APPEAL from the Circuit Court of Macon County; the Hon. JOHN
L. DAVIS, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The issues in this appeal arise out of the efforts of the Attorney General and his agents to investigate alleged violations of the Illinois Antitrust Act by the defendants. The record indicates that certain meetings and discussions took place between representatives of the Attorney General and certain of the individual defendants during the course of an investigation conducted by the Attorney General into beer prices in Macon County. Defendants Harold Roucher, Robert T. Crawford, Gerald Skeffington and Henry W. Little received subpoenas directed to the respective corporations of which they were officers or agents, but defendants Jerry Roucher and Robert Skeffington received no subpoenas. None of the individual defendants gave either sworn testimony or a statement under oath to the agents of the Attorney General.
Essentially, this appeal presents two questions for determination by this court: First, may an individual who is an officer or agent of a corporation, but who is neither individually subpoenaed nor gives sworn testimony, claim immunity from prosecution under section 7.7 of the Illinois Antitrust Act (Ill. Rev. Stat. 1969, ch. 38, par. 60-7.7) when he produces corporate records and discusses them in response to a subpoena issued to such a corporation by the Attorney General? Second, is the power vested in the Attorney General to issue such pretrial subpoenas in contravention of the separation of powers doctrine, as expressed in section 1 of article II of the Illinois constitution of 1970? Other ancillary issues have been raised by the various defendants, but we believe that the determination of these two questions are decisive of the issues in this case.
On November 18, 1971, the Macon County grand jury returned an indictment charging 7 corporations and 6 corporate executives of those corporations with combining and conspiring to fix, control, and maintain the price of beer sold at wholesale in Macon County, in violation of section 3(1)a of the Antitrust Act. Ill. Rev. Stat. 1969, ch. 38, par. 60-3(1)a.
All defendants entered pleas of not guilty and the trial court dismissed the indictment as to all the individual defendants based upon their claim of immunity from prosecution under section 7.7 the immunity provision of the Act (Ill. Rev. Stat. 1969, ch. 38, par. 60-7.7). The People appealed to the appellate court, and after briefs had been submitted by all parties, the trial court discharged the corporate defendants upon their further motions to dismiss the indictment in which they alleged that the Antitrust Act was unconstitutional in its entirety, in that it violated the separation of powers provision of the Illinois constitution (Ill. Const. (1970), art. II, sec. 1). More particularly, the corporate defendants claimed that the legislature had vested the Attorney General, a member of the executive branch of State government, with power to issue subpoenas and perform other functions reserved to the judicial branch. The trial court entered an order finding the entire Antitrust Act (Ill. Rev. Stat. 1969, ch. 38, pars. 60-1 through 60-11) unconstitutional. An appeal from that order was immediately taken by the People to this court under Rule 603.50 Ill.2d R. 603.
On June 23, 1972, the Attorney General's motion for transfer of the appeal pending in the appellate court was allowed pursuant to Rule 302(b) (50 Ill.2d 302(b)), and the appeals were consolidated. The People were granted leave to file a supplemental brief limited to the question of whether the trial court erred in determining that the immunity conferred pursuant to section 7.7 barred all further prosecutions of these defendants.
Defendant Harold Roucher is the president and majority stockholder of defendant P & D Produce Company, Inc. At one of the meetings with the Attorney General's representatives, and with counsel present, he allowed corporate records to be copied in response to a subpoena directed to P & D Produce Company, Inc. He also turned over expense records without objecting that they were personal and not company records. No oath was administered to him and no sworn statements were made by him at any of the meetings.
No evidence of discussions or records was offered on behalf of defendant Jerry Roucher. He was dismissed from suit with the others because the trial court considered the Attorney General's error cumulative.
Defendant Robert T. Crawford is the secretary-treasurer of defendant Crawford Distributing Co., Inc. At one of several meetings with the Attorney General's representatives, he also produced corporate records for copying in response to a subpoena directed to Crawford Distributing Co., Inc. Sworn statements were neither made, nor was an oath administered to him at any of these meetings.
Defendant Gerald B. Skeffington is president of defendant Skeff Distributing Company, Inc. He met with representatives of either the State's Attorney or Attorney General on four or five occasions. The discussions which took place were informal and at none of the meetings was an oath administered to him, or a sworn statement taken from him. He, too, permitted corporate records, as well as certain work papers relating to the price of beer sold by defendant Skeff Distributing Company, Inc., to be copied in response to a subpoena directed to Skeff Distributing Company, Inc.
Defendant Robert Skeffington brother of the defendant Gerald Skeffington, and an officer of defendant Skeff Distributing Company, Inc. was merely present at the meetings between his brother and the Attorney General's agents. He answered some of the questions, but was not served with a subpoena, took no oath, and made no sworn statements.
The aforementioned subpoenas all stated, among other things: "Pursuant to Chapter 38, Section 60-7.2, the Attorney General elects at this time to require the production of documentary material described in the attached rider, and will not require your personal appearance or testimony."
Defendant W. Henry Little is the sales manager for defendant Van Pickerill and Sons, Inc. Pursuant to a subpoena directed to this corporate defendant and served upon him, which made no reference to election by the Attorney General not to take testimony under section 7.2, and to a subpoena served later upon Jay Van Pickerill, the registered agent for the corporation, which subpoena set forth the Attorney General's election not to take testimony in the form above set forth, corporate records were produced for copying. Again, no oaths were administered and no sworn statements were made.
Although Illinois has had an antitrust statute since 1891, one year after the adoption of the Sherman Act by the United States Congress, it has been applied or mentioned in only about thirty reported Illinois and Federal cases, and it has only rarely been enforced by the State, either by the Attorney General or any State's Attorney. See: The Law of Competition in Illinois, U. Ill. Legal Series (1962), p. 39; P. Tone & J. Stifler, New Illinois Trade Regulation Laws: The Antitrust Act (Part One), 54 Ill. Bar J. 294 (December 1965).
A new Antitrust Act was enacted by the 74th General Assembly and became effective July 21, 1965. Only 3 cases were filed by the Attorney General during the three-and-one-half-year period following passage of the Act. In 1969, the Act was amended extensively. Section 7.2 significantly strengthened the investigative powers of the Attorney General by conferring upon him the power to issue civil subpoenas in antitrust investigations in order to obtain the production of relevant books and records, and to secure testimony under oath from those persons having information believed to be essential to the investigation. (Ill. Rev. Stat. 1969, ch. 38, par. 60-7.2.) Section 7.7 was incorporated in the Act as an adjunct to the subpoena power. It contains an immunity provision which ...