Appeal from the Circuit Court of Cook County; the Hon. James
C. Murray, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
The question presented in the instant appeal is whether a finding of guilty without an imposition of sentence constitutes a "conviction" for purposes of ouster from an elective office.
The facts are not in dispute. Defendant Dean J. Lisinski was elected to a four-year term as president *fn1 of the village of Justice, Illinois, on April 17, 1981. On November 12, 1982, he was found guilty in the United States District Court on three counts of extortion. After the denial of various post-trial motions, sentencing was set for March 7, 1983.
Illinois statutes provide that an elective office becomes vacant when the office holder is convicted of an infamous or a disqualifying crime. (Ill. Rev. Stat. 1981, ch. 24, par. 3-4-5; ch. 46, pars. 25-2, 29-15.) If a vacancy occurs in an elective office more than 130 days before the next general municipal election, the vacancy is to be filled at the next election. If the vacancy occurs less than 130 days before the next election, the vacancy is to be filled through appointment by the board of trustees. (Ill. Rev. Stat. 1981, ch. 24, par. 3-4-6.) The next general municipal election of the village of Justice is scheduled to take place on April 12, 1983.
Plaintiff Robert Grogan is a citizen who desires to run for the office of president of the village of Justice in the upcoming election. On December 27, 1982, pursuant to leave of court, plaintiff filed a complaint in quo warrantor for judgment of ouster and other relief predicated thereon. Defendant filed a motion to dismiss. The trial court dismissed the complaint as premature holding that, for purposes of ouster, an elected official is convicted only upon sentencing. Plaintiff appeals. *fn2
The Illinois Constitution, article XIII, section 1, provides that: "A person convicted of a felony, bribery, perjury or other infamous crimes shall be ineligible to hold an office created by this Constitution. * * *."
Section 3-4-5 of the Illinois Municipal Code in pertinent part states:
"A vacancy occurs in the office of mayor by reason of * * * conviction of a disqualifying crime * * *." Ill. Rev. Stat. 1981, ch. 24, par. 3-4-5.
The Election code contains the following:
"Every elective office shall become vacant on the happening of either of the following events, before the expiration of the term of such office:
Fifth — His conviction of an infamous crime, or of any offense involving a violation of official oath." Ill. Rev. Stat. 1981, ch. 46, par. 25-2.
"Any person convicted of an infamous crime as such term is defined in Section 124-1 of the Code of Criminal Procedure of 1963, as amended, shall thereafter be prohibited from holding any office of honor, trust, or profit * * *." Ill. Rev. Stat. 1981, ch. 46, par. 29-15.
Plaintiff contends that the November 12, 1982, finding of guilty constituted a conviction and thereby created a vacancy in the office of president as of that date. He, therefore, argues that as the vacancy occurred more than 130 days before the next election, the office must be filled by the electorate. Defendant argues that a conviction occurs and the office is vacated only upon imposition of the sentence. Under that construction the ...