People ex rel. Rusch v. Levin

• Citation: 26 N.E.2d 895,305 Ill.App. 142
• Decision Date: 06 May 1940
• Docket Number: Gen. No. 40671.
• Parties: PEOPLE EX REL. RUSCH v. LEVIN ET AL.
• Court: United States Appellate Court of Illinois

305 Ill.App. 142

26 N.E.2d 895

PEOPLE EX REL. RUSCH

v.LEVIN ET AL.

Gen. No. 40671.

Appellate Court of Illinois, First District, Third Division.

Oct. 25, 1939.

Rehearing Denied May 6, 1940.

Appeal from Cook County Court; Edmund K. Jarecki, Judge.

Proceedings by the People of the state of Illinois, on the relation of John S. Rusch, against Henry Levin, Minnie Hirsch, Lillian Rothstein, Bertha Schallman, and Joseph Rosenfeld to show cause why they should not be adjudged guilty of contempt of court. Respondents were found guilty of contempt, and they appeal.

Reversed and remanded.

BURKE, J., dissenting on rehearing. Mayer Goldberg and Harold Ginsburg, both of Chicago, for appellants.

Thomas J. Courtney, State's Atty., and John F. Cashen, Jr., both of Chicago, for appellee.

HEBEL, Justice.

This is an appeal by the respondents, who were found guilty of contempt for misconduct and misbehavior as officers of the Cook County Court. Henry Levin, one of the judges of election, was sentenced to 18 months in the county jail. Minnie Hirsch and Lillian Rothstein, the other two judges, were each sentenced to six months in the county jail, and the two clerks of election, Bertha Schallman and Joseph Rosenfeld, were each sentenced to 90 days in the county jail.

At a primary election held in Chicago on April 12, 1938, the five respondents served as judges and clerks of election in the 35th precinct of the 24th ward. The proceedings were brought under Section 17 of the Primary Law (Ill.Bar.Sts.1937, Ch. 46, § 381). On September 1, 1938, a petition was filed against the respondents, by leave of court, in the County Court of Cook County by John S. Rusch, Chief Clerk of the Board of Election Commissioners. The petition alleged that the respondents were guilty of various types of wilful and fraudulent misconduct and prayed that they show cause why they should not be adjudged guilty of contempt of court. On October 14, 1938, an amended petition was filed by leave of court, in which it is alleged that the respondents permitted five specific persons to vote who were not registered in the precinct; permitted one Jacob Chaiten to vote twice under two application numbers; used dummy tally sheets in the canvass, and recorded on the poll lists names and addresses of persons who did not vote. Further, it is charged that the respondents gave assistance to voters who did not request it, although the voters were able to read and write; did not examine the assisted voters to determine if they were illiterate and did not insist that voters needing assistance execute affidavits to that effect, and permitted one of the judges to go into the booth with voters who did not ask for assistance and to mark their ballots; permitted one judge to enter a booth with a voter and to mark his ballot without asking him the names of the candidates for whom he wished to vote; and further that one of the judges was permitted to assist a voter and not permit the voter to express his choice of candidates, but to mark the ballot according to his own desire, and the respondents were charged with making a false canvass and fraudulently certifying an incorrect total of votes cast to the Board of Election Commissioners.

On October 20, 1938, the respondents filed a verified petition for change of venue. The prayer of the petition was denied. On October 24, 1938, the respondents filed a further verified petition alleging that the trial judge was disqualified from hearing the cause and praying for a change of venue. The prayer of this petition was denied. It is also contended that the court had no jurisdiction to try and sentence the respondents for legal assistance to voters.

A trial was had before the County Court from October 24, 1938, to December 15, 1938. The court heard the evidence of 55 witnesses, and all of the respondents testified in their own behalf. On December 15, the court entered a judgment order, from which this appeal is taken.

Several grounds have been urged that the order entered by the court was erroneous, one being that the court erred in denying the respondents' petition for a change of venue filed on October 20, 1938; and also in not holding himself disqualified from hearing the cause as alleged in respondents' petition filed October 24, 1938, and that the judgment is contrary to the evidence, and the punishment inflicted by the court is grossly excessive.

The first objection offered by the respondents is that the trial court erred in denying respondents' petition for a change of venue, and in not holding himself disqualified from hearing the cause as alleged in respondents' petition.

The question here is whether the respondents being tried in the County Court of Cook County for contempt, in accordance with the provisions of section 381 (sec. 17), Ch. 46 of the Primary Law, are entitled to a change of venue, and the respondents contend that cases of contempt under Sec. 17 of the Primary Law are included within the statutory language of “any civil suit or proceeding in law or equity” (Ill.Bar.Sts.1937, Ch. 146, Sec. 1); that therefore the respondents are entitled to a change of venue as a matter of right, provided they present their petition in due time and in proper form, and they further contend that the facts alleged in the petitionsbring the case within the common law rule, and regardless of whether the respondents are entitled to a statutory change of venue they are entitled to have an impartial trial; therefore, the trial court erred in denying the second petition for a change of venue.

In the case of People v. White, 334 Ill. 465, 166 N.E. 100, 107, 64 A.L.R. 1006, the Supreme Court passed upon several of the questions that have been called to our attention in the instant case, and we therefore quote the language used by the Supreme Court in this decision as follows:

“The rule long established both at common law and in equity is that the Legislature may not restrict the jurisdiction of the court in contempt proceedings, but the power to punish for contempt is inherent in the court. State of Illinois v. Froelich, 316 Ill. 77, 146 N.E. 733;People v. Panchire, 311 Ill. 622, 143 N.E. 476. It has been generally held, however, that the Legislature may aid the jurisdiction or enlarge the powers of the court by declaring certain improper conduct to be a contempt of court, though the same had not been theretofore so regarded (6 R.C.L. p. 525), although it has no power to make that a contempt which in the nature of things cannot be a contempt (Puterbaugh v. Smith [131 Ill. 199, 23 N.E. 428,19 Am.St.Rep. 30], supra), or to punish crimes as such by contempt proceedings. In Cheadle v. State, 110 Ind. 301, 11 N.E. 426, 59 Am.Rep. 199, it was held that the Legislature may aid the jurisdiction of courts by declaring certain improper conduct to be contempt not theretofore so regarded. It was likewise so held in Re Clayton, 59 Conn. 510, 21 A. 1005, 13 L.R.A. 66, 21 Am.St.Rep. 128.In Re Robinson, 117 N.C. 533, 23 S.E. 453,53 Am.St.Rep. 596, and in Carter v. Commonwealth, 96 Va. 791, 32 S.E. 780, 45 L.R.A. 310, it was held that the Legislature may regulate the practice in proceedings for contempt in cases of such extended jurisdiction. This we believe to be a sound rule. Section 13 of article 2 of the City Election law [Ill.Rev.Stat.1939, c. 46, § 186] has made judges and clerks of election officers of the county court and has provided methods of procedure against them for misbehavior in office. The power to punish for contempt is not limited strictly to those matters which offend the dignity of the court or constitute abuses of its process. It has long been recognized that courts have power to punish for contempt, in certain cases, administrators, executors, guardians, masters in chancery, reporters, sheriffs, bailiffs, clerks, jurors, witnesses, attorneys, and receivers. Some of the duties of these officers are merely ministerial and they are charged with no duties that are judicial in their character, yet, where the court appoints officers to act with reference to the subject-matter committed to it for administration it is necessary that these officers be concerned with the judicial conduct of the court, and hence guilty for violation of their duties in relation to the same. Sherman v. People [210 Ill. 552, 71 N.E. 618], supra. The election judges and clerks are expressly made officers of the court. They are commissioned by the court, and they are properly held liable in summary punishment for misconduct in office.

“While it was a general rule at common law, in cases of criminal contempt, that the answer of the respondent under oath purges him of contempt (People v. McDonald, 314 Ill. 548, 145 N.E. 636), yet the contempt here considered cannot be said to be a criminal contempt as that term was understood at common law (People v. Panchire [311 Ill. 622, 143 N.E. 476], supra; Hake v. People, 230 Ill. 174, 82 N.E. 561;O'Brien v. People, 216 Ill. 354, 75 N.E. 108,108 Am.St.Rep. 219,3 Ann.Cas. 966;Buck v. Buck, 60 Ill. 105;People v. Diedrich, 141 Ill. 665, 30 N.E. 1038). That the court has power to punish its officers cannot be doubted, and, where the legislative act, as in the instant case, is one regulating the procedure before the court, the fact that it changes the procedure as it existed at common law does not render it invalid. The act providing procedure in this case is in aid, and not in limitation, of the inherent power of the court to adjudge for contempt, and the legislature in enacting it cannot be said to be trespassing upon the province of the judiciary. The method of procedure prescribed is that the cause shall be ‘tried in open court on oral testimony in a summary way, without formal pleadings.’ Under this provision it is not sufficient to purge a respondent that he file a sworn answer denying the charges of misconduct. It will be readily understood that a hearing of testimony is frequently necessary to secure the effective...