WRITS OF ERROR to the Criminal Court of Cook County; the Hon.
JULIUS H. MINER, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 21, 1952.
The defendants, George S. May, Matt E. Niesen and Edward R. Rezek, respectively the president, vice-president and comptroller of the Tam O'Shanter Country Club, a corporation, were adjudged guilty of contempt of court in the criminal court of Cook County on June 7, 1951. As in the companion case of People v. Ryan, ante, page 486, decided this day, the alleged contumacious conduct of the present defendants consisted of their neglect and refusal to produce certain books and records of the Tam O'Shanter Country Club before the July, 1950, grand jury in response to subpoenas duces tecum issued against them. May was fined $1000 and fines of $500 each were imposed against Niesen and Rezek. Separate writs of error sued out of this court by defendants, each involving the same questions, have been consolidated for hearing and opinion.
On July 28, 1950, the State's Attorney filed a verified petition in this cause in the criminal court seeking the issuance of subpoenas duces tecum commanding the corporation, the present defendants and another, Harley McNamara, not involved here, to attend before the grand jury forthwith in connection with a certain complaint made against May and to produce the following documents necessary and material to the investigation then in progress:
"(a) All records showing cash receipts of Tam O'Shanter Country Club for period of January 5, 1949, to July 5, 1950. (b) All records showing cash disbursements of Tam O'Shanter Country Club for period of January 5, 1949, to July 5, 1950. (c) All records showing cash receipts received by Tam O'Shanter Country Club for period of January 5, 1949, to July 5, 1950, from operation of coin machines, including slot machines and gambling games. (d) General Ledger of Tam O'Shanter Country Club for period of January 5, 1949, to July 5, 1950. (e) All records showing Accounts Receivables and Accounts Payable of Tam O'Shanter Country Club for period of January 5, 1949, to July 5, 1950. (f) All records showing accounts of each member belonging to Tam O'Shanter Country Club for the last three years."
On the same day Hon. Julius H. Miner, a judge of the circuit court then sitting as chief justice of the criminal court, entered an order directing the issuance of subpoenas duces tecum, as requested in the petition, the subpoenas were issued, and service was had upon May and Niesen. Rezek was served on July 29, 1950. The documents commanded to be produced were those set forth in the petition and order, except that, following the last item, there appeared an additional clause in the printed form of the subpoena reading, "together with all copies, drafts and vouchers relating to said documents, and all other documents, letters and paper writings whatsoever, that can or may afford any information or evidence in said matter."
Although defendants appeared before the grand jury in response to the subpoenas, none of them produced any books or records of the country club corporation. Thereafter, on August 3, 1950, Judge Miner, acting upon petitions filed by the foreman of the grand jury, entered a rule on each defendant to show cause why he should not be punished for contempt of court for having failed without cause or excuse to produce before the court and grand jury the books and records designated in the subpoenas served upon them.
Sworn answers were filed by each defendant which were identical in all material respects. Each defendant stated that, after being subpoenaed, he carefully searched all rooms in the clubhouse and all other buildings at the Tam O'Shanter Country Club; that he also inquired of the officers and other persons at the country club as to the whereabouts of the books and records set forth in the subpoena; that he was unable to find or learn the location of any of the books and records sought; that he has been informed and believes that James Ryan has filed a verified answer in the criminal court in which Ryan stated that he has the sole and exclusive possession of the documents mentioned in the subpoena and that no other person has access to, or knowledge as to the location of, these documents, and that he, defendant, was and is, through no fault of his own, unable to bring before the grand jury the books and records designated in the subpoena. Each answer also alleged that the petition for the issuance of the subpoena, the subpoena issued and the service of the subpoena were all void. Each answer also invokes the provisions of the State and Federal constitutions prohibiting unreasonable searches and seizures and providing that no person shall be compelled to give evidence against himself.
After eight continuances, commencing on August 24, 1950, Judge Miner, on June 7, 1951, adjudged each defendant guilty of contempt of court. The judgment orders found that each defendant failed, neglected and refused, without cause or excuse, to produce before the grand jury the books and records of the corporation designated in the subpoenas. They also found that the books and records sought were necessary and material to the grand jury investigation; that James Ryan, an employee of the corporation, has and had possession of the books and records of the corporation; that each defendant, an officer of the corporation, had failed, neglected and refused to demand of and obtain from Ryan the books and records of the corporation designated in the subpoena; that this neglect, failure and refusal to comply with the subpoenas constituted a willful disobedience and defiance of the process of the court, impeded the proceedings of the grand jury and tended to lessen the dignity of the court; that defendant had failed to show cause why he should not be punished for contempt, and that, by reason of his conduct, he was guilty of contempt of the criminal court.
Subsequently, defendants moved to vacate the judgments of contempt, asserting, in addition to the matters set forth in their answers to the rules to show cause, that the judgment orders were void because Judge Miner's term as chief justice of the criminal court had expired on September 3, 1950, his term as judge of the circuit court expired on June 4, 1951, and that, in any event, even as a holdover judge, he had been assigned to the equity side of the circuit court on June 5, 1951. Defendants further asserted that the judgment orders punished them for failing to do an act not required of them by the subpoenas or by any order of court. July 19, 1951, Hon. Frank M. Padden, chief justice of the criminal court, denied the motion to vacate the judgments of contempt and these writs of error followed.
The first question requiring consideration is the authority of Judge Miner to enter the challenged judgment orders on June 7, 1951. In entering these orders, Judge Miner was performing the functions of a judge of the criminal court of Cook County. There are no elected judges of that court. Section 26 of article VI of the constitution provides: "The terms of said criminal court of Cook County shall be held by one or more of the judges of the circuit or superior court of Cook County, * * * as may be determined by said judges, or provided by law. Said judges shall be ex officio judges of said court." The judges of the criminal court are designated by the executive committees of the circuit and superior courts, pursuant to their rules. The law is settled that a judge of the circuit or superior court is not authorized to act as a judge of the criminal court until he is assigned to that court. (People v. Sullivan, 371 Ill. 264; People ex rel. Chicago Bar Ass'n v. Feinberg, 348 Ill. 549.) Similarly, a judge of the circuit or superior court is not a judge of the criminal court after his assignment to that court has terminated.
When these proceedings were initiated in July, 1950, Judge Miner was a judge of the circuit court sitting by assignment as a judge of the criminal court. The term of office of a judge of the circuit court is six years. Elections are held on the first Monday in June at intervals of six years, beginning with the year 1873. (Const., art. VI, secs. 12 and 14.) On Monday, June 4, 1951, an election was held for the office of judge of the circuit courts. Judge Miner was not a candidate for re-election. From this, defendants argue that his term as judge of the circuit court ended on June 4, 1951, and with it his assignment to the criminal court, so that his authority to act in the present proceedings then ceased.
The argument is not persuasive. Section 32 of article VI of the constitution provides: "All officers provided for in this article shall hold their offices until their successors shall be qualified, * * *." A successful candidate for the office of judge of the circuit court is not qualified until the abstracts of the votes are canvassed and he is declared to have been duly elected, (Ill. Rev. Stat. 1949, chap. 46, par. 22-7,) and is commissioned by the Governor. (Const., art. IV, sec. 29.) The term of the office of a judge of the circuit court, not being otherwise fixed, begins and ends on the date of election; but it is equally true that the term of the person holding the office, as distinguished from the term of the office itself, does not terminate until his successor has qualified. Const., art VI, sec. 32; People ex rel. Holdom v. Sweitzer, 280 Ill. 436.
But defendants further contend that the constitutional provision as to holdover judges does not apply to circuit and superior court judges assigned to sit in the criminal court of Cook County. The asserted difference between the criminal court of Cook County and all other courts does not exist. Section 32 of article VI applies to all courts without distinction. Its purpose is to prevent a hiatus in judicial office, and that underlying purpose is as applicable to the criminal court of Cook County as to other courts. Following the election of June 4, 1951, Judge Miner continued to hold the office of judge of the circuit court until his successor qualified and the mere fact that his successor had been elected did not terminate his assignment to the criminal court. Being a judge of the circuit court assigned to the criminal court, he remained a judge of the criminal court until his successor was commissioned or until his assignment to the criminal court was sooner terminated pursuant to law.
In the alternative, defendants contend that Judge Miner's assignment to the criminal court terminated on June 5, 1951, as the result of the following order of the executive committee of the circuit court entered that day: "It is Ordered that Hon. Julius H. Miner, Judge of the Circuit Court, be and he is hereby, assigned to hold court in the Circuit Court of Cook County on the fifth day of June, A.D. 1951, for the purpose of hearing the cause entitled and numbered James Wilson Winger et al., vs. Chicago City Bank and Trust Company, etc., et al., General No. 42 C 1491, and entering therein any order or orders, decree or decrees which he may deem necessary." This order did not purport to terminate Judge Miner's assignment to the criminal court nor did it constitute a general assignment to the circuit court. It merely assigned Judge Miner to hold court in the circuit court for the purpose of hearing and entering orders in a specific case on a particular day. It emphasizes his continuing ...