Appeal from the Circuit Court of Kankakee County; the Hon.
Wayne P. Dyer, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
The State's Attorney brought this quo warrantor action on behalf of the city of Kankakee to remove defendant Joseph Morris from his elected office as alderman of the city. The trial court granted summary judgment in favor of the People, and defendant appeals. At issue is whether an alderman can be ousted from office for a felony theft conviction when he is sentenced to probation.
On April 12, 1983, defendant was elected alderman for the seventh ward of Kankakee. On May 3, he pleaded guilty to theft under sections 16-1(a) and 16-1(e)(3) of the Criminal Code of 1961. (Ill. Rev. Stat. 1983, ch. 38, pars. 16-1(a), 16-1(e)(3).) The theft involved defendant's unlawful participation in the Federal food stamp program. Defendant was sentenced to 18 months' probation.
On June 2, the State's Attorney filed this action alleging defendant's conviction disqualified him from holding office. Both parties filed summary judgment motions, and on November 1 the trial court granted the People's motion. The court held defendant had been convicted of an infamous crime, thereby creating a vacancy in his office.
Under section 3-4-14 of the Illinois Municipal Code, a vacancy occurs in the office of alderman by reason of his conviction of a "disqualifying crime." (Ill. Rev. Stat. 1983, ch. 24, par. 3-4-14.) "Disqualifying crime" is not defined. Under section 25-2 of the Election Code, however, an elective office becomes vacant upon the incumbent's conviction for an infamous crime. (Ill. Rev. Stat. 1983, ch. 46, par. 25-2.) Section 29-15 adds:
"Any person convicted on 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, unless such person is again restored to such rights by the terms of a pardon for the offense or otherwise according to law." (Ill. Rev. Stat. 1983, ch. 46, par. 29-15.)
Section 124-1 of the Code of Criminal Procedure of 1963 states:
"`Infamous crimes' are the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or aggravated incest, indecent liberties with a child, kidnaping or aggravated kidnaping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment imposed is imprisonment in the penitentiary." Ill. Rev. Stat. 1983, ch. 38, par. 124-1.
• 1 Additionally, article XIII, section 1, of the constitution states:
"A person convicted of a felony, bribery, perjury or other infamous crime shall be ineligible to hold an office created by this Constitution." (Ill. Const. 1970, art. XIII, sec. 1.)
The constitution did not create the office of alderman. Thus, the constitutional provision does not directly apply to the present case. (Coles v. Ryan (1980), 91 Ill. App.3d 382, 384, 414 N.E.2d 932, 935.) Every elected official of a local government, however, is also ineligible to hold office if convicted of an infamous crime, as understood in section 1 of article XIII. (Ill. Rev. Stat. 1983, ch. 102, par. 120.) The definition of infamous crime under the constitution, therefore, is applicable to this case.
• 2 Defendant contends his conviction does not fall into the category of crimes listed under section 124-1 because the punishment imposed for his theft conviction was probation rather than a penitentiary sentence. He concludes he was not convicted of an infamous crime. This argument was rejected in People v. Hampton (1972), 5 Ill. App.3d 220, 282 N.E.2d 469, where the court declared that a conviction for theft is a conviction of an infamous crime if a penitentiary sentence could have been imposed. The court further stated:
"Failure to impose a penitentiary sentence does not affect the quality of or diminish the seriousness of the offense, and we will not construe Sec. 124-1 to attain that result." 5 Ill. App.3d 220, 226, 282 N.E.2d 469, 473.
• 3 Defendant asserts Hampton should not be followed because it contradicts the express language of section 124-1. The primary objective in construing a statute is to ascertain and give effect to the legislative intent. (People ex rel. Keenan v. McGuane (1958), 13 Ill.2d 520, 532, 150 N.E.2d 168, 175.) The Hampton court held the legislature included the phrase "if the punishment imposed is imprisonment in the penitentiary" merely to distinguish felony theft from misdemeanor theft. The ...