People ex rel. Rusch v. White

• Decision Date: 20 April 1929
• Docket Number: 18590-18592.,Nos. 18430,18431,18568,s. 18430
• Citation: 334 Ill. 465,166 N.E. 100
• Parties: PEOPLE ex rel. RUSCH v. WHITE et al. and five other cases.
• Court: Illinois Supreme Court

334 Ill. 465

166 N.E. 100

PEOPLE ex rel. RUSCH

v.WHITE et al. and five other cases.

Nos. 18430, 18431, 18568, 18590-18592.

Supreme Court of Illinois.

April 20, 1929.

Error to Cook County Court; Edmund K. Jarecki, Judge.

Proceeding by the People, on the relation of John Rusch, against Robert White and others, Harry J. Smith and others, Tony Cirone and others, Charles B. Thompson and others, and Ernest Moeller and others, to show cause why defendants should not be held in contempt of court. Defendants were found guilty of contempt, and they bring error.

Affirmed.

Farmer and Dunn, JJ., dissenting.Louis Greenberg, John F. Tyrrell, and John F. Higgins, all of Chicago, for plaintiffs in error.

Oscar E. Carlstrom, Atty. Gen., Charles Center Case, Sp. State's Atty., of Chicago, and Roy D. Johnson, of Springfield (Grover C. Niemeyer, of Chicago, of counsel), for defendant in error.

STONE, J.

A petition was filed in the county court of Cook county on Juny 11, 1927, by John S. Rusch, chief clerk of the board of election commissioners of the city of Chicago, against plaintiff in error John Sherry, who acted as judge of election, and plaintiff in error Robert White, who acted as clerk of the election at the polling place in the Sixteenth precinct of the Forty-Second ward of the city of Chicago at the election held on June 6, 1927. The petition alleges misbehavior on the part of said judge and clerk of election in their offices as such judge and clerk at the polling place and avers that such constituted contempt of court, and prays a rule on Sherry and White to show cause why they should not be held in contempt of court. A rule to show cause was entered. Sherry and White each filed a sworn answer, admitting they were judge and clerk, respectively, of the election at the time and place named in the petition and denying all of the charges contained in the petition for rule to show cause. They filed a motion to be discharged becausethey had by their answer purged themselves of such contempt. The court overruled that motion. A motion was also filed to discharge them on the ground that the statute conferring jurisdiction on the county court to supervise elections and making the judges and clerks thereof officers of the county court is unconstitutional. This motion was likewise overruled. On hearing of evidence in open court, plaintiffs in error were found guilty of contempt of court and each sentenced to the county jail for the term of two years.

A like petition was also filed by the same petitioner in the county court on July 11, 1927, against plaintiffs in error Harry J. Smith, Sam Cantazore, and Robert White, and against Edward P. O'Malley, charging misbehavior as judges and clerks of election at the election held on the 2d day of November, 1926, and a rule was entered against them to show cause. O'Malley appears not to have been served with the rule, and the cause proceeded against Smith, Cantazore, and White. Like motions and sworn answers were filed by the three respondents and like proceedings were had. Respondents were found guilty of contempt of court and sentenced to the county jail for a period of one year.

A like petition was on March 14, 1927, filed by the same petitioner against plaintiffs in error Tony Cirone, Tony Viso, Tony Lombardo, and Mike Imburgia, and against Ed Flanagan, all of whom, except Flanagan, appear as plaintiffs in error. No abstract has been filed in this case. It appears from the record that like proceedings were had, and plaintiffs in error, aside from Flanagan, were found guilty of contempt of court and were sentenced to the county jail for a period of one year. The misbehavior charged against plaintiffs in error is alleged to have occurred at the regular election held on November 2, 1926.

A like petition was filed by the same petitioner on July 11, 1927, against plaintiffs in error Charles B. Thompson,Gus Witt, Ray Shaw, Edward Heller, and Harry Taylor Hughes, charging misbehavior as judges and clerks of the election held on the 2d day of November, 1926. No abstract has been filed in this case. It appears from the record, however, that like proceedings were had and that Thompson and Hughes were found guilty of contempt and each sentenced to the county jail for the period of one year.

On the 11th of July, 1927, the same petitioner filed a like petition against plaintiffs in error Ernest Moeller, Frank Schadeck, Edward Heller, Martin Nelson, and Joseph G. Keil, alleging misbehavior as judges and clerks of the election held on the 5th day of April, 1927. No abstract appears to have been filed in this case, but it appears from the record that like proceedings were had and plaintiffs in error were found guilty and sentenced to the county jail for a period of one year.

There was also on August 8, 1927, filed by the same petitioner a like petition against plaintiffs in error Robert White, John Sherry (alias Harry Joanes), John Doe (alias Harry J. Smith), and Richard Roe (alias Claude Williams), alleging misbehavior as judges and clerks of the election held in the city of Chicago on the 5th day of April, 1927. On a like proceeding Sherry was found guilty of contempt and sentenced to the county jail of Cook county for a period of one year.

The petition for rule to show cause in each of these cases charges various acts of misbehavior on the part of the respondents, including keeping false poll lists, making and delivering false returns, putting illegal ballots into the ballot box, permitting electors to vote more than once, making false tallies, and charges of like character. The respondents found guilty have sued out a writ of error in each case. The six cases have been consolidated for hearing in this court.

The sufficiency of the evidence to support the finding of guilty and the reasonableness of the punishment imposed are not questioned. The sole question involved on this review concerns the validity of section 13 of article 2 of the City Election Act. Cahill's Stat. 1927, p. 1143. This section, in part, provides for the manner of appointment of judges and clerks of election. By its terms they are to be nominated by the board of election commissioners and their appointment confirmed by an order of court. The section also provides: ‘Upon the confirmation of such judges and clerks, at any time, a commission shall issue to each of such judges and clerks, under the seal of such court, and appropriate forms shall be prepared pared by said board of commissioners for such purpose. And after confirmation and acceptance of such commission, such judges and clerks shall thereupon become officers of such court and shall be liable in a proceeding for contempt for any misbehavior in their office, to be tried in open court on oral testimony in a summary way, without formal pleadings, but such trial or punishment for comtempt of court shall not be any bar to any proceedings against such officers, criminally, for any violation of this act.’

Plaintiffs in error attack the validity of section 13 of the above statute on the ground (1) that the Legislature may not confer on the county court power to supervise elections or appoint judges and clerks of election as officers of that court; (2) that section 13 of article 2 of the City Election Law, in so far as it provides special practice for contempt of court proceedings, is not a general but a local or special law relating to practice of courts of justice, and is for that reason invalid; (3) that contempt of court is a judicial question and is not subject to legislative control; and (4) that the answers of the plaintiffs in error, as respondents, purge them of contempt.

Section 18 of article 6 of the Constitution is as follows: ‘There shall be elected in and for each county one county judge and one clerk of the county court, whose terms of office shall be four years. But the General Assembly may create districts of two or more contiguous counties, in each of which shall be elected one judge, who shall take the place of and exercise the powers and jurisdiction of county judges in such districts. County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlements of their accounts, in all matters relating to apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law.’

The first two grounds of attack here urged were before this court in the case of People v. Hoffman, 116 Ill. 587, 5 N. E. 596,8 N. E. 788,56 Am. Rep. 793. It was there held that, inasmuch as the act operates upon any city, village, or town which adopts it, it is a general law. Nor is this act rendered any more a special or local act relating to practice in courts of justice by the fact that the procedure in the county court is applicable only in cases arising in cities adopting the act. The practice is made to apply to all cases of contempt under this law. The fact that a certain proceeding is authorized under a law in itself general, but which is applicable only in the cities adopting it, does not tend to open such proceeding to the objection that it is a local or special law affecting courts of justice. The act is not open to this objection.

The power of the Legislature to provide, as in this Election Law, for the appointment of election commissioners, judges, and clerks of election was also attacked in the Hoffman Case on the ground that such appointment involved the exercise of a political power beyond the functions of the county court, which, it was said, are exclusively judicial. It was in that case pointed out that under section 18 of article 6 of the Constitution county courts are given certain specified jurisdiction and such other jurisdiction as may be provided for by general law. It was there said: ‘This grant is liberal enough, on the face of it, to...