Appeal from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Ogle County,
the Hon. John L. Moore, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
After a jury trial in the circuit court of Ogle County, the defendant, Charles O. Wick, was convicted of aggravated arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(3)) and sentenced to six years' imprisonment. The appellate court reversed the conviction (121 Ill. App.3d 94), concluding that the aggravated-arson statute is an unreasonable and arbitrary exercise of the State's police power, which violates the guarantee of due process in article I, section 2 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2). The appeal is here as a matter of right under Rule 317 (87 Ill.2d R. 317).
The defendant was charged with committing aggravated arson by setting fire to his own tavern, as a result of which a fireman required out-patient treatment for smoke inhalation. Evidence was offered at trial that the defendant had left and locked the premises at 1:10 a.m., that the alarm was received at 1:30, that the building was deserted and locked when the fire department arrived, that the defendant arrived at 2:20 a.m. and signed a release permitting an investigation into the cause of the fire, that the fire had four separate points of origin, and that an accelerant had been used. The defendant denied having any knowledge of the cause of the fire.
Simple arson is a Class 2 felony that is defined in section 20-1 of the Code as follows:
"Sec. 20-1. Arson. A person commits arson when, by means of fire or explosive, he knowingly:
(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or
(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.
Property `of another' means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property." Ill. Rev. Stat. 1981, ch. 38, par. 20-1.
Aggravated arson, on the other hand, is a Class X felony, and is defined in section 20-1.1 of the Illinois criminal code in part as follows:
"Sec. 20-1.1. Aggravated Arson. (a) A person commits aggravated arson when by means of fire or explosive he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, and * * * (3) a fireman or policeman who is present at the scene acting in the line of duty, is injured as a result of the fire or explosion." Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1.
The defendant was charged under this subsection of the aggravated-arson statute, which provides that an offense is committed when a person knowingly damages a building by fire and a fireman or policeman is injured at the scene as a result of the fire. The unlawful purpose that is required for an act to constitute simple arson that the offender knowingly damage by fire either property belonging to another without his consent, or any property with the intent to defraud an insurer is not required for aggravated arson. Thus, these statutes present some anomalies. First, aggravated arson, which is punished as a Class X felony, requires a lesser degree of malice or unlawful purpose than simple arson, which is punished as a Class 2 felony. Second, arson is not a lesser included offense of aggravated arson, because the mens rea required for the lesser offense (arson) is greater than that required for the greater offense (aggravated arson). Thus, proof of the elements of aggravated arson cannot themselves constitute proof of arson. See People v. Cramer (1981), 85 Ill.2d 92, 95-100.
The defendant argues that the aggravated-arson statute violates due process and is therefore unconstitutional because it is an unreasonable and arbitrary exercise of the State's police power. This court stated in Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill.2d 152, 158-59:
"The State may, in the exercise of its police power, restrict, regulate or prohibit any and all uses of private property in the interest of public health, safety and welfare. [Citations.] The police power, however, while paramount to the rights of the individual, is still restrained by the fundamental principles of justice connoted by the phrase, due process of law. * * * We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare. [Citations.]"
The standard enunciated above was refined and clarified in subsequent cases:
"To constitute a legitimate exercise of the police power, [a] legislative enactment must bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective. (Finish Line Express, Inc. v. City of Chicago (1978), 72 Ill.2d 131, 138; Sherman-Reynolds, Inc. v. Mahin (1970), 47 ...