APPEAL from the Circuit Court of St. Clair County; the Hon.
ALVIN H. MAEYS, JR., Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
The defendants are trustees of the East Side Levee and Sanitary District of Madison and St. Clair Counties, a municipal corporation organized under Ill. Rev. Stat. 1969, ch. 42, par. 247. The defendants were convicted on five counts of official misconduct, in that they knowingly performed acts which they were forbidden by law to perform, and in that they intentionally failed to perform a mandatory duty required by law, in violation of Ill. Rev. Stat. 1969, ch. 38, par. 33-3(a) and (b). More specifically, the trustees were alleged to have authorized the payment of an amount in excess of $3500 to three attorneys in violation of ch. 42, par. 253, Ill. Rev. Stat., by Counts I, VI and VIII and to have entered into two contracts for the cleaning and repair of four tunnels under the levee without letting the contracts to the lowest responsible bidder and without giving due public notice, as provided by Section 269 of Chapter 42, by Counts IV and V. The trial court, sitting without a jury, found the defendants guilty, granted each defendant probation and included as a condition of probation a fine of $250 on each of the five counts and in addition ordered that each forfeit his office, pursuant to ch. 38, par. 33-3.
The defendants raise a number of issues on this appeal and those facts which are pertinent to the discussion of the issues will be raised when each issue is discussed. We do first, however, consider appellants' contentions that the trial court erred in not quashing those Counts of the indictment which alleged that the appellants knowingly performed an act which they were forbidden by law to perform, in that they authorized the payment of attorney fees in excess of $3500. The basis of the argument is that section 33-3(b) makes criminal, knowingly performing an act "which he knows is forbidden by law to perform", and that the indictments are fatally defective in not including this language.
• 1-4 Knowledge that the defendants' acts knowingly performed "is forbidden by law" is an element of the offense described in par. 33-3(b) upon which Counts I, VI and VIII are based. These three counts of the indictment do not include the language "which he knows is forbidden by law to perform", (Italics ours), nor do they state anything which implies knowledge that the acts were forbidden by law. The indictments read "knowingly performed an act which they, and each of them, were forbidden by law to perform" but did not allege that defendants had any knowledge that their acts were forbidden by law. ch. 38, par. 4-3(c) provides:
"Knowledge that certain conduct constitutes an offense, or knowledge of the existence, meaning, or application of the statute defining an offense, is not an element of the offense unless the statute clearly defines it as such." (Emphasis ours.)
See also Committee Comments, ch. 38, par. 4-3(c), Ill. Anno. Stat. From this we conclude that knowledge that the performance of the knowingly performed acts "is forbidden by law" is an element of the offense. The addition of the words to par. 33-3(b) "which he knows he is forbidden by law to perform" negates the theory that every person is presumed to know the law, and requires an allegation and proof of a special knowledge on the part of those charged under par. 33-3(b). Here defendants causing attorneys to be paid in excess of the amount prescribed in ch. 42, par. 253, was an innocent act in absence of defendants knowing that ch. 42, par. 253 limited the amount of attorney fees they could pay. Where conduct alleged in an indictment may in itself be wholly innocent, it is essential that the unlawfulness of the conduct be averred either by express allegation or by the use of terms, or statement of facts, which clearly imply such unlawfulness. (41 A.Jur. 2d, Indictments and Informations, Sec. 109.) See also, People v. Stewart (No. 71-61 filed Dec. 21, 1971, 5th Dist.); People v. Pronger 48 Ill. App.2d 477, 199 N.E.2d 239; and People v. Green, 92 Ill. App.2d 201, 235 N.E.2d 295.
For these reasons we hold that Counts I, VI and VIII do not state an offense, are void, and judgment and conviction on them must be reversed. We therefore do not consider those three counts in the remaining issues.
Count IV charged that defendants, on December 8, 1969, intentionally failed to perform a mandatory duty as prescribed by law, in that they knowingly entered into a contract for work to be done and supplies to be furnished, the expense of which exceeded $4000 without letting the contract to the lowest bidder and without giving public notice as required by chapter 42, par. 269, Ill. Rev. Stat., contrary to the provisions of chapter 38, par. 33-3. Count V charged that defendants on January 29, 1970, committed the same act in the same language.
The appellants contend that the indictments were not sufficient to charge the appellants with an offense under Illinois law in that section 269 of chapter 42 is not a criminal statute. They cite People v. Graf, 93 Ill. App.2d 43, 235 N.E.2d 886, in which the court affirmed the trial court's dismissal of a complaint charging a violation of the Dram Shop Act. That case is inapplicable to the present case, since the argument in that case was that the Dram Shop Act was a penal statute, imposing criminal liability. In the present case, the indictments charged the appellants with violations of par. 33-3 of the Criminal Code of 1961. Section 269 of chapter 42 is only relevant in that it establishes specific mandatory duties. The failure to perform the duties becomes criminal only through section 33-3. The State has not argued that section 269 is itself a criminal statute which imposes liability.
• 5 In Ketchum v. Bd. of Educ. (1927), 324 Ill. 314, 155 N.E. 332, the Court stated that: "For the purpose of learning and giving effect to the legislative intention, all statutes relating to the same subject must be compared and so construed with reference to each other that effect may be given to all the provisions of each, if it can be done by any fair and reasonable construction". People ex rel. High School Dist. v. Hupe (1954), 2 Ill.2d 434, 118 N.E.2d 328.
• 6 Section 33-3(a) provides that a public official commits misconduct when, in his official capacity, he intentionally or recklessly fails to perform any "mandatory duty as required by law". By itself, without reference to other statutes, this section does not make criminal any specific act. It only receives its meaning by reference to other statutes. When deciding what are the mandatory duties, on the part of the appellants in this case, reference must be made to chapter 42, par. 247-274, the statute creating the appellants' district and defining the duties and the limitations of the trustees of that district.
There are no Illinois cases which have interpreted section 33-3(a) to assist in deciding what are mandatory duties, however, there are a number of cases interpreting the previous misconduct statute, ch. 38, par. 449, Ill. Rev. Stat. 1959, which made criminal "palpable omissions" of duties by "every person holding public office, trust, or employment".
In a very early case, Eyman v. People (1844), 6 Ill. 4, the Court reversed the convictions of the County Commissioners of St. Clair County for palpable omission of duty in office when they neglected to have a bridge repaired, basing its decision on the nature of the duty to be performed. The Court stated, at 8:
"Before such a prosecution can be sustained, it must be shown that there was a palpable omission of a duty imperatively required by law, in a matter involving no discretion, or a wilful and corrupt, as ...