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People Ex Rel. Symonds v. Gualano

JUNE 6, 1968.

THE PEOPLE OF THE STATE OF ILLINOIS ON THE RELATION OF MERLE SYMONDS, ET AL., PLAINTIFFS-APPELLANTS,

v.

JAMES

v.

GUALANO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County, Law Division; the Hon. F. EMMETT MORRISSEY, Judge, presiding. Reversed and remanded with directions.

MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

Rehearing denied September 11, 1968.

The question presented in this appeal is whether an individual who has been convicted of the crime of using the mails to defraud is ineligible to hold public office in this state.

The respondent-defendant is presently serving a four-year term as president of the Village of Justice, having been elected to that office in April of 1965. He is also a member and acting chairman of the village's Zoning Board of Appeals and is the treasurer of the Justice-Willow Springs Water Commission.

In 1935, after pleading guilty to two counts of mail fraud, the respondent was sentenced to serve one year and a day in the penitentiary and fined $500 on each count by the United States District Court for the District of Colorado. In 1943 he entered a plea of guilty to several counts of mail fraud and was sentenced, by the Federal District Court for the Southern District of Indiana, to a term of 18 months in the penitentiary and fined $1,000. The court suspended the sentence for three years and placed him on probation for that period.

The relators-plaintiffs are residents, taxpayers, voters and trustees of the Village of Justice. One of their number, Merle Symonds, was the respondent's political opponent for the office of president in the 1965 election. Prior to the commencement of this quo warrantor action the relators complied with the prescribed statutory procedure and requested the attorney general of Illinois and the state's attorney of Cook County to bring a similar suit against the respondent. These requests were refused. The relators then instituted the present action seeking to oust the respondent from the positions held by him on the ground that the offense of using the mails to defraud is an infamous crime under Illinois law.

There was no dispute as to the facts and both sides moved for summary judgment. The trial court found that the crime of mail fraud is not infamous and denied the relators' motion. Judgment was entered in favor of the respondent.

The relators' suit is based upon the Illinois constitution and a statute which implements it:

"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." Constitution of Ill, 1870, art IV, § 4.

"A person convicted of an infamous crime shall forever thereafter 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 such rights by the terms of a pardon for the offense or otherwise according to the law." Ill Rev Stats 1965, c 38, par 124-2(a).

The respondent's defense is based upon the statute which catalogues infamous crimes:

"`Infamous crimes' are the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or aggravated incest, indecent liberties with a child, kidnapping or aggravated kidnapping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment imposed is imprisonment in the penitentiary." Ill Rev Stats 1965, c 38, par 124-1.

The respondent maintains that the legislature has exclusive authority to designate the crimes which are infamous and that an offense not enumerated in the statute is not infamous. This position is not without support for it has been held that whether a crime is infamous depends upon the statute and not upon the court's view of its moral aspects or the common law. People v. Kirkpatrick, 413 Ill. 595, 110 N.E.2d 519 (1953); People v. Green, 292 Ill. 351, 127 N.E. 50 (1920); People v. Russell, 245 Ill. 268, 91 N.E. 1075 (1910); Christie v. People, 206 Ill. 337, 69 N.E. 33 (1903). For example, in People v. Russell the court said:

"Whether or not a crime is infamous in this State depends, not upon the common law but upon the statute. The constitution does not define, or restrict the legislature in defining, infamous crimes, and ...


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