I concur in the judgment entered herein but base such concurrence upon grounds differing from some upon which the conclusion of the court is based. I am of the opinion that this court should sustain this act upon the following considerations:
First: Did Douglas, at the time of his death, hold title to the office of member of the Fifty-ninth General Assembly? Section 2 of article 4 of our constitution, as pointed out in the opinion, provides: "An election for members of the General Assembly shall be held on the Tuesday 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." By section 5 of that article, members *Page 472 of the General Assembly "before they enter upon their official duties, shall take and subscribe the oath or affirmation" specified in that section. It is also there provided that "any member who shall refuse to take the oath herein presented shall forfeit his office." To forfeit means, according to the standard definition of the term, as the opinion points out, to lose, or to lose the right to. As one may not lose that which he does not have, it follows from the language of the constitution quoted, that one elected to the office of member of the General Assembly has, upon such election, title to that office. This court so held in cases where similar constitutional provisions governing the election and title to the office of circuit and superior court judges were invalid. People v. Sweitzer, 280 Ill. 436; see, also,Mayfield v. Moore, 53 id. 428.
Under the constitution, each house of the General Assembly shall "be the judges of the election, returns and qualifications of its members." The act before us was adopted April 23, 1935, (Laws of 1935, page 157,) and is, in effect, a declaration that Douglas was duly elected to the office of member of the Fifty-ninth General Assembly. No one was elected to take his place and no part of the funds previously appropriated as salary to members of the Fifty-ninth General Assembly was paid to any one else. So it must be said that at the time of his death, Douglas held and was entitled to the office of member of the Fifty-ninth General Assembly. True, he could not assert a right to the salary or discharge the duties of that office until he had taken the prescribed oath, but, at the time of his death, he was a member of that General Assembly. The question here, therefore, is not whether the widow of Douglas has a right to collect the salary, which he would have received had he lived, but is rather whether the Fifty-ninth General Assembly had power, by a duly enacted statute, to order payment of that salary to his widow under the circumstances of this case, notwithstanding his death before entering upon his duties. *Page 473
As is well known, our State constitution is a limitation upon power. All power not by it denied to the people, may, through their representatives in the General Assembly, be exercised. Where doubt exists as to a limitation upon legislative power and, by long usage with public acquiescence, such power has been exercised, courts must be largely influenced by such course and usage when called upon to declare whether such exercise of power is within or without constitutional inhibition. (Hagler v. Small,307 Ill. 460; Cooley's Const. Lim. 154.) It appears here, without denial, that payment of salary under circumstances similar to these has, on numerous occasions throughout many years, been ordered by the General Assembly and acquiesced in by the people. The act under consideration here expressly states the purpose to be to pay to the widow of Douglas the salary of the office to which he had been elected and which he held at the time of his death.
It seems to me clear that in this case, where the act is, in effect, but a reappropriation to the use of the dependents of a deceased member of the General Assembly of funds previously appropriated to his use as salary, and which had not been paid out to anyone else, and so no additional expenditure of funds was caused, such exercise of legislative power should not be held to be clearly within the intent of the prohibition of the constitution. Members of the General Assembly are paid their entire salary for the biennium as soon as they take the oath of office and before they enter upon the duties thereof. Had Douglas died immediately after taking the oath, it could scarcely be said that payment of salary to him came within constitutional prohibition, nor could it be expected that one elected to fill the vacancy, if such election had been held, would serve without salary.
The salary of members of the Fifty-ninth General Assembly was appropriated by the Fifty-eighth General Assembly. Nothing in the constitution requires the conclusion that funds duly appropriated as salary to a member *Page 474 of the Fifty-ninth General Assembly to be elected, are placed beyond the control of that body to order it paid to the dependents of such member, if he die after his election to the office and before he enters upon its duties. Unless prohibition of such use, either express or by necessary implication, is to be found in the constitution, the power exists in the General Assembly.
So long as appropriations by the legislature are of the character of the one before us, the State has not been deprived of funds not already appropriated for the very purpose, and the violation of constitutional safeguards is not free from doubt. In such a case, as hereinbefore stated, courts must be largely influenced by long usage and acquiescence. I am, therefore, of the opinion that for the foregoing reasons, as limited in application to the particular facts of this case, the act is not invalid.
SHAW, C.J., and WILSON, J., dissenting.