Bruni v. Department of Registration and Ed.
| Decision Date | 31 October 1972 |
| Docket Number | No. 55275,55275 |
| Citation | 8 Ill.App.3d 321,290 N.E.2d 295 |
| Parties | Dr. Giulio BRUNI, Plaintiff-Appellee, v. The DEPARTMENT OF REGISTRATION AND EDUCATION of the State of Illinois et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
William J. Scott, Atty. Gen., Chicago, for defendants-appellants; Francis T. Crowe, Roy L. Mondike, Asst. Attys. Gen., of counsel.
John M. Bowlus, Russell Woody, Chicago, for plaintiff-appellee; Cotton, Watt, Jones, King & Bowlus, Chicago, of counsel.
This is an appeal from three orders entered in an administrative review proceeding. The first, on May 18, 1970, vacated a dismissal for want of prosecution. The second, on May 25, 1970, reversed defendants' revocation of plaintiff's license to practice medicine. The third, on June 30, 1970, enjoined defendants from interfering with plaintiff's right to practice medicine. The issue is whether the trial judge erred in entering these orders.
On April 15 and May 6, 1965, plaintiff Dr. Giulio Bruni, was convicted in two United States courts of offenses against federal conspiracy and counterfeiting statutes. He was given two concurrent terms of five years imprisonment and ordered to pay a fine of $10,000. On June 22, 1966, at the conclusion of administrative proceedings, defendants, Department of Registration and Education and members of its Medical Examining Committee, found these convictions to be felonies and revoked plaintiff's license to practice medicine in Illinois. Plaintiff then filed a complaint for administrative review of the revocation order. On August 11, 1966, he applied for and obtained a stay of the revocation. A little more than three months later, on November 22, plaintiff entered a federal penitentiary to serve his sentences. In December 1966, his lawyer died. In June 1968, because of the stay order, plaintiff's license to practice medicine was renewed for the period ending July 1, 1970. In the meantime, plaintiff's administrative review complaint remained pending. Then, in a series of publication days (February 10, 11, 13, 14 and 17, 1969) as part of the circuit court trial call, notice was published in the Chicago Daily Law Bulletin that the complaint would be called for trial on February 17, 1969. Neither plaintiff, because he was in prison, nor his lawyer, because he was dead, responded to the call. Plaintiff's complaint was dismissed for want of prosecution. Notice was sent to the attorney who had died in December 1966.
On October 13, 1969, plaintiff was paroled. He returned to Chicago and resumed the practice of medicine. In January 1970, he discovered the dismissal of his administrative review complaint. He sought the advice of a new lawyer who, on April 22, 1970, pursuant to section 72 of the Civil Practice Act, 1 filed a petition to vacate the dismissal. The petition was allowed. Defendants contend this was error.
A petition under section 72 of the Civil Practice Act invokes the equitable powers of the court to the end that a litigant's opportunity to be heard is not unjustly denied. (Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348.) The petition is addressed to the trial court's sound discretion and its ruling will be reversed only on a showing that the discretion was abused. Goldman v. Checker Taxi Co., 84 Ill.App.2d 318, 228 N.E.2d 177.
In this case, while he was in a federal prison away from Chicago, and after his lawyer of record was dead, plaintiff's complaint was dismissed on notice published in a Chicago Law Bulletin. During hearing of the petition to vacate, the trial judge observed that existence of the order staying revocation of plaintiff's license and the later renwal of his medical license were factors which had to be considered in determining whether plaintiff was diligent in ascertaining the status of his complaint for administrative review after he was paroled. The trial court found that plaintiff had acted with diligence. We hold that it did not abuse its discretion when plaintiff's petition to vacate was allowed. The cases which defendants cite do not warrant a different conclusion.
After plaintiff's complaint was reinstated, the trial judge heard the parties, conducted an administrative review and reversed defendants' revocation of plaintiff's license to practice medicine in Illinois. Defendants contend this was error. They argue that in 1965 plaintiff suffered felony convictions in two courts of the United States. They point out that under section 16a, subd. 2 of the Medical Practice Act, 2 conviction of a felony was a ground for revocation of plaintiff's license to practice medicine; and that in 1967, this section was amended to provide that one of the grounds for revocation of an Illinois medical license was conviction of a felony in a federal court. 3 Defendants insist that under the statute as it existed in 1965, Illumined retrospectively by the 1967 amendment, each of plaintiff's convictions in the two United States courts was a 'conviction of a felony' which authorized the license revocation they ordered after the 1966 administrative proceedings. Therefore, defendants conclude, the trial court erred in reversing their revocation of plaintiff's license to practice medicine.
Plaintiff contended in the trial court, and contends before us, that in 1965, conviction of a federal felony was not a ground for revocation of a license within the meaning of section 16a, subd. 2 of the Illinois Medical Practice Act unless the federal crime was also a felony under Illinois law. Plaintiff argues that the trial court ruled correctly in determining that the 1967 amendment to the Medical Practice Act could not retrospectively validate revocations which occurred prior to its enactment. Therefore, plaintiff concludes, the order that reversed defendants' revocation of his license must be affirmed. These contentions require us to decide, in a case of first impression, whether, in 1965, a federal felony conviction was ground for revocation of an Illinois medical license even though the federal crime was not a felony in Illinois.
The grade of an offense is determined by the law of the jurisdiction where the crime is committed. (State ex rel. Anderson v. Fousek, (1932) 91 Mont. 448, 8 P.2d 791, 793; State ex rel. Beckman v. Bowman, (1930) 38 Ohio App. 237, 175 N.E. 891.) Plaintiff was convicted of counterfeiting and conspiracy to violate federal counterfeiting statutes, 4 each offense a felony as that term is construed by federal courts. See Giammario v. Hurney, 311 F.2d 285, 287 (3d Cir.1962). The federal classification of this offense is consistent with history. In early English law, counterfeiting was treason, an infamous crime punishable by death. Perkins, Criminal Law 10, 356 (2d Ed.1969). In the Illinois criminal codes, from 1874 until 1961, counterfeiting was a felony, an infamous crime. (Moore's Criminal Law Secs. 3 and 573 (2d ed. 1890); Ill.Rev.Stat.1874, ch. 38, pars. 111, 279; Ill.Rev.Stat.1959, ch. 38, pars. 283, 587.) Despite its recognition as an Illinois crime, counterfeiting is principally an offense against the federal government in its function as the issuer of money. Although variants of counterfeiting are found in state criminal codes, counterfeiting is essentially a federal crime. See Fox v. Ohio, 5 Haw. 410, 46 U.S. 410, 12 L.Ed. 213 (1847). For this reason, it is understandable that in 1961, without explanation, counterfeiting was omitted from the Illinois Criminal Code. See S.H.A., ch. 38, § 17--3, Committee Comments. This omission, however nice its history, does not require us to decide the status of counterfeiting in the law of Illinois in 1965. 5 Our decision involves the construction of a statute.
In 1965 when plaintiff was convicted of counterfeiting in the federal courts, section 16a, subd. 2 of the Illinois Medical Practice Act provided that 'conviction of a felony' was a ground for revocation of a license to practice medicine. 6 There was no qualification that for revocation purposes a conviction outside Illinois was to be treated differently than one within. The unrestricted language of the statute conveyed the meaning that a conviction outside of Illinois was grounds for revocation of a license to practice medicine even though the offense involved was not a felony in Illinois. Then in 1967, the legislature amended section 16a, subd. 2 to provide that a license could be revoked for '(c)onviction in this or another State of any crime which is a felony under the laws of this State or conviction of a felony in a federal court * * *.' This language recognizes that conviction of a crime can be a felony in one state and a misdemeanor in Illinois. 7
It is an established rule that in ascertaining the meaning of a statute, where no provision aids its construction, recourse may be had to the language of subsequent acts of the same lawmaking body. (People ex rel. Malone v. Mueller, 328 Ill.App. 593, 611, 66 N.E.2d 516; Compare People ex rel. Holland Coal Co. v. Isaacs, 22 Ill.2d 477, 176 N.E.2d 889.) This rule has a corollary principle: that in ascertaining legislative intent of statutory language, '(t) he whole record of the legislature, including acts passed at subsequent sessions, is open to ascertain such intent and, once ascertained, it will be given effect irrespective of priority of enactment.' Radford v. Cosmopolitan National Bank of Chicago, 52 Ill.App.2d 240, 246, 201 N.E.2d 622, 625; see Gregory v. County of LaSalle, 91 Ill.App.2d 290, 234 N.E.2d 66.
When this rule and its corollary are applied to the facts of this case, it appears that by the 1967 amendment the legislature made it clear that conviction of a crime in another state was ground for revocation of a license to practice medicine only if that crime is a felony in Illinois. But as to a 'conviction of a felony in a federal court' there was no requirement that the offense be...
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