Halpin v. Scotti

• Decision Date: 21 April 1953
• Docket Number: No. 32718,32718
• Citation: 112 N.E.2d 91,415 Ill. 104
• Parties: HALPIN v. SCOTTI.
• Court: Illinois Supreme Court

Page 91

112 N.E.2d 91

415 Ill. 104

HALPIN v. SCOTTI.

No. 32718.

Supreme Court of Illinois.

April 21, 1953.

Rehearing Denied May 19, 1953.

Latham Castle, Atty. Gen. (Ben W. Heineman and Joseph D. Block, both of Chicago, of counsel), for appellant.

George M. Crane and Lawrence A. Berman, both of Chicago, for appellee.

HERSHEY, Justice.

November 21, 1952, the circuit court of Cook County denied the petition of C. E. Halpin, as Director of Revenue of the State of Illinois, to compel appellee, Salvatore A. Scotti, to answer certain questions propunded to him in an investigation then being conducted under section 10 of the Illinois Cigarette Tax Act. Ill.Rev.Stat.1951, chap. 120, par. 453.10. Appellant, Halpin, sought to compel Scotti to answer said questions by invoking the immunity provisions of section 10a of the act. It is asserted that the reason for the court's denial of the petition to compel appellee to answer said questions was that the statute relied upon was unconstitutional, hence the appeal is brought here directly.

On November 28, 1951, C. E. Halpin appointed one Ben W. Heineman as an investigation officer of the Department of Revenue to conduct an investigation pursuant to section 10 of the Illinois Cigarette Tax Act. The purpose of the investigation was to determine what improvements should be made in connection with the collection of the tax imposed by the act, the enforcement of its various provision, and the rules and regulations of the Department, to the end that the repetition of a recent counterfeiting of tax-meter impressions might be prevented. He was also directed to inquire into the extent to which counterfeiting of tax-meter improssions had been carried on in Illinois, and the extent to which such activity had been conducted by licensed and unlicensed distributors and jobbers.

In the course of the investigation the Department issued a subpoena, pursuant to section 10 of the act, commanding appellee to appear before the Department, and served the same upon him. Upon his appearance, Heineman asked him various questions which he refused to answer, claiming his constitutional privilege against self incrimination. Thereafter, on February 29, 1952, Halpin, pursuant to section 7 of the act, Ill.Rev.Stat.1951, chap. 120, par. 453.7, filed a sworn petition in the circuit court of Cook County seeking an order compelling appellee to answer the questions put to him by the Department of Revenue. The petition set forth the above facts and the applicable provisions of section 10a, purporting to give appellee immunity from any criminal penalty on account of any testimony he might give. The petition sought the attendance of the appellee on March 5, 1952. Summons was issued on March 3 Returnable on April 7 or April 21, 1952. Appellee was served March 7, 1952. No answer or pleading was filed to this petition on the return day or at any other time. Thereafter, appellee was personally served with a notice that on November 21, 1952, the appellant would present a motion for entry of an order in accordance with the prayer of the petition. Appellee appeared through his attorney and argument was hed before the presiding judge. The court denied the petition. Appellant then moved to vacate the order denying the petition and to compel appellee to answer specific questions. That motion was also denied by the circuit court.

Appellee contends that no constitutional question is presented by this appeal, and hence the jurisdictional requirements necessary for a direct appeal are not met. An examination of the record pesented here completely refutes appellee's contentions. Throughout the course of the argument before the court on the petition, the appellee continually attacked the immunity provision of the act as unconstitutional, while peitioner sought to sustain its validity. Moreover, the express reason given by the court for its denial of the petition was that the act was unconstitutional, as evidenced by the following statement:

'If the statute is as you contend it is, namely, all inclusive, that this person may be made to testify against himself or anybody else involuntarily, it is unconstitutional.' In response to appellant's further question the court affirmed that such was its holding. Clearly, the constitutionality of section 10a of the act was presented to the trial court and that issue determined. The appeal is properly before this court. Ill.Rev.Stat.1951, chap. 110, par. 199; People ex rel. Farwell v. Kelly, 367 Ill. 616, 12 N.E.2d 612.

Section 10 of article II of the Illinois constitution provides that 'No person shall be compelled in any criminal case to give evidence against himself'. No substantive difference appearing between this provision and the like provision in the fifth amemdment to the United States constitution, the provisions may be construed alike and United States Supreme Court decisions construing the fifth amendment are authoritative in construing the similar provision of our constitution. People v. Grod, 385 Ill. 584, 53 N.E.2d 591. Appropriately drafted immunity statutes have always been held valid both under the United States and Illinois constitutions. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; People ex...