APPEAL from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLASS, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1967.
This is an appeal by the State of Illinois from an order of the circuit court of Sangamon County quashing and dismissing thirty-four counts of a thirty-five-count indictment charging defendants Theodore J. Isaacs and John J. Lang with various offenses. Cook Envelope and Lithographing, Inc., an Illinois corporation, is charged with offenses as a co-defendant in some of the counts and is charged alone in count III. However, since no appearance on its behalf has ever been made, the circuit court did not act upon the indictment with regard thereto, and insofar as the counts under consideration here affect the corporation, they are not in issue on this appeal. Thirty-three counts are made the basis of the appeal, the People having confessed error as to count XXI. Constitutional questions relating to the sufficiency of several counts bring the cause directly to this court. Ill. Const., art. VI, sec. 5; Rule 28-1.
Counts I, IV, VIII and IX, which the parties have denominated the "less detailed Section 75 counts", charge defendant Isaacs with knowingly and unlawfully acquiring, obtaining and holding a direct pecuniary interest in certain specifically described contracts entered into by the State of Illinois and Cook Envelope and Lithographing, Inc., an Illinois corporation, pursuant to which the latter was to furnish and supply the former with envelopes, printing and paper. It is alleged in all of these counts that Isaacs occupied, during the times of the commission of the offenses sought to be charged therein, a position as an officer and employee of the State of Illinois, to-wit: Director of the Department of Revenue. It is further averred in each count that the payments for the materials to be furnished under the contracts were to be satisfied from funds appropriated by the General Assembly. Defendant Lang is charged in counts I and IV as having aided and abetted defendant Isaacs in the planning and commission of the offenses charged therein while an employe of the State of Illinois, to-wit: Superintendent of Printing in the Department of Finance.
The first paragraph of section 12 of the act relating to State contracts (Ill. Rev. Stat. 1963, chap. 127, par. 75), pursuant to which these counts are brought, provides: "Except as herein otherwise provided, it shall be unlawful for any person holding any elective state office in this state or a seat in the General Assembly or any person employed in any of the offices of the state government or the wife, husband or minor child of any such person to have, acquire, obtain or hold any contract, whether for stationery, printing, paper or for any services, materials or supplies, which will be wholly or partly satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois, nor shall any such person have, acquire, obtain or hold any direct pecuniary interest in any such contract provided, however, that payments made in behalf of a public aid recipient shall not be deemed payments pursuant to a contract with the state."
It is apparent that the counts now under consideration are brought pursuant to the second clause of the first paragraph of section 12, for nowhere else in the paragraph is language employed proscribing the acquisition of a "direct pecuniary interest" in a State contract.
The defendants maintain that these counts are constitutionally insufficient under section 9 of article II of the Illinois constitution, requiring that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him, in order that he will have such specific designation of the offense charged as to enable him to prepare his defense and to plead a judgment of acquittal or conviction thereon in bar of a subsequent prosecution for the same offense. People v. Brown, 336 Ill. 257; People v. Flynn, 375 Ill. 366.
Consistent with this constitutional requirement, it has long been a rule of law in this State that where the language of the statute defining an offense so far particularizes such offense that by its use alone the accused is notified with reasonable certainty of the precise offense with which he is charged, an indictment drawn substantially in the language of the statute is constitutionally sufficient. (People v. Blanchett, 33 Ill.2d 527; People v. Sims, 393 Ill. 238.) However, it is equally well settled that "where the statute creating the offense does not describe the act or acts which compose it, they must be specifically averred in the indictment or information." (People v. Brown, 336 Ill. 257, 258-59.) Here, it may fairly be said that these counts, as to the interest alleged to have been obtained, are drawn substantially in the language of the above statute, for it is alleged in each count that defendant Isaacs "did knowingly and unlawfully have, acquire, obtain and hold a direct pecuniary interest" in the State contracts therein specified. The question to be determined by this court is, therefore, whether such language sufficiently particularizes the nature of the offense sought to be charged so as to bring these counts within the rule authorizing charges couched in substantially statutory terminology. If so, defendants' constitutional contention is without merit. If not, the cases adhering to the rule in Brown are controlling, and the trial court's order was correct. If the constitutional requisite is met in this case, section 111-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1963, chap. 38, par. 111-3) which was enacted to satisfy the mandate that an accused be adequately notified of the offense with which he is charged, is also sufficiently complied with.
The People in contending these counts are not defective as vague and uncertain rely principally on People v. Adduci, 412 Ill. 621, where this court dealt with the predecessor of present section 12 of the act relating to State contracts. The pertinent section then provided, inter alia, that State officers and employees were precluded from becoming "directly or indirectly" interested in certain State contracts. (Ill. Rev. Stat. 1951, chap. 127, par. 75.) After upholding the constitutionality of this statutory language against a contention of vagueness and uncertainty, the court upheld an indictment brought pursuant thereto. That indictment, however, charged the defendant with an offense not only in the language of the statute, but also specifically alleged the type of interest in the contract that defendant was charged with having obtained, i.e., that he was paid a large amount of money as a commission in connection with the contract. The counts under consideration here charge only the acquisition of a "direct pecuniary interest", and although the People urge that such distinction is of no consequence, we believe it manifest that the interest alleged in Adduci was measurably more specific than the interest alleged here. In our opinion, therefore, that case is not controlling.
Defendants rely upon cases such as People v. Peters, 10 Ill.2d 577, where this court held that an information alleging that the accused on a certain day in a certain county, as a resident of the State of Illinois not authorized to practice law "did then and there unlawfully, knowingly and wilfully represent himself as authorized to practice law" was constitutionally insufficient to state an offense. The statute pursuant to which the information was brought provided: "That any person residing in this state not being regularly licensed to practice law in the courts of this state, who shall in any manner hold himself out as an attorney at law or solicitor in chancery or represent himself either verbally or in writing, directly or indirectly, as authorized to practice law, shall be deemed guilty of a misdemeanor". (Ill. Rev. Stat. 1953, chap. 38, par. 298.) The court held that since the statute did not define or describe the acts constituting the offense created thereby, a charge couched substantially in the statutory language should have been dismissed. Similar cases are People v. Chiafreddo, 381 Ill. 214; People v. Green, 368 Ill. 242; People v. Flynn, 375 Ill. 366; People v. Barnes, 314 Ill. 140.
After a thorough consideration of the foregoing authorities, we believe that the statute pursuant to which these counts are brought, proscribing a certain class of individuals from acquiring a "direct pecuniary interest" in certain State contracts, does not by that language sufficiently define or describe the acts composing the offense so that an indictment couched substantially in the language thereof is constitutionally sufficient. While the People argue that "direct pecuniary interest" is reasonably specific, it cannot be denied that there are many types of such interests that the statutorily included class might acquire in State contracts. Without more specific particularization of the "direct pecuniary interest" alleged to have been obtained by an accused, he has no way of knowing with what he is charged. It may well be that the particular interest considered by the grand jury is not a "direct pecuniary interest" as envisaged by section 12, and an indictment charging the acquisition of such interest would be quashable as a matter of law. If the interest is not averred with greater specificity than was employed here, defendants might be forced to go to trial unnecessarily.
Our disposition of counts I and IV as to defendant Isaacs necessarily requires the determination that they are also insufficient as to defendant Lang, who is charged as having aided and abetted defendant Isaacs in the commission of the offenses sought to be charged therein.
The trial court's order quashing counts I, IV, VIII and IX, is, for the foregoing reasons, affirmed.
We now come to a consideration of counts VI and VII, which the parties have denominated the "detailed Section 75
counts". Each of these counts charge defendant Isaacs, while occupying a position as a State officer and employee, with obtaining a direct pecuniary interest in a certain specified State contract for envelopes between the State of Illinois and Cook Envelope and Lithographing, Inc., an Illinois corporation. Count VI further alleges that on the contract date defendant Isaacs "was entitled to and owned 25% or more of the outstanding common stock of the said Cook Envelope and Lithographing, Inc." Count VII further presents that defendant Isaacs was on the contract date "entitled by contract and stock ownership in said Cook Envelope and Lithographing, Inc. * * * to more than 7 1/2% of the total distributable income of said Cook Envelope and Lithographing, Inc.".
Section 12 of the act relating to State contracts provides in pertinent part:
"Except as herein otherwise provided, it shall be unlawful for any person holding any elective state office in this state or a seat in the General Assembly or any person employed in any of the offices of the state government or the wife, husband or minor child of any such person to have, acquire, obtain or hold any contract, whether for stationery, printing, paper or for any services, materials or supplies, which will be wholly or partly satisfied by the payment of funds appropriated by the General Assembly of the State of Illinois, nor shall any such person have, acquire, obtain or hold any direct pecuniary interest in any such contract provided, however, that payments made in behalf of a public aid recipient shall not be deemed payments pursuant to a contract with the state.
"It shall also be unlawful for any firm, partnership, association or corporation from which any such person shall be entitled by contract, stock ownership or otherwise, to receive more than 7 1/2% of the total distributable income thereof to have, acquire, obtain or hold any such contract or direct pecuniary interest therein.
"Any person found guilty of a violation of this section shall upon conviction be fined not to exceed $2,500. As amended by act approved July 15, 1959. L. 1959, p. 1237."
It is the State's position that stock ownership, to the extent alleged in these counts, constitutes a direct pecuniary interest in the contracts of the corporation in which the stock is held, and if a person within the included class of the first paragraph of section 12 is entitled to more than 7 1/2% of the total distributable income of a corporation which enters into a contract with the State, such individual is personally subject to prosecution. We do not so read section 12. The first paragraph declares that it shall be unlawful for a certain class of people to obtain direct pecuniary interests in certain State contracts. The second paragraph declares that it shall be unlawful for any firm, partnership, association or corporation from which any of that same class of persons shall be entitled to receive more than 7 1/2% of the total distributable income to hold or obtain any direct pecuniary interest in certain State contracts. In no way does section 12 purport to equate any stockholding interest in a corporation with a direct pecuniary interest in that corporation's State contracts and thus subject the stockholder to personal liability. While the State argues that to construe section 12 as not subjecting such stockholder to personal liability in a case where the corporation would manifestly be subject to a penal sanction cannot have been the intent of the General Assembly and in fact serves to thwart the public policy inherent in the statute, we must remember that we deal here with a penal statute and must construe it strictly in favor of the accused. (People v. Eagle Food Centers, Inc. 31 Ill.2d 535.) It might well have been thought by the General Assembly that sanctions only against the corporation in situations arising under the second paragraph would constitute a sufficient protection to the State, for it is apparent that by amending section 12 to substitute the acquisition by a State officer or employee of a "direct pecuniary interest" in a State contract for the former language which precluded such persons from becoming "directly or indirectly interested" in such contracts, the General Assembly has substantially narrowed the scope of the statute. We therefore hold that section 12 does not impose personal liability upon a stockholder of a corporation which, under the second paragraph thereof, unlawfully holds or obtains a direct pecuniary interest in a contract with the State. The trial court's order quashing and dismissing these counts as to defendant Isaacs was correct.
Cases cited by the People concerning the competency of witnesses under the Dead Man's Act (Ill. Rev. Stat. 1963, chap. 51, par. 2) are inapposite, as are those cases decided under statutes proscribing the acquisition of a direct or indirect interest in State contracts similar to the predecessor ...