delivered the opinion of the court:
This case poses the questions of whether the petitioner’s conviction, in the United States District Court, of conspiracy to evade and the evasion of personal and corporate income taxes for the years 1950, 1951 and 1952, in violation of sections 371 of title 18, and 145(b) of title 26 of the United States Code, and sentence to serve two years in the penitentiary and pay a fine in the sum of $56,000, constitutes conviction of an infamous crime in Illinois, which causes a vacancy in his office as Cook County assessor ; and whether a pending appeal from such conviction operates to stay the effect of such vacancy.
The facts are not in dispute: Frank Keenan, the petitioner, was elected to the office of assessor at the general election on November 2, 1954, for a term of four years from the first Monday in December, 1954, and until his successor was duly elected and qualified. He qualified and performed the duties of assessor until February 4, 1958, when he was ousted under threat of force by the sheriff of Cook County on direction of its State’s Attorney. On January 29, 1958, he was convicted of the income tax violations, sentenced, and fined, as above stated. On the same day, the State’s Attorney of Cook County advised its board of commissioners, respondents, that petitioner had been convicted of an infamous crime which created a vacancy in the office of assessor and that it was their duty to appoint his successor. On January 30, 1958, petitioner perfected an appeal to the United States Court of Appeals, Seventh Circuit; advised the board that, by virtue of his appeal, there was no final judgment of conviction against him; that convictions under the Federal law are not encompassed within the infamous crimes defined in section 7 of division II of the Criminal Code, (111. Rev. Stat. 1957, chap. 38, par. 587,) and therefore could not constitute a basis to disqualify him from continuing as such assessor. The State’s Attorney further counseled the board that the office of assessor was vacant and that their failure to appoint a successor may place them in the position of violating the law. On February 4, 1958, over the protest of the petitioner, the board adopted resolutions declaring the office of assessor vacant and appointing respondent John F. McGuane to fill the vacancy. McGuane qualified for the office and was sworn in by the county clerk, also respondent. The petitioner, under threat of physical force from the sheriff of Cook County, likewise respondent, yielded up the office. Thereupon, pursuant to motion, we granted petitioner leave to file a petition for mandamus, wherein he sought such writ to compel the respondents to restore him to the office of Cook County assessor. Respondents filed answer.
The legal problems presented by the pleadings give rise to the above questions which are dispositive of this case. Initially our attention should be directed to the pertinent provisions of the Illinois constitution and statutes.
The Illinois constitution of 1870, article IV, section 4, provides: “No person who has been, or hereafter shall be, convicted of bribery, perjury, or other infamous crime, nor any person who has been or may be a collector or holder of public moneys, who shall not have accounted for and paid over, according to law, all such moneys due from him, shall be eligible to the general assembly, or to any office of profit or trust in this state,” and article VII, section 7, provides: “The general assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes.”
These constitutional provisions have been implemented by statutes, among which are the following:
Section 7 of division II of the Criminal Code, provides:
“Every person convicted of the crime of murder, rape, kidnapping, willful and corrupt perjury or subornation of perjury, arson, burglary, robbery, sale of narcotic drugs, sodomy, or other crime against nature, incest, forgery, counterfeiting, bigamy, or larceny, if the punishment for said larceny is by imprisonment in the penitentiary, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust or profit, of voting at any election, or serving as a juror, unless he or she is again restored to such rights by the terms of a pardon for the offense or otherwise according to the law.” 111. Rev. Stat. 1957, chap. 38, par. 587.
Section 25 — 2 of the Election Code provides:
“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, * * *
“No elective office, except as herein otherwise provided, shall become vacant until the successor of the incumbent of such office has been appointed or elected, as the case may be, and qualified.” 111. Rev. Stat. 1957, chap. 46, par. 25 — 2.
Sections 25 — 3 and 25 — 11 of the Election Code, and section 6 of the Revenue Act of 1939, (111. Rev. Stat. 1957, chap. 120, par. 487,) authorize the county board, charged with the duty of filling a vacancy in the office of assessor, to determine whether or not facts exist occasioning such vacancy, and if so, to fill it by appointment until the next county election when a successor shall be elected for the unexpired term. Section 29 — 38 of the Election Code provides that every person convicted of any crime under any article or section of the Code, if the crime is punishable by imprisonment in the penitentiary, shall be deemed infamous and shall forever after be rendered incapable of holding any office of honor, trust or profit, or voting at any election, or serving as a juror unless he or she is again restored to rights of citizenship by the Governor or court according to- law.
The constitution provides that no person convicted of bribery, perjury, or other infamous crime, shall be eligible to hold public office, and section 7 of division II of the Criminal Code enumerates certain specific crimes as infamous. However, section 25 — 2 of the Election Code is without such specification and thereunder every elective office becomes vacant upon conviction of the officer of an infamous crime.
Petitioner urges that he was not convicted of an infamous crime which effects a vacancy in office in Illinois, and cites section 4 of article IV of the constitution of 1870, People v. Kirkpatrick,
In the case of People v. Kirkpatrick,
The case of People v. Montana,
While section 4 of article IV of the constitution of 1870 rendered ineligible to public office any person convicted of bribery, perjury or other infamous crime, section 31 of article III of the constitution of 1848 only provided that “The General Assembly shall have full power to exclude from the privilege of electing or being elected any person convicted of bribery, perjury or other infamous crime.” Consideration of the historical background in connection with the expansion of the 1848 provision of section 31 of article III from power in the General Assembly to exclude from the privilege of electing or being elected any person convicted of bribery, perjury or other infamous crime, to the complete ineligibility of such person to hold public office under section 4 of article IV of the constitution of 1870, is both appropriate and enlightening. The debates of the constitutional convention, held in 1869 and 1870, aid in determining the intent of the drafters of that instrument. While in construing the constitution the true inquiry concerns the understanding of the meaning of its provisions by the voters who adopted it, still the practice of consulting the debates of the members of the convention which framed the constitution has long been indulged in by courts in determining the meaning of provisions which are thought to be doubtful. (Burke v. Snively,
The debates reflect that the following resolution was offered and referred to the Committee on the Legislative Department:
“Resolved, That the Constitution be so amended as to render ineligible to any office of honor, trust or profit, under the laws of this State, every person found guilty of embezzlement of public money or securities, or who shall be a defaulter thereto, or in regard to any money he may hold in his official capacity.” (Debates of the Constitutional Convention, State of Illinois, 1870, vol. 1, p. 116.)
At pages 191 et seq. of Volume 1 of the Debates the report of the Committee on the Legislative Department is set forth. Section 32 thereof appears on page 292 and reads as follows:
“Sec. 32. The General Assembly shall exclude from the privilege of being elected to either house, any person convicted of bribery, perjury or other infamous crime.”
This report, in amended form, is shown at pages 393 and 394 of said Debates wherein section 32 remains unchanged. The proceedings before the convention, as a committee of the whole, pertaining to section 32 of this report, at page 572, reflect that Mr. Hanna, a member of the convention, in considering the purpose of this section, stated:
“I would call upon the chairman of the committee that presented this report and that article, to tell us what he means by it. Why not let this Convention say that persons convicted of bribery, perjury, or any other infamous crime, shall not be eligible to a seat — or else strike out the whole thing? It means nothing as it now stands. As it reads now, we simply provide that the General Assembly shall pass a law prohibiting persons from occupying seats in the General Assembly who have been convicted of crime. Let this Convention do this, and then we shall know it has been done.”
Mr. Allen, of Crawford County, another delegate, remarked :
“I would suggest to the gentleman that the question of whether a man is guilty of bribery, perjury, or other infamous crime, is one that has to be determined by the courts, and it will be the duty of the General Assembly to fix some rule by which they may determine whether that conviction has been had.
“Mr. Hanna. I do not see that that explanation makes it any plainer.
“The section, as it now stands, would require the Legislature to pass a law to declare that no man convicted of an infamous crime, shall be eligible to a seat in the Legislature, I say, if we are going to deal with this question, as I think we certainly ought, let us declare that no man convicted of an infamous offense, shall be eligible, and then, if the courts convict him, that settles the whole matter without the interposition of the Legislature.
“I will send up my amendment in a few moments. The difference between my honorable friend from Crawford (Mr. Allen) and myself, is, that he wants the Legislature to pass a law to exclude criminals, and I want this Convention to do so without calling upon the legislature.”
After this discussion, the following amendment was offered:
“No person convicted of bribery, perjury or other infamous offense, shall be eligible to either house of the General Assembly.”
At page 573 the following discussion, between various delegates pertaining to this subject is shown:
“Mr. Pillsbury. I think sir, the provision is a sweeping one. I would add to the substitute these words: ‘Unless after such conviction his innocence shall be established.’
“Mr. Chairman: It frequently happens in our country that a man is convicted of crime and sent to the penitentiary, when subsequently his innocence is proved by evidence that cannot be controverted; yet it is here proposed to make a conviction the reason for excluding a man from any office in the gift of the people, when he may be as innocent of crime as any gentleman in this hall.
“If conviction is the rule, then it makes no difference whether, it is rightful or wrongful. He nevertheless, is rendered ineligible to any office. I am not willing, sir, that such should be the rule; for in many instances it would work absolute injustice.
“If it were left to the Legislature to say when and in what cases conviction should work ineligibility to office, it could provide for such a contingency. But here we establish an iron rule, which cannot be varied, and will bear as hardly upon the convicted innocent as the guilty.
“Mr. Cary. Mr. Chairman: The argument of the gentleman from Livingston (Mr. Pillsbury) has convinced me that the article as reported by the committee, is correct.”
At page 574, the following discussion appears:
“Mr. Anthony. * * * The object is, as I understand, to keep scoundrels out of the Legislature. How do we keep a scoundrel out of the Legislature? We say that no scoundrel shall be eligible to the General Assembly. If a person has been convicted of bribery, perjury, or any infamous crime, I do not want to have it left to the General Assembly to be passed upon by them. The evidence that a man is infamous, is conviction. That is all there is about it. When a man has been tried and convicted of a crime, the evidence is by the record, and we have it whenever a man has been convicted.”
The following proceedings appear at page 576:
“The Chairman. The question is upon the amendment of the gentleman from Livingston (Mr. Pillsbury).
“The clerk read the amendment offered by Mr. Pillsbury, as follows:
“ ‘Unless, after such conviction, his innocence shall be established.’
“The amendment was not agreed to.”
At page 959 the adoption of the 31st section of the report of the Committee on the Legislative Department is set forth:
“The secretary read section thirty-one as follows:
“ ‘Sec. 31. No person who has been, or hereafter shall be, convicted of bribery, perjury or other infamous crime, shall be eligible to a seat in the General Assembly.’ * * *
“The President. The question is on the adoption of the thirty-first section, and it is declared adopted.”
These sections, as adopted, were subsequently regrouped by the drafters of the constitution and other pertinent provisions, as similarly discussed and adopted, were combined to make up the final draft of the constitution which was likewise approved, and section 4 of article IV, as ultimately approved by the convention, voted on and adopted by the people, is heretofore set forth.
Adverting to the provisions of section 31 of article III of the constitution of 1848 which empowered the legislature to exclude from membership any person convicted of bribery, perjury, or other infamous crime, and the debates above set forth concerning section 4 of' article IV of the constitution of 1870, it is evident that the drafters of the constitution intended that conviction of bribery, perjury, or other infamous crime should, ipso facto, render a person ineligible to hold any public oEce; and that the framers were referring to conviction in the trial court and not to an ultimate conviction following appeal to a higher court or courts.
This conclusion is further fortified by the provisions of section 7 of article VII of the constitution of 1870 which provides: “The general assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes.” Insofar as the right of suffrage is concerned, the framers of the constitution directed the legislature to pass laws excluding from such right the persons convicted of infamous crimes. This express mandate vested in the legislature the exclusive function of disqualifying from the right of suffrage persons convicted of infamous crimes and of declaring the specific crimes which shall be infamous for this purpose. Pursuant to this constitutional direction, the legislature enacted section 7 of division II of the Criminal Code. However, in this paragraph it exceeded the constitutional mandate and defined infamous crimes with reference to disqualification not only from the right of suffrage, but also- from serving as a juror, and holding any office of honor, trust or profit as well. While the legislature has implied authority to define infamous crimes for all purposes, (Donahue v. County of Will,
It is interesting to note that bribery is not enumerated as an infamous crime in section 7 of division II of the Criminal Code, even though section 4 of article IV of the constitution provides that no person who has been, or hereafter shall be convicted of bribery, perjury or other infamous crime shall be eligible to hold any office of honor, trust or profit in this State. If we give credence to petitioner’s contention that the enumeration of infamous crimes within section 7 of the above statute excludes any crimes not therein listed, we then face the anomolous situation of the provisions, of the statute taking precedence over those of the constitution. Since Marbury v. Madison, (1803)
While we held in Christie v. People,
In the case of Briggs v. Board of County Commissioners,
In the case of In re Needham,
Accordingly, we conclude that any public officer convicted, in the Federal court or in the court of any sister State, of a felony which falls within the general classification of being inconsistent with commonly accepted principles of honesty and decency, or which involves moral turpitude, stands convicted of an infamous crime under the common law as interpreted when our constitution was adopted in 1870, and that such conviction creates a vacancy in such office. This determination is not inconsistent with the legislative policy expressed in section 29 — 26 of the Election Code which provides that “If any person who shall have been convicted of bribery, felony or other infamous crime under the laws of any state * * * shall thereafter vote or offer to vote at any election or primary he shall upon the conviction thereof be adjudged guilty of a felony, and, for each and every such offense shall be punished by imprisonment in the penitentiary for not less than two nor more than five years.” (Italics ours.) We are also of the opinion that section 7 of division II of the Criminal Code is not the sole repository of infamy legislation in Illinois. Christie v. People,
Petitioner also- urges that the common law of England prior to 1606 is the rule of decision; (Ill. Rev. Stat. 1957, chap. 28, par. 1,) that the crime of income tax evasion was unknown to the common law of England, and hence, it is inapplicable; and that if applicable, the legislature discarded such concept by the enactment of section 7 of division II of the Criminal Code. Such contention entirely disregards the provisions of section 25 — 2 of the Election Code and misconceives the effect of the act adopting the common law, above cited. This court adequately considered the scope and effect of the rule of decision in Amann v. Faidy,
Under the constitutions and statutes of sister States creating a vacancy in public office where the incumbent has been convicted of a felony, it is generally held that the office is vacated upon a verdict of guilty and that an appeal does not stay the effect of such vacancy. These decisions are generally predicated upon the theory that after a plea or verdict of guilty, judgment, and sentence by a court of competent jurisdiction, the presumption of innocence which, up to that time, had persisted in favor of the defendant, no longer prevails, and that the law thereafter presumes that the proceedings have been regular and that the defendant is guilty. Briggs v. Board of County Commissioners,
Respect for the law and confidence in public officers cannot be compelled. These attributes stand as a voluntary tribute to just laws and integrity in public office. While they exist, both the law and the official will retain public trust. Confidence in an elective official is destroyed when he is convicted of an infamous crime. In the instant case, if the petitioner had been unable to give bond and the penitentiary sentence had been executed, there could be no doubt concerning the vacancy in his office. His ability to give bond cannot alter the public reaction to his conviction. 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 disspelled 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. The Debates of the Constitutional Convention, heretofore quoted, and particularly the discussion appearing at pages 573 and 574 thereof, also sustain our view.
We find no merit in petitioner’s contention that pend-ency of his appeal stays the finality of his conviction and thereby holds in abeyance a vacancy in the office of Cook County assessor.
Under the conclusions of this court, the petitioner has failed to establish any right to the writ of mandamus herein prayed. The writ is therefore denied.
Writ denied.