipal subscriptions to railroads or private corporations; and the section relating to the Canal. Every person entitled to vote under the provisions of this Constitution, as defined in the article in relation to "Suffrage," shall be entitled to vote for the adoption or re- jection of this Constitution, and for or against the articles, sections and question aforesaid, separately submitted; and the said qualified electors shall vote at the usual places of voting, unless otherwise provided; and the said election shall be conducted, and returns thereof made accord- Schedules 583 ing to the laws now in lorce regulating general elections, except that no registry shall be required at said election: Proinded, hoivever, that the polls shall be kept open lor the reception ot ballots until sunset of said day of election. Ballots and Election Supplies Section 9. The Secretary of State shall, at least twenty days before said election, cause to be delivered to the County Clerk of each county blank pollbooks, tally lists and forms of return, and twice the number of properly prepared printed ballots for the said election that there are voters in such county, the expense whereof shall be audited and paid as other pulilic printing ordered by the Secretary of State is, by law, re- quired to be audited and paid; and the several county clerks shall, at least five days before said election, cause to be distributed to the board of election, in each election district in their respective counties, said blank poll-books, tally-lists, forms of return, and tickets. Form of Ballot Section 10. At the said election the ballots shall be in the following form: For all the propositions on this ticket which are not cancelled with ink or pencil; and against all propositions which are so cancelled. For the New Constitution. For the sections relating to railroads in the article entitled "Corpo- rations." For the article entitled "Counties." For the article entitled "Warehouses." For a three-fifths vote to remove County Seats. For the section to the Illinois Central Railroad. For the section relating to Minority Representation. For the section relating to Municipal Subscriptions to Railroads or Private Corporations. For the section relating to the Canal. Each of said tickets shall be counted as a vote cast for each proposi- tion thereon not cancelled with ink or pencil, and against each propo- sition so cancelled, and returns thereof shall be made accordingly by the judges of election. Canvass of Election Returns Section 11. The returns of the whole vote cast, and of the votes for the adoption or rejection of this Constitution, and for or against the article and sections respectively submitted, shall be made by the several County Clerks, as is now provided by law, to the Secretary of State, 584 Schedules within tweiUy clays alter the cledion, and the returns ol' the said votes shall, within five days therealter, l)e examined and canvassed by the Auditor, Treasurer and Secretaiy ol State, or any two ol tluni, in the presence ol the Governor, and proclamation shall he made by the Governor, forthwith, ol the lesult ol the canvass. EfTective Date Section 12. 11 it shall appeal that a majority ol tlie votes polled are "For the New Constitution," then so much ol this Constitution as was not separately submitted to be voted on by articles and sections, shall be the supreme law ol the State ol Illinois, on and alter Monday the eighth day ol August, in the yeai ol our Lord one thousand eight hundred and seventy; but il it shall appear that a majority of the votes polled were "Against the New Constitution," then so much thereof as was not separately submitted to be voted on by ai tides and sections, shall be null and void. If it shall appear that a majority ol the votes polled, are "for the sections relating to Railroads in the article entitled 'Corporations';" sections nine, ten, eleven, twelve, thirteen, fourteen and fifteen, relating to Railroads in the said article, shall be a part ol the C^onstitution of this State; but if a majority of said votes are against such sections, they shall be niUl and void. II a majority ol the votes polled are "for the article entitled "Counties," such article shall be a part of the Constitu- tion of this State and shall be substituted for article seven in the present constitution entitled "counties;" but if a majority of said votes are against such article, the same shall be null and void. II a majority of the votes polled are for the article entitled "Warehouses," such article shall be a part of the Constitution of this State, but if a majority of the votes are against said article, the same shall be null and void. If a majority of the votes polled are lor either ol the sections separately submitted, relating, respectively, to the "Illinois Central Railroad," "Minority Representation," "Municipal Subscriptions to Railroads or Private Corporations," and the "Canal," then such ol said sections as shall receive such majority shall be a part ol the Constitution of this State; but each of said sections so separately submitted against which, respectively, there shall be a majority of the votes polled, shall be null and void: Provided, that the section relating to "Minority Representa- tion," shall not be declared adopted unless the portion of the Constitu- tion not separately submitted to be voted on by articles and sections shall be adopted, and in case said section relating to "Minority Representa- tion" shall become a portion of the Constitution, it shall be substituted for sections seven and eight of the Legislative Article. If a majority of the votes cast at such election shall be for a three-fifths vote to remove a Schedules 585 County seat, then the words "a majority" shall be stricken out of section four of the Article on Counties, and the words "three-fifths" shall be inserted in lieu thereof; and the following words shall be added to said section, to-wit: "But when an attempt is made to remove a county seat to a point nearer to the center of a county, then a majority vote only shall be necessary." If the foregoing proposition shall not receive a majority of the votes, as aforesaid, then the same shall have no effect whatever. First Apportionment of House of Representatives Section 13. Immediately after the adoption of this Constitution, the Governor and Secretary of State shall proceed to ascertain and fix the apportionment of the State for members of the first House of Repre- sentatives imder this Constitution. The apportionment shall be based upon the Federal census of the year of our Lord one thousand eight hundred and seventy of the State of Illinois, and shall be made strictly in accordance w^ith the rules and principles announced in the article on the Legislative Department of this Constitution: Provided, That in case the Federal census aforesaid can not be ascertained prior to Friday, the twenty-third day of September, in the year of our Lord one thousand eight hundred and seventy, then the said apportionment shall be based on the State census of the year of oin- Lord one thousand eight hundred and sixty-five, in accordance with the rules and principles aforesaid. The Governor shall, on or before Wednesday, the twenty-eighth day of September, in the year of our Lord one thousand eight hundred and seventy, make official announcement of the said apportionment, under the great Seal of the State; and one hundred co))ies thereof, duly certified, shall be forthwith transmitted by the Secretary of State to each county clerk for distribution. Districts on First Apportionment Section 14. The districts shall be regularly numbered, by the Secre- tary of State, commencing with Alexander County as Number one, and proceeding then northwardly through the State, and terminating with the county of Cook; but no county shall be numbered as more than one district, except the county of Cook, which shall constitvite three districts, each embracing the territory contained in the now existing representa- tive districts of said county. And on the Tuesday after the first Monday in November, in the year of our Lord one thousand eight hundred and [and] seventy, the members of the first House of Representatives under this Constitution shall be elected according to the apportionment fixed and announced as aforesaid, and shall hold their offices for two years, and until their successors shall be elected and qualified. 586 Schedules Senate at First Session Section 15. The Senate, at its fnst session imdei this Consiiuiiion, shall consist ol fifty members, to be chosen as follows: At the General Election held on the first Tuesday after the first Monday of November, in the year of our Lord one thousand eight hundred and seventy, two Senators shall be elected in districts where the term of Senators expire on the first Monday of January, in the year of our Lord one thousand eight hundred and seventy-one, or where there shall be a vacancy, and in the remaining districts one Senator shall be elected. Senators so elected shall hold their oHice two years. Apportionment by New General Assembly Section 16. The General Assembly, at its first session held after the adoption of this Constitution, shall proceed to apportion the State for members of the Senate and House of Representatives, in accordance with the provisions of the article on the Legislative Department. First Election Under New Constitution Section 17. When this constitution shall be ratified by the people, the Governor shall forthwith, after having ascertained the fact, issue writs of election to the sheriffs of the several counties of this State, or in case of vacancies, to the coroners, for the election of all the officers, the time of whose election is fixed by this Constitution or schedule, and it shall be the duty of said sheriffs or coroners to give such notice of the time and place of said election as is now prescribed by law. English to be Official Language Section 18. All laws of the State of Illinois, and all official writings, and the Executive, Legislative and Judicial proceedings, shall be con- ducted, preserved and published in no other than the English language. Laws to Make Constitution Effective Section 19. The General Assembly shall pass all laws necessary to carry into effect the provisions of this Constitution. Circuit Clerk as Recorders Section 20. The circuit clerks of the different counties having a population over sixty thousand, shall continue to be Recorders (ex- ofjicio) for their respective counties, under this Constitution, until the expiration of their respective terms. Judges' Salaries — Cook County Section 2L The judges of all courts of record in Cook county shall, in lieu of any salary provided for in this Constitution, receive the com- Schedules 587 pensation now provided by law until the adjournment of the first session of the General Assembly after the adoption of this Constitution. Circuif Court — Lake County Section 22. The present judge of the circuit court of Cook county shall continue to hold the circuit court of Lake county until otherwise provided by law. Certain Tax Discontinued Section 23. When this constitution shall be adopted, and take effect as the supreme law of the State of Illinois, the two-mill tax provided to be annually assessed and collected upon each dollar's worth of taxable property, in addition to all other taxes, as set forth in article fifteen of the now existing constitution, shall cease to be assessed after the year of our Lord one thousand eight hundred and seventy. City of Quincy — Provision Concerning Section 24. Nothing contained in this Constitution shall be so con- strued as to deprive the General Assembly of power to authorize the city of Quincy to create any indebtedness for railroad or municipal purposes for which the people of said city shall have voted and to which they shall have given by such vote, their consent, prior to the thirteenth day of December, in the year of our Lord one thousand eight hundred and sixty-nine; Provided, that no such indebtedness, so created, shall, in any part thereof be paid by the State, or from any State revenue tax or fund, but the same shall be paid, if at all, by the said City of Quincy alone, and by taxes to be levied upon the taxable property thereof: and provided, further, that the General Assembly shall have no power in the premises, that it could not exercise under the present Constitution of this State. Prior Constitution to Cease Section 25. In case this Constitution, and the articles and sections submitted separately, be adopted, the existing Constitution shall cease in all its provisions, and in case this Constitution be adopted and any one or more of the articles or sections submitted separately be defeated, the provisions of the existing Constitution, if any, on the same subject shall remain in force. Temporary Provisions to Take Effect Section 26. The provisions of this Constitution required to be exe- cuted prior to the adoption or rejection thereof, shall take effect and be in force immediately. 588 Schedules SCHEDULE — Year 1954 ( Reapportionment) (Article IV, Sections 6, 7 and 8) While this amendment of Sections 6, 7 and 8 ot Article IV, il adopted, shall be effective upon its adoption, nevertheless the General Assembly meeting in 1955 or 1956 shall consist of fifty-one Senators and one hundred and fifty-three representatives as provided in Sections 6, 7 and 8 of Article IV of the 1870 constitution of Illinois before the adoption of this amendment. If the 1955 General Assembly in its regular session redistricts and re- apportions, as required, or if upon its failure the commission does so, then those senators, who are still residents in odd numbered districts and who were elected in 1954, will retain their offices until the expira- tion of their terms. But in those odd numbered chstricts, as created in 1955, where no senator elected in 1954 has been a resident for one year next preceding the election in 1956, a vacancy in the office of senator for such districts exists. Likewise, a vacancy exists in the office of senator in such odd numbered districts where two or more senators elected in 1954 are residents of the district. In either case, a senator in such an odd- numbered district shall be elected in 1956 for a term expiring in 1958. The main purpose of this schedule is to provide for a senate with a full quota of members in 1957-1958. Any senator elected in 1954, who is eliminated from his office by tlie redistricting, and who is not re-elected in 1956 for the two-year term, shall be paid the salary for 1957-1958, that he would have received if he had been able to serve the full term of his office and shall receive such other benefits as would have accrued if he had served such term. SCHEDULE — Year 1954 (State Treasurer) (Article V, Sections 1 , 2 and 3) This amendment shall first apply to the office of the treasurer elected in November, 1958. SCHEDULE — YEAR 1962 ( Judiciary) (Article VI) Paragraph 1. This Article and Schedule, with the exception of Schedule provisions expressly authorizing or directing earlier action, shall become effective on January 1, 1964, hereinafter called the "Effec- tive Date." After the adoption of this Article the General Assembly shall enact such laws and make such appropriations and the Supreme Court shall make such rules as may be necessary or proper to give effect to its provisions. Schedules 589 Paragraph 2. Except to the extent inconsistent with the provisions of this Article, all provisions of law and rules of court in force on the Effective Date of this Article shall continue in effect until superseded in a manner authorized by the Constitution. Paragraph 3. Until changed by law, (a) The Second Judicial District consists of the Counties of Jo Daviess, Stephenson, Carroll, Ogle, Lee, Winnebago, Boone, McHenry, Lake, DeKalb, Kane, Kendall, and DuPage; the Third judicial District consists of the Counties of Mercer, Rock Island, Whiteside, Henry, Bureau, LaSalle, Grundy, Stark, Putnam, Marshall, Peoria, Tazewell, Will, Kankakee, Iroquois, Henderson, War- ren, Knox, Fulton, McDonough, and Hancock; the Fourth Judicial Dis- trict consists of the Counties of Adams, Pike, Calhoixn, Schuyler, Brown, Cass, Mason, Menard, Morgan, Scott, Greene, Jersey, Macoupin, Sanga- mon, Logan, McLean, Woodford, Livingston, Ford, DeWitt, Macon, Piatt, Moultrie, Champaign, Douglas, Vermilion, Edgar, Coles, Cum- berland, and Clark; and the Fifth Judicial District consists of all the counties south of the Fourth District; and (b) the existing judicial circuits shall be continued. Paragraph 4. Each supreme court judge, circuit judge, superior court judge, county judge, probate judge, judge of any city, village or incorpo- rated town court, chief justice and judge of any municipal court, justice of the peace and police magistrate, in office on the Effective Date of this Article, shall continue to hold office until the expiration of his term, as follows: (a) Judges of the Supreme Court shall continue as judges of said court. (b) Circuit judges shall continue as circuit judges of the several circuit courts. (c) In Cook County, the judges of the Superior Court, the Probate Court, the County Court, and the Chief Justice of the Municipal Court of Chicago shall be circuit judges; the judges of the Municipal Court of Chicago, and the judges of the several municipal, city, village and in- corporated town courts shall be associate judges of the Circuit Court. (d) In counties other than the county of Cook, the county judges, probate judges, and the judges of municipal, city, village and incorpo- rated town courts shall be associate judges of the Circuit Court. (e) Police magistrates and justices of the peace shall be magistrates of the several circuit courts, and unless otherwise provided by law shall continue to perform their non-judicial functions for the remainder of their respective terms. (f) The provisions of this Article governing eligibility for office shall not affect the right of any incumbent to continue in office for the re- 590 Schedules mainder pi his existing lerin pursuant to the provisions ot this para- graph. For the remainder ot" such existing term, the provisions of this Article concerning prohibited activities shall not apply to a judge of a county, probate, city, village or incorporated town court, a justice of the peace or police magistrate. Paragraph 5. On the Effective Date of this Article, (a) All justice of the peace courts, police magistrate courts, city, village and incorporated town courts, municipal courts, county courts, probate courts, the Superior Court of Cook County, the Criminal Court of Cook County and the Municipal Court of Chicago are abolished and all their jurisdiction, judicial functions, powers and duties are trans- ferred to the respective circuit courts, and until otherwise provided by law non-judicial functions vested by law in comity courts or the judges thereof are transferred to the circuit courts; (b) All the jurisdiction, functions, powers and duties of the several appellate courts shall be transferred to the Appellate Court provided for in this Article, in the appropriate district. (c) Each court into which jurisdiction of other courts is transferred shall succeed to and assume jurisdiction of all causes, matters and pro- ceedings then pending, with full power and authority to dispose of them and to carry into execution or otherwise to give effect to all orders, judg- ments and decrees theretofore entered by the predecessor courts. (d) The files, books, papers, records, documents, moneys, securities, and other property in the possession, custody or under the control of the courts hereby abolished, or any officer thereof, are transferred to the Circuit Covnt; and thereafter all proceedings in all coiuts shall be matters of record. Paragraph 6. Each clerk of court in office on the Effective Date of this Article shall continue to hold office, until the expiration of his existing term as follows: (a) The clerk of the Supreme Court shall continue in such office. (b) The clerks of the several appellate courts shall continue as clerks of the Appellate Court and shall perform such services as may be pre- scribed by order of the Supreme Court. (c) In Cook County, the Circuit Court shall by rule designate one of the clerks as clerk and the others as associate clerks to perform such services as may be prescribed by rule of the Circuit Court. (d) In judicial circuits outside Cook County, the clerks of the circuit courts in their respective counties shall continue in said offices, and the clerks of the other courts of record shall be associate clerks of the circuit court in their respective counties, shall perform such services as may be Schedules 591 prescribed by rule of the Circuit Court and shall continue to perform other duties prescribed by law. Paragraph 7. On the Effective Date of this Article, the bailiff of the Municipal Court of Chicago shall continue in offfce for the remainder of his term, and he, his deputies and assistants shall perform such services as may be prescribed by rule of the Circuit Court. Paragraph 8. Notwithstanding the j^rovisions of Section 8 of this Article, masters in chancery and referees in office in any court on the Effective Date of this Article shall be continued as masters in chancery or referees, respectively, until the expiration of their terms, and may there- after by order of court, wherever justice requires, conclude matters in which testimony has been received. Paragraph 9. Until otherwise prescribed by the General Assembly, the cases assigned to magistrates shall be those within the jurisdiction of justices of the peace and police magistrates immediately prior to the Effective Date of this Article. Paragraph 10. Notwithstanding the terms of office provided in this Schedule and unless otherwise provided by law, of the twelve judges of the Appellate Court initially elected from the first Appellate Court district pursuant to Section 10 of this Article, four shall be elected for a term of ten years, four for a term of eight years and four for a term of six years; and of the three judges of the Ap]:)ellate Court so initially elected for the Second, Third, Fourth and Fifth Judicial districts re- spectively one shall be elected for a term of ten years, one for a term of eight years and one for a term of six years. Paragraph II. The Supreme Court shall assign judges of the circuit courts and of the Superior Court of Cook County to serve on the Appel- late Court, in the Appellate Court Districts in which they respectively reside, from the Effective Date of this Article until the commencement of the terms of judges of the Appellate Court selected pursuant to Section 10 of this Article. Paragraph 12. (a) Those elected judges in offce on January 1, 1963 shall be entitled to seek retention in office under Section 1 1 of this Article. (b) The terms of all judges in office on January 1, 1963 expiring otherwise than on the first Monday in December in an even numbered year are extended to the first Monday in December after the general election following the date at which such terms would otherwise expire. For the purpose of application of any laws providing for an increase in judicial salaries, every judge whose term is thus extended shall be re- garded as commencing a new term on the date prescribed by prior law for the election of his successor. 592 Schedules (c) Judges in office on the Effective Date shall not he suhjcct to com- pulsory retirement at a prescribed age until after expiration of their then current terms. Paragraph 13. (a) Notwithstanding the provisions of Section 4 of this Article, elec- tions on declarations of candidacy of judges of the Supreme Court in office on the Effective Date shall be held in the Judicial Districts estab- lished under Section 3 as follows: (i) For incumbents from the former First and Second Supreme Court Districts, in the Fifth Judicial District; (ii) For incumbent from the former Third Supreme Court District, in the Fourth Judicial District; (iii) For incumbents from the former Fourth and Fifth Sujjreme Court Districts, in the Third Judicial District; (iv) For incumbent from the former Sixth Supreme Court District, in the Second Judicial District; (v) For incumbent from the former Seventh Supreme Court District, in the First Judicial District. (b) The first vacancy in the office of judge of the Supreme Court which occurs in the former First and Second Supreme Court Districts, and the first vacancy which occurs in the former Fourth and Fifth Supreme Court Districts, and the vacancy which occurs in the former Seventh Supreme Court District shall be filled by the selection of resi- dents of the First Judicial District created under Section 3 of this Article. (c) The office of any judge shall be deemed vacant upon his death, resignation, removal, retirement, or failure to be retained in office pur- suant to Section 1 1 of this Article. TABLE OF CASES ACLU V. City of Chicago, 21 Abbate v. United States, 48 Adderly v. Florida, 22, 81 Agran v. Checker Taxi Co., 102 Albertson v. Subversive Activities Con- trol Bd., 45 Aldis V. Union Elev. R.R., 63 Aldrich v. Metropolitan West Side Elev. R.R., 63 Alexander v. City of Chicago, 250 American College of Surgeons v. Kor- zen, 442 American Legion Post No. 279 v. Bar- rett, 256, 521 Amick v. State, 195 Antle v. Tuchbreiter, 182 Arlington Heights Natl Bank v. Ar- lington Heights Fed. Sav. &: Loan Ass'n, 83 Ashton V. County of Cook, 502 Association of Am. Medical Colleges v. Lorenz, 441 Austin V. Healy, 486 Bachrach v. Nelson, 420, 421, 424, 427, 435 Baker v. Carr, 106, 142 Baltimore & O. Sw. R.R. v. People ex rel. Allen, 486 Baltimore & O. Sw. R.R. v. People ex rel. Gaston, 481 Banta v. City of Chicago, 423, 461 Barclay v. Barclay, 55 Bardens v. Board of Trustees, 73 Barnard v. City of Chicago, 63 Baro v. Murphy, 268 Bartkus v. Illinois, 48 Baumrucker v. Brink, 475 Behrensmeyer v. Kreitz, 386 Belden Mfg. Co. v. Chicago Threaded Fasteners, Inc., 347 Benton v. Maryland, 46, 48, 49 Berger v. Hewlett, 191 Berman v. Board of Educ, 467 Bertrand v. Taylor, 211 Bilek V. City of Chicago, 263 Bistor V. McDonough, 418 Blake v. People, 55 Blau V. United States, 44 Bloom V. Illinois, 42 Board of Educ. v. Allen, 407, 408 Board of Educ. v. Blodgett, 6 Board of Educ. v. Board of Educ, 401 Board of Educ. v. County Bd. of Schools Trustees, 216 Board of Educ. v. Haworth, 445 Board of Educ. v. Redding, 23 Board of Library Directors v. City of Lake Forest, 470 Board of Supervisors v. Johnson, 512 Board of Trade v. Cowen, 556 Board of Trustees v. Commissioners of Lincoln Park, 471, 472 Board of Water Comm'rs v. Conkling, 448 Bode V. Barrett, 422 Boehm v. Hertz, 198, 402 Bond V. Floyd, 148, 152 Boor V. Tolman, 521 Borreson v. Department of Pub. Wel- fare, 105 Bossert v. Granary Creek Union Drain- age Dist., 72 Bouie V. City of Columbia, 68 Bradley v. Fox, 53 Brandt v. Keller, 90 Brewster v. People, 37 Brissenden v. Hewlett, 475 Bronson v. Kinzie, 70, 72 Brown v. United States, 44 Brundage v. Knox, 233 Buckrice v. People, 41 Bunn V. People ex rel. Laflin, 322 Burdick v. People, 72 Burr V. City of Carbondale, 228 593 594 TABLE OF CASES (Continued) Burritt v. Commissioners of State Con- tracts. 156, 182 Butterfield v. Sawyer, 67 Calder v. Bull, 66 Callaghan & Co. v. Smith, '231 Calumet & Chicago Canal & Dock Co. V. Morawetz, 63 Camara v. Municipal Court, 30, 31 Cameron v. Johnson, 22, 81 Campbell v. Holt, 6 Carolene Prods. Co.v. McLaughlin, 101 Cawley v. People, 128 Centennial Laundry Co. v. West Side Organization, 82 Central Elevator Co. v. People ex rel. Moloney, 547 Central 111. Pub. Serv. Co. v. Vollen- tine, 62 Central Television Serv., Inc. v. Isaacs, 425 Chambers v. People ex rel. Fuller, 447 Champaign County Tel. Co. v. Illinois Commerce Comm'n, 105 Chase v. Stephenson, 401 Chase Sec. Corp. v. Donaldson, 6 Chavis v. Whitcomb, 140, 141 Chicago & A. R.R. v. People ex rel. Koerner, 52, 535 - Chicago, B. & Q. R.R. v. Chicago, 57 Chicago, B. & Q. R.R. v. People ex rel. Sonnet, 458 Chicago Cosmetic Co. v. City of Chi- cago, 165 Chicago Flour Co. v. City of Chicago, 63, 64 Chicago Home for Girls v. Carr, 516 Chicago Life Ins. Co. v. Auditor of Pub. Accounts, 71 Chicago, M. 8c St. P. Ry. v. Hock, 64 Chicago, M. & St. P. Ry. v. State Publ. Utii. Comm'n, 105 Chicago Motor Club v. Kinney, 198 Chicago North Shore St. Ry. v. Payne, 63 Chicago & Nw. Ry. v. Illinois Com- merce Comm'n, 57 Chicago Rys. v. Industrial Bd., 25 Chicago Real Estate Bd. v. City of Chicago, 23 Chiniquy v. People ex rel. Swigert, 459 Christie v. People, 397 Citizen's Bank v. Parker, 574 City of Bloomington v. Perdue, 484 City of Blue Island v. Kozul, 19 City of Chicago v. Brede, 464, 467 City of Chicago v. Chicago League Ball Club, 291 City of Chicago v. Collin, 96 City of Chicago v. Degitis, 165 City of Chicago v. Drake Hotel Co., 13 City of Chicago v. Gregory, 22, 81, 82 C;ity of Chicago v. Illinois Commerce Comm'n ex rel. Chicago &: W. Ind. R.R., 71 City of Chicago v. Joyce, 22, 82 City of Chicago v. Larned, 460 City of Chicago v. Lederer, 58 City of Chicago v. Lord, 30 City of Chicago v. Manhattan Cement Co., 470, 483 City of Chicago v. McDonald, 481, 482 City of Chicago v. Morell, 55 City of Chicago v. O'Connell, 71, 519 City of Chicago v. Pittsburg, C, C. & St. L. Ry., 228, 576 City of Chicago v. Reeves, 250, 374, 567, 568 City of Chicago v. Sexton, 484 City of Cincinnati v. Louisville & N. R.R., 70 City of Edwardsville v. County of Madison, 62, 485 City of Edwardsville v. Jenkins, 485 City of Joliet v. Alexander, 482 City of Lawrenceville v. Maxwell, 439 City of Matoon v. Graham, 438 City of Metropolis v. Gibbons, 165 City of Monmouth v. Lorenz, 213, 214, 218, 222 City of Nokomis v. Zepp, 464 City of Springfield v. Edwards, 482, 484 Ciucci V. Illinois, 47 Cleveland v. United States, 16 Coffey V. Board of Election Comm'rs, 385 Coleman v. Scott, 352, 362 Collins V. Metropolitan Life Ins. Co., 53 TABLE OF CASES (Continued) 595 Commerce Comm'n ex rel. City of Bloomington v. Cleveland, C.C. & St. L. Ry., 105 Commissioners of Union Drainage Dist. V. Smith, 97 Committee of Local Improvements v. Objectors to the Asssessment, 463 Condon v. Village of Forest Park, 461 Conklin v. Cozart, 36 Consolidated Coal Co. v. Miller, 437 Cook V. Board of Directors, 400 Cornell v. People ex rel. Walsh, 465 Coughlin V. Chicago Park Dist., 83 County of Coles v. Goehring, 459, 485 County of Cook v. Hartney, 508 County of Cook v. Sennott, 475 County of McLean v. City of Bloom- ington, 447 County of Pope v. Sloan, 459 County of Stark v. County of Henry, 471 Cox V. Cox, 12 Cox V. Louisiana, 22, 80 Cox V. Rice, 54 Coyne Elec. School v. Paschen, 440 Craig V. Peterson, 384 Crane v. West Chicago Park Comm'rs., 463 Craw V. Village of Tolono, 447 Crear v. Crossly, 239, 241 Creasy v. Stevens, rev'd on other grounds sub nom. Martin v. Creasy, 62 Cremer v. Peoria Housing Authority, 179, 198, 577 Crumpler v. County of Logan, 499 Cunningham v. Brown, 95 Cusack V. Teitel Film Corp., 21 Dahnke v. People, 502 Daily v. Parker, 152 F. 2d 174 (7th Cir. 1945), 94 Daily v. Parker, 61 F. Supp. 701 (N.D. 111. 1945), 92, 93 Dean v. Board of Educ, 401 Decker v. Hughes, 473 Deibeikis v. Link-Belt Co., 25 De Leuw, Cather & Co. v. City of Joliet, 484 Dement v. Rokker, 231 Deneen v. Deneen, 72 Department of Pub. Welfare v. Haas, 400 Department of Pub. Works & Bldgs. v. Butler Co., 64 Department of Pub. Works & Bldgs. v. Chicago Title &: Trust Co., 115 Department of Pub. Works fe Bldgs. v. Maddox, 64 Department of Pub. Works &: Bldgs. v. Oberlaender, 63 Devine v. Board of Comm'rs, 211 DeWolf V. Bowley, 475 Dinwiddle v. Siefkin, 232 Donahue v. County of Will, 292, 373 Donovan v. Comerford, 386 Dragovich v. Iroquois Iron Co., 162 Dube V. City of Chicago, 60 Duncan v. Louisiana, 41, 42 Dunn V. Chicago Indus. School for Girls, 404, 405, 407, 409 Dunne v. County of Rock Island, 495 Dunne v. People, 537 Durkee v. People ex rel. Askren, 518 East St. Louis Connecting Ry. v. Jarvis, 529 East St. Louis Gas Light &: Coke Co. v. City of East St. Louis, 486 Edward R. Bacon Grain Co. v. City of Chicago, 554, 556 Edwards v. South Carolina, 80 Elliot V. University of 111., 183 Elmhurst Nat'l Bank v. Village of Bellwood, 483 Elmhurst State Bank v. Stone, 453 Emery v. Hennessy, 85 Engel V. Vitale, 406, 407 Escobedo v. Illinois, 40, 44, 50 Estate of Ramsay v. Whitbeck, 321 Everson v. Board of Educ, 408, 445 Fairbank v. Stratton, 261 Feigen v. Shaeffer, 217 Fekete v. City of East St. Louis, 123 Fergus v. Brady, 189, 195 Fergus v. Kinney, 106 Fergus v. Marks, 106 Fergus v. Russel, 277 111. 20 (1917), 180, 231 Fergus v. Russel, 270 111. 626 (1915), 201 596 TABLE OF CASES (Continued! Fergus v. Russel, 270 111. 304 (1915), 103, 104, 179, 180. 198, 201, 256, 257, 260, 298, 299, 322 Field V. Barling, 63 Field V. People ex rel. McClernand, 99, 101, 102, 103, 189, 254, 255, 257, 259, 286, 287 Figura v. Cummins, 13 Fiorito v. Jones, 422, 426 First Natl Bank v. Holmes, 418, 419 First Nat'l Bank & Trust Co. v. City of Evanston, 341 First Nat'l Bank 8c Trust Co. v. Desaro, 55 Fletcher v. Peck, 69 Food Employees Local 590 v. Logan Valley Plaza, Inc.. 23 Forbes v. Hubbard, 58 Fort Leavenworth R.R. v. Lowe. 62 Foutch V. Zempel, 222 Fowler v. Johnston City & Big Muddy Coal & Mining Co.. 238 Frank v. Mangum. 68 Frank v. Maryland, 30, 31 Franzen v. Donichy. 453 Freedman v. Maryland. 21, 22 FreemSn Coal Mining Corp. v. Ruff. 237 Frew V. Taylor. 451 Fuller V. Heath, 218, 219 Funkhouser v. Randolf, 243 Gage V. Davis. 452 Gaither v. Lager, 452 Garrick v. Chamberlain. 447 General Fin. Corp. v. Archetto. 444 Germano v. Kerner. 133 Gholson V. State, 195 Gideon v. Wainwright. 39. 40 Giebelhausen v. Daley, 162. 417 Gilbert v. California. 45 Gillespie v. Barrett. 177 Glos v. Evanston Bldg. & Loan Ass'n. 451 Gomillion v. Lightfoot. 136 Gonzalia v. Bartelsman, 451 Goodwine v. County of Vermilion. 481 Gorham v. Hodge. 521 Gouker v. Winnebago County Bd. of Supervisors, 167 Graham v. Dye. 167 Grand Trunk Ry. v. Industrial Comm'n, 25 Grasse v. Dealer's Transp. Co.. 92 Green v. Black. 457 Green v. Hudsonville Township High School Dist., 486 Gregory v. City of Chicago, 22, 82 Grennan v. Sheldon, 85 Griffin v. California, 45 Griffin v. Illinois, 95 Grosse v. People ex rel. Ruch, 403 Guild v. City of Chicago, 464 Hadacheck v. Sebastian, 61 Hagler v. Small. 158. 179. 196 Hague v. CIO. 80 Hall v. Gillins. 95 Hall V. Woods, 518 Hammock v. Loan Sc Trust Co., 528 Hannah v. People ex rel. Attorney General. 547 Harder's Fireproof Storage R: Van Co. v. Chicago. 427. 461 Harisiades v. Shaughnessy. 67 Harper v. Virginia Bd. of Elections. 388 Hartmann v. Pesotum Community Consol. School Dist.. 481 Harvey v. Clyde Park Dist.. 911 Hayes Freight Lines, Inc. v. Castle. 52 Haymes v. Catholic Bishop, 91 Haynes v. United States. 45 Heck V. Schupp, 92, 93 Heckendorn v. First Nat'l Bank, 90, 91, 94 Heffner v. Cass & Morgan Counties, 471 Heimgaertner v. Benjamin Elec. Mfg. Co.. 61. 219 Herschbach v. Kaskaskia Island Sani- tary & Levee Dist., 243 Herzberger v. Kelly. 276 Hoag V. New Jersey. 47 Hodges V. Crowley, 485 Holmgren v. City of Moline. 485 Home Bldg. & Loan Ass'n v. Blaisdell. 71, 72 Hoyne v. Chicago & O.P. Elev. R.R., 72, 520 TABLE OF CASES (Continued) 597 Hoyne v. Danisch, 380 Hronek v. People, 17 Hughes V. City of Momence, 463 Humphrey's Executor v. United States, 287 Hunt V. County of Cook, 215 Hunt V. Rosenbaum Grain Corp., 216, 217 Huntington v. Metzger, 54 Hurtado v. California, 36 Hutchings v. Kraject, 91 Illinois V. Illinois Cent. R.R., 101 Illinois Cent. R.R. v. Emmerson, 574, 575 Illinois Cent. R.R. v. Trustees of Schools, 63 Illinois Cent. R.R. v. Turner, 63 Illinois Cities Water Co. v. City of Mt. Vernon, 62 Illinois ex rel. McCollum v. Board of Educ, 445 In re Blacklidge, 54 In re County Collector, 453 In re County Treasurer, 453 In re Day, 101 In re Estate of Benton, 430 In re Estate of Brooks, 17 In re Oliver, 39 In re Estate of Quick, 255 In re Struck, 211 tn re Summers, 543 In re Wilkowski, 175 Indiana Harbor Belt R.R. v. City of Calumet City, 483 International College of Surgeons v. Brenza, 437, 442 Jahnke v. Selle, 220 Jensen v. Wilcox Lumber Co., 73 Jennings v. Capen, 67 Jewell V. Carpentier, 4, 62 Jimison v. Adams County, 475 Johnson v. Halpin, 428, 429 Johnson v. Luhman, 94 Johnson v. People, 158 Jones V. Robbins, 36 Joseph Burstyn, Inc. v. Wilson, 20 Juvinall v. Jamesburg Drainage Dist., 64 Kane v. City of Chicago, 63 Keilty v. Chicago Real Estate Co., 448 Kelly V. People, 52 Kennedy v. McGovern, 215 King V. State, 189 Kingsley Books, Inc. v. Brown, 21 Kinsey Distilling Sales Co. v. Foremost Liquor Stores, Inc., 115 Kirkpatrick v. Preisler, 135, 139 Kiwanis Int'l v. Lorenz, 442 Klein v. Hulman, 425 Klever Shampay Karpet Kleaners, Inc. V. City of Chicago, 58 Klopfer V. North Carolina, 39 Knierim v. Izzo, 95 Knox College v. Board of Review, 440 Kochersperger v. Drake, 423, 427 Kocsis V. Chicago Park Dist., 481, 483 Koester v. McDonough, 419 Kremers v. City of West Chicago, 218, 220 Kuehner v. City of Freeport, 464 Lakefront Realty Corp. v. Lorenz, 96 Land Comm'rs of the Commons v. Pres- ident & Trustees of the Commons, 219 Landry v. Daley, 82 Langlois v. People, 447 Larned'v. Tiernan, 164 Larrison v. Peoria, A. & D. R.R., 158 LaRue v. LaRue, 55 Larvenette v. Elliot, 85, 219 La Salle Nat'l Bank v. Little Bill "33" Flavors Stores, 348 Law V. People ex rel. Huck, 482, 485 Lefkovitz v. City of Chicago, 63 Leviton v. Board of Educ, 467 Leyvas v. United States, 68 Libbee v. Imhoff, 240 Lipman v. Goebel, 54 Livingston v. Ogilvie, 123, 559, 560, 561 Loeffler v. City of Chicago, 462, 463 Loomis v. Keehn, 191 Louisiana ex rel. Francis v. Resweber, 51 Louisville v. Savings Bank, 576 Lundberg v. County of Alameda, ap- 598 TABLE OF CASES (Continued) peal dismissed sub noin. Heisey v. County of Alameda, 444 Luthy V. Ream, 518 Lynch v. Malley, 390 MacDougall v. Green, 86 MacGregor v. Miller, 106 MacMurray College v. Wright, 440 Maffit V. City of Decatur, 485 Malloy V. Hogan, 43, 45 Mandel Bros. v. State, 195 Mapp V. Ohio, 29, 30, 31, 32 Marchetti v. United States, 45 Marr v. Marr, 13 Marsh v. Alabama, 23 Marshall v. Commissioners of Upper Cache Drainage Dist., 243 Martens v. Brady, 198, 299 Massell v. Daley, 227 Mayer v. Springer, 546 MtAlpine v. Dimick, 85, 86 McCreery v. Burnsmier, 384 McDaniel v. Bullard, 95 McFarlane v. Hotz, 466, 511 McGrath v. City of Chicago, 423 McLain v. Phelps, 480 McNeer v. McNeer, 67 Meaden v. W. J. Anderson Corp., 55 Meier v. Hilton, 219 Mesirow v. Mesirow, 55 Methodist Old Peoples Home v. Kor- zen, 441, 442 Metropolis Theater Co. v. City of Chicago, 423 Metropolitan City Ry. v. Chicago West Division Ry., 70 Miller v. Goodwin, 153 Milward v. Paschen, 440, 441 Miranda v. Arizona, 40, 44, 50 Mitchell V. Lowden, 158, 190, 299 Mix V. People ex rel. Pierpont, 458 Molitor V. Kaneland Community Unit Dist., 91, 232 Montgomery Ward &: Co. v. United Employees, 19 Monmouth v. Lorenz, 213 Moore v. Illinois, 48 Moore v. Ogilvie, 86 Morford v. Hocker, 37 Morgan v. County of DuPage, 475 Morgan v. Schusselle, 466 Morton v. Board of Educ, 408 Mugler V. Kansas, 61 Munn V. Illinois, 556 Murdock v. Pennsylvania, 444 Murphy v. People ex rel. Weiennett, 465 Murray v. Comptroller of the Treasury, 444 Murray v. Village of Skokie, 73 Mutual Film Corp. v. Industrial Comm'n, 20 Myers v. United States, 287 Near v. Minnesota ex rel. Olson, 20, 21. Nega V. Chicago Rys., 105 Neiberger v. McCullough. 153, 162, 163 Nesbitt V. Trumbo, 239, 241 New York ex rel. Cohn v. Graves, 422 North Wichert Drainage Dist. v. Cham- berlain, 242 Northwestern Univ. v. Hanberg, 435 Nye V. Foreman, 502 O'Connor v. High School Bd. of Educ, 88 Ogden v. Saunders, 69, 72 Ohio ex rel. Eaton v. Price, 30 Omnia Commercial Co. v. United States, 61 O'Neil V. Vermont, 51 Oro Fino Consol. Mines, Inc. v. United States, 61 Otis Elevator Co. v. Industrial Comm'n, 105, 216 Owens V. Green, 246 Owners of Lands v. People ex rel. Stookey, 516 Palko V. Connecticut, 46 Peabody v. Forest Preserve Dist., 475 Peabody v. Russel, 302 111. Ill (1922), 299, 302 Peabody v. Russel, 301 111. 439 (1922), 321 Pennsylvania Coal Company v. Mahon, 59 People V. Alterie, 13 People V. Arbuckle, 341 People V. Bain, 218 TABLE OF CASES (Continued) 599 People V. Bartkus, 48 People V. Kalpak, 46 People V. Beck, 101 People V. Kobylak, 37 People V. Berry, 40 People V. Lewis, 162 People V. Blanchett, 348 People V. Love, 13 People V. Borgeson, 166 People V. Manning, 49, 68 People V. Bott, 108 People V. Miller, 347 People V. Brown, 13 People V. Miner, 49 People V. Bruner, 102, 103 People V. Monroe, 234 People V. Bryarly, 41 People V. Moore, 401 People V. Calcaterra, 52 People V. Mundro, 52 People V. Capuzi, 122, 123, 125, 323 People V. Munson, 380 People V. Chesnas, 52 People V. Murray, 83 People V. Chicago Transit Authoi -ity, People V. Nash, 341 74, 167, 221, 281 People V. Niesman, 26 People V. City of Chicago, 413, 111. 83, People V. Perry, 34 111. 229 (1966), (1952), 466 341 People V. City of Chicago i, 349 111. People V. Perry, 1 111. 2d 482 (1953), 304 (1932), 74, 75, 527, i 377 46 People V. Cleveland, C, C . & St. L. People V. Robinson, 40 Ry., 238 People V. Russell, 37 People V. Davis, 52 People V. Sanitary Dist., 233 People V. Deatherage, 401 People V. Sargent, 164, 321 People V. Deep Rock Qil Corp., 427 People V. Savage, 13 People V. De Simone, 13 People V. Scales, 49 People V. Diekmann, 220 People V. Schwartz, 448 People V. Doe, 13 People V. Smith, 40 People V. Dolgin, 29 People V. Solomon, 238 People V. Dronso, 41 People V. Stevenson, 566, 567 People V. Elliot, 52 People V. Stuart, 246 People V. Evans, 281 People V. Thompson, 13 People V. Evanuk, 227 People V. Touhy, 31 People V. Ferguson, 41 People V. Turner, 31 111. 2d 197 (1964), People V. Fox, 85, 86, 165 341 People V. Francis, 86 People V. Turner, 396 111. 221 (1947), People V. Grant, 52 68 People V. Gould, 521 People V. Union Consol. Elev. Ry., People V. Hale, 341 532 People V. Harper, 549, 550. , 556 People V. Union Elev. R.R., 532 People V. Harrison, 49 People V. Utterback, 41 People V. Haynes, 52 People V. Valentine, 347 People V. Heise, 220 People V. Weiner, 13 People V. Hobbs, 41 People V. Whittemore, 314 People V. Illinois Cent. R.R., 574 People V. Wilcox, 220 People V. Illinois Toll High' way People V. Williams, 30 111. 2d 125 Comm' n, 62, 233, 268, 479 (1963), 40 People V. Jones, 33 111. 2d 357 (1965), People V. Williams, 4 111. 2d 440 41 (1954), 52 People V. , Jones, 329 111. App. 503 People V. Williams, 232 111. 519 (1908), (1946), 68 475 People V. . Joyce, 180 People V. , Wilson, 41 600 TABLE OF CASES (Continued) People V. Wolfson, 341 People V. Wrage, 448 People V. York, 29 People V. Zito, 54, 55 People ex rel. Abner v. Kinney, 289 People ex rel. Adamowski v. Chicago Land Clearance Comm'n, 115 People ex rel. Adamowski v. Chicago R.R. Terminal Authority, 577 People ex rel. Adamowski v. Metro- politan Sanitary Dist., 479 People ex rel. Adamowski v. Public Bldg. Comm'n, 481, 577 People ex rel. Adamowski v. Wilson, 395 People ex rel. Akin v. Loeffler, 322, 324 People ex rel. Akin v. Rose, 106, 271, 297, 298 People ex rel. Ames v. Marx, 227 People ex rel. Anderson v. Czarnecki, 118, 119, 120 People ex rel. Badger v. Loewenthal, 157, 525 People ex rel. Barrett v. Barrett, 360 People ex rel. Bergan v. New York Cent. R.R., 465 People ex rel. Bernat v. Bicek, 17 People ex rel. Bibb v. Mayor of Al- ton, 401 People ex rel. Billings v. Bissell, 106 People ex rel. Board of Educ. v. Read, 219 People ex rel. Board of Trustees v. Barrett, 182 People ex rel. Bothfuhr v. Chicago & E. 111. Ry., 458 People ex rel. Bracher v. Salvation Army, 437, 443 People ex rel Breckon v. Election Comm'rs, 84, 86, 107, 122 People ex rel. Brenza v. Turnverein Lincoln, 440 People ex rel. Browne v. Chicago & E. 111. R.R., 73 People ex rel. Bruce v. Dunne, 106, 271 People ex rel Brundage v. LaBuy, 289 People ex rel. Brundage v. Peters, 289 People ex rel. Bua v. Powell, 236, 237 People ex rel. Burow v. Block, 471 People ex rel. Campe v. Board of Re- view, 479 People ex rel. Cannon v. City of Chi- cago, 471 People ex rel. Cant v. Crossley, 166 People ex rel. Carr v. Chicago & Nw. Ry., 480 People ex rel. Carson v. Muldoon, 443 People ex rel. Castle v. Daniels, 104 People ex rel. Chicago Bar Ass'n v. Goodman, 101 People ex rel. Chicago Dryer Co. v. City of Chicago, 115 People ex rel. Christiansen v. Con- nell, 93, 105 People ex rel. City of Peoria v. Wes- ton, 513 People ex rel. City of Springfield v. Edmands, 157 People ex rel. Clarke v. Jarecki, 220 People ex rel. Community High School Dist. V. Hupe, 480 Peopfe ex rel. Community School Dist., V. Decatur School Dist., 401 People ex rel. Conn v. Randolf, 182, 183 People ex. rel. Coons v. Howlett, 180 People ex rel. Coutrakon v. Lohr, 217 People ex rel. Cromer v. Village of Maywood, 123 People ex rel. Curren v. Wood, 577 People ex rel. Curry v. Decatur Park Dist., 438 People ex rel. Daniels v. Carpentier, 88, 139 People ex rel. Davis v. Nellis, 286, 293 People ex rel. Delaney v. Markiewicz, 385 People ex rel. Deneen v. Martin, 498, 499 People ex rel. Dezettel v. Lueders, 163 People ex rel. Doty v. Connell, 93, 215 People ex rel. Douglas v. Barrett, 130, 148 People ex rel. Drennan v. Williams, 386 TABLE OF CASES (Continued) 601 People ex rel. Elliot v. Benefiel, 380 People ex rel. Engle v. Kerner, 33 111. 2d 11 (1965), 133, 202 People ex rel. Engle v. Kerner, 32 111. 2d 212 (1965), 133, 567 People ex rel. Ewing v. Forquer, 1 111. 104 (1825), 284 People ex rel. Ferrill v. Graydon, 37 People ex rel. First Nat'l Bank. v. Kingery, 233 People ex rel. Fix v. Trustees of Nw. College, 438 People ex rel. Flanagan v. McDonough, 96 People ex rel. Flick v. Chicago, B. & Q. R.R., 459 People ex rel. Franchere v. City of Chicago, 216 People ex rel. Freeman v. Depart- ment of Pub. Welfare, 233 People ex rel. Fullenwider v. Jenkins, 289 People ex rel. Gallenbach v. Franklin, 466, 471 People ex rel. Gendron v. Ingram, 33 People ex rel. Giannis v. Carpenter, 142 People ex rel. Gill v. 110 S. Dearborn St. Corp., 485 People ex rel. Gill v. Trustees of Schools, 439, 440 People ex rel. Gleeson v. Meech, 210, 217 People ex rel. Goodell v. Chicago & Nw. Ry., 400 People ex rel. Goodman v. University of 111. Foundation, 440 People ex rel.. Graff v. Wabash Ry., 459 People ex rel. Graham v. Inglis, 268 People ex rel. Greening v. Green, 192, 221, 231 People ex rel. Greer v. Thomas Wal- ters Chapter D.A.R., 442 People ex. rel. Grinnell v. Hoffman, 84, 88, 385 People ex. rel. Gullett v. McCullough, 103 People ex rel. Gutknecht v. Chicago Regional Port Dist., 74, 198, 490 People ex rel. Gutknecht v. City of Chicago, 251, 576 People ex rel. Hanberg v. City of Chi- cago, 403 People ex rel. Harless v. Hatch, 153 People ex rel. Hatfield v. Grover, 498 People ex rel. Hellyer v. Morton, 442 People ex rel. Henry v. New York Cent. R.R. Lines, 485 People ex rel. Hileman v. Missouri P. R.R., 459 People ex rel. Hill v. Eakin, 216 People ex rel. Hillison v. Chicago B. & Q. R.R., 420 People ex rel. Holland Coal Co. v. Isaacs, 424, 425, 429 People ex rel. Hoyne v. McCormick, 394 People ex rel. Johnson v. Peacock, 219 People ex. rel. Judge v. Board of Comm'rs, 475 People ex rel. Keenan v. McGuane, 128 People ex rel. Kell v. Kramer, 167 People ex rel. Koester v. Board of Re- view, 419 People ex rel. Kohorst v. Gulf & O. R.R., 420 People ex rel. Korzen v. Englemann, 485 People ex rel. Kroner v. Abbott, 475 People ex rel. Lafferty v. Owen, 102 People ex rel. Latimer v. Board of Educ, 406 People ex rel. Latimer v. Randolph, 37 People ex rel. Lawless v. City of Quincy, 439 People ex rel. Lawrence v. Cleveland, C. C. & St. L. Ry., 459 People ex. rel. Lindheimer v. Gaylord Bldg. Corp., 473 People ex rel. Lindheimer v. Hamil- ton, 481 People ex rel. Lindstrand v. Emmer- son, 87, 140 People ex rel. Little v. Trustees of Schools, 403 People ex rel. Lloyd v. University of 111., 438, 439 602 TABLE OF CASES (Continued) People ex rel. Lowe v. Marquette Nat'l Fire Ins. Co., 106 People ex rel. Lusk v. Cairo, V. &: C. Ry., 458 People ^.v rel. Lynch v. Board of Supervisors, 567 People ex rel. Marcus v. Swanson, 228 People ex rel. Mayes v. Wanek, 88 People ex rel. McCollum v. Board of Educ, 6, 406 People ex rel. McCullough v. Deutsche Gemeinde, 438 People ex rel. McDonough v. Illinois Cent. R.R., 419 People ex rel. Meyering v. Whealan, 508 People ex rel. Miller v. Brislin, 502 People ex rel. Millner v. Russel, 180, 189, 299 People ex rel. Mitchell v. Warfield, 495 People ex rel. Mosby v. Stevenson, 271 People ex rel. Moshier v. City of Springfield, 471 People ex rel. Myers v. Haas, 117, 123 People ex rel. Myers v. Lewis, 280 People ex rel. Nabstedt v. Barger, 67 People ex rel. Nachman v. Carpentier, 360, 365, 367 People ex rel. Nelson v. Jackson-High- land Bldg. Corp., 402, 471 People ex rel. Nelson v. West Engle- wood Trust & Sav. Bank, 505 People ex rel. Norlund v. Association of the Winnebago Home for the Aged, 442 People ex rel. North Am. Restaurant V. Chetlain, 514 People ex rel. Norwegian -American Hosp., Inc., V. Sandusky, 217 People ex rel. Oliver v. Knopf, 157 People ex rel. Olmsted v. University of 111., 439 People ex rel. Olson v. Atchison, T, & S.F. Ry., 512 People ex rel. Partello v. McCullough, 298 People ex rel. Paschen v. Hendrick- son-Pontiac, Inc., 403 People ex rel. Petersen v. Hughes, 297, 298 People ex rel. Peterson v. Pollock, 219 People ex rel. Phillips v. Strassheim, 85, 86, 107, 385 People ex rel. Polen v. Hoehler, 189 People ex rel. Reitz v. DeWolf, 157 People ex rel. Ring v. Board of Educ, 407 People ex rel. Royal v. Cain, 577 People ex rel. Sammons v. Snow, 33 People ex rel. Sanitary Dist. v. Schlaeger, 471 People ex rel. Schlaeger v. Allyn, 420 People ex rel. Schmidt v. Yerger, 196 People ex rel. Schoon v. Carpentier, 115, 429, 430, 431 People ex rel. Scott v. Powell, 357 People ex rel. Sellers v. Brady, 106, 271 People ex rel. Shallberg v. Central Union Tel. Co., 74, 75 People ex rel. Smith v. Allen, 289 People ex rel. Smith v. Jenkins, 288 People ex rel. Soble v. Gill, 513 People ex rel. Sprague v. Clark, 102 People ex rel. Springfield, E. &: S. R.R. v. Town of Bishop, 576 People ex rel. Stamos v. Jones, 102, 333 People ex rel. Standerfer v. Hamill, 480 People ex rel. State Bd. of Agr., v. Brady, 104, 256, 298, 299 People ex rel. Stephenson v. Marshall, 489 People ex rel. Stuckart v. Day, 502 People ex rel. Stuckart v. Knopf, 165 People ex rel. Taylor v. Board of Educ, 340 People ex rel. Thomson v. Barnett, 116, 167 People ex rel. Thompson v. First Con- gregational Church, 437, 443 People ex rel. Toman v. Crane, 482 People ex rel. Trobaugh v. Chicago & T. R.R., 480 People ex rel. Tuohy v. City of Chi- cago, 399 111. 551 (1948), 462 TABLE OF CASES (Continued) 603 People ex rel. Tuohy v. City of Chi- cago, 394 111. 477 (1946), 167, 461, 466 People ex rel. Vanderburg v. Brady, 103 People ex rel. VanSlooten v. Board of Comm'rs, 462, 463 People ex rel. Wallace v. Labranz, 17 People ex rel. Walsh v. Board of Comm'rs, 502, 505, 506, 508 People ex rel. Wangelin v. Wiggins Ferry Co., 419 People ex rel. Ward v. Chicago & E. 111. Ry., 472 People ex rel. Ward v. Tomek, 128 People ex rel. Watseka Tel. Co. v. Emmerson, 518 People ex rel. Weber v. Cohn, 518 People ex rel. Wies v. Bowman, 157 Peoples Gas Light &: Coke Company V. City of Chicago, 162, 163, 423, 425 People's Gas Light & Coke Co., v. Stuckart, 419 Perkins v. Perkins, 244 Pettibone v. West Chicago Park Com- mr's, 209 Pfeiffer v. People ex rel. McCormick, 464 Phillips V. Browne, 174 Pickering v. Board of Educ, 20 Plummer v. People, 158 Pointer v. Texas, 39 Pollock V. Farmer's Loan &: Trust Co., 422 Poole V. City of Kankakee, 62, 485 Porter v. Loehr, 195 Potter V. Calumet Elec. St. Ry., 519 Powell V. Board of Educ, 400 Powell V. McCormack, 148 Powell V. Texas, 51 Prall V. Burchartt, 73 Prettyman v. Supervisors of Tazewell County, 576 Prince v. City of Quincy, 128 111. 443 (1889), 486 Prince v. City of Quincy, 105 111. 215 (1883), 482, 486 Prince v. City of Quincy, 105 111. 138 (1882), 482 Proprietors of the Charles River Bridge V. Proprietors of the Warren Bridge, 71, 72 Railroad Comm'n Cases, 72 Raines v. Board of Trustees, 195, 196 Ramsay v. VanMeter, 281 Ramsey v. Hoeger, 454, 455 Raymond v. Hartford Fire Ins. Co., 456, 461 Reed v. Tyler, 96 Reichwald v. Catholic Bishop of Chi- cago, 17 Reif V. Barrett, 148, 423, 424 Reinman v. City of Little Rock, 61 Rhinehart v. Schuyler, 413, 414 Rice V. Santa Fe Elevator Corp., 547 Richards v. Raymond, 400 Richeson v. People ex rel. Jones, 576 Riefler v. State, 189 Rittenberg v. Murnighan, 518 Road Dist. No. 4 v. Frailey, 239 Robbins v. People, 49 Robinson v. California, 51, 52 Robinson v. City of Geneseo, 348 Rock Island County v. Sage, 493 Romiti V. Kerner, 335 Rotary Int'l v. Paschen, 442 Roth V. United States, 21 Rouse V. Thompson, 85, 86, 107, 115, 164 Routt V. Barrett, 158, 190 Russian Volunteer Fleet v. United States, 61 Ruth v. Aurora Sanitary Dist., 470 St. Regis Paper Co. v. United States, 61 Sangamon County Fair & Agr. Ass'n v. Stanard, 153, 159 Sanitary Dist. v. Gibbons, 439 Sanitary Dist. v. Manasse, 57 Sawyer v. City of Alton, 413 Saxby v. Sonnemann, 108, 123 Schewe v. Glenn, 72 Schmerber v. California, 45 Schnell v. City of Rock Island, 482, 485 Schoen v. Caterpillar Tractor Co., 347 School Dist. v. Schempp, 406 School of Domestic Arts 8c Science v. Carr, 441 604 TABLE OF CASES (Continued) Schreiber v. County of Cook, 456 Schroeder v. Binks, 115 Schuler V. Board of Educ. 196, 198. 199, 576 Schuman v. Chicago Transit Authority, 221 Schwing V. Miles, 233 Scofield V. Board of Educ, 383 Scown V. Czarnecki, 383, 384 Scribner v. Sachs, 567 See V. City of Seattle, 31 Segar v. Board of Educ, 401 Senichka v. Lowe, 96 Shapiro v. United States, 45 Shatz V. Paul, 54, 55 Sheldon v. Hoyne, 14 Shellabarger Elevator Co. v. Illinois Cent. R.R., 552 Shuttlesworth v. City of Birmingham, 81, 82 Siegall V. Solomon, 93 Skelly Oil Co. v. Universal Oil Prod. Co., 90 Sleight V. People, 473 Smith V. Board of Educ. 401 Smith V. Hill, 93 Smith V. Illinois, 41 Smith V. Lewis, 347 South Park Comm'rs v. Wood, 438 Speight v. People ex rel. County Col- lector, 219 Springfield Housing Authority v. Overaker, 442 Starne v. People, 238 State V. Illinois Cent. R.R., 574 State Bank &: Trust Co. v. Village of Wilmette, 57 State Pub. Util. Comm'n v. Monarch Refrig. Co., 546 State Pub. Util. Comm'n ex rel. Mit- chell V. Chicago & W. T. Ry., 531 State Pub. Util. Comm'n ex rel. Quincy R.R. V. City of Quincy, 71, 72 Stirone v. United States, 36 Stone V. City of Chicago, 488 Strong V. Dignan, 217 Sturges V. Crowninshield, 70, 72 Sutter V. People's Gas Light 8c Coke Co., 163, 165 Talbott V. Thompson, 384 Taylorville Sanitary Dist. v. Winslow, 462 Teitel Film Corp. v. Cusak, 22 Terminiello v. Chicago, 19, 20 Thomas Cusack Co. v. City of Chicago, 61 Thompson v. Conti, 84 Thomson v. Thomson, 73 Thorpe v. Mahin, 435 Times Film Corp. v. City of Chicago, 20 Titus V. Mabee, 528 Tot V. United States, 101 Town Sc Country Motor Hotel, Inc. v. United States, 62 Town of Kankakee v. McGrew, 485 Treece v. Shawnee Community Unit School Dist., 91 Trustees of Dartmouth College v. Woodward, 70 Trustees of Schools v. Batdorf, 67 Tudor v. Firebaugh, 55 Turkovich v. Board of Trustees, 183 Turner v. Wright, 429, 431, 455 Turnverein "Lincoln" v. Board of Ap- peals, 441 Tuttle v. Bell, 420 United States v. Braverman, 45 United States v. Causby, 62 United States v. Curtiss-Wright Export Corp., 255 United States v. Department of Revenue, 426 United States v. Finn, 62 United States v. Goldsmith, 44 United States v. Gossler, 62 United States v. Jackson, 42 United States v. South Dakota, 62 United States v. Wade, 45 United States ex rel. Almeida v. Rundle, 68 United States ex rel. TVA v. Powelson, 61 United States ex rel. TVA v. Welch, 62 University of Chicago v. People ex rel. Seipp, 403 Updike v. Wright, 241, 462 VanNada v. Goedde, 462 TABLE OF CASES (Continued) 605 Venner v. Chicago City R.R., 71 Village of Depue v. Banschback, 62 Village of Downer's Grove v. Glos, 447 Village of East Moline v. Pope, 486 Village of Euclid v. Ambler Realty Co., 61 Village of Forest Park v. Collis, 475 Village of Park Forest v. Bragg, 348 Village of South Holland v. Stein, 20 Voss V. Chicago Park Dist., 88 Wabash E. Ry. v. Commissioners of East Lake Fork Special Dramage Dist., 73 Wabash R.R. v. Coon Run Drainage & Levee Dist., 533 Wabash R.R. v. People ex rel. Reed, 480 Wabash, St. L. & P. Ry. v. McCleave, 458 Wade V. East Side Levee & Sanitary Dist., 481 Wall V. Pfanschmidt, 53 Wallace v. Wallace, 94 Walz V. Tax Comm'n, 444 Ward V. City of Chicago, 485 Wartell v. Formusa, 91 Washington v. Texas, 39 Watkins v. United States, 44 Watts V. Department of Pub. Works & Bldgs., 215 Wedding v. Meyler, 4 Weeks v. United States, 30 Weiner v. Jobst, 453 Welch V. Davis, 410 111. 130 (1951), 95 Welch V. Davis, 342 111. App. 69 (1950), 90 Welch v. Swasey, 61 Wells V. Rockefeller, 135, 139 Welsh V. James, 53 Welsh V. Shumway, 385, 386 West End Sav. & Loan Ass'n v. Smith, 105 Westlake Hosp. Ass'n v. Blix, 518 Wetherell v. Devine, 473 Whittemore v. People, 321 Wice V. Chicago & Nw. Ry., 97 Wiener v. United States, 287 Wilcox V. People ex rel. Lipe, 286 Williams v. Gottschalk, 96 Williams v. Kerner, 142, 156 Williams v. People ex rel. Wilson, 576 Williamson v. United States, 174, 175 Wilson v. Board of Trustees, 222, 243, 480 Wilson V. McKenna, 96 Winnetka Park Dist. v. Hopkins, 463 Winter v. Barrett, 423, 424, 425 Wisner v. Chamberlin, 452 Witherspoon v. State of Illinois, 39, 41 Wolf V. Colorado, 29 Wolf V. Hope, 475 Wolfson V. Avery, 518 Wood V. Chase, 67 Wright V. Wabash, St. L. &: P. Ry., 458 Wulff V. Aldrich, 508 Wunderle v. Wunderle, 220 Yates V. Board of Review, 443 Yates V. People ex rel. Anderson, 71 Young V. Illinois Athletic Club, 422 Youngstown Sheet & Tube Co. v. Saw- yer,'255 Zepeda v. Zepeda, 90 Ziccarelli v. Stuckart, 453 Zorach v. Clauson, 406, 445 Zostautas v. Anthony De Padua Hosp., 95 LIST OF SECONDARY SOURCES CITED Advisory Commission on Intergovernmental Relations, Federal-State Coordina- tion of Personal Income Taxes (1965), 433 E. Anthony, The Constitutional History of Illinois (1891), 262 Banzhaf, "Multi-Member Electoral Districts — Do They Violate the 'One Man, One Vote' Principle?" 75 Yale L.J. 1309 (1966), 140 Black's Law Dictionary (4th ed. rev. 1968), 427 Blomquist, "Effect of Curative Statutes on Taxation in Illinois," 27 Chi.-Kent L. Rev. 211 (1949), 473 Chicago Home Rule Commission, Modernizing A City Government (1954), 469 Choper, "The Establishment Clause and Aid to Parochial Schools," 56 Cal. L. Rev. 260 (1968), 407 Citizens Conference on State Legislatures, State Constitutional Provisions Affect- ing Legislatures (May 1967), 126, 224 Cohn, "Constitutional Limitations on Income Taxation in Illinois," 1961 U. 111. L.F. 586; 422, 434 Cohn, "The Process of Legislation," 1963 U. 111. L.F. 27; 154, 163 Cohn, "Public Employee Retirement Plans — The Nature of the Employees' Rights," 1968 U. 111. L. F. 32; 197 Comment, "Curative Tax Legislation," 32 111. L. Rev. 456 (1937), 473 Comment, "Judicial Treatment of Tax Anticipation Warrants in Illinois," 45 111. L. Rev. 653 (1950), 467 Council of State Governments, The Book of the States, 1968-69 (1968), 258, 358, 386, 387 J. Dillon, Municipal Corporations (5th ed. 1911), 195 R. Dishman, State Constitutions: The Shape of the Document (1968), 97, 538 Dolan, "Consequential Damages in Federal Condemnation," 35 Va. L. Rev. 1059 (1949), 63 Eaton, "Present Problems of Article XIII," 17 De Paul L. Rev. 545 (1968), 547 Elson, "Constitutional Revision and Reorganization of the General Assembly," 33 111. L. Rev. 15 (1938), 154 N. Garvey, The Government and Administration of Illinois (1958), 522, 274 Gove, "The Business of the Legislature," 1963 U. 111. L. F. 52; 166 Harbert, "Tax Foreclosures and Tax Titles," 1952 U. 111. L. F. 209; 451 Howards, "Property Tax Rate Limits," in Report of the Commission on Revenue 521 (1963), 460 607 608 LIST OF SECONDARY SOURCES CITED (Continued) Hubbard, "Special Legislation for Municipalities," 18 Harv. L. Rev. 588 (1905), 210 Illinois Legislative Council, Research Department, Publication 134, Constitu- tional Mandates for Uniformity of Taxation (1959), 432 Kales, "Special Legislation as Defined in the Illinois Cases," 1 111. L. Rev. 63 (1906), 209, 210 " Kauper, "The Constitutionality of Tax Exemptions for Religious Activities," in The Wall Between Church and State (D. Oaks ed. 1963), 445 Kalven, "Invoking the Fifth Amendment: Some Legal and Practical Consider- ations," 9 Bull. Atom Sciences 181, 182 (1953), 44 ' T. Kitsos, Constitutional Amendments and the Voter, 1952-1966 (1968), 568 Korbel, "Do the Federal Income Tax Laws Involve an 'Establishment of Re- ligion?' " 53 A.B.A.J. 1018 (1967), 446 Lavery, "The Boundaries Article of the Illinois Constitution," 16 111. L. Rev. 361 (1922), 3, 4 Lucas, "Nonproperty Taxes Under the Illinois Constitution," 25 U. Chi. L. Rev. 63 (1957), 414 "Methods of Establishing 'Just Compensation' in Eminent Domain Proceedings in Illinois: A Symposium," 1957 U. 111. L. F. 289; 63 Nichols, "Bill-Drafting in Illinois," 41 111. Bar J. 136 (1952), 166 Note, "The First Amendment and Financial Aid to Religion: Limits on the Government's Conduct," 61 Nw. U. L. Rev. 777 (1966), 446 P. Pack, Comparative Analysis of the Michigan Constitution (1961), 538 Righeimer, "The Law of Eminent Domain," 43 111. Bar. J. 206 (1954), 57 Schaefer, "Police Interrogation and the Privilege Against Self-incrimination," 61 NW. L. Rev. 506 (1966), 50 G. Schmutz, Condemnation Appraisal Handbook (1963), 63 J. Scurlock, Retroactive Legislation Affecting Interest in Land (1953), 67 Smith, "Retroactive Laws, and Vested Rights," 5 Tex. L. Rev. 231 (1927), 67 Smith-Hurd, Illinois Annotated Statutes, Constitution, Articles I-V (1964), 214 G. Steiner and S. Gove, Legislative Politics in Illinois (1960), 143 Van Alstyne, "Tax Exemption of Church Property," 20 Ohio St. L. J. 461 (1959), 444 J. Wigmore, VIII Wigmore on Evidence §§2250-2284 (1961), 50 Young, "Constitutional Problems," in Report of the Commission on Revenue 354 (1963), 422. 434 (A list of extensively used sources, without page references, is at p. viii in the Preface.) INDEX Accusation indictment, 34 information, 37 Acts See General Assembly Adjournment of General Assembly disagreement between houses, 278 Governor's power, 278 limitations, 152 Administrative Agency delegation of powers, 104, 114 branch of government, 114 generally, 114, 258 judicial review, 346, 355 jury trials, affecting, 25 Advice and Consent appointments by Governor, 280, 284 temporary appointments, 283 vacancies filled by Governor, 283 Age militia members, 537 qualifications for office executive officers, 267 General Assembly, 120 judges, 366 qualification for voting, 381, 386 Aid private corporations, 576 railroads, 576 sectarian institution, 404, 407 state corporation, association, individual, 197 sectarian institutions or purposes, 404, 407 Amendment of Laws See General Assembly Amendments to Constitution See Constitutional Convention; Dele- gates to Constitutional Convention convention, 557 legislative proposals, 565 Appellate Courts See Courts Appointments See Removal from Office advice and consent of Senate, 281 Governor's power, 280, 283, 313, 356 temporary, 283 vacancies, 283, 313, 356 Apportionment delegates to Constitutional Conven- tion, 561 redistricting, 141 representative, 136, 140 senatorial, 131, 133 Appropriations annual, 187 expenditures, state, 186, 191 expiration, 189 generally, 178, 185 Governor's veto power item veto, 298, 300, 302 procedure, 294, 300, 301 legislators' pay, 179 period, 187 private, 179 restriction, new capitol grounds, 245 revenue, exceeding, 189 sectarian purposes, 404 treasury warrants, 181 Armed Forces See Militia Army See Militia Arrest General Assembly, 173 militia, members of, 541 voters, 391 Assembly See Insurrection; Riots freedom of, 22, 79 prior restraint, 81 Attorney General See Elections; Dual Office Holding 609 610 INDEX (Continued) duties, 256 election, 262 impeachment, 228, 292 oath, 323 powers, 256 qualifications, 394 report, to Governor, 313, 315 residence, 253 salary, 319 term of office extension prohibited, 236 length of, 253, 262 Auditor of Public Accounts See Elections; Dual Office Holding chief disbursing officer, 182 duties, 183, 256, 313, 315 election, 262 impeachment, 228, 292 oath, 323 powers, 256, 270 qualifications, 394 residence, 381 salar>', 319 term of office extension prohibited, 236 length of, 253, 262 vacancy, 313 Bail generally, 32 reasonable, 33 Ballot See Suffrage long, 315, 318 long versus short, 259, 371 required, 390 secret, 390 short, 319 voting machines, 390 Banks currency restrictions, 525 reports, 524 security required, 525 specie payments prohibited, 524 state ownership, 520 state, prohibition, 520 stockholder liability, 522 Bicameralism generally, 116 Bill of Rights content, 97 generally, 5 judicial expansion, 112 limitation on legislative power, 112 state, 5 Bills See General Assembly Blood corruption of, 52 Board of County Commissioners See Counties Boundaries state, 3 Branches See Administrative Agency; Ex- ecutive Department; General Assembly; Judicial Department; Legislative Department Bribery infamous crime, 397 oath against. General Assembly, 130 Budget biennial, 274 executive, 273 Canals generally, 577 Capital Stock banks, state ownership, 521 municipal subscriptions, 576 railroads dividends, restrictions, 531 increases, restrictions, 531 issue, restrictions, 531 Capitol expenditure for, 245 residence at, executive officers, 253 Chicago local government, special laws, 248 municipal courts, 250 Chief Justice administrative authority, 333 selection, 336 term, 336 INDEX (Continued) 611 Circuit Courts See Courts Citizenship militia members, 537 qualification for office civil office, 394 executive officers, 267 General Assembly, 120, 122, 124 judges, 366 military office, 394 states attorney, 379 qualification for railroad directors, 530 qualification for voting, 381 City Courts See Courts Civil Power military subordinate to, 76 Classification counties, 513 judges, 350 legislative power of, 113 local and special legislation, 208 Clerks See County Officers impeachment, 228, 292 number, 378 qualifications, 394 removal, 378 selection, 378 terms of office extension prohibited, 236 length, 377 Common Carriers See Railroads duties, grain, 551 liability, grain shipments, 551 railroads, 530, 573 Commutation defined, 288 Governor's power, 288 taxes, 454 Compensation See Eminent Domain; Fees; Salaries changing, special legislation, 220 consideration, without, 195 members of General Assembly, 200 past services, 195 Conflict of Interest school contracts, 409 state contracts, 177, 230 Conscience See Religion Conscientious Objectors military exemption, 543 Consolidation railroads, 529 Constables See Justices of the Peace Constitutional Amendments See Amendments to Constitution Constitutional Convention procedure, 557 termination date, 560 Contempt civil, 289 criminal, 289 General Assembly, 147 pardons prohibited, 289 Contracts impairment of, 65 state contracts, restrictions, 176, 230 unauthorized, 194 Convention See Amendments to Constitution; Constitutional Convention Convict Labor generally, 578 Coroner See County Officers Corporations See Municipal Corporations; Ware- houses banking creation, restrictions, 515 double liability, 523 laws, 525 referendum, 521 reports, 524 creation of. General Assembly, 515 cumulative voting, 517 612 INDEX (Continued eminent domain, 532 municipal subscriptions, 576 railroacls, generally, 526, 529 special privileges, validity, 516 street railways, 519 Corruption of Blood prohibited, 52 Counsel See Offenses representation by, 39 Counties board of commissioners Cook County, 501 duties, 500 election, 500 organization, 499 qualifications, 394, 500 terms, 500 boundaries, 489 classification of, 513 county affairs, special legislation, 216 county seat removals, 494 division of, 491 establishment, restrictions, 489 indebtedness limit, 478 territory changes, 492 township organization adoption, 497 Cook County, 501 discontinuing, 497 meetings, 496 township names, 496 County Officers Cook County deputies, 507 salary, 507 duties, 410, 505, 513 election, 410, 504 impeachment, 292 offices established, 504 qualifications, 394^ 410 re-election, 504 salary ^ amount, 410, 509 changes, prohibited, 509 terms of office extension prohibited, 236 length, 410, 504 County Seats See Counties county line restriction, 490 removal restrictions, 494 special legislation, 216 County Superintendent of Schools duties, 410 election, 410 powers, 410 qualifications, 394, 410 salary, 410 term of office extension prohibited, 236 length, 410 County Treasurer See County Officers Courts administrative control of, 332 appellate decisional requirement, 343 districts, 343 jurisdiction, 345 organization, 342 quorum, 343 circuit chief judge, 351 circuits, 349 divisions, 351 integrated trial courts, 349 jurisdiction, 350 organization, 349 court practice, special legislation, 216 establishment of, 329 rule-making, 333 Supreme Chief Justice, 336 decisional requirementt, 336 districts, 336 jurisdiction, 338 organization, 336 quorimi, 336 Criminal Offenses See Offenses Cross-Examination right of, 41 Cumulative Voting corporations, directors, 517 INDEX (Continued) 613 General Assembly House of Representatives, 137 Senate, 131 Debt See Indebtedness defined, 54 imprisonment for, 54 limits, 477 restrictions assumption, 197 release, 226 Deep Waterway generally, 577 Defamation See Speech Delegates to Constitutional Convention dual office holding, 559 election procedure, 559 expenses, 559 number, 558 oath, 558 partisan or nonpartisan, 559 qualifications, 394 salary, 559 vacancies, 559 Delegation of Power generally, 114 private groups, 115 separation of powers, 104 Demonstrations See Assembly; Petition Departments See Administrative Agency; Branches; Executive Department; Judicial Department; Legislative Department; Separation of Powers Descent special legislation, 220 Directors corporate cumulative voting, 517 election, 517 qualifications, railroads, 529 Discrimination See Religion exclusive privilege, 221 racial, 540 Disqualification See specific office members of General Assembly, 127 municipal officers, 474 Distribution of Powers See Executive Power; Separation of Powers Districts See Apportionment; Redistricting debt limit, 477 drainage, 242 judicial, 333 Divorces special legislation, 215 Double Jeopardy defined, 47 dual sovereignty, 48 prohibited, 43 Drainage districts, 242 drains and ditches, establishment, 241 Dual Office Holding elective offices, 267 generally, 121, 127, 176, 369, 561 separation of powers, 108 Due Process of Law defined, 9 eminent domain, 57 generally, 9 incorporation doctrine, 5, 43, 79 judicial expansion, 112 legislative, affecting, 112 police power, 112 procedural, 11 Education See Schools Elections See Suffrage; Vote delegates to Constitutional Convention, 557 directors, corporate, 517 executive officers canvassing, 264 contests, 264 generally, 253, 262 ties, 264 614 INDEX (Continued) free and equal, 83 general, defined, 363 judge of, 147, 150, 152 judicial. 355, 359 judicial districts, 333 primary, 85 privileges of electors, 391 special legislation, 219 Elevators See Warehouses Emergency Laws effective date, 167 generally, 167 Eminent Domain compensation jury determination, 56, 63, 533 just, 62 corporations, 532 damage, when constituted, 56 defined, 57 drainage, 242 fee retained, 56 generally, 56 police power, 57 public use, 62 "quick taking" procedure, 64 roads, establishing, 239 taking, defined, 57, 63 Employment definition, 322 Enacting Clause generally, 155 English Language medium of school instruction, 400 Equal Laws See Equal Protection Equal Protection equivalent of, 207, 221 generally, 114 Executive Department See Executive Power; Separation of Powers generally, 253 Executive Offices See Appointments; Elections; Removal from Office; Succession account, duty to, 313 election, 262 eligibility, 267 generally, 255 Governor-Lieutenant Governor team system, 263 long versus short ballot, 260 oath, 323 powers, 254, 270 qualifications, 394 re-election eligibility, 261 report, duty to, 315 salary, 319 term of office, 253, 262 Executive Power See Commutations; Pardons; Reprieves; Separation of Powers; Veto constitutional powers, 254 defined, 100 distribution, 270 generally, 254 inherent, 255 supreme. Governor's, 270 Exemption Laws generally, 244 Exemptions military, 537, 543 tax, 435 Expenses See specific office; Appropriations; Indebtedness report of, 182 Ex Post Facto Laws application, 66 generally, 65 Expulsion General Assembly, members, 147 Fees defined, 507 officers, 352 regulation, 512 report of, 513 restrictions, 320, 507, 510, 512, 513 uniformity, 512 Fines special legislation, 220 INDEX (Continued) 615 Forfeiture estate, 52 franchises, railroads, 535 Franchise See Suffrage railroads, forfeiture of, 535 tax, 416, 422, 435 Free Speech See Speech Fundamental Principles generally, 97 Gambling not prohibited, 234 Gateway Amendment generally, 565 General Assembly See Appropriations; Elections Mjournment disagreement between houses, 278 generally, 152 power of Governor, 278 bills amendments, 157, 165, 169, 172 effective date, 167, 169, 173 Governor's veto power item veto, 298, 302 procedure, 294, 302 means of enacting law, 155 origin, 156 passage procedure, 157 rejection, 156 yeas and nays journal entry, 157 required, 158 printing, 162, 168, 170 reading, 162, 168, 170 revival of laws, 165, 169, 172 signing, 163, 168, 170 subject, 163, 168, 171, 179 title, 163, 168, 171 branches. 111 contempt, power to punish, 147 control of state contracts, 230 denying suffrage, 397 House of Representatives canvass of election returns, 264 size, 136 impeachment procedure, 228 journal entries dissent and protest, 153 yeas and nays, 153, 157 generally, 152 laws amendment, 165, 169, 172 effective date, 167, 169, 173 emergency, 167 Governor's veto power item veto, 298, 302 procedure, 294, 302 revival, 165, 169, 172 style, enacting clause, 155 subject, 163, 168, 171 title, 163, 168, 171 members compensation, 200 disqualification, 127 election, judging, 147, 150, 152 elections, 117 expenses, 200 expulsion, 147 impeachment, 228 legislative immunity, 174 lucrative offices prohibited, 121 oath, 129 other offices prohibited, list, 121 privileges, 173 qualifications, 120, 147, 394 restrictions, 176 terms of office extension prohibited, 236 House of Representatives, 136, 140 Senate, 131, 133 vacancies, 117 officers, 146, 150, 152 organization, 145 presiding officers, 146, 308 quorum, 146, 149, 152 redistricting, 141 rules of procedings, 146, 150 Senate approval of Governor's appointments, 281, 184 President, Lieutenant Governor, 308 President Pro-Tempore, 308 size, 131, 133 616 INDEX (Continued) sessions adjournment by Governor, 278 commencement, 145, 149, 151 open, 152 secret, 153 special, 275 Gift Enterprises prohibited, 234 Government See Separation of Powers Governor See Dual Office Holding; Elections accounting, 273 appointment power, 280, 283 approval of state contracts, 230 duties, 253, 273, 315 election, 262 execution of laws, 270 General Assembly power to adjourn, 278 power to convene, 275 vacancies filled by writ of election, 118 impeachment, 228, 292 message to General Assembly, 273 militia control of, 290 officers, commission, 540 oath, 323 pardons, reprieves, commutations, 287 powers, 254, 270, 273, 275, 278, 280, 283, 285, 287, 291, 294, 313, 357, 540 qualifications, 267, 394 recommendations to General Assembly, 273 removal power, 285 residence, 253 salary, 319 '"state of state" message, 273 succession to office, 303, 310 team system, 263 temporary appointments, 283 term of office extension prohibited, 236 length of, 253, 262 vacancies, power to fill, 283, 313, 357 \ct() power item veto, 298, 300, 302 procedure, 293 Grain See Warehouses inspection, 555 liability of carrier, 551 shipments, railroad duties, 551 Grand Jury abolition of, 35 defined, 37 generally, 34 indictable offenses, 34 Habeas Corpus generally, 32 Happiness pursuit of, 8 Highways See Roads Home Rule Chicago, 248, 250 Cook County, 503 corporations, control, 520 taxation, 467 Homestead and Exemption Laws generally, 244 House of Representatives See General Assembly Illinois Central Railroad generally, 573 tax status, 574 Immunity grant of, 66, 74 legislative, 174 sovereign, 233 Impeachment See Office; Removal from Office definition, 229 effect of, Governor, 303 jurisdiction, 339 members of General Assembly, 229 persons liable, 292 procedure, 228 Imprisonment See Debt Indebtedness Chicago, 246, 488 county INDEX (Continued) 617 assumption, 493 limit, 477 districts limit, 477 municipal limit, 477 power to contract, 185 release of, 226 state limit, 186 township limit, 477 Indictment generally, 34 Information prosecution by, 37 Injuries remedy provided, 89 Inspection grain laws providing for, 555 owners' rights, 550 Insurrection habeas corpus suspended, 32 suppression of, militia, 291 Interest special legislation, 219 Invasion repulsion of, militia, 290 Items See Appropriations Jeopardy double, 43 dual sovereignty, 48 Journal See General Assembly^ / Judges / appellate court number, 344 circuit court assignment of magistrates, 361 chief judge, 351 classification, 350 number, 351 expenses, 370 fee officers, 352 impeachment, 228, 292, 373 judicial conference, 376 judicial districts, 333, 336, 343 judicial independence, 360 magistrates appointment, 361 generally, 351 jurisdiction, 362 term of office, 362 masters in chancery, 352 prohibited activities, 368 qualifications, 366 reduction in number, 360 removal, 372 retention, 359 retired judges, assignment of, 374 retirement, 372 running on record, 357, 360 salaries, 370 salary changes, 370, 474 selection, 355 Supreme Court number, 336 report, duty to, 315 suspension, 372 temporary assignments of, 332, 344 terms of office extension prohibited, 236 length, 364 tenure, 355, 359, 364, 365. 366 vacancies, 356 Judicial Conference generally, 376 Judicial Department See Judicial Powers; Separation of Powers history, 327 judicial conference, 376 Judicial Officers See specific offices Judicial Powers See Separation of Powers bill of rights-judicial expansion, 112 defined, 100 exercise of, 329 legal practice, control of, 101 rule-making, 101 Jurisdiction appellate court review of administrative 618 INDEX (Continued) decisions, 345 final orders, 347 generally, 345 circuit court generally, 350, 353 justiciability, 354 review of administrative decisions, 355 special legislation, 217 state, 3 Supreme Court appellate, 339 generally, 338 original, 339 Jury civil cases guaranteed, 24 size of, 24 trial by, 24 criminal cases impartial, 41 required, 41 grand jury, 34 summoning, special legislation, 218 Justice generally, 89 Justices of the Peace Chicago, abolition, 247 Cook County jurisdiction, 247 impeachment, 228 lucrative- office, 121 qualifications, 394 term of office extension prohibited, 236 Laws See General Assembly execution of. Governor, 270 execution of, militia, 291 Legislation See Special Legislation classification of, 113 emergency, 167 general and special, 113 police power, 112 Legislative Department See Legislative Powers; Separation of Powers generally, 1 1 1 grants of power to, 116 Legislative Immunity generally, 174 Legislative Power See Separation of Powers defined, 100 generally, 1 1 1 grants to legislature, 116 limitations, 1 1 1 police power, 1 12 Levee districts, 241 generally, 241 Liability See Stockholders Libel members of General Assembly, 174 irutli a defense, 19 Liberty deprivation of, due process, 9 secured, 8 Lieutenant Governor See Dual Office Holding; Elections duties, 256, 303, 308, 313, 315 election, 262 impeachment, 228, 292 oath, 323 powers, 257, 270 President of Senate, 308 qualifications, 267, 394 salary, 319 succession to Governor, 303 team system, 263 term of office extension prohibited, 236 length of, 253, 262 Life deprivation of, 9 inherent right, 8 Literacy qualification for voting, 386 Local Improvements See Special Assessments Local Legislation definition, 207 generally, 206 Lotteries prohibited, 234 Lucrative Office defined 123 INDEX (Continued) 619 delegates to Constitutional Convention, 559 members of General Assembly, 121 Magistrates See Judges Mental Condition qualification for voting, 387 Message Governor's, "state of state," 273 Mileage expenses, member of General Assembly, 200 Military See Militia subordination of, 76, 291 Miners protection of, 237 Mines protection of miners, 237 Ministry support of, 15 Minority Representation plan of, 138 Misdemeanors cause for impeachment, 292 Municipal Charters Chicago, 250 special legislation, 217 Municipal Corporations See Corporations drainage districts, 241 indebtedness limit, 477 officers compensation, 473 defined, 475 disqualification, 474 property tax exemption, 438 Municipal Courts See Courts Chicago, 250 Municipal Subscriptions private corporations, 576 railroads, 576 Name Changes special legislation, 215 Navy See Militia Nonpartisan See Partisan Notary Public not lucrative office, 121 qualifications, 394 Oath civil officers, 323 delegates, Constitutional Convention, 558, 560 members of General Assembly, 129 not dispensed with, 15 Obscenity See Speech Offenses bail, 32 commutation, 288 double jeopardy, 43 indictment, 34 information, 37 pardons, 287 penalties, 50 reprieves, 288 rights of accused criminals compelling witnesses, 39 confrontation of witnesses, 39 cross-examination, 41 impartial jury, 39 jury trial, 41 local jury, 39 notice of accusation, 39 representation by counsel, 40 right to appear, 40 self-incrimination, 43 speedy public trial, 39 Office See Executive Officers; General Assembly; Governor; Judges; Lieutenant Governor; Lucrative Office; Succession appointments generally, 280 temporary, 283 defined, 322 disqualification default, 473 generally, 127 members of General Assembly, 127 extension of term prohibited, 236 impeachment, 228 620 INDEX (Continued) oath civil officers, 323 delegates to Constitutional Convention, 558, 560 General Assembly, 129 profitable, 121 qualifications attorney, 366 citizenship, 366, 394 residency, 366, 394 removal from, 285 vacancy declaration of, 285 filled by appointment, 283 Officers See Executive Offices; General Assembly; specific office militia, 540 One Man-One Vote See Apportionment Opinions See Religion Pardons conditional, 288 defined, 288 Governor's power to grant, 287 impeachment conviction, 230, 288 Partisan delegates to Constitutional Convention, 559, 561 judicial officers, selection, 328, 356 redistricting, 143 Penalties limitations, 50 proportioned to offense, 51 Pensions restrictions, 195 Petition prior restraint, 81 right of, 79 Police Magistrates See Judges Police Pov^er due process, 1 1 eminent domain, 57 generally, 112 impairment of contracts, 71 regulation of rates, 72, 534 religion, 17 Powers of Government See Separation of Powers limitations, 5, 1 1 Preamble generally, 1 President of Senate Lieutenant Governor, 308 temporary, 145 Private Laws See Local Legislation; Special Legislation definition, 207 Privileges electors, 391 grants of special, 66, 74, 516 special legislation, 221 Proceedings rules of. General Assembly, 146, 150 Property See Eminent Domain minors, special legislation, 219 protection of, 8 railroad eminent domain, 532 forfeiture, 535 personal property, 528 school, 402 Prosecutions See Offenses Protest demonstrations, 80 entry in journal, 153 Public Laws definition, 207 Punishment See Commutation; Pardons cruel and unusual, 51 exile, 53 penalty limitations, 50 Qualifications See Age; Citizenship; General Assembly; Residence; specific office Quorum appellate court, 343 General Assembly, 146, 149, 152 Supreme Court, 336 Railroads bonds, restrictions, 531 INDEX (Continued: 621 capital stock dividends, restrictions, 531 increases, restrictions, 531 issue, restrictions, 531 consolidations, 529 director's qualifications, 529 director's report, 527 eminent domain, 532 grain shipments liability for, 551 regulations, 551, 552 Illinois Central, 573 organization, 527 personal property defined, 528 public highways, 530 rates, regulation of, 530, 534 special legislation, 221 stockholders' list, 526 Rates railroad, regulation of, 530, 534 Real Estate See Taxation Rebellion See Insurrection Recorder of Deeds See County Officers Records preservation of military, 542 Redemption tax sales, 448 Redistricting generally, 141 Referendum banking laws, 520 Chicago municipal government generally, 248 constitutional amendments, 557, 562 county divisions, 491 county seat, 494 county territory changes, 492 generally, 115 state house expenditures, 245 township organization, 497 Religion denial of civil and political rights, 15 establishment of aid to sectarian institutions, 404, 442 generally, 16 released-time program, 406 freedom of, 14 improper practices, 15 licentiousness, 15 oaths and affirmations, 15 school aid, 405 tax exemption, 435, 442 Remedy provided, 89 Removal from Office See General Assembly; Impeach- ment; specific office Governor, 285 Reports banks, 524 fees received, 513 judicial, 315, 376 railroad corporations, 527 state officers, required, 315 warehouses, 548 Representatives See General Assembly Reprieves defined, 288 Governor's power; to grant, 288 Reputation See Libel Residence executive officers, at capitol, 253 military personnel, 393 militia members, 537 qualifications for office civil office, 394 executive officers, 267 General Assembly, 120 judges, 366 military office, 394 qualification for voting, 381, 386, 388, 392 railroad directors, 530 Revenue See Taxation generally, 413 Revivication of Laws generally, 165 Rights of Accused Criminals See Offenses 622 INDEX (Continued) Riots See Insurrection suppression of, 291 Roads establishing, eminent domain, 239 ferries and bridges, special legisla- tion, 220 special legislation, 215 Rolling Stock personal property, railroads, 528 Salaries See specific office change during term, 200, 220, 319, 370, 474, 509 executive officers, 319 Schools See County Superintendent of Schools aid to sectarian institutions, 404 free, 399 grants, 403 management, special legislation, 218 property, gifts, 402 school contracts, 409 standards, 400 tax exemption, 435, 439 Sectarian Institutions See Religion aid to, 404 Seal of State generally, 318 Search Warrants See Searches and Seizures Searches and Seizures generally, 27 health inspections, 30 illegally seized evidence, 29 search warrants basis for, 28 generally, 27 self-incrimination, 46 unreasonable, 28 wire-tapping, 31 Secretary of State See Dual Office Holding; Elections duties, 256, 313, 315, 318 election, 262 impeachment, 228, 292 oath, 323 powers, 256, 270 presiding officer of House, 145 qualifications, 394 residence, 253 salary, 319 term of office extension prohibited, 236 length, 253, 262 vacancy, 313 Seizures See Searches and Seizures Self-incrimination right against extent of, 44 generally, 43 Senate See General Assembly Senatorial Districts apportionment, 131 redistricting, 141 Senators See General Assembly Separation of Powers departments defined, 100 dual office holding, 108 executive encroachment, 14 generally, 99 judicial encroachment, 105 legislative encroachment, 101, 255 permitted encroachments, 106 Sessions General Assembly, 145, 149, 152 open, 152 secret, 153 special, 275 Sheriff See County Officers Soldiers quartering of, 76 residence, 393 suffrage, 392 Sovereign Immunity generally, 231 „ Speaker of House See General Assembly selection, 147 INDEX (Continued) 623 Special Assessments drainage districts, 241 local improvements, 460 Special Legislation classification, 208 corporations, creating, 515 definition, 206 enumerated cases, 203 generally, 203 relating to Chicago, 248 Special Session convened by Governor, 275 subject matter, 275 Speech censorship, 19 defamation, 18 demonstrations and assemblies, 22 freedom of, 18 libel, 18, 174 obscenity, 20 prior restraints, 20 State See Sovereign Immunity judicial salaries, 370 State Treasurer See Elections duties, 256, 313, 315 election, 262 impeachment, 228, 292 oath, 323 powers, 256 qualifications, 394 re-election, eligibility, 261 residence, 253 salary, 319 security required, 261 term of office extension prohibited, 236 length, 253, 260, 262 vacancy, 313 States Attorneys impeachment, 228, 292 qualifications, 379, 394 salary, 379 selection, 379 term of office extension prohibited, 236 length, 379 Statute of Limitation adoption of, 227 Stockholders cumulative votinsr, 517 election of directors, 517 liability banks, 522 double, 523 list banks, 525 railroads, 526 Street Railways construction, restrictions, 519 operation, restrictions, 519 Succession generally, 310 office of Governor, 303 Suffrage absentee voting, 382, 392 loss of, criminals, 397 Negro, 381, 388 poll tax, 388 voters' privileges, 391 voter qualifications, 381 woman, 382 Superintendent of Public Instruction See Dual Office Holding; Elections duties, 256, 313, 315 election, 262 impeachment, 228, 292 oath, 323 powers, 256, 270 qualifications, 394 residence, 253 salary, 319 term of office extension prohibited, 236 length, 253, 262 vacancy, 313 Supreme Court See Courts Taxation county defined, 458 limitations, 457 curative legislation, 472 defined, 465 624 INDEX (Continued) exemptions, 435 franchise, 416. 422, 435 generally, 413 income, 42, 432, 435 limitations, 413 municipal corporate purposes, 465, 470 local improvements defined, 463 general taxation, 465 generally, 460 special assessments, 460 special taxation, 463 taxing power, 461 nonproperty, 416, 420, 432 occupation, 416, 422, 432 payment into state treasury, 456 privilege, 416, 422, 426, 435 property classification, 415, 432 exemptions, 435 generally, 413 rate limitations, 457 valuation, 415 release from, 454 sales, 422 structure of, 415 tax delinquency sale methods, 450 procedure, 446, 448 redemption, 448 uniformity, 415, 419, 422, 425 Tenure See Judges Title of Acts generally, 163 Townships See Counties indebtedness limit, 478 Treason legislators, 174 Treasurer See State Treasurer Trial by Jury 5^^J"T *pB-720CU.21 Uniformity 75«'46T See Taxation Q Vacancies See Apjjointmcnts; specific offices Valuation See Taxation Venue change of, special legislation, 217 Veto Governor's power to, 293 item veto, 298, 300, 302 procedure, 294 Vote See Suffrage; Voter ballot required, 390 one man-one vote, 133, 139, 142 secret, 390 Voter absentee, 382, 384 criminals, 397 poll tax, 388 privileges, 391 qualifications, 381 residence, 392, 393 Warehouses definition, 545 examination rights, 550 owner's duties, 548 railroad's duties, 552 receipts, regulations, 553 reports required, 548 Warrants See Searches and Seizures treasury, 181 Witnesses compulsory process, 39 confrontation, 39 cross examination, 41 Worship See Religion Wrongs remedy provided, 89 Yeas and Nays See General Assembly PERMA BOUND ^ UNIVERSITY OF ILLINOIS-URBANA 342 7731 B727I C001 THE ILLINOIS CONSTITUTION URBANA 12 025294411