With deference I must dissent. I am convinced that Representative-elect Bond was illegally deprived of his seat in the House of Representatives of Georgia and that this court should so hold.
Julian Bond, the plaintiff in this action, was duty elected by the voters of his General Assembly District No. 136 as their representative in the House of Representatives of the Georgia General Assembly for the session commencing January 1, 1966. This is a one-year session, made necessary by this Court’s previous decision requiring a reapportionment of the Georgia State Legislature.
Upon his presenting himself along with the other newly elected members of the House of Representatives, he was asked to step aside because challenges to his qualifications had been filed by some 75 members of the House. After the other members had been duly sworn in, a resolution protesting the seating of Representative-elect Bond was referred by the Speaker of the House to a special committee designated to hear the contest. The committee, after a hearing, recommended that he be not seated. This recommendation was accepted by the House, and he was denied his seat.
Since the first attack that is made is based upon the contention that the House exceeded its authority in voting to reject Bond, we turn first to a consideration of the provisions of the Georgia Constitution dealing with the qualifications and eligibility of members.
Article III, Section VII, Paragraph I, of the Georgia Constitution (§ 2-1901, Ga.Code Ann.) provides as follows:
“Election, returns, etc.; disorderly conduct. — Each House shall be the judge of the election, returns, and qualifications of its members and shall have power to punish them for disorderly behavior, or misconduct, by censure, fine, imprisonment, or expulsion, but no member shall be expelled, except by a vote of two-thirds of the House to which he belongs.”
*346Article III, Section VI, Paragraph I, of the Constitution of the State of Georgia (§ 2-1801, Ga.Code Ann.) provides as follows:
“Qualifications of representatives. —The Representatives shall be citizens of the United States who have attained the age of twenty-one years, and who shall have been citizens of this State for two years, and for one year residents of the counties from which elected.
Article II, Section II, Paragraph I, of the Constitution of the State of Georgia (§ 2-801, Ga.Code Ann.) provides as follows:
“Registration of electors; who disfranchised. — The General Assembly may provide, from time to time, for the registration of all electors, but the following classes of persons shall not be permitted to register, vote, or hold any office, or appointment of honor, or trust in this State, to-wit: 1st. Those who shall have been convicted in any court of competent jurisdiction of treason against the State, of embezzlement of public funds, malfeasance in office, bribery or larceny, or of any crime involving moral turpitude, punishable by the laws of this State with imprisonment in the penitentiary, unless such persons shall have been pardoned. 2nd. Idiots and insane persons.”
Article III, Section IV, Paragraph VI, of the Georgia Constitution (§ 2-1606, Ga.Code Ann.) provides as follows:
“Eligibility; appointments forbidden. — No person holding a military commission, or other appointment, or office, having any emolument, or compensation annexed thereto, under this State, or the United States, or either of them except Justices of the Peace and officers of the militia, nor any defaulter for public money, or for any legal taxes required of him shall have a seat in either house; nor shall any Senator, or Representative, after his qualification as such, be elected by the General Assembly, or appointed by the Governor, either with or without the advice and consent of the Senate, to any office or appointment having any emolument annexed thereto, during the time for which he shall have been elected, unless he shall first resign his seat, provided, however, that during the term for which he was elected no Senator or Representative shall be appointed to any civil office which has been created during such term.”
Article VII, Section III, Paragraph VI, of the Constitution of the State of Georgia (§ 2-5606, Ga.Code Ann.) provides as follows:
“Profit on public money. — The receiving, directly or indirectly, by any officer of State or county, or member or officer of the General Assembly of any interest, profits or perquisites, arising from the use or loan of public funds in his hands or moneys to be raised through his agency for State or county purposes, shall be deemed a felony, and punishable as may be prescribed by law, a part of which punishment shall be a disqualification from holding office.”
Article III, Section IV, Paragraph V, of the Georgia Constitution (§ 2-1605, Ga.Code Ann.) provides as follows:
“Oath of members. — Each senator and Representative, before taking his seat, shall take the following oath, or affirmation, to-wit: T will support the Constitution of this State and of the United States, and on all questions and measures which may come before me, I will so conduct myself, as will, in my judgment, be most conducive to the interests and prosperity of this State.”
The foregoing provisions of the Georgia Constitution are the only stated qualifications or rules of eligibility contained in the State Constitution touching on the membership in either the Senate or the House of Representatives of the Georgia General Assembly.
Julian Bond was denied the right to take his oath as an elected member of the *347Georgia House of Representatives by a resolution adopted by the said House on January 10, 1966, which said resolution was in the following language:
“Relative to the matter of the seating of Representative-Elect Julian Bond; and for other purposes.
“WHEREAS, a special committee created pursuant to H.R.No. 7 which was appointed for the purpose of holding a hearing on petitions challenging and contesting the seating of Representative-Elect Julian Bond of the 136th District has conducted a hearing in said matter; and
“WHEREAS, said committee has submitted a report in which it is recommended that Representative-Elect Julian Bond not be allowed to take the oath of office as a Representative of the House of Representatives and that he not be seated as a member of the House of Representatives.
“NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES that the report of the aforesaid committee is hereby adopted and the recommendations contained therein shall be followed.
“BE IT FURTHER RESOLVED that Representative-Elect Julian Bond shall not be allowed to take the oath of office as a member of the House of Representatives and that Representative-Elect Julian Bond shall not be seated as a member of the House of Representatives.
“BE IT FURTHER RESOLVED that the Clerk of the House is hereby instructed to immediately transmit a copy of the aforesaid report and a copy of this resolution to the Governor, to the Secretary of State and to Representative-Elect Julian Bond.”
The said resolution expressly “adopted” the report of the special committee which was appointed for the purpose of conducting, and did actually conduct, a hearing on the matter of the challenge to the seating of Representative-Elect Bond. The report of the committee follows:
“The Special- Committee appointed pursuant to H.R. #7 conducted a hearing on January 10, 1966, beginning at 2:30 o’clock p. m., in the chamber of the House of Representatives, State Capitol, on the matter of petitions filed challenging and contesting the seating of Representative-Elect Julian Bond of the 136th District.
“Based upon testimony and the evidence and documents before this Committee, the Committee recommends that Representative-Elect Julian Bond not be allowed to take the oath of office as a member of the House of Representatives and that he not be seated as a member of the House of Representatives.
“This 10th day of January 1966.”
The contest which was thus submitted to the special committee, and thereafter decided by the House, resulted from charges and specifications filed by certain members of the House of Representatives in two separate petitions which, in essential part, are as follows:
PETITION I
“COUNT I
“The Student Nonviolent Coordinating Committee, an organization and association of which Representative-Elect Julian Bond is a member, agent, and publicity director, has caused to be made certain statements concerning the position of the United States in the Viet Nam conflict, a copy thereof being attached hereto, marked Exhibit A and by reference made a part hereof, and the said Representative-Elect Julian Bond did publicly endorse, approve and confirm said statement.
"COUNT II
“Said representative-elect has said that he admires the courage of those persons who burn their draft cards.
*3481.
“The actions and statements of said representative-elect show that he does not and will not support the Constitution of the United States and of the State of Georgia, as required by law (Constitution of Georgia, Article III, Section IV, Paragraph V (Code § 2-1605)); Constitution of the United States, Article VI, Section 3.
2.
“By said actions and statements, said representative-elect adheres to the enemies of the United States and of the State of Georgia, contrary to the Constitution of Georgia (Article I, Section II, Paragraph II) and of the United States (Article III, Section 3, Cl. 1).
3.
“By said actions and statements, said representative-elect gives aid and comfort to the enemies of the United States and of the State of Georgia, contrary to the Constitution of Georgia (Article I, Section II, Paragraph II) and of the United States (Article III, Section 3, Cl. 1).
4.
“Said actions and statements constitute a violation of the United States Code, Title 50 App., § 462(a).
5.
“Said actions and statements constitute a violation of the United States Code, Title 50 App., § 462(b), as amended.
6.
“The statements referred to above are reprehensible and are such as tend to bring discredit to and disrespect of the House of Representatives and constitute actions on the part of Representative-Elect Julian Bond sufficient to prevent him from being seated as a member of the House of Representatives.
7.
“Such actions and statements show that he is unqualified and ineligible to be a member of the House of Representatives.”
EXHIBIT A TO PETITION I
“The Student Nonviolent Coordinating Committee has a right and a responsibility to dissent with United States foreign policy on an issue when it sees fit. The Student Nonviolent Coordinating Committee now states its opposition to United States’ involvement in Viet Nam on these grounds:
“We believe the United States government has been deceptive in its claims of concern for freedom of the Vietnamese people, just as the government has been deceptive in claiming concern for the freedom of colored people in such other countries as the Dominican Republic, the Congo, South Africa, Rhodesia and in the United States itself.
“We, the Student Nonviolent Coordinating Committee, have been involved in the black people’s struggle for liberation and self-determination in this country for the past five years. Our work, particularly in the South, has taught us that the United States government has never guaranteed the freedom of oppressed citizens, and is not yet truly determined to end the rule of terror and oppression within its own borders.
“We ourselves have often been victims of violence and confinement executed by United States government officials. We recall the numerous persons who have been murdered in the South because of their efforts to secure their civil and human rights, and whose murderers have been allowed to escape penalty for their crimes.
“The murder of Samuel Young in Tuskegee, Ala., is no different than the murder of peasants in Viet Nam, for both Young and the Vietnamese sought, and are seeking, to secure the *349rights guaranteed them by law. In each case the United States government bears a great part of the responsibility for these deaths.
“Samuel Young was murdered because United States law is not being enforced. Vietnamese are murdered because the United States is pursuing an aggressive policy in violation of international law. The United States is no respector of persons or law when such persons or laws run counter to its needs and desires.
“We recall the indifference, suspicion and outright hostility with which our reports of violence have been met in the past by government officials.
“We know that for the most part, elections in this country, in the North as well as the South, are not free. We have seen that the 1965 Voting Rights Act and the 1964 Civil Rights Act have not yet been implemented with full federal power and sincerity.
“We question, then, the ability and even the desire of the United States government to guarantee free elections abroad. We maintain that our country’s cry of ‘preserve freedom in the world’ is a hypocritical mask behind which it squashes liberation movements which are not bound, and refuse to be bound, by the expediencies of United States cold war policies.
“We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft which would compel them to contribute their lives to United States aggression in Viet Nam in the name of the ‘freedom’ we find so false in this country.
“We recoil with horror at the inconsistency of a supposedly ‘free’ society where responsibility to freedom is equated with the responsibility to lend oneself to military aggression. We take note of the fact that 16 percent of the draftees from this country are Negroes called on to stifle the liberation of Viet Nam, to preserve a “democracy” which does not exist for them at home.
“We ask, where is the draft for the freedom fight in the United States ?
“We therefore encourage those Americans • who prefer to use their energy in building democratic forms within this country. We believe that work in the civil rights movement and with other human relations organizations is a valid alternative to the draft. We urge all Americans to seek this alternative, knowing full well that it may cost them lives — as painfully as in Viet Nam.”
PETITION II
“(1) That the Constitution of Georgia, Article III, Section VII, Paragraph 1 provides that each House shall be the judge of the election, returns, and qualifications of its members.
“(2) That the Constitution of Georgia, Article III, Section IV, Paragraph 5, specifically requires each senator and representative, before taking their seat, to take the following oath or affirmation, to-wit:
T will support the Constitution of this State and of the United States, and on all questions and measures which may come before me, I will so conduct myself, as will, in my judgment, be most conducive to the interest and prosperity of this State.’
“That the said Julian Bond has specifically and publicly endorsed in full a policy statement of an organization known as the Student NonViolent Coordinating Committee, which statement reads as follows:
‘We are in sympathy with, and support, the men in this country who are unwilling to respond to a military draft which would compel them to contribute their lives to United States aggression in Viet Nam in the name of the “free*350dom” we find so false in this country.’
‘We recoil with horror at the inconsistency of a supposedly free society where responsibility to freedom is equated with the responsibility to lend oneself to military aggression. We take note of the fact that 16 per cent of the draftees from this country are Negroes called on to stifle the liberation of Viet Nam, to preserve a “democracy” which does not exist for them at home * * * ’
‘We, therefore, encourage those Americans who prefer to use their energy in building democratic forms within this country. We believe that work in the civil rights movement and with other human relations organizations is a valid alternative to the draft. We urge all Americans to seek this alternative, knowing full well that it may cost them their lives — as painfully as in Viet Nam.’
“(4) That the said Julian Bond is not qualified under the Constitution of Georgia to take the oath as a Member of the House of Representatives representing the 136th Representative District of Pulton County, Georgia, inasmuch as his full endorsement of the aforesaid policy statement of the Student Non-Violent Coordinating Committee is totally and completely repugnant to and inconsistent with the mandatory oath prescribed by the Constitution of Georgia for a Member of the House of Representatives to take before taking his seat.
“(5) That the said Julian Bond cannot justly and honestly take the aforementioned mandatory constitutional oath which requires him to uphold the Constitution of the United States and the Constitution of Georgia, having endorsed the aforesaid subversive policy statement.”
At the Committee hearing, the proponents of the contest sought to substantiate their claim by having played into the record a taped newscaster’s interview with Mr. Bond which, although not made by him as a public statement upon his own initiative in the normal manner of making a hortatory expression, was made, it may be assumed, with the knowledge that it would be broadcast by the newscaster. The Committee also invited from Mr. Bond his comment. He stated to the Committee that he “did support” the statement of the SNCC, quoted above, in its entirety.
In support of the charge that Bond had “said that he admires the courage of those persons who burn their draft cards”, the following question was asked: “Do you admire the courage of persons who burn their draft cards ?” after which, the following question and answers occurred :
“A. I admire people who take an action, and I admire people who feel strongly enough about their convictions to take an action like that knowing the consequences that they will face, and that was my original statement when asked that question.
“Q. Do you still adhere to that statement?
“A. Yes, Ido.
“Q. Let me see if I have your statement correct, that you admire people who are willing to take the consequences, to stand up for their principles, is that substantially what you said?
“A. That is correct.
“Q. And does that admiration of such people go to taking such a stand, when such a stand is in violation of a valid law of the United States ?
“A. I have never suggested or counseled or advocated that anyone other person burn their draft card. In fact, I have mine in my pocket and will produce it if you wish. I do not advocate that people should break laws. What I simply try to say was that I admired the courage of someone who could act on his convictions *351knowing that he faces pretty stiff consequences.
“Q. So that you admire the courage of the persons in the given instance who burn their draft cards, or who were willing to take the consequences for burning their draft cards?
“A. That is right.”
In a written response to the charges and during the proceedings Representative Bond stated his willingness and desire to take the oath to support the Constitutions of the United States and the State of Georgia as prescribed by the Georgia Constitution.
It is clear that the refusal to seat this elected representative was upon the charge, adequately proven, of his stated support in an interview with a newsman and subsequently in the corridor of the House of Representatives (after the challenge had been referred to the Committee) of the SNCC statement and his views touching on the draft card matter.
The suit before us challenges the authority of the House of Representatives, under the provision making it “the Judge of the * * * qualifications of its members” to deny an elected member, the right to be seated for any lack of qualifications not specifically prescribed in the Georgia Constitution. Further, the complaint asserts that the actual ground of his rejection as a member was the disapproval by the House of his conduct, to-wit: the expression of the extremely unpopular (characterized as illegal and disloyal by the proponents of the contest) views as above set out; that a denial of his seat because of such conduct constitutes an abridgment by the State of Georgia of Bond’s freedom of speech in violation of the guarantee of the First Amendment to the United States Constitution, which guarantee is made effective as against State action by “absorption” into the guarantee of due process by the Fourteenth Amendment. See Palko v. State of Connecticut, 302 U.S. 319, 324, 326, 58 S.Ct. 149, 82 L.Ed. 288.
The complaint requires the convening of a three-judge District Court under Title 28, Section 2281, United States Code Annotated, because it charges that if Article III, Section VII, Paragraph 1 of the Georgia Constitution, supra (making each House the judge of the qualifications of its members), is construed in the manner in which it was applied in this case, then the said Section of the Georgia Constitution is invalid under the Fourteenth Amendment. Once convened properly, such a court has jurisdiction to decide every question involved in the litigation, state as well as federal. Public Service Commission of State of Missouri v. Brashear Freight Lines, 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083; R.R. Comm. of State of Calif. v. Pacific Gas & Electric Company, 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319.
It is a basic principle of jurisprudence that if, by construction of a statute in a manner that will make it constitutional, this avoids the question whether the statute, differently construed, would be unconstitutional, a court should first construe the statute with an eye to the avoiding of the constitutional question if possible. See Rescue Army, et al. v. Municipal Court of City of Los Angeles, 331 U.S. 549, 568, 67 S.Ct. 1409, 91 L.Ed. 1666, et seq.
Thus, we look first to determine whether the challenged provision of the Georgia Constitution may properly be construed so as to permit the unseating of Representative-Elect Bond on the grounds stated. Of course, if the Georgia Supreme Court had construed the statute in such a manner this construction of the Georgia Constitution would be binding on us. The Court has not so construed it.
The State of Georgia claims that, at least within the factual context of this contest, the power of the House of Representatives to judge Bond’s qualifications is “plenary.” It offers, in support of this proposition, three Georgia Court decisions: Rainey v. Taylor, 166 Ga. 476, 143 S.E. 383 (1928); Beatty v. Myrick, 218 Ga. 629, 129 S.E.2d 764 (1963); and Fowler v. Bostick, 99 Ga.App. 428, 108 S.E.2d 720 (1959).
*352In point of fact, in none of these Georgia decisions did the court determine that the House or Senate had absolute and final jurisdiction to judge whether the contesting parties lacked qualifications which are not expressly stated as “qualifications” or rules of “eligibility” in the Georgia Constitution.
The Rainey case dealt with a charge by one Taylor, in a quo warranto proceeding against Rainey, that Rainey was, at the time of his election to the Georgia General Assembly, an acting superintendent of Schools. It being provided in the Georgia Constitution that the “qualifications of members” is to be decided by the House of Representatives, and, the Constitution in what is now Section 2-1606, quoted supra, providing that the holder of another state office “shall not have a seat in either House,” it was a question for the General Assembly to judge whether Rainey was disqualified under a stated ground in the constitution. The Court merely held that a rule of “eligibility” was comprehended within the term “qualifications.”
In the subsequent case of Beatty v. Myrick, in a headnote opinion, the Supreme Court of Georgia stated that the question was which of two named candidates was legally elected to represent the Third Senatorial District in the State Senate. There was thus no question of testing the “qualifications” of the senator-elect. It was simply a matter of judging who was the winner of the election. This question is expressly confided by the Constitution to the State Senate.
Fowler v. Bostick was in all respects similar to the Rainey case. It was an action for a declaratory judgment seeking to disqualify Bostick as ineligible to be seated as Representative of Tift County because he was, at the time, alleged to hold the office of Clerk of the Superior Court of Tift County. Here, as in Rainey, the court was asked to determine whether an elected member met the qualifications expressly stated in the Georgia Constitution. Of course, no criticism can be made of such a decision as these three by the Georgia courts. The question, not before the Court there, is whether, under the Georgia Constitution, the Legislature can find a lack of qualifications beyond those expressly provided for in the Constitution itself and as set out above.
In the absence of a strong showing of judicial interpretation to the contrary, it would seem that simple justice would require a holding that where specific qualifications are stated for an office and the Legislature is given the power to judge whether an aspirant for the office is “qualified”, the legislature, as judge, should be required to look to the stated qualifications as the measuring stick. To hold to the contrary and permit the House as judge to go at large in a determination of whether Representative-Elect “A” meets undefined, unknown and even constitutionally questionable standards shocks not only the judicial, but also the lay sense of justice.
It can be readily understood why there are few legal precedents to give guidance in such a situation. In the first place, it can be assumed that members of a state or national legislature are prone to recognize the right of the electorate to choose as their representative whom they want to serve them. Thus, there may not be expected to be many clear precedents. Further it is readily apparent that in those cases in which a legislative body has exceeded its authority the shortness of the term of office may make moot any contest in court.
Nevertheless, there are some legislative precedents. In a New York state general election held on November 4, 1919, five members of the Socialist party were elected as members of the General Assembly of the State of New York. They appeared and took the oath of office, and thereupon, as soon as the House was organized, a motion was made to deprive them of their rights to participate, or, in other words, to expel them from membership in the House. A resolution for such expulsion was submitted and referred to a committee which conducted hearings resulting in a resolution to expel, and the mem*353bers were later, by action of the Legislature, expelled from membership.
During the pendency of the hearings, the annual meeting of the Association of the Bar of the City of New York adopted a resolution authorizing appointment of a committee “to appear before the Assembly or its Judiciary Committee and take such action as may in their judgment be necessary to safeguard and protect the principles of representative government guaranteed by the Constitution, which are involved in the proceedings now pending.”
This Committee, under the Chairmanship of Honorable Charles E. Hughes, a former Governor of the state of New York and a former member of the United States Supreme Court who resigned to be a candidate for the presidency of the United States in the elections in 1916, and who later was reappointed to the Supreme Court of the United States and became Chief Justice, and including in its membership Honorable Joseph M. Proskauer, later an eminent New York Supreme Court Justice, and Honorable Ogden L. Mills, who later became Secretary of the Treasury of the United States, (the other members, Honorable Morgan J. O’Brien and Honorable Louis Marshall, all doubtless men of similar public spirit and competence, but their names do not at the moment call to mind the character of their other public service) filed a careful brief, because, as the Committee said, they regarded “these proceedings as inimical to our instutions, because they tend to subvert the very foundation upon which they rest — representative government.” In the course of the discussion of the situation then pending, the Committee made it plain that the action was an action for expulsion rather than an action to determine the qualifications of the members under the provisions of the New York Constitution similar to that of the State of Georgia. In pointing to the reason why they considered the proceedings not a testing of “the qualifications” of the members, they cited from the proceedings of the United States Senate, in which Senator Reed Smoot, of Utah, was the subject of proceedings attacking his membership in the United States Senate on the charge that he was one of the twelve apostles of the Mormon Church, and, therefore, a prominent member of the hierarchy, and, though- not a polygamist, sanctioned polygamy, a practice prohibited by the organic act of Congress admitting Utah as a state.
In the course of the Smoot proceedings, Senator Philander C. Knox, a distinguished Senator from the state of Pennsylvania, discussed the question of testing the qualifications of a member of the Senate under the United States Constitutional provisions that are similar to those in Article III, Section IV, par. V, etc., set out above. His statement is a complete answer to the claim that a legislature may require any qualifications it chooses. Senator Knox said:
“I have intentionally referred to the proposed action against Senator Smoot as expulsion. I do not think the Senate will seriously consider that any question is involved except one of expulsion, requiring a two-thirds vote.1 There is no question as to Senator Smoot possessing the qualifications prescribed by the Constitution and therefore we cannot deprive him of his seat by a majority vote. He was, at the time of his election, over 80 years of age and had been nine years a citizen of the United States, and when elected was an inhabitant of Utah. These are the only qualifications named in the Constitution, and it is not in our power to say to the States, ‘these are not enough; we require other qualifications,’ or to say that we cannot trust the judgment of the states in the selection of Senators, and we, therefore, insist upon the right to disap*354prove them for any reason. This claim of right to disapprove is not even subject to any rule of the Senate specifying additional qualifications of which the states have notice at the time of selecting their senators, but it is said to be absolute in each case as it arises, uncontrolled by any canon or theory whatever * *. Subject to these limitations imposed by the Constitution, the states are left untrammeled in their right to choose their senators.” (Emphasis supplied.)
The record discloses that the Senate declined to expel or otherwise deny Senator Smoot his right to sit. However, the five members of the New York State Legislature, whose cause was so eloquently presented by the Hughes Committee, did not fare so well. They were denied their seats.
Expressing their own views again on the question of the power of the Legislature to disqualify a member for grounds other than those stated in the Constitution, the Hughes Committee stated:
“We contend that the opinion expressed by Senator Knox in the case of Senator Smoot, supra, correctly defines what is meant by qualification. The constitution expressly specifies a number of disqualifications [as is also true in the Georgia Constitution] . . . The principle of constitutional interpretation applicable to this phase of the subject was elaborated in classic phrase by Chancellor Sanford in Barker v. People, 3 Cowen, 703, which, although decided in 1824, and therefore involving the interpretation of an earlier Constitution, is nevertheless as applicable in principle to the present Constitution: ‘Eligibility to public trust, is claimed as a constitutional right, which cannot be abridged or impaired. The Constitution established and defines the right of suffrage; and gives to the electors and to their various authorities, the power to confer public trust * * *. Excepting particular exclusions thus established, the electors and the appointing authorities are, by the Constitution wholly free to confer public stations upon any person, according to their pleasure. The Constitution giving the right of election and the right of appointment; these rights consisting essentially in the freedom of choice; and the Constitution also declaring, that certain persons are not eligible to office; it follows from these powers and provisions, that all other persons are eligible. Eligibility to office is not declared as a right or principle, by any expressed terms of the Constitution ; but it results, as a just deduction, from the expressed powers and provisions of the system. The basis of the principle, is the absolute liberty of electors and the appointing authorities, to choose and to appoint any person, who is not made ineligible by the Constitution * * * I, therefore, conceive it to be entirely clear that the Legislature cannot establish arbitrary exclusions from office or any general regulation requiring qualifications, which the Constitution has not required.’ * * * He would be indeed a bold individual who would assert that any American Legislative body can set up an arbitrary standard of qualification of its members that finds no sanction in the general will of the people and that is contrary to the spirit of the Constitution * * Brief of Special Committee appointed by the Association of the Bar of the City of New York, January 20,1920. (Emphasis supplied.)
A number of actions of the United States House of Representatives or the United States Senate are cited by the State as illustrative in its argument that the term “qualification,” is broad enough to encompass a test of the representative elect’s general character and loyalty. Based upon the excerpts from these cases as contained in the State's brief, each of them is to be distinguished.
*355The first of these cases is that of Victor Berger, a Congressman from Wisconsin, who had served in the House from 1911 to 1913. In 1918, he was again elected to the 66th Congress. Before appearing to be sworn in, he was indicted by the grand jury in the United States District Court for the violation of the Espionage Act. He was found guilty and sentenced to 20 years imprisonment. The appeal was pending at the time he offered to take the oath of office in the United States Congress. The House of Representatives adopted the report of the Committee, which found that “the question was ‘whether or not Victor L. Berger was guilty of a violation of the Espionage Act, whether or not he did give aid or comfort to the enemies of the United States during the war with Germany [which, of course, in time of war, would amount to treason under the Constitution of the United States] and whether or not he was ineligible to a seat in the House of Representatives.” The Committee found “after a careful consideration of all the evidence, in the opinion of your committee, the admitted acts, writings, and declarations of Victor L. Berger * * * giving such acts in the language of the writings and declarations their ordinary, everyday meaning, and without considering any other evidence, clearly establishes a conscious, deliberate and continuing purpose and intent to obstruct, hinder and embarrass the government of the United States and the prosecution of the war, and thus to give aid and comfort to the enemies of our country * *
The United States Constitution, in describing the crime of treason provides that “the Congress shall have Power to declare the Punishment of Treason,” Article III, Section 3, Clause 3(2). Congress has determined that one of the punishments for treason is that “Every person so convicted of treason shall, moreover, be incapable of holding any office under the United States.” This was the language of the statute that was in effect at the time of Berger’s contest. The present counterpart is found in 18 U.S.C.A. § 2381, in which it says that a person so convicted “shall be incapable of holding any office under the United States.”
Thus, although he had been convicted of sedition and not treason, Berger’s rejection by the House of Representatives was on a determination by the House that he had committed treason, which, if found by a court would be a lack of qualifications prescribed by the United States Constitution. Although in the committee report, it was argued that the House was not limited to constitutionally defined “qualifications” in passing upon Berger’s eligibility, nevertheless the action of the House in rejecting him falls within the pattern of what is permissible under the principles discussed in the Hughes Committee Report, supra. There was no court test of this exclusion.
William Blount, of Tennessee, was expelled from the Senate after having been seated. He was expelled “for conduct inconsistent with his public duty, rendering him unworthy of further continuance of his present public trust.” This action was taken under the provision of the United States Constitution which authorizes “each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.” Article I, Sec. 5, Clause 2. It has nothing to do with Article I, Section 5, Clause 1, which provides that “each House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * This is an important distinction because the authority to expel, unlike the provision relating to qualifications, is not limited by any language in the Constitution prescribing the grounds for expulsion.
John Smith, of Ohio, was cited for treason and misdemeanor as an accomplice of Aaron Burr. The Senate voted 19 for expulsion and 10 against. On the resolution failing to secure the necessary two-thirds, Smith retained his seat. Here, again, it was an action of expulsion. It is no precedent for giving “plenary” power to judge qualification.
*356John M. Niles, of Connecticut, was examined before taking the oath of office as to his mental capacities. The Committee found that he suffered under a mental physical debility, but that he was able to perform his duties, and he was seated. Of course, as noted above, sanity is a qualification by the Georgia Constitution for members of the House and Senate of this State.
John D. Bright, of Indiana, was expelled because it was found that he had written a certain letter to assist a member of the Confederate states to buy firearms. Note again that this was a matter of expulsion for an act of misconduct while a member and not a matter of determining qualification to be seated.
Joshua Hill and H. V. M. Miller, of Georgia, were refused seats in the United States Senate because of the manner in which the Georgia General Assembly, which had elected Hill and Miller, was conducting its elections. (Of course, this was at a time prior to the adoption of the 17th Amendment, and senators were elected by the State Legislatures.) This, of course, went directly to the question of judging “the election,” which is expressly authorized by the United States and Georgia Constitutions. The Reed Smoot case has been discussed previously. It was again, a question of expelling a senator and not one of passing on his qualifications at the time he presented himself.
The most recent case involved Senator Theodore G. Bilbo, who was not administered the oath pending an investigation of charges that his actions dealing with racial policies were said to be “contrary to the public policy, harmful to the dignity and honor of the Senate, dangerous to the perpetuity of free government, and taint [sic] with fraud and corruption of the credentials.”
If a substantial part of the charge was the question of fraud and corruption of the credentials, this, of course, would be a matter of judging “the election,” which is specifically authorized. In any event, Senator Bilbo was forced to step aside for an operation and he died before action was taken on his seating.
In 1926, William S. Vare, of Pennsylvania, and Frank L. Smith, of Illinois, were refused seats for excessive expenditures during their respective election campaigns. Once again this was a question of judging “the election,” authority for which is expressly given to the Senate.
If there are other cases involving action by the United States Congress in which it is expressly shown that it has assumed the right to expand the list of qualifications beyond those stated in the United States Constitution, they have not been brought to our attention.
It is quite difficult to ascertain from available materials, which, if any, state cases cited in the briefs of the parties were decided on a basis that explicitly shows that a state House or a state Senate has considered that it can determine a prospective member to be not qualified for grounds other than those stated in the respective constitutions as the qualifications or basis of eligibility for the office.
Representative-Elect Bond was not challenged on the ground that he was not 21 years of age; that he had not been a citizen of the State for the requisite two years and a resident of the county from which he was elected. Nor was he challenged on the ground that he had been convicted of treason against the state, embezzlement of public funds, misfeasance in office, bribery or larceny or any crime punishable by the laws of the state, punishable with imprisonment in the penitentiary. He was not charged with having received any interest, profit or perquisite arising from the use or loan of public funds. He offered to take the prescribed oath of office.
Since it cannot be claimed that he was found disqualified on some ground other than those of which he was charged, as this would be the clearest sort of deprivation of due process guaranteed not only by the United States Constitution, but also by the Georgia Constitution as well, Article I, Section I, Paragraph III, Constitution of the State of Georgia, Section *3572-103, Ga.Code Ann., it is clear that Bond was found disqualified on account of conduct not enumerated in the Georgia Constitution as a basis of disqualification. This was beyond the power of the House of Representatives. It runs counter to the express provisions of the Georgia Constitution giving to the people the right to elect their representatives, and limiting the Legislature in its right to reject such elected members to those grounds which are expressly stated in Georgia’s basic document.
As pointed out above, no Georgia decision has held that the courts of this state are helpless to intervene where a House of the Legislature undertakes to disqualify a person on a ground not specified. The decisions thus far reach only the proposition that where the Georgia Constitution authorizes the House to pass upon the qualifications of its members, all of the provisions in the Constitution touching on qualifications may be considered by the House in determining whether a member-elect meets the specified standards. In view of my conclusion that the action of the lower house of the General Assembly was in violation of the State Constitution, it would seem that Article I, Section IV, Paragraph II, would come into play. This section provides: “Legislative Acts in violation of this Constitution, or the Constitution of the United States, are void, and the Judiciary shall so declare them.” Section 2-402, Ga.Code Ann. Since, therefore, a Georgia court is given the authority to declare such an act void, as in violation of the Georgia Constitution, pendent jurisdiction places this obligation upon this Court.
While it might be argued that, under normal circumstances, if there were nothing before this Court other than the charge that the State Legislature violated the Georgia Constitution, rules of comity might require that this Court refrain from assuming jurisdiction over such a controversy, this is not such a case. If we were to refrain from acting on the State constitutional question, we would then be faced squarely with the necessity of deciding the grave Federal constitutional question. That question is, whether the plaintiff has been deprived of his First Amendment rights by the action of the Georgia House. The gravity of that question cannot be doubted, since it is clear that it was for expression of his views that Bond was denied his seat. In view of the fact that all of plaintiff’s rights can be fully adjudicated by our construction of the Georgia Constitution itself, we need not, and, indeed, we should not, proceed to a consideration of the Federal constitutional issue.
I would find that the act of the Georgia House of Representatives was void as being in violation of the Georgia Constitution and would require that he be. seated to the place to which he was elected.
. Under the United States Constitution, a majority of the Senate could find a Senator not qualified, whereas it required a two-thirds vote to expel a member. This is similar to the Georgia Constitution,