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People Ex Rel. Keenan v. Mcguane

OPINION FILED APRIL 21, 1958.

THE PEOPLE EX REL. FRANK KEENAN, PETITIONER,

v.

JOHN F. MCGUANE ET AL., RESPONDENTS.



ORIGINAL PETITION for mandamus.

MR. CHIEF JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 23, 1958.

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 such assessor. The State's Attorney further counseled the board that the office of assessor was vacant and that their failure to appoint a successor may place them in the position of violating the law. On February 4, 1958, over the protest of the petitioner, the board adopted resolutions declaring the office of assessor vacant and appointing respondent John F. McGuane to fill the vacancy. McGuane qualified for the office and was sworn in by the county clerk, also respondent. The petitioner, under threat of physical force from the sheriff of Cook County, likewise respondent, yielded up the office. Thereupon, pursuant to motion, we granted petitioner leave to file a petition for mandamus, wherein he sought such writ to compel the respondents to restore him to the office of Cook County assessor. Respondents filed answer.

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, sodomy, or other crime against nature, incest, forgery, counterfeiting, bigamy, or larceny, if the punishment for said larceny is by imprisonment in the penitentiary, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust or profit, of voting at any election, or serving as a juror, unless he or she is again restored to such rights by the terms of a pardon for the offense or otherwise according to the law." Ill. Rev. Stat. 1957, chap. 38, par. 587.

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.

The constitution provides that no person convicted of bribery, perjury, or other infamous crime, shall be eligible to hold public office, and section 7 of division II of the Criminal Code enumerates certain specific crimes as infamous. However, section 25-2 of the Election Code is without such specification and thereunder every elective office becomes vacant upon conviction of the officer of an infamous crime.

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 not only to hold office, vote and serve as a juror, but also to give testimony. (Faunce v. People, 51 Ill. 311.) Subsequently, this disability was removed by amendments to section 6 of division XIII of the Criminal Code which provided in part that "No person shall be disqualified as a witness in any criminal case or proceeding by reason of * * * his having been convicted of any crime; but such * * * conviction may be shown for the purpose of affecting his credibility." (Ill. Rev. Stat. 1957, chap. 38, par. 734.) And we must observe that earlier decisions of this court approved the admission of the record of out-of-State or Federal convictions for impeachment purposes, (People v. Derrico, 409 Ill. 453, 465,) and under the Habitual Criminal Act. People v. Derrico, 409 Ill. 453, 461 and 462; People v. Hamlett, 408 Ill. 171, 176, and People v. Poppe, 394 Ill. 216, 220 et seq.

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 article III of the constitution of 1848 only provided that "The General Assembly shall have full power to exclude from the privilege of electing or being elected any person convicted of bribery, perjury or other infamous crime." Consideration of the historical background in connection with the expansion of the 1848 provision of section 31 of article III from power in the General Assembly to exclude from the privilege of electing or being elected any person convicted of bribery, perjury or other infamous crime, to the complete ineligibility of such person to hold public office under section 4 of article IV of the constitution of 1870, is both appropriate and enlightening. The debates of the constitutional convention, held in 1869 and 1870, aid in determining the intent of the drafters of that instrument. While in construing the constitution the true inquiry concerns the understanding of the meaning of its provisions by the voters who adopted it, still the practice of consulting the debates of the members of the convention which framed the constitution has long been indulged in by courts in determining the meaning of provisions which are thought to be doubtful. (Burke v. Snively, 208 Ill. 328; Wolfson v. Avery, 6 Ill.2d 78.) Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 5 L.ed. 257, 294, offered precedent for this technique in ...


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