delivered the opinion of the court:
Plaintiff in error, Edward L. Phillips, brought his action in trespass in the superior court of Cook county on November 4, 1911, against defendant in error, Lee O’Neil Browne. The declaration consisted of one count and was in the usual form of a declaration in trespass for assault and battery. To this declaration the defendant in error filed a special plea in abatement, in which it was averred that the defendant in error was a resident of LaSalle county; that at the time the said suit was commenced he was a duly elected member of the General Assembly of the State of Illinois; that prior to the commencement of the suit the Governor of Illinois convened a special session of the legislature, which continued until November 14, 1911; that defendant in error, as a member of the General Assembly, was present and took part in the deliberations of said special session ; that the summons in this cause was served upon him during said special session and while defendant in error was present in Cook county; that there is in force in the State of Illinois a certain statute, being section 126'of an act in relation to practice and procedure- in courts of record, which is as follows: “Any member of the General Assembly shall be exempt from the service of any civil process during the session of the General Assembly;” that by virtue of said statutory provision, and by reason of the fact that at the time of the said service of summons upon him defendant in error was a member of thé General Assembly and a session of the same was then in existence, he was not subject to service of process in this cause, and that therefore the superior court of Cook county did not have jurisdiction of the defendant in error. To this plea plaintiff in error interposed a general demurrer, which was overruled. Plaintiff in error having elected to stand by his demurrer, judgment was entered against him for costs, and this writ of error has been sued out to review that judgment.
It is contended that the section of the statute set out in the plea, being section 126 of an act in relation to practice and procedure in courts of record, (Laws of 1907, p. 470,) is unconstitutional; and further, that that section has no application to a special session of the legislature. The contention of plaintiff in error is, that said section 126 contravenes section 14 of article 4 of the constitution, which is as follows: “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.” The argument advanced in support of this contention is, that when the constitution expressly conferred this immunity it impliedly limited the right of the legislature to extend the exemption further than provided by the constitution itself. This contention cannot be sustained. That our constitution is not a grant of power but is a limitation upon the power of the General Assembly is too well recognized to require the citation of authority. This provision of the constitution constitutes no exception to the general rule.
Said section 126 does, however, contravene section 22 of article 4 of the constitution, which provides that “the General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: For * * * granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever.” Section 126 singles out a particular class of public officials and grants to the individual members of that class special immunity from the service of civil process during the periods when they are actually and theoretically engaged in the performance of their official duties. In Sanitary District v. Bernstein, 175 Ill. 215, we said: “Every citizen has an equal right with every other to resort to the courts of justice for the settlement and enforcement of his rights, and it is true that a discrimination between different classes of litigants, which is merely arbitrary in its nature, is a denial of that right and of the equal protection of the law.”
The members of the General Assembly constitute but a portion of the public officials chosen to transact the business of the State, and we perceive no gofod reason why they should be singled out as immune from service of civil process while engaged in the line of their duty any more than the members of any other class of public officials. If the purpose of the provision is to prevent suits being brought against members of the General Assembly in foreign counties into which they may be required to go in the performance of their official duties, then the law applies only to a portion of the public officials of this State who are at times required to leave their home counties to perform their official duties. While for some purposes the members of the General Assembly may be properly considered as in a class by themselves, it needs no extended argument to show that they cannot be regarded as in a class by themselves for all purposes of legislation. Thus, it would hardly be contended that a statute which granted to members of the legislature, as a class, more liberal exemptions from levy and sale under execution than those granted to other citizens of the State, would be valid. That the statute operates uniformly upon all members of a class created as the beneficiaries of the act is not the sole test to be applied, but in order to avoid the constitutional inhibition last above quoted it must also appear that there is a sound basis, in reason and principle, for regarding the class of individuals as a distinct and separate class for the purpose of the particular legislation. In People v. Board of Supervisors, 185 Ill. 288, we said: “A class cannot be created by arbitrary declaration of the law-making power and endowed with special legislative favors. It is essential to the validity of the classification, in such instances, it shall be based on material distinctions in the situation and circumstances of the individuals who are to be embraced therein, and the grounds of distinction and classification must have relation, in reason and principle, to the privileges proposed to be granted to the individuals, as a class, by the proposed legislation.” Again, in Jones v. Chicago, Rock Island and Pacific Railway Co. 231 Ill. 302, it was said: “When a law is made applicable only to one class of individuals, however, there must be some actual, substantial difference between the individuals so classified and other individuals in the State or community, when considered with reference to the purposes of the legislation. The class, if the law confers a benefit upon it, must be composed of individuals possessing in common some disability, attribute or qualification, or in some condition marking them as proper objects in whom to vest the specific right granted unto them.” To the same effect are People v. Kewanee Light Co. 262 Ill. 255, Chicago, Burlington and Quincy Railroad Co. v. Doyle, 258 id. 624, and numerous other cases decided by this court.
The creation of a class of public officials, consisting solely of members of the General Assembly, upon whom the legislature confers immunity from the service of civil process while engaged in the performance of official duties is not based upon any actual, substantial difference in circumstances or condition between the members of the General Assembly and other public officials of the State who in the performance of their official duties are required to spend a portion of their time in counties in which they do not reside. It may well be that as statutes exempting firemen and certain others from jury service, and like statutes, are valid, so an act intended to prevent the compulsory attendance of members of the General Assembly upon court during sessions of the legislature would not violate the constitutional provision above quoted, the duties of members of the legislature being so dissimilar from those of any other class of public officials of the State as to warrant legislation preventing their compulsory attendance upon court during sessions of the legislature while not extending the same immunity to other public officials. Such, however, is not the purpose of said section 126, as is clearly apparent from the fact that if a member of the General Assembly should be served with process of summons before the beginning of the session requiring him to appear in court at some fixed time during the session, or if, after having been served with process of summons prior, to the session, his case is set for trial during such session, section 126, supra, would furnish no excuse or justification for not appearing in court at the time so fixed. On the contrary, section 66 of the Practice act takes care of this situation by providing that in all suits or proceedings, either civil or criminal, at law or in equity, pending in any court of this State at any time when the General Assembly is in session, it shall be sufficient cause for a continuance if it .shall .appear to the court by affidavit that any party applying for such continuance is a member of either house of the General Assembly and in actual attendance on its sessions, and on the filing of such affidavit the court shall continue such suit, and when so continued no trial or other proceeding shall be had therein until ten days after the adjournment of the General Assembly.
Section 126 of the Practice act is not in conflict with said section 14 of article 4, but it is in conflict with said section 22 of that article, and is therefore invalid.
It is urged by defendant in error that even in the absence of said section 126 of the Practice act he is entitled to exemption from the service of process in this case under said section 14 of article 4 of the constitution, for the reason that the exemption from arrest granted by that article of the constitution should also be held to include exemption from service of civil process, and in support of this contention he cites Anderson v. Rountree, 1 Pinney, 115, Doty v. Strong, id. 84, Miner v. Markham, 28 Fed. Rep. 387, Bolton v. Martin, 1 Dall. 296, and Geyer v. Irwin, 4 id. 107. These cases hold, in substance, that the words “privileged from arrest” will not be construed in a confined or literal sense, and that the member of a legislative body to whom the privilege is extended is entitled to exemption from service of process although the same is not accompanied with the arrest of his person. The great weight of authority is against this proposition, and we are of the opinion that the cases holding to the contrary are supported by the better reasoning. Among the cases holding that privilege from arrest does not constructively include exemption from the service of civil process, are Merrick v. Giddings, McA. & M. (D. C.) 55; Johnson v. Offutt, 4 Metc. (Ky.) 20; Catlett v. Morton, 4 Litt. 122; Rhodes v. Walsh, 55 Minn. 542; Berlet v. Weary, 67 Neb. 75; Worth v. Norton, 56 S. C. 56; Gentry v. Griffith, 27 Tex. 461; McPherson v. Nesmith, 3 Gratt. 237; Kimberly v. Butler, 14 Fed. Cas. 498; Howard v. Citizens’ Bank and Trust Co. 12 App. Cas. (D. C.) 222. We concur in the holding in those cases that the exemption granted is an exemption from arrest with a view to imprisonment, and nothing else.
It will not be necessary to consider the other point urged.
For the reasons given, the judgment of the superior court is reversed and the cause is remanded to that court, with directions to sustain the demurrer.
Reversed and remanded, with directions.