This case poses the questions of whether the petitioner's conviction, in the United States District Court, of conspiracy to evade and the evasion of personal and corporate income taxes for the years 1950, 1951 and 1952, in violation of sections 371 of title 18, and 145(b) of title 26 of the United States Code, and sentence to serve two years in the penitentiary and pay a fine in the sum of $56,000, constitutes conviction of an infamous crime in Illinois, which causes a vacancy in his office as Cook County assessor; and whether a pending appeal from such conviction operates to stay the effect of such vacancy.
The facts are not in dispute: Frank Keenan, the petitioner, was elected to the office of assessor at the general election on November 2, 1954, for a term of four years from the first Monday in December, 1954, and until his successor was duly elected and qualified. He qualified and performed the duties of assessor until February 4, 1958, when he was ousted under threat of force by the sheriff of Cook County on direction of its State's Attorney. On January 29, 1958, he was convicted of the income tax violations, sentenced, and fined, as above stated. On the same day, the State's Attorney of Cook County advised its board of commissioners, respondents, that petitioner had been convicted of an infamous crime which created a vacancy in the office of assessor and that it was their duty to appoint his successor. On January 30, 1958, petitioner perfected an appeal to the United States Court of Appeals, Seventh Circuit; advised the board that, by virtue of his appeal, there was no final judgment of conviction against him; that convictions under the Federal law are not encompassed within the infamous crimes defined in section 7 of division II of the Criminal Code, (Ill. Rev. Stat. 1957, chap. 38, par. 587,) and therefore could not constitute a basis to disqualify him from continuing as
The legal problems presented by the pleadings give rise to the above questions which are dispositive of this case. Initially our attention should be directed to the pertinent provisions of the Illinois constitution and statutes.
The Illinois constitution of 1870, article IV, section 4, provides: "No person who has been, or hereafter shall be, convicted of bribery, perjury, or other infamous crime, nor any person who has been or may be a collector or holder of public moneys, who shall not have accounted for and paid over, according to law, all such moneys due from him, shall be eligible to the general assembly, or to any office of profit or trust in this state," and article VII, section 7, provides: "The general assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes."
These constitutional provisions have been implemented by statutes, among which are the following:
Section 7 of division II of the Criminal Code, provides:
"Every person convicted of the crime of murder, rape, kidnapping, willful and corrupt perjury or subornation of perjury, arson, burglary, robbery, sale of narcotic drugs,
Section 25-2 of the Election Code provides:
"Every elective office shall become vacant on the happening of either of the following events, before the expiration of the term of such office: * * *
"Fifth — His conviction of an infamous crime, * * *
"No elective office, except as herein otherwise provided, shall become vacant until the successor of the incumbent of such office has been appointed or elected, as the case may be, and qualified." Ill. Rev. Stat. 1957, chap. 46, par. 25-2.
Sections 25-3 and 25-11 of the Election Code, and section 6 of the Revenue Act of 1939, (Ill. Rev. Stat. 1957, chap. 120, par. 487,) authorize the county board, charged with the duty of filling a vacancy in the office of assessor, to determine whether or not facts exist occasioning such vacancy, and if so, to fill it by appointment until the next county election when a successor shall be elected for the unexpired term. Section 29-38 of the Election Code provides that every person convicted of any crime under any article or section of the Code, if the crime is punishable by imprisonment in the penitentiary, shall be deemed infamous and shall forever after be rendered incapable of holding any office of honor, trust or profit, or voting at any election, or serving as a juror unless he or she is again restored to rights of citizenship by the Governor or court according to law.
Petitioner urges that he was not convicted of an infamous crime which effects a vacancy in office in Illinois, and cites section 4 of article IV of the constitution of 1870, People v. Kirkpatrick, 413 Ill. 595, People v. Montana, 380 Ill. 596, Hildreth v. Heath, 1 Ill.App. 82, and section 74 of the Civil Practice Act, (Ill. Rev. Stat. 1957, chap. 110, par. 74,) in support of his contention. The constitutional provision cited, which was above quoted, does not identify the other infamous crimes included within the term "or other infamous crime." It is self-executing and offers no support for petitioner's contention.
In the case of People v. Kirkpatrick, 413 Ill. 595, we held that conviction in a Federal court for violation of the Dyer Act cannot be shown in impeachment in a subsequent criminal prosecution in Illinois for burglary and larceny, since a violation of the Dyer Act is not an infamous crime within the terms of section 7 of division II of the Criminal Code, even though all felonies are infamous crimes under the Federal law. The problem in Kirkpatrick was one of evidence, controlled by the law of the forum, Illinois; and that decision had no bearing on the question of vacancy in office by operation of law and has application in the case at bar only by analogy. While the question before the court in Kirkpatrick is not now before us, we note that in 1869, section 235 of the Criminal Code, (Gross's Stat. p. 218,) declared that each person convicted of any of the crimes therein enumerated shall be deemed infamous and disqualified
The case of People v. Montana, 380 Ill. 596, is not pertinent, and Hildreth v. Heath, 1 Ill.App. 82, while in point, is not binding upon this court. Section 74 of the Civil Practice Act, (Ill. Rev. Stat. 1957, chap. 110, par. 74,) deals with appellate practice and states that an appeal constitutes a continuation of the proceeding in the trial court, yet this does not preclude this court from determining that conviction of an infamous crime in a trial court effects a vacancy in office even though an appeal is taken from the judgment of conviction. We recognize that courts of other jurisdictions support the petitioner's position in this respect, (People v. Enlow, 135 Colo. 249, 310 P.2d 539; People ex rel. Attorney General v. Laska, 101 Colo. 221, 72 P.2d 693; People v. Gutterson, 244 N.Y. 243, 155 N.E. 113; Bird v. Gilbert, 40 Kan. 469,) but believe that the primary factors in our determination are the provisions of the Illinois constitution and related statutes.
While section 4 of article IV of the constitution of 1870 rendered ineligible to public office any person convicted of bribery, perjury or other infamous crime, section 31 of
The debates reflect that the following resolution was offered and referred to the Committee on the Legislative Department:
"Resolved, That the Constitution be so amended as to render ineligible to any office of honor, trust or profit, under the laws of
At pages 191 et seq. of Volume I of the Debates the report of the Committee on the Legislative Department is set forth. Section 32 thereof appears on page 292 and reads as follows:
"Sec. 32. The General Assembly shall exclude from the privilege of being elected to either house, any person convicted of bribery, perjury or other infamous crime."
This report, in amended form, is shown at pages 393 and 394 of said Debates wherein section 32 remains unchanged. The proceedings before the convention, as a committee of the whole, pertaining to section 32 of this report, at page 572, reflect that Mr. Hanna, a member of the convention, in considering the purpose of this section, stated:
"I would call upon the chairman of the committee that presented this report and that article, to tell us what he means by it. Why not let this Convention say that persons convicted of bribery, perjury, or any other infamous crime, shall not be eligible to a seat — or else strike out the whole thing? It means nothing as it now stands. As it reads now, we simply provide that the General Assembly shall pass a law prohibiting persons from occupying seats in the General Assembly who have been convicted of crime. Let this Convention do this, and then we shall know it has been done."
Mr. Allen, of Crawford County, another delegate, remarked:
"I would suggest to the gentleman that the question of whether a man is guilty of bribery, perjury, or other infamous crime, is one that has to be determined by the courts, and it will be the duty of the General Assembly to fix some rule by which they may determine whether that conviction has been had.
"Mr. HANNA. I do not see that that explanation makes it any plainer.
"The section, as it now stands, would require the Legislature to pass a law to declare that no man convicted of an infamous crime, shall be eligible to a seat in the Legislature. I say, if we are going to deal with this question, as I think we certainly ought, let us declare that no man convicted of an infamous offense, shall
"I will send up my amendment in a few moments. The difference between my honorable friend from Crawford (Mr. Allen) and myself, is, that he wants the Legislature to pass a law to exclude criminals, and I want this Convention to do so without calling upon the legislature."
After this discussion, the following amendment was offered:
"No person convicted of bribery, perjury or other infamous offense, shall be eligible to either house of the General Assembly."
At page 573 the following discussion, between various delegates pertaining to this subject is shown:
"MR. PILLSBURY. I think sir, the provision is a sweeping one. I would add to the substitute these words: `Unless after such conviction his innocence shall be established.'
"Mr. Chairman: It frequently happens in our country that a man is convicted of crime and sent to the penitentiary, when subsequently his innocence is proved by evidence that cannot be controverted; yet it is here proposed to make a conviction the reason for excluding a man from any office in the gift of the people, when he may be as innocent of crime as any gentleman in this hall.
"If conviction is the rule, then it makes no difference whether it is rightful or wrongful. He nevertheless, is rendered ineligible to any office. I am not willing, sir, that such should be the rule; for in many instances it would work absolute injustice.
"If it were left to the Legislature to say when and in what cases conviction should work ineligibility to office, it could provide for such a contingency. But here we establish an iron rule, which cannot be varied, and will bear as hardly upon the convicted innocent as the guilty.
"MR. CARY. Mr. Chairman: The argument of the gentleman from Livingston (Mr. Pillsbury) has convinced me that the article as reported by the committee, is correct."
At page 574, the following discussion appears:
"MR. ANTHONY. * * * The object is, as I understand, to keep scoundrels out of the Legislature. How do we keep a scoundrel out of the Legislature? We say that no scoundrel shall be eligible to the General Assembly. If a person has been convicted of bribery, perjury, or any infamous crime, I do not want to have it left to the General Assembly to be passed upon by them. The evidence that a man is infamous, is conviction. That is all there is about it. When a man has been tried and convicted of a crime,
The following proceedings appear at page 576:
"THE CHAIRMAN. The question is upon the amendment of the gentleman from Livingston (Mr. Pillsbury).
"The clerk read the amendment offered by Mr. Pillsbury, as follows:
"`Unless, after such conviction, his innocence shall be established.'
"The amendment was not agreed to."
At page 959 the adoption of the 31st section of the report of the Committee on the Legislative Department is set forth:
"The secretary read section thirty-one as follows:
"`Sec. 31. No person who has been, or hereafter shall be, convicted of bribery, perjury or other infamous crime, shall be eligible to a seat in the General Assembly.' * * *
"THE PRESIDENT. The question is on the adoption of the thirty-first section, and it is declared adopted."
These sections, as adopted, were subsequently regrouped by the drafters of the constitution and other pertinent provisions, as similarly discussed and adopted, were combined to make up the final draft of the constitution which was likewise approved, and section 4 of article IV, as ultimately approved by the convention, voted on and adopted by the people, is heretofore set forth.
Adverting to the provisions of section 31 of article III of the constitution of 1848 which empowered the legislature to exclude from membership any person convicted of bribery, perjury, or other infamous crime, and the debates above set forth concerning section 4 of article IV of the constitution of 1870, it is evident that the drafters of the constitution intended that conviction of bribery, perjury, or other infamous crime should, ipso facto, render a person ineligible to hold any public office; and that the framers were referring to conviction in the trial court and not to an ultimate conviction following appeal to a higher court or courts.
It is interesting to note that bribery is not enumerated as an infamous crime in section 7 of division II of the Criminal Code, even though section 4 of article IV of the constitution provides that no person who has been, or hereafter shall be convicted of bribery, perjury or other infamous crime shall be eligible to hold any office of honor, trust or profit in this State. If we give credence to petitioner's contention that the enumeration of infamous crimes within section 7 of the above statute excludes any crimes not therein listed, we then face the anomolous situation of the provisions of the statute taking precedence over those of the constitution. Since Marbury v. Madison, (1803) 1
While we held in Christie v. People, 206 Ill. 337, and in People v. Russell, 245 Ill. 268, cases not involving a vacancy in office by operation of law, that whether a crime is infamous in this State depends not upon the common law but upon the statute, we find that not only the constitutionally infamous crime of bribery, but other heinous felonies such as abortion, abduction, sexual crimes against children, inducing females to enter houses of prostitution, poisoning, and receiving stolen property, are not declared infamous by section 7 of division II of the Criminal Code. (See People v. Russell, 245 Ill. 268, 278.) The statutory enumeration likewise fails to include treason, misprision of treason, espionage and other equally serious crimes, the infamy of which needs no citation of authority. Bribery involves moral turpitude and was an infamous crime at common law when the constitution was adopted in 1870. (Christie v. People, 206 Ill. 337.) And it is probable that the other heinous crimes above listed were likewise then so regarded. "An infamous crime at common law was an act, the commission of which was inconsistent with the commonly accepted principles of honesty and decency, or one which involves moral turpitude." (14 I.L.P., Crim. Law, chap. 2, sec. 22, p. 484.) Under these circumstances, we conclude that the determination of what constitutes an
In the case of Briggs v. Board of County Commissioners, 202 Okla. 684, 217 P.2d 827, the Supreme Court of Oklahoma held that the indictment and conviction of the sheriff of Muskogee County, in the Federal court, of the offense of conspiring to operate and the operation of a wholesale liquor business in Oklahoma, without paying Federal taxes thereon, was conviction of an infamous crime under the laws of Oklahoma, effecting a vacancy in that office by operation of the vacancy statute. Similar conclusions have been reached in a majority of the jurisdictions throughout the United States, a few of which are hereafter cited: State v. Redman, 183 Ind. 332, 109 N.E. 184; Hogan v. Hartwell, 242 Ala. 646, 7 So.2d 889; State ex rel. Anderson v. Fousek, 91 Mont. 448, 8 P.2d 791; State ex rel. McElliott v. Fousek, 91 Mont. 457, 8 P.2d 795; Davis v. Impelliteri, 94 N.Y.S.2d 159; State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377; State ex rel. Salisbury v. Vogel, 65 N.D. 137, 256 N.W. 404; State ex rel. Barrett v. Sartorious, 351 Mo. 1237, 175 S.W.2d 787; Arnett v. Stumbo, 287 Ky. 433, 153 S.W.2d 889; Jordan v. DeGeorge, 341 U.S. 223, 95 L.ed. 886; Anno: 20 A.L.R.2d 732.
In the case of In re Needham, 364 Ill. 65, this court held that the use of the United States mails to defraud in violation of section 338 of title 18 of the United States Code was a crime involving moral turpitude and that respondent's conviction thereunder warranted his disbarment. The United States Supreme Court in Jordan v. De George, 341 U.S. 223, 95 L.ed. 886, held that conspiring to defraud the United States of taxes on distilled spirits was a crime involving moral turpitude. In Christie v. People, 206 Ill. 337,
Accordingly, we conclude that any public officer convicted, in the Federal court or in the court of any sister State, of a felony which falls within the general classification of being inconsistent with commonly accepted principles of honesty and decency, or which involves moral turpitude, stands convicted of an infamous crime under the common law as interpreted when our constitution was adopted in 1870, and that such conviction creates a vacancy in such office. This determination is not inconsistent with the legislative policy expressed in section 29-26 of the Election Code which provides that "If any person who shall have been convicted of bribery, felony or other infamous crime under the laws of any state * * * shall thereafter vote or offer to vote at any election or primary he shall upon the conviction thereof be adjudged guilty of a felony, and, for each and every such offense shall be punished by imprisonment in the penitentiary for not less than two nor
Petitioner also urges that the common law of England prior to 1606 is the rule of decision; (Ill. Rev. Stat. 1957, chap. 28, par. 1,) that the crime of income tax evasion was unknown to the common law of England, and hence, it is inapplicable; and that if applicable, the legislature discarded such concept by the enactment of section 7 of division II of the Criminal Code. Such contention entirely disregards the provisions of section 25-2 of the Election Code and misconceives the effect of the act adopting the common law, above cited. This court adequately considered the scope and effect of the rule of decision in Amann v. Faidy, 415 Ill. 422, and at pages 433 and 434 stated: "What the statute adopted was not just those precedents which happened to have already been announced by English courts at the close of the sixteenth century, but rather a system of law whose outstanding characteristic is its adaptability and capacity for growth. The common law which the statute adopted `is a system of elementary rules and of general judicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions and the exigencies and usages of the country.' Kreitz v. Behrensmeyer, 149 Ill. 496." While we recognize that at common law there was no such offense as income tax evasion, yet we are not concerned with the nomenclature of the offense, but rather with its characteristics. The glory of the common law is, and has been, its capacity for growth and development to meet the needs of society. For the purpose of effecting a vacancy in office,
Under the constitutions and statutes of sister States creating a vacancy in public office where the incumbent has been convicted of a felony, it is generally held that the office is vacated upon a verdict of guilty and that an appeal does not stay the effect of such vacancy. These decisions are generally predicated upon the theory that after a plea or verdict of guilty, judgment, and sentence by a court of competent jurisdiction, the presumption of innocence which, up to that time, had persisted in favor of the defendant, no longer prevails, and that the law thereafter presumes that the proceedings have been regular and that the defendant is guilty. Briggs v. Board of County Commissioners, 202 Okla. 684, 217 P.2d 827; State ex rel. Hunter v. Jurgensen, 135 Neb. 136, 280 N.W. 886; Attorney General ex rel. O'Hara v. Montgomery, 275 Mich. 504, 267. N.W. 550; State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377; Bell v. Treas. of Cambridge, 310 Mass. 484, 38 N.E.2d 660; McKannay v. Horton, 151 Cal. 711, 91 Pac. 598; In re Obergfell, 239 N.Y. 48, 145 N.E. 323; State v. Chapman, 187 Wn. 327, 60 P.2d 245; State v. Levi, 109 W.Va. 277, 153 S.E. 587; Becker v. Green County, 176 Wis. 120, 184 N.W. 715, 186 N.W. 584; 43 Am. Jur. sec. 200, p. 44.
Respect for the law and confidence in public officers cannot be compelled. These attributes stand as a voluntary tribute to just laws and integrity in public office. While they exist, both the law and the official will retain public trust. Confidence in an elective official is destroyed when he is convicted of an infamous crime. In the instant case, if the petitioner had been unable to give bond and the penitentiary
We find no merit in petitioner's contention that pendency of his appeal stays the finality of his conviction and thereby holds in abeyance a vacancy in the office of Cook County assessor.
Under the conclusions of this court, the petitioner has failed to establish any right to the writ of mandamus herein prayed. The writ is therefore denied.