APPEAL from the Circuit Court of Tazewell County; the Hon.
JAMES D. HEIPLE, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
The State appeals from an order which dismissed an indictment charging defendant Lester Kleffman with official misconduct under section 33-3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33-3(c)). That section provides:
"Official Misconduct. A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts: * * * (c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority * * *."
The indictment alleged that on May 5, 1978, defendant committed official misconduct in that he:
"* * * in his capacity as a public officer or employee, to-wit: Mayor of Marquette Heights, Illinois, with intent to obtain a personal advantage for himself, performed an act in excess of his lawful authority, in that he purchased a confiscated weapon held pursuant to law by the Marquette Heights Police Department * * *."
The trial court dismissed the charge on the grounds that section 33-3(c) is unconstitutionally overbroad and vague, and that the indictment failed to allege the elements of the offense with sufficient specificity. We reverse and remand for further proceedings.
The parties agree that the doctrine of overbreadth is based on substantive due process. At issue is whether the language of the statute is so broad that it is applicable to constitutionally protected conduct. See Village of Schaumburg v. Citizens for a Better Environment (1980), 444 U.S. 620, 63 L.Ed.2d 73, 100 S.Ct. 826, where the Supreme Court held a village ordinance regulating solicitation of contributions by charitable organizations was drawn so broadly that it unnecessarily interfered with freedom of speech.
In the case at bar the trial court's order concluded that section 33-3(c) "is overly broad in its application, requiring no mental state which would limit its scope to violations which are knowingly or inherently criminal." Similarly, defendant takes the position that the statute is overbroad because it creates an absolute liability offense applicable to conduct not inherently criminal. We find defendant's argument misconceived. To be sure, an analysis of the statute reveals that the language includes only one mental state, i.e., the intent to obtain a personal advantage for himself or another. Knowledge on the part of the officer that he is acting in his official capacity, or that the act was in excess of his lawful authority, is not included. However, the absence of mental states with respect to those elements of the offense would not render the statute overbroad. Defendant does not argue, and we do not decide, whether such mental states should be implied as a matter of statutory construction. (See People v. Nunn (1979), 77 Ill.2d 243, 396 N.E.2d 27.) Section 33-3(c) does not purport to regulate speech, press, or any other constitutionally protected right. Moreover, the requirement that the act be in excess of the lawful authority of the public officer or employee renders the statute inapplicable to constitutionally protected conduct. The doctrine of overbreadth simply has no significance to the instant case.
• 1, 2 We next consider whether section 33-3(c) is unconstitutionally vague. As stated in United States v. Harriss (1954), 347 U.S. 612, 617, 98 L.Ed. 989, 996, 74 S.Ct. 808, 812:
"The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute."
The statute must not be so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application. (Lanzetta v. New Jersey (1939), 306 U.S. 451, 83 L.Ed. 888, 59 S.Ct. 618.) However, impossible standards of specificity are not required, and in determining whether a statute meets due process requirements a court should consider not only the language of the statute, but also the legislative purpose. (People v. Lewis (1979), 73 Ill. App.3d 361, 386 N.E.2d 910.) Judicial interpretations of the statute must also be considered. Beauharnais v. Illinois (1952), 343 U.S. 250, 96 L.Ed. 919, 72 S.Ct. 725.
Defendant maintains that the terms "in his official capacity," "in excess of his lawful authority," and "personal advantage," do not give fair notice of the prohibited conduct. We disagree.
The term "in his official capacity" has been construed by Illinois courts>. An act is performed in one's official capacity if it is accomplished by exploitation of his position as a public officer or employee. (People v. Steinmann (1978), 57 Ill. App.3d 887, 373 N.E.2d 757.) As so construed, the term sufficiently delimits the scope of the statute.
We next consider the term "in excess of his lawful authority." In Hygrade Provision Co. v. Sherman (1925), 266 U.S. 497, 498, 69 L.Ed. 402, 406, 45 S.Ct. 141, the Supreme Court upheld a New York statute making it a misdemeanor, inter alia, to sell meat falsely represented "to be kosher, or as having been prepared under * * * the orthodox Hebrew religious requirements" with intent to defraud. The parties seeking to enjoin enforcement of the statute argued ...