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No. 13.

1848.

REPORT OF SELECT COMMITTEE OF THE HOUSE,

The committee to whom was referred the resolution instructing them "to inquire what person or persons, if any, now holding a seat or seats in this house, was or were, at the time of his or their election, by the constitution of this State, ineligible to a seat in this House," have had the same under consideration, and have directed their chairman to submit the following report:

Section eight, article four of the constitution of this State, is in the following words: "No person holding any office under the United States of of this State, officers of the militia, justices of the peace, associate judges of the circuit and county courts, and postmasters, excepted, shall be eligible to either House of the legisla

ture."

This provision of the constitution, in the opinion of the committee, was intended to be applicable, not only to certain offices that might exist under its authority, but to certain offices that were in existence at the time of its formation. The offices enumerated in the excepting clause of the foregoing section of the constitution, existed prior to its adoption, and their incumbents were appointed directly or indirectly by the government of the United States. The office of associate justice of the county court then existed in several counties of the territory, but no such office was instituted by the constitution itself, and has had no existence since its adoption by the people. The conclusion, then, seems to be irresistible, the framers of the constitution had in view, in the exception above referred to, offices actually in existence at the time of the formation of the constitution, and intended thereby to exclude those offices so existing from the general provision of the said section, embracing as it does, any person holding office under the United States or of

this State. If this view of the subject be correct, and the committee can come to no other conclusion, the only remaining inquiry, worthy of consideration, is, what offices, in the true intent and meaning of the constitution, are offices of this State?

To suppose that this section of the constitution intended to exclude from either brauch of the legislature, all the officers in the State, with the exceptions there enumerated, whether they might be State, county, or township officers, would be to suppose that the above section of the constitution was framed without reason or justice, and without any regard, whatever, to the great objects to be attained by keeping the several departments of the government, towit:-the executive, judicial and legislative-distinct, separate and independent of each other. To declare, as the fundamental law of the land, that no pathmaster or school inspector should, on account of such office, be eligible to a seat in either House of the legislature, is such an absurdity, on the face of it, as to forbid the credence of the most credulous; but when the exception itself makes those persons eligible, who hold ofices, comparatively of much greater importance, such a supposition would seem preposterous in the extreme. Such a construction of this clause in the constitution, would prohibit any person holding office in the State, with the exceptions in said clause contained, from the highest to the lowest, from a seat in the legislature. Even members of the legislature could not be elected twice in succession; and the beautiful phenomenon of an entire new delegation would annually be witnessed in this hall, where experience is of so essential importance. It is not to be supposed it was ever contemplated by the framers of the constitution. Some other construction, then, must be given to that section of the constitution, than to suppose it intends and includes all the officers in the State.

What then are the offices intended by the phrase "any office of this state?" By reference to the proceedings of the convention which formed the constitution, it will be seen that this provision of the constitution was adopted by that convention in the following words: "No person holding any office under the United States, or this State, &c"--showing more clearly the meaning of the phrase "of this State." The words "United States" undoubtedly in this

connection, signify "the government of the United States," and the words "this State" "the government of this state." What, then, are the offices under the government of this State intended by the said section to be excluded from a seat in either House of the Legislature? The committee cannot resist the conclusion that they are such offices as the incumbents of which receive their appointments, not directly from the people, but from the government or state as established by the people-that all individuals holding of fice from the Executive, the Executive and Senate, or the Legislature, would be by the constitution ineligible to a seat in either branch of the Legislature.

Arguments derived from the consideration of the general principles on which the constitution of this State is founded will lead to the same conclusion. The people, in whom all power is inherent, while delegating certain powers to certain individuals and bodies of men, for the mutual benefit and common welfare of all concerned, have always endeavored to guard and defend those powers so granted by proper checks and balances, so as to effectually prevent the recipients of those powers, to wit: the government, from usurping the rights still retained by the people, and thus preclude the government by any operation or action of its own, from gaining that strength and influence which might enable it to trample upon and defy the very power that gave it being.

These safeguards against the assumption or increase of powers granted, are numerous and explicit in the constitution of this State. The great objects of these provisions seems to be to prevent the several departments of the government from interfering in the proper exercise of the powers granted to each, and to forbid that patronage which necessarily belongs to the Executive, from being bestowed upon the members of the Legislature. All of which restrictions in the constitution can be urged with equal force in favor of the ground taken by the committee, and against the propriety of permitting officers of the State, as by them interpreted, from becoming Members of either House of the Legislature. The objects, then, to be attained, the reason and propriety of these restrictive provisions of the constitution, all strengthen and confirm the opinion of the committee in the construction which they have given.

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