APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant-appellee J.R. Simpkins was charged in two indictments with the offense of "having an interest in a contract" in violation of section 3 of the Corrupt Practices Act (Ill. Rev. Stat. 1975, ch. 102, par. 3). After a hearing, the Circuit Court of Williamson County granted defendant's motions to dismiss the indictments for failure to state an offense. (See Ill. Rev. Stat. 1975, ch. 38, pars. 111-3(a)(3) and 114-1(a)(8).) The State has appealed pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1975, ch. 110A, par. 604(a)(1)). We must determine whether the court below erred in finding that the indictments, which alleged that the defendant was mayor of the City of Hurst while his wife was employed as water department clerk of the same city, were insufficient to charge an offense.
The statute provides, in relevant part:
"No person holding any office, either by election or appointment under the laws or constitution of this state, may be in any manner interested, either directly or indirectly, in his own name or in the name of any other person, association, trust or corporation, in any contract or the performance of any work in the making or letting of which such officer may be called upon to act or vote. * * * Any contract made and procured in violation hereof is void." (Ill. Rev. Stat. 1975, ch. 102, par. 3.)
Section 4 of the same act, as amended, makes a violation of the act punishable as a Class 4 felony, with the additional penalty of mandatory forfeiture of office. (Ill. Rev. Stat. 1975, ch. 102, par. 4.)
The first of the indictments at issue here charged:
"That between June 1, 1974 and October 8, 1975 in Williamson County, J.R. Simpkins committed the offense of having an interest in a contract in that between June 1, 1974 and October 8, 1975, at and within the County of Williamson, State of Illinois, the defendant, J.R. Simpkins, a municipal officer, the mayor of the City of Hurst, Williamson County Illinois, was interested, directly or indirectly, in a contract of the municipality, whenever consideration of the contract was paid from the treasury of said city in that J.R. Simpkins was mayor of the City of Hurst when the City had a contract of employment with Mrs. Cleo Simpkins, wife of J.R. Simpkins, as Water Department Clerk of the City of Hurst and the consideration for said contract was paid from the treasury of the City of Hurst and that said J.R. Simpkins was holding office by election or appointment under the laws of this state and may have been called upon to act or vote in the making or letting of said contract in violation of Paragraph 3, Chapter 102, Illinois Revised Statutes."
The second indictment charged a violation of the same statute in that, during the same period of time, the defendant,
"* * * a person holding an office, either by election or appointment under the laws or constitution of this State was interested either directly or indirectly in a contract for the performance of work, the making or letting of which such office may have been called upon to act or vote in that J.R. Simpkins was mayor of the City of Hurst when the City of Hurst made or let a contract of employment with Mrs. Cleo Simpkins, wife of said J.R. Simpkins, as Water Department Clerk of the City of Hurst, the consideration for said contract having been paid from the treasury of the City of Hurst * * *."
• 1 Although the State distinguishes between the two indictments on the basis that the former alleged that the employment of defendant's wife continued while the defendant was mayor, while the latter alleged that the employment contract originated during defendant's term, we do not find that to be a critical distinction. We agree with the court in Koons v. Richardson, 227 Ill. App. 477, 485 (4th Dist. 1923), which called it "wholly immaterial whether the contract was made before or after appellant became a city officer." If the indictments were in other respects sufficient, it would be of little moment whether the contract in which defendant had a prohibited interest originated or merely continued during his term of office, as he clearly might be called upon to act or vote on the renewal of the employment contract, modifications in salary and other terms of employment, and the like. *fn1
We do, however, have other serious questions about the sufficiency of these indictments. The primary one, a negative answer to which would mean we need not reach any of the other questions, is whether the defendant was alleged to have the kind of direct or indirect interest contemplated by the statute in his wife's employment contract with the city.
• 2 At one time, of course, this question could not even have arisen, because Mrs. Simpkins, as a married woman, could not have had a contract with the city, nor, for that matter, with anyone. At the common law, a married woman possessed no contractual capacity; her attempts to contract were absolutely void. (Forsyth v. Barnes, 228 Ill. 326, 81 N.E. 1028 (1907); Barrow v. Phillips, 250 Ill. App. 587 (3d Dist. 1928).) Her earnings belonged to her husband. (Hay v. Hayes, 56 Ill. 342 (1870).) These and other like disabilities, however, were removed in Illinois by the progressive legislation of the 1860s and 1870s. (See Hamilton v. Hamilton, 89 Ill. 349 (1878); Snell v. Snell, 123 Ill. 403 (1888).) As it now reads, the Married Women's Act (Ill. Rev. Stat. 1975, ch. 68, par. 1 et seq.) provides, inter alia, that "[c]ontracts may be made and liabilities incurred by a wife, and the same enforced against her, to the same extent and in the same manner as if she were unmarried," and that "[a] married woman may receive, use and possess her own earnings" and "own in her own right, real and personal property * * *." (Ill. Rev. Stat. 1975, ch. 68, pars. 6, 7, and 9.) In light of these provisions of our law, could it be held as a matter of law that one has an interest in a contract merely because one's spouse is a party to the contract?
In support of its position that the financial interest of a spouse is such an interest as to come within the statute's prohibition, the State refers us to an opinion of the Illinois attorney general (1973 Op. Att'y Gen. 45), and to the case of Bock v. Long, 3 Ill. App.3d 691, 279 N.E.2d 464 (1st Dist. 1972). Relying exclusively on the Bock case, the attorney general rendered the opinion that a county board member would be indirectly interested in a contract between the county and a depository of the county's funds so as to void the contract if the board member's spouse owned stock in the depository. (1973 Op. Att'y Gen. at 50-51.) In Bock v. Long, the court held that evidence that a police officer filed with his wife a joint tax return, one schedule of which included profit or loss from the operation of a dramshop held in her name, and that the officer worked without compensation as janitor and bartender in the dramshop, was sufficient to support the determination of the board of fire and police commissioners that the officer should be discharged for violating a provision of the Liquor Control Act (Ill. Rev. Stat. 1969, ch. 43, par. 120(14)) prohibiting law-enforcing public officials, as defined, from being "interested in any way, either directly or indirectly, in the manufacture, sale or distribution of alcoholic liquor." Pecuniary interest in such an enterprise, said the court, need not be proprietary to come within the statute's prohibitions. To hold that the officer did not have such an interest "would be to close our eyes to the natural and probable sharing of assets and liabilities which constitutes a characteristic of the family unit as it is known in our society." 3 Ill. App.3d 691, 693, 279 N.E.2d 464, 466.
Without questioning the result in Bock, which was undoubtedly rightly decided, we think that its special facts, its posture on appeal, and the considerations of policy underlying the statute there involved so distinguish that case from the one at bar that it has little persuasive value. In any event, Bock the narrow holding of which was that the decision of the board was not against the manifest weight of the evidence does ...