*1 491 lia to the directors’ has no application Section director. 94 it is conceded 42(f), section by bility imposed to plaintiff. has no limitations application statute general Wascher, 128, Bell, People v. Ill. 130; See Clare v. 349 378 Hamill, 121; Ill. 114, People 511. in erroneously the court contends that Defendant also $1,024.40 judgment in its judgment. cluded penalties in penalties in taxes and the sum of $442.67 $581.73 and damage” to “loss limited Since a creditor is interest. defendant, are not re section argues 42(f), penalties, interest on accrued represents coverable. The $442.67 cent rate of one taxes at the per delinquent 1953 Act the Revenue month section per prescribed re Rev. Stat. 1939, (Ill. 705), 1953, chap. par. for amounts due for interest are spective $242.28 If entitled to recover plaintiff $200.39 1954. interest, not, from the cor whether denominated or penalty and if it lost this poration, because corpora dissolve, tion’s failure it notice of intent we can give item, no reason with the taxes perceive why along themselves, is not recoverable under the of sec provisions tion 42(f). reasons,
For the foregoing county court of Rock Island was correct and it is affirmed.
Judgment affirmed. (No. 37984. Defendant in Er- Illinois, State
ror, vs. Mandel Plaintiff in Error. Skar,
Opinion March filed 1964.
Underwood, part. J., took no Solfisburg,
Schaefer JJ., dissenting. and Frank G. error. of Chicago, plaintiff Whalen, General, William G. of Clark, Attorney Springfield, and Daniel P. State’s of Attorney, Ward, Chicago, (Fred and E. Assistant Attorneys O’Brien, G. Leach Michael General, Louis C. Garippo, Kissane B. Elmer Assistant State’s of Attorneys, for the counsel,) People. House delivered the of the court:
Mr. Justice the grand jury for the criminal court of Cook County issued a subpoena duces tecum directed Sahara North, Inc., Inn Skar, Mandel corporation, president of the corporation, them to certain rec- directing produce Skar, ords. The was served on Mandel the de- herein, fendant and he but appeared did not the records produce called for subpoena. in the criminal filed a petition jury foreman the defendant directing be entered that a rule asking of in contempt not be held cause he should to show why held. hearing entered and a court. A rule was the allegations of evidence support State introduced no dismiss moved to pe- the defendant of the motion court denied the rule. The tition and discharge ex- in an defendant testified under oath attempt and the At the conclusion failure the records. to produce plain found the defendant of the defendant’s the court testimony him to a term of court and sentenced A error has issued months writ of county jail. conviction, this court a constitu- to review the tional involved. question being
The defendant failure to obey charged conduct, command if issued This lawfully subpoena. which constituted direct contemptuous, has been defined to embarass or any conduct which tends *3 in obstruct the court the administration of or which justice, tends to the administration of the into bring law disrepute. classes; Direct are divided those which into two contempts are in committed court in the view and open hearing and those in set the committed for judge, any place apart use of a of constituent the even the part con though duct of was not the seen or heard complained personally by 618, v. Ill. In the (People first judge. Hagopian, 621.) cases, class of the trial may act his judge personal the of facts and the may offender sum knowledge punish without the of a marily the of a rule filing entry cause, to show aor 2 Ill.2d hearing. (People Loughran, The conduct 258.) involved here falls within the second class of direct and the contempts is question presented whether the followed the trial court in procedure by finding the defendant the guilty conformed to of due requirements Oliver, of law. In In re process U.S. L. ed. 257, 682, 68 S. Ct. the United 499, States Court was Supreme summary of of a concerned the the propriety question a acted as for a had also sentence who by contempt judge the law by one-man under authorized grand jury, procedure of the court reviewed the Michigan. considering problem of to courts prior authorities concerning power punish for that where the The court rule contempt. recognized in the view of committed court open at once has to offender judge, judge power punish notice on to without and without court went hearing. that point out this summary extraordinary power constituted a of due standards departure accepted and was “the least justified as process only power possible to the end U.S. 274; 68 adequate proposed.” (333 S. Ct. The court this nar- held that 508.) except limited of rowly where all essential category contempts, of elements the misconduct are observed actually court, due process of law a fair and hear- requires impartial The court ing. said U.S. : hold (333 “We further 273) that failure to afford the a reasonable petitioner opportunity to defend himself of false and evasive against charge denial due A swearing law. process person’s him, right to notice reasonable of a and an charge against to be heard to his opportunity defense—a right day in court—are in our basic system jurisprudence; minimum, include, these as a examine the rights him, witnesses against be to offer and to repre- testimon}'-, sented counsel.” (Emphasis supplied.) Our in similar make it holdings cases clear that class of due contempts, process be requires charges established by evidence. Spain, defendant was found for his refusal answer certain questions jury. *4 We reversed the said, conviction and (p. 292,) “When Spain was brought before the court on the charges preferred him the against he a jury, to full and entitled impartial of this are hearing. Proceedings character courts not prevent but that does summary, necessity He the law. under all his the accused rights from giving himself. to defend the fullest must be given opportunity criminal con- one is charged Where [Citing cases.] trial accorded any entitled to the same orderly he is tempt until his to be innocent He is defendant. presumed other * * a doubt reasonable beyond is established guilt (Emphasis supplied.) the defendant Re Estate Ill. 174, Kelly, for allegedly
was found of direct court contempt con We a false will probate. knowingly presenting or the defendant with direct sidered whether was charged indirect and held that the was direct contempt since it in a of the had been committed constituent part out of the of the We view although personal judge. held since the had no judge personal knowledge offense, extrinsic evidence to substantiate charge Howarth, essential. In we again occasion to consider the distinction between direct con committed tempt view of and a direct con judge in a committed constituent of the court tempt outside part said, personal presence judge, (p. 508) “However, when a direct occurs in a constituent part court and not the immediate presence here, judge, is the case extrinsic evidence is essential to substantiate the charge.”
In the case the record shows that the present State intro- duced no evidence Counsel for support petition. said, Honor, State “The is Your State and since ready, filed, there is time, no answer that has been at this the State would ask to stand on the that is before the court.” We think it is clear from consideration of the authorities herein discussed that due more. process requires something In People Spain sort, we held that in cases of this a de- fendant is innocent until he presumed be- proved guilty yond reasonable doubt. and Howarth Kelly cases *5 establish that such cases extrinsic evidence is necessary in the the the support charges petition. present case the defendant was evidence any found without guilty heard of the our being support petition. him of due of law rendered
procedure deprived process the The of invalid. of criminal finding judgment court of Cook is reversed. County reversed.
Judgment took no Mr. considera- part Underwood Justice tion or of decision this case.
Mr. Schaefer, dissenting: Justice has been reversed in this case on the it that was ground extrinsic evidence be imperative introduced to support allegations no such evidence was offered. But a full reading record satisfies me that the trial con- judge justified that the sidering waived to an- respondent swer the Since those allegations petition. allegations denied, were not no useful could have been served purpose by. extrinsic evidence to establish their truth. requiring tecum, duces grand jury subpoena addressed to the North, Inc., Sahara Inn Skar, President, was is — Mandel sued March 14, on returnable on March It 18. was served on March It recited the pendency 15.
of a Russo, “against Michael et al.: an complaint investiga tion into of Inc.”, the theft materials from Edmier building and it called for the production records of following North, Inn Sahara Inc.
a. All records of cash receipts and disbursements all on
bank accounts since incorporation. b. All cancelled and all checks bank statements on all
accounts since incorporation. c. All contracts with subcontractors for contracts at
motel Road, North Park,- Mannheim Schiller Illinois. from period ledger and journal journal General
d. to date. of incorporation jury pre- grand the foreman March On and service issuance reciting sented neces- records were that the books and stating conducted an being investigation and material sary from materials the theft building into jury Edmier, It out that the sought Inc. pointed North, the contracts Inn Inc. would show Sahara *6 re- out and of the Inn and all 'moneys paid construction its ceived the construction. petition during period the that Mandel before further stated Skar appeared the that failed he to grand jury, wilfully produce the all of the books and records required and that the he subpoena which did produce per- tained to the after the June, and did not cover period 1962, It period construction. also recited that Skar had stated to the grand that the jury records that he all were produced that he had in his and that when he was asked possession whether records to pertaining periods June, to prior “were ever in existence or are now in existence said Mandel Skar refused to answer on the that the answers grounds may tend to incriminate him.” The the petition requested court enter a rule Skar to cause upon show he should why not be held in for failure contempt the produce to books and records the corporation the required duces tecum.
The term of the grand jury was about on to expire March and 29, on March after earlier be skirmishes fore the court with respect to the respondent’s failure to appear before the grand jury, hearing upon petition was continued until March at 2 :00 P.M. to enable the respondent’s to attorney answer the When petition. the mat ter was called for hearing on March the respondent’s attorney answered that he was ready, the court inquired whether he had filed an answer. Respondent’s re- attorney I I will answer. want to have him don’t testify. “We
plied, I think have to file an The assistant state’s at- answer.” then statement torney quoted opinion court, filed, that since no answer was the State would stand upon petition. Respondent’s attorney thereupon to moved dismiss the rule. petition discharge the trial court my opinion properly interpreted statement of the as a waiver of respondent’s' attorney to issue the right put allegations prop- refused to him to shift his after the erly permit position had acted in reliance State that waiver. Of course one iswho outside the charged presence court is entitled notice an to be heard. opportunity cases cited of the court no further go than that. None of them holds that the to controvert right waived, of a like this one not allegations petition may be and none of them stands for the that undenied proposition must be allegations proved.
On this issue there are no relevant decisions of this when but has arisen in other question jurisdic it tions has been held that the require proof of a be waived. State allegations may ex Hinckle, rel. Wright v. Neb. is such N.W. *7 a case. There the court quoted following language in State, its Nebraska Children's syllabus Home Society v. Neb. 765, N.W. 268: a “Where contempt pro 78 is ceeding instituted information rule to show cause, it is the of the defendant duty to file an if answer he to desires traverse facts charged. on sufficient Failing, do, the to so opportunity, treat the may facts alleged in the information as confessed.” Zobel ex rel. Colo. Kyle, 142, 111 Pac. is to the same effect. No reason is suggested court to justify different result in this case. did not respondent that he deny was custodian records, that he was properly served with a subpoena he was com- the records that that he failed to
or produce these al- He could have disputed manded to hardly produce. I think that his attorney legations in so. re- it clear that he not interested doing amply he testified him his attorney, to sponse questions put North, Inc., Inn that he of Sahara president in he had be- to a duces tecum response produced fore the all records that were corporate he had his or control and that custody, possession not refused to He also testi- wilfully with comply subpoena. fied that he had had corporate possession other than those he When produced jury. he was asked what he did with those records he answered: “I them —I was in at the I gathered Florida time. gathered records, all of these them in a suitcase some put clothes them checked at the Miami Beach He testified Airport.” that the suitcase was checked with Eastern Air Lines “and then it was switched over to Delta Air Lines.” He testified that he check, received claim had made a claim for the records, but since, had not seen them and had no knowledge as to their whereabouts. On cross-examination the respond- ent claimed his privilege against self-incrimination when he was asked whether or not he went to Florida after he had been served with the subpoena he that claim repeated privilege as to all questions concerning specific records that he had in his possession in Florida.
From it is testimony clear that the element only the offense which the ever respondent wished to controvert was that of wilfulness. But an officer who has custody corporate records and fails to with a comply lawful sub can poena not escape sanctions of contempt merely by that his asserting noncompliance was not wilful. In such a case the burden of establishing defense of inability comply respondent. (United States v. Fleisch man, U.S. 349, L. ed. 906; see also People 362-364 94 Rezek, This 628-629.) rule was applied *8 there were records even Pleischman case though member a sixteen control of under the joint
concededly re- the individual made that board and no showing them. have could produced spondent self-in against far as the So respondent’s privilege examina concerned, direct on testimony crimination is matters con to the as tion had waived his clearly privilege disclosure. he had voluntarily partial which cerning those of corporation, were The books United Court under the decisions of Supreme Henkel, L. ed. Wilson States, 652; v. 201 U.S. (Hale and of this States, L. ed. 771,) v. United U.S. 361 55 Ryan, Ill. Munday, 32; (People what those claim of based no 494) privilege No available to the disclose was respondent. records might however, and the claims of sought, on ruling privilege for failure to made to establish effort was his contempt no answer.
Instead, court chose evaluate the testimony the trial his failure to offered to justify comply that the respondent evaluation, he was en- subpoena. making the inference that flowed take into account titled to claim of respondent’s privilege naturally cross-examination. on As Wigmore significant questions “Furthermore, refuses to answer where it: party puts in- as to the matter which truth is and claims privilege waiver, is not insisted but answer upon, cluded * * course available the inference is of 8 Wigmore Evidence, Evidence, sec. see also McCormick on 2273; on sec. 132. should be affirmed. my Solfisburg in this dissent. joins
Mr. Justice