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1873, excluded "any officer under any city government” who was such at the time of election or for a hundred days previously, and it vacated the seat of any legislator who accepted such office. Kentucky went farther in 1890, making ineligible "an officer of any county, city, town, or other municipality, or an employe thereof." Nebraska and Ohio have thought it prudent to clear up the situation by specifically exempting township officers, and Nebraska adds precinct officers. When J. H. Murphy was at the same time Mayor of Davenport, Iowa, and a State Senator, it was held that his salary of $100 as Mayor was not lucrative and he was allowed to keep his seat in the General Assembly.
The exclusion of municipal officers from the central lawmaking body, is no novelty. On the 25th of June, 1604, it was resolved by the House of Commons, “That no Mayor should be elected, returned, or allowed to serve as a Member of this House"; and this was to continue as an Act or Order of the House forever.1
Three members of the First General Assembly in Iowa were alleged to be disqualified by having accepted lucrative offices, but it was held that ineligibility does not become a disqualification after election to the Assembly.
The creation of a central government in America gave rise to the perplexing problem of whether an officer of that government ought to be allowed to sit in a State Legislature. In 1789 this was long and warmly agitated in the Massachusetts General Court. The judge of a district court, the attorney, and the marshal of the district were members. The Senate voted 13 to 11 against vacating the seat of the marshal, and the House voted the other way, 137 to 24, on the question of substituting a general declaration for the report of the committee.
Early in 1813 Amos Kendall, then studying law in Groton, on a visit to Boston listened with great interest to a debate in the Senate upon a question whether officers in the army of the United States could rightfully hold seats in that body. Two of the Democratic Senators, Tuttle and Ripley, had been appointed colonels in the regular army. One of them had taken his seat in the Senate. There was at the time nothing in the Constitution of Massachusetts or of the United States which rendered a seat in the State Senate and an appointment in the United States army incompatible, and the argument rested entirely on the incongruity of the two relations. The lobby of the Senate was crowded. “The speech of Harrison Gray Otis was a superb display of eloquence, but full of bitterness and sarcasm." By the entire Federal vote and a part of the Republican vote, led by Mr. Lincoln, the seats of Colonels Tuttle and Ripley were declared vacated. The Reverend Solomon Aiken of Dracut was deprived of his seat in the General Court of 1815-16 because he had accepted an appointment as chaplain in the United States Army. Upon reëlection the next year he was again excluded, by a vote of 264 to 12. One of the amendments adopted as a result of the Convention of 1820 ended the question as far as Massachusetts was concerned, by providing that no Federal officer, except a postmaster, should be eligible as a member of the Legislature.
1 Hatsell, Precedents, II, 21.
In New York the two Houses by resolution in 1790 declared the thing improper. Governor Clinton had occasion to remind the Legislature of this in January of 1821, apropos of the fact that Mr. Skinner was a member of the Senate and Council of Appointment, while holding the office of a judge of the District Court of the United States. The joint committee on the message repudiated the resolution of 1790 in no unmeasured terms, severely censuring the Governor for his position. Yet the Convention of the fall of that same year put into the Constitution the provision that no member of Congress, nor any person holding an office, either civil or military, under the government of the United States, should be eligible to a seat in either branch of the Legislature.
Reverse the proposition and the question of constitutionality arises. The States have no power to add to the qualifications required for a United States Senator or Representative; and all provisions in their statutes or Constitutions that forbid a member of the Legislature or other State officer from being chosen Senator have been rejected by the United States Senate as void. The Constitution of Illinois tried to prevent the election to any office under the United States of a judge of the Supreme or Circuit Court. Nevertheless Judge Lyman Trumbull of the Supreme Court and Judge Samuel S. Marshall of the Circuit Court were elected to the Congress that met in December of 1855. Their seats were contested, but only five members of the House appear by the vote to have doubted the unconstitutionality of the State provision. Trumbull had not taken his seat, having been elected to the Senate. There the matter was debated, and by 35 to 8 he was declared entitled to his place. In 1884 the same question arose over a like provision in the Constitution of Kansas, and the position was reaffirmed. Although doubts would seem to have been clarified long ago, the problem vexed at least one court as late as 1918. In the State of Washington it was held that provisions in State Constitutions making judges ineligible to offices or employments other than judicial during their terms, could not prevent the nomination of a judge for Congress.?
1 Wm. Stickney, Autobiography of Amos Kendall, 76.
In France the exercise of public duties paid for out of the treasury of the State is declared to be incompatible with the office of Deputy, save in the case of a few specified exceptions. On the other hand, the Constitutions of Germany, Prussia, and Austria distinctly recognize the right of public officials to serve in a representative capacity, encouraging them indeed by prescribing that they shall have leave of absence to conduct their campaigns. In Poland public employees (other than Ministers, Under-Secretaries of State, and professors in academic schools) automatically get leave of absence when elected Deputies, and the years during which they serve as such are considered “years of service," presumably for retirement, pension, and similar purposes. However, administrative, revenue, and judicial officials of the State, other than those employed in the central departments, may not be elected in the districts in which they are performing their judicial duties. Jugoslavia has a unique provision to the effect that political, financial, and forest officials, as well as officials of the agrarian reform, whatever that is, cannot be candidates unless they have given up office a year before the announcement of the election.
1 Hinds, Precedents, 1, 384-89. State v. Howell, 175 Pac. Rep., 569.
No Englishman duly qualified and lawfully elected, may refuse to take his seat in Parliament, even though he were elected against his will. No Englishman once seated may resign. The theory is that the office is a trust not for private but for public benefit. “The country and the commonwealth,” it was said long ago, “have such an interest in every man that when by lawful election he is appointed to the public service, he cannot by an unwillingness or refusal of his own, make himself incapable; for that were to prefer the will or contentment of a private man before the desire and satisfaction of the whole country, and a ready way to put by the sufficient men, who are commonly those who least endeavor to obtain the place.” 1
In the early days of this country, when every man's help was sorely needed, men were not allowed to evade the duties of public office. The Plymouth Colony Revision of 1636 contained these paragraphs:
“That if at any time any shall be elected to the office of Governor & will not hold according to the election that then he be amerced in 20 pownds starling ffine.
“That if any elected to the office of Assistant refuse to hold according to eleccion that then he be amerced in ten pownds starling ffine.
“That in case one & the same person should be elected Governor a second yeare having held the place the foregoing yeare it should be lawfull for him to refuse without any amercement unles they can prevaile with him by entreaty."
As increase of numbers made available more men for the responsibilities of leadership, such provisions became less important, and we find the third of the foregoing repealed in 1639, the others in 1645.
Thomas Dudley, rather obstinate and somewhat opinionated, brought the matter to the front in Massachusetts. Winthrop's Journal has these entries :
1 John Glanville, Reports of Certain Cases, etc., 101. 2 Plymouth Colony Records, XI, 10.
April 3, 1632. “At a court at Boston, the deputy, Mr. Dudley, went away before the court was ended, and then the secretary delivered the Governor a letter from him, directed to the Governor and Assistants, wherein he declared a resignation of his deputyship and place of Assistant; but it was not allowed.”
May 1. “The Governor and Assistants met at Boston to consider of the deputy his deserting his place. The points discussed were two. The 1st, upon what grounds he did it; 2d, whether it were good or void. For the 1st, his main reason was for the public peace; because he must needs discharge his conscience in speaking freely; and he saw that bred disturbance, etc. For the 2d, it was maintained by all, that he could not leave his place, except by the same power which put him in; yet he would not be put from his contrary opinion, nor would be persuaded to continue till the General Court, which was to be the 9th of this month."
May 8. “A General Court at Boston. The Deputy Governor, Thomas Dudley, Esq., having submitted the validity of his resignation to the vote of the Court, it was adjudged a nullity, and he accepted of his place again, and the Governor and he being reconciled the day before, all things were carried very lovingly amongst all, etc., and the people carried themselves with much silence and modesty."
Dudley, however, cherished his views. Ten years later we find the proof of his pertinacity, by the entry of May 18, 1642: “The Court of Elections was. Mr. Winthrop was again chosen Governor, and Mr. Endecott Deputy Governor. This being done, Mr. Dudley went away, and though he were chosen an Assistant, yet he would not accept it. Some of the elders went to his house to deal with him. His answer was that he had sufficient reasons to excuse and warrant his refusal, which he did not think fit to publish, but would impart to any one or two of them whom they should appoint, which he did accordingly. The elders acquainted the Court with what they had done, but not with the reasons of his refusal, only that they thought them not sufficient. The Court sent a magistrate and two Deputies to desire him to come to the Court, for as a Counsellor he was to assist in the General Court. The next day he came, and after some excuse he consented to accept the place, so that the Court would declare that if at any time he should depart out of the jurisdiction (which he protested he did not intend), no oath,