People ex rel. Rice v. Appellate Court

Mr. Justice Kluczynski delivered the opinion of the court: This cause is in this court on original petition, filed pursuant to motion, praying that a writ of prohibition issue against the Appellate Court, Fifth District, and Honorable Edward C. Eberspacher, Justice of the Appellate Court of Illinois for the Fifth District. The petition was filed on the relation of Robert PI. Rice, State’s Attorney for St. Clair County, and alleged that on September 21, 1970, Morris Campbell, Lawrence Tolar, George Duff and William Ebersoldt were convicted in the circuit court of St. Clair County, of official misconduct, each having been found guilty on five counts in an indictment based on section 33 — 3 of division I of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 33 — 3) charging misconduct by the defendants in their position as trustees of the East Side Levee and Sanitary District located in Madison and St. Clair Counties; that on December 1, 1970, the Honorable Alvin Maeys entered judgment on said conviction and sentenced each defendant to three years probation, fined each defendant $250 on each count and entered a finding pursuant to section 33 — 3 that the defendants had forfeited their offices; and that the defendants made a motion in the trial court for a stay of the judgment, which motion was denied. The petition further alleged that' the defendants filed notice of appeal to the Appellate Court:of Illinois, and on December 5, 1970, Edward C. Eberspacher, Judge of the Appellate Court of Illinois, Fifth District, entered an order staying the judgment in the criminal proceedings and staying the ouster from office of each defendant until such time as the criminal appeals should come to rest. Petitioner prays for a writ of prohibition commanding the Appellate Court and the Honorable Edward C. Eberspacher to refrain and desist from exercising any further jurisdiction in said cause insofar as it relates to the continuance in office of the trustees of the East Side Levee and Sanitary District, and further prays that such order staying the ouster be declared null and void. As statéd in People ex rel. Modern Woodmen of America v. Circuit Court, 347 Ill. 34, “* * * the general rule is that a writ of prohibition may be issued by a superior court to an inferior court to prevent the latter from assuming jurisdiction not vested in it, or exceeding jurisdiction which it has by going beyond its legitimate powers in a matter within its jurisdiction. Jurisdiction of a court in a particular case is not alone the power of the court to hear the cause, but it likewise involves the power to render the particular judgment entered, and every act of the court beyond that power is void.” 347 Ill. at 42-43. -': The only issue before this court is whether the appellate court had jurisdiction to enter the stay order in question. Supreme' Court Rule 609(c) provides in part that on appeals “the judgment or order may be stayed by a judge of the trial or reviewing court, with or without bond.” (43 Ill.2d R. 609.) This court has not restricted the authority granted by the rule. It is clear that the appellate court had jurisdiction to stay the order of the circuit court. Petitioner argues that considering the public policy of the State of Illinois as proclaimed in People ex rel. Keenan v. McGuane, 13 Ill.2d 520, the appellate court does not have the judicial power to stay the finding of ouster of the four officials convicted; and that the appellate court therefore has exceeded and abused its jurisdiction. In Keenan petitioner sought through mandamus to compel the Board of Commissioners of Cook County to restore him to the office of Cook County Assessor. Petitioner had been convicted in the United States District Court of conspiracy to evade and the evasion of income taxes and had at that time perfected an appeal to the United States Court of Appeals. He argued that conviction of the crime of conspiracy to evade and evasion of income taxes would not forfeit his office and that during the appeal the conviction was not final. The court stated: “For the purpose of effecting a vacancy in office, we hold a felony to be infamous within the concept of the common law, if it is inconsistent with commonly accepted principles of honesty and decency, or involves mortal turpitude. We find that the crime of which the petitioner stands convicted was federally denominated as felonious and infamous and that it falls within this classification.” (13 Ill.2d at 535-536.) The court further stated: “While neither the constitution nor the statutes effecting its purpose define the term ‘conviction’, yet respect for the law and deference to the transcendent trust placed in public officials requires that such officer forfeit his office after the presumption of his innocence is dispelled by conviction of an infamous crime in a trial court. We conclude that the provisions of the Illinois constitution and statutes effecting a vacancy in public office upon the conviction of the incumbent of an infamous crime refer to the conviction in a trial court.” 13 Ill.2d at 537- In Keenan, conviction at trial for an infamous crime forfeited the office. However, the issue remains whether this holding clearly controls the instant case. Here defendants were convicted of knowingly performing acts which they, as trustees of the sanitary district, were forbidden by law to perform. It was argued that these violations were malum prohibitum, not malum in se. A conviction under section 33 — 3 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 33 — 3) does not necessarily involve moral turpitude. The basis of the forfeiture of office in this case was not conviction of an infamous crime, but rather it was part of the statutory punishment for conviction under section 33 — 3. Judge Eberspacher found that there was reasonable cause for believing that the judgment of the circuit court of St. Clair County, Illinois, finding each of the four defendants guilty of official misconduct in office and subject to forfeiture of their public office, should be stayed pending appeal. Under the circumstances of the case we cannot say that Keenan is controlling so that Judge Eberspacher lacked the discretion to stay the forfeiture. Consequently, under Supreme Court Rule 609(c) the appellate judge had jurisdiction on direct appeal to stay the entire order of the circuit court including the forfeiture of office as provided in section 33 — 3. We are of the opinion, therefore, that for the aforementioned reasons it is inappropriate to issue a writ of prohibition in this matter. Writ denied. Mr. Justice Goldenhersh took no part in the consideration or decision of this case.