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People v. Buffalo Confectionery Co.

OPINION FILED FEBRUARY 22, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

BUFFALO CONFECTIONERY COMPANY ET AL., APPELLEES. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

LAWRENCE LIEBERMAN ET AL., APPELLEES. — THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

ERNEST DUKE MCNEIL, APPELLEE.



No. 51768. — Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Daniel J. Ryan, Judge, presiding.

No. 51835. — Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Arthur Sullivan, Judge, presiding. MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

William J. Scott, Attorney General, of Springfield, and Bernard Carey, State's Attorney, of Chicago (Donald B. Mackay, Melbourne A. Noel, Jr., Fred Montgomery, and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.

No appearance for appellee.

This case is a consolidation in this court of two cases in which we granted the State's petition for leave to appeal. It concerns the permissible degree of participation by the Attorney General in the prosecution of cases arising out of the revenue statutes of this State. One of these cases also raises the issue of the propriety of charging the offense of theft under the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)) for a retailer's failure to pay to the State of Illinois use tax monies as required under the Use Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 439.1 et seq.). The Buffalo Confectionery case (No. 51768) is itself a consolidation of two cases by the appellate court. In each of those cases indictments had been returned against a business entity and an individual. Following dismissal of the indictments by the trial court in each case, the State appealed. The appellate court consolidated the cases on appeal and affirmed the dismissal. (People v. Buffalo Confectionery Co. (1978), 67 Ill. App.3d 112.) We granted the State's petition for leave to appeal.

One of the cases in the consolidated Buffalo Confectionery case involved Buffalo Confectionery Company and Peter Nichols, a partner. They were each indicted by a Cook County grand jury on two counts of theft in excess of $150 (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)). These defendants filed a motion to dismiss, claiming the indictment had been improperly obtained because: (1) an assistant Attorney General had appeared before the grand jury unaccompanied by an assistant State's Attorney; and (2) the defendants were improperly charged with a felony under the Criminal Code of 1961 for conduct which, if proved, would constitute a misdemeanor under section 14 of the Use Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 439.14). Since the statute of limitations would bar the filing of the misdemeanor action, the defendants argued that the indictments should be dismissed. In the other case consolidated in the Buffalo Confectionery case, a Cook County grand jury indicted the defendants, L & S Foods, Inc., and Lawrence Lieberman, a corporate officer, on 17 counts of theft in excess of $150 (Ill. Rev. Stat. 1973, ch. 38, par. 16-1(a)(1)). In addition, Lieberman was indicted on eight counts of signing and filing a fraudulent retailer's occupation tax return (Ill. Rev. Stat. 1973, ch. 120, par. 452) and L & S Foods, Inc. was indicted on eight counts of filing a fraudulent retailer's occupation tax return (Ill. Rev. Stat. 1973, ch. 120, par. 452).

In each case an assistant Attorney General had appeared before the grand jury unaccompanied by either the State's Attorney or an assistant State's Attorney, and had stated that she or he was assisting a named assistant State's Attorney. The signature of Bernard Carey, the Cook County State's Attorney, appeared on the indictments, with the exception of the L & S Foods, Inc., indictment. An assistant State's Attorney appeared at each defendant's arraignment and filed a motion for pretrial discovery. The appellate court affirmed the dismissal of all the indictments in these consolidated cases, finding the appearances of the assistant Attorneys General before the grand jury to have been improper in that they were neither authorized by the court nor by law, as required by the grand jury secrecy provision of section 112-6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 112-6(a)). People v. Buffalo Confectionery Co. (1978), 67 Ill. App.3d 112, 116.

The other case (No. 51835) which we have in this court consolidated with the consolidated case we have discussed (No. 51768) involves one defendant, Ernest Duke McNeil. On April 12, 1976, an investigator for the Department of Revenue filed two complaints in the circuit court of Cook County, each charging the defendant with wilful failure to file an Illinois income tax return for the years 1973 and 1974 in violation of section 1301 of the Illinois Income Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 13-1301). Defendant McNeil filed a motion to dismiss the complaints, claiming that the assistant Attorney General had improperly initiated and prosecuted the case. During the hearing on defendant's motion, the assistant Attorney General presented a letter, dated November 23, 1977, from the Cook County State's Attorney which gave the office of the Attorney General authorization to prosecute the case "effective immediately." The trial court dismissed the complaints and the appellate court affirmed. (People v. McNeil (1979), 68 Ill. App.3d 499, 501.) As noted above, this court granted leave to appeal and consolidated this case with the Buffalo Confectionery Company case.

We consider first the issue common to both cases on appeal; that is, whether the Attorney General exceeded his authority in the initiation and prosecution of these revenue cases. For the reasons expressed herein, we find that the Attorney General did not exceed the scope of his authority.

The office of the Illinois Attorney General is a creature of the Illinois Constitution. Article V, section 15, of the Illinois Constitution of 1970 provides:

"The Attorney General shall be the legal officer of the State, and shall have the duties and powers that may be prescribed by law."

In Fergus v. Russel (1915), 270 Ill. 304, this court found that the 1870 Constitution granted the Attorney General all the powers associated with that office at common law, and expressly stated that while the legislature could add to these powers, it could not detract from the Attorney General's common law authority. (Fergus v. Russel (1915), 270 Ill. 304, 339.) (See also Stein v. Howlett (1972), 52 Ill.2d 570, 586, appeal dismissed (1973), 412 U.S. 925, 37 L.Ed.2d 152, 93 S.Ct. 2750; Department of Mental Health v. Coty (1968), 38 Ill.2d 602, 606.) In People ex rel. Scott v. Briceland (1976), 65 Ill.2d 485, 500-01, this court concluded that the principle of Fergus v. Russel has been incorporated into article V, section 15, of the 1970 Illinois Constitution.

In the case of People v. Massarella (1978), 72 Ill.2d 531, we examined the common law powers and duties of the Attorney General and found them to include the initiation and prosecution of litigation on behalf of the People. This power may be exercised concurrently with the power of the State's Attorney to initiate and prosecute all actions, suits, indictments and prosecutions in his county as conferred by statute (Ill. Rev. Stat. 1973, ch. 14, par. 5). (Accord, Note, The Relationship Between the Attorney-General and State's Attorney in Illinois, 1949 U. Ill. L.F. 507; People v. Nagano (1945), 389 Ill. 231, 249.) We further noted that we have previously held in People v. Looney (1924), 314 Ill. 150, 153-54, that the defendant has no basis for objecting to the appearance of the Attorney General before the grand jury where the State's Attorney made no objection. People v. Massarella (1978), 72 Ill.2d 531, 536. Accord, People v. Billburg (1924), 314 Ill. 182, 184-85.

The legislature has enumerated certain duties of both the Attorney General and the State's Attorney. By statute, the Attorney General is authorized, inter alia, to "attend * * * and assist in the prosecution" (Ill. Rev. Stat. 1973, ch. 14, par. 4), and the State's Attorney is authorized, inter alia, to "commence and prosecute all actions * * * in the circuit court for his county, in which the people of the State or county may be concerned" (Ill. Rev. Stat. 1973, ch. 14, par. 5). As we have previously stated, the aforementioned duties and powers of the two officers are concurrent. Thus, the Attorney General lacks the power to take exclusive charge of the prosecution of those cases over which the State's Attorney shares authority. (People v. Flynn (1941), 375 Ill. 366, 368.) However, where the statute so provides, the Attorney General has exclusive authority to institute and prosecute cases. See, e.g., Ill. Rev. Stat. 1977, ch. 120, par. 453.16 (Cigarette Tax Act prosecution); Ill. Rev. Stat. 1977, ch. 38, par. 60-6 (Illinois Antitrust Act prosecution).

It is clear, however, that the Attorney General lacks the authority to initiate an action under the statutes here involved to the exclusion of the State's Attorney. This lack of exclusive authority to prosecute revenue claims is reflected in the legislative rejection of House Bill 2063 and Senate Bill 976 in the 79th General Assembly. These bills, defeated in the 1975 session of the General Assembly, would have amended section 4 of "An Act in regard to attorneys general and state's attorneys" (Ill. Rev. Stat. 1973, ch. 14, par. 4) by giving to the Attorney General authority to ...


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