Appeal from the Circuit Court of Cook County; the Hon. HAROLD
J. O'CONNELL, Judge, presiding. Order affirmed.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 28, 1965.
This is an appeal from an order of ouster entered in the Circuit Court of Cook County on December 16, 1963.
All the appellants here were officers of the Township of Stickney. One was clerk of the Township, two were members of the board of auditors, and two were township highway commissioners. On July 15, 1963, these five appellants, along with one other who is not a participant in this appeal, were convicted in the Criminal Court of Cook County, Illinois, of violating Chapter 38, Section 139, Ill Rev Stats 1961, to wit: Conspiracy to cheat and defraud the Township of Stickney and of Common Law Conspiracy.
On August 6, 1963, the People of the State of Illinois, on the relation of the State's Attorney of Cook County, Illinois, filed its complaint in quo warrantor, naming these appellants and requesting that an order of ouster from the above-mentioned offices be entered. The complaint alleged that the offices held by each, being offices of trust or profit of the Township of Stickney were automatically vacated by the defendants' convictions, said convictions being of infamous crimes or offenses involving a violation of official oaths of office.
The appellants filed a motion to dismiss the complaint, which motion was denied by the court below. Subsequently, on November 15, 1963, the appellants filed their answer to the complaint, admitting that the defendants were elected to their respective offices; that the defendants were convicted of the offenses previously described; that Article IV, Section 4 of the Illinois Constitution provides that a person convicted of an infamous crime shall be ineligible to any office or profit or trust in this State; that the offices to which defendants were elected were offices of trust or profit of the Township of Stickney; and that Chapter 46, Section 25-2, Ill Rev Stats 1961, provides that every elective office shall become vacant upon conviction of the office holder of an infamous crime or of any offense involving a violation of official oath. The appellants denied in their answer that conspiracy is an infamous crime so as to work forfeiture of office and also denied that a conviction of conspiracy constitutes a violation of the oath of office.
The State filed a motion for summary judgment which the court below granted on December 16, 1963, and at that time the court ordered that the appellants be ousted from office. A timely appeal has been brought to this court for review of this order.
The appellants urge two points to this court: first, that a conspiracy by officials to defraud the governmental body of which they are officers does not constitute an infamous crime, and second, that such a conspiracy is not a violation of the oath of office. We believe that the order of ouster can be sustained against both these attacks.
The conspiracy of these men to defraud the Township of Stickney is an infamous crime.
The appellants argue that only felonies can be infamous crimes. This is clearly not true. The test of what is a felony and what a misdemeanor in this State is set forth in People v. Bain, 359 Ill. 455 at page 470, 195 N.E. 42:
"When an offense may be punished by imprisonment in the penitentiary, or by fine only, or by incarceration in the penitentiary and by fine, in the discretion of the court or jury, the offense, under the statute is not a felony, but a misdemeanor."
To the same effect, see People v. Spector, 28 Ill.2d 554 (1963) under that test at this moment, bigamy, bribery, forgery, kidnapping, perjury and subordination of perjury are misdemeanors under the Illinois Criminal Code, 38 Ill Rev Stats 1963, Section 2-7, 11-2, 33-1, 17-3, 10-1, 32-2 and 32-3. At the same time, they are listed as infamous crimes under the Illinois Code of Criminal Procedure, 38 Ill Rev Stats 1963, Section 24-1. Infamy and felony certainly are not now synonymous, nor is there authority that they were synonymous before these new acts.
The appellants claim that since the legislature in considering the new Illinois Code of Criminal Procedure, 38 Ill Rev Stats 1963, specifically rejected the crime of conspiracy while listing infamous crimes, the court should not take it upon itself to declare these appellants' crimes to be infamous.
In People ex rel. Keenan v. McGuane, 13 Ill.2d 520, 150 N.E.2d 168 (1958) the appellant, a county assessor, had been convicted in a Federal District Court of conspiracy to evade, and the evasion of personal and corporate income taxes. There too, the appellant claimed he had not been convicted of an infamous crime within the meaning of Article IV, Section 4 of the Illinois Constitution, or within the meaning of Chapter ...