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People Ex Rel. Symonds v. Gualano

MAY 7, 1970.

PEOPLE OF THE STATE OF ILLINOIS EX REL. MERLE SYMONDS, RICHARD MADAL AND RAYMOND SCHUDA, PLAINTIFFS-RELATORS-APPELLEES,

v.

JAMES

v.

GUALANO, DEFENDANT-RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding. Reversed. MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order, entered pursuant to the mandate of this court, ousting the defendant-respondent from the offices of president and trustee of the Village of Justice, member of the Justice Zoning Board of Appeals and member of the Justice-Willow Springs Water Commission. The issue presented is whether the restoration of the defendant's rights of citizenship, granted by the Governor of Illinois, removed his ineligibility to hold public office created by his prior convictions for an infamous crime.

In 1935 and 1943 the defendant pleaded guilty in the Federal courts to several charges of mail fraud. In 1961 he was elected president of the Village of Justice and was reelected to that office in 1965. After the 1965 election, the plaintiffs-relators, who are residents, voters, taxpayers and trustees of the village, brought a quo warrantor action seeking to oust him from the position of president and the other two public positions he then held. They contended that mail fraud was an infamous crime and that his convictions for that offense barred him from holding public office. Article IV, section 4, of the Constitution of Illinois and chapter 38, par 124-2 (a), of the Ill Rev Stats 1965. The defendant argued that mail fraud did not constitute an infamous crime as defined by the Illinois legislature. Ill Rev Stats 1965, c 38, par 124-1. Both sides sought summary judgment and the trial court found for the defendant.

On appeal this court held that a conviction for the use of the mail to defraud was a conviction for an infamous crime under the laws and constitution of our State. People ex rel. Symonds v. Gualano, 97 Ill. App.2d 248, 240 N.E.2d 467 (1968). At the conclusion of our opinion we stated:

"The respondent's last conviction took place a quarter of a century ago, his probation was satisfactorily discharged and, presumptively, his life during the intervening years merited the trust the citizens of the Village of Justice imposed in him. However, the language of the constitution is absolute and makes no provision for a mitigation of its prohibition with the passage of time. The statute provides for the restoration of the rights of citizenship if there is an appropriate pardon. But the respondent has not been pardoned and his rehabilitation, which deserves commendation, does not redound to his favor insofar as the right to hold public office is concerned."

Following the issuance of the opinion, the defendant petitioned the Governor of Illinois for the restoration of his rights. The Governor granted the petition and issued certificates which restored to the defendant "all his rights of citizenship."

In the meantime, the plaintiffs had filed in the trial court a motion for a judgment of ouster in accordance with the mandate of this court. When this motion was called for hearing, the trial court permitted the defendant, over the objection of the plaintiffs, to file an amended and supplemental answer to the original complaint for quo warrantor. The amended answer set forth the restoration of the rights of citizenship and the certificates evidencing the restoration were filed as exhibits. The answer prayed that the complaint for quo warrantor be dismissed. Both sides submitted memoranda of law to the court after which the order was entered from which this appeal is taken.

The plaintiffs have moved to dismiss the appeal. They assert that the issue is moot since the judgment of ouster was entered on March 10, 1969, and the defendant's successor as village president was elected on April 15, 1969, at the regularly scheduled election, for a four-year term.

The general rule is that where the issues involved in the trial court no longer exist, a court of review will dismiss the appeal. Johnson v. Board of Education of City of Chicago, 79 Ill. App.2d 22, 223 N.E.2d 434 (1967). This rule has been applied to appeals involving the right to hold office, if it appears that the term of office has expired. People ex rel. Morris v. Pettow, 243 Ill. App. 142 (1926). Although the defendant's term of office as mayor expired and his successor has been elected and qualified, the case is not moot. The defendant was removed from office more than a month before his term expired. During that period he did not receive his salary; if the judgment of ouster was erroneously entered he might seek compensation for that period. People v. Bradford, 267 Ill. 486, 108 N.E. 732 (1915); Kreitz v. Behrensmeyer, 149 Ill. 496, 36 NE 983 (1894). Furthermore, the judgment also removed the defendant as a member of the Justice-Willow Springs Water Commission; his term ran until 1972. The collateral rights attendant upon his loss of both offices precludes the dismissal of the appeal for reason of mootness.

The substantive issue in the case arises from the apparent inconsistency between two provisions of the Constitution of Illinois, 1870. Article IV, section 4, states:

"No person who has been, or hereafter shall be, convicted of bribery, perjury or other infamous crime . . . shall be eligible . . . to any office of profit or trust in this state." Constitution of Illinois, 1870, Art IV, § 4.

Article V, section 13, states:

"The governor shall have the power to grant reprieves, commutations and pardons, after conviction, for all offenses, subject to such regulations as may be provided by law relative to the manner of applying therefor." Constitution of Illinois, 1870, Art V, § 13.

The plaintiffs rely on Article IV, section 4, and the defendant on Article V, section 13. In the prior appeal, the plaintiff also relied on section 124-2 of the Code of Criminal Procedure of 1963. In the present appeal it is the defendant who cites section 124-2 to supplement his reliance on Article V, section 13. The statute, so favored by both parties, is as follows:

"(a) A person convicted of an infamous crime shall forever thereafter be rendered incapable of holding any office of honor, trust or profit . . . unless he or she is again restored to such rights by the terms of a pardon for the offense or otherwise according to law.

"(b) Any time after a judgment of conviction is rendered a person convicted of an infamous crime may petition the Governor for a restoration of rights." ...


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