People ex rel. Rusch v. Fusco

• Decision Date: 15 September 1947
• Docket Number: No. 29440.,29440.
• Citation: 397 Ill. 468,74 N.E.2d 531
• Parties: PEOPLE ex rel. RUSCH v. FUSCO et al.
• Court: Illinois Supreme Court

397 Ill. 468

74 N.E.2d 531

PEOPLE ex rel. RUSCH

v.FUSCO et al.

No. 29440.

Supreme Court of Illinois.

March 19, 1947.

As Modified on Denial of Rehearing Sept. 15, 1947.

Appeal from Third District Appellate Court, First District, on Appeal from the Cook County Court; Edmund K. Jarecki, Judge.

Proceeding by the people of the State of Illinois on the relation of John S. Rusch against Sylvia Fusco and others, charging defendants with contempt of court in knowingly and fraudulently permitting and acquiescing an permitting the commission of various illegal acts at the polls at a primary election. From a judgment of the Appellate Court, 327 Ill.App. 217, 63 N.E.2d 672, reversing a judgment of the county court of Cook county finding defendants guilty of contempt and committing them to the county fail for one year, the relator appeals.

Judgment of Appellate Court affirmed.

STONE and WILSON, JJ., dissenting.

William J. Tuohy, State's Atty., of Chicago (John F. Cashen, Jr., of Chicago, of counsel), for appellant.

Walter Hamilton, of Chicago, for appellee Harold L. Winget.

GUNN, Chief Justice.

Respondents, Sylvia Fusco, Harold L. Winget, Bertha Black, Eunice Goodwin and Mary V. Varhol, as judges and clerks of election, were cited for contempt in the county court of Cook county under the provision of section 14-5 of the Election Code (Ill.Rev.Stat.1945, chap. 46, par. 14-5), which, among other things, provides that such election officers are officers of the court, ‘ and shall be liable in a proceeding for contempt for any misbehavior on their office, to be tried in open court on oral testimony in a summary way, without formal pleadings, but such trial or punishment for contempt of court shall not be any bar to any proceedings against such officers, criminally, for any violation of this act.’

The petition for contempt charged that, in a certain primary election, (1) such persons knowingly, fraudulently and unlawfully made a false canvass of the votes cast in the election; (2) unlawfully permitted and acquiesced in permitting the filing of false applications to vote; and (3) unlawfully permitted and acquiesced in permitting false ballots to be cast in said election.

A hearing was had before the county court, and all of said defendants were found guilty of contempt, and each committed to the county jail for a period of one year. The cause was appealed to the Appellate Court for the First District, and that court, upon consideration of all of the evidence, found there was no evidence to show that the defendants, or any one of them, were guilty of the acts charged, and accordingly the judgment of the county court of Cook county was reversed. We have granted an appeal to this court.

The issue presented here is rather narrow. We have repeatedly held that a contempt proceeding under said section 14-5 is a proceeding for civil contempt, (People ex rel. Rusch v. Kotwas, 363 Ill. 336, 2 N.E.2d 314;People ex rel. Rusch v. Singer, 364 Ill. 480, 4 N.E.2d 823;People ex rel. Rusch v. White, 334 Ill. 465, 166 N.E. 100, 64 A.L.R. 1006) and that under the Civil Practice Act a case must be removed to this court by petition for appeal and not by writ of error, and that if writ of error is used the appeal will be dismissed. People ex rel. Rusch v. Kotwas, 363 Ill. 336, 2 N.E.2d 314;People ex rel. Rusch v. Ford, 363 Ill. 340, 2 N.E.2d 316;People ex rel Rusch v. Greenzeit, 363 Ill. 347, 2 N.E.2d 317. It has been held many times that in a charge for civil contempt the respondents must be shown guilty by at least a preponderance of the evidence. Flannery v. People, 225 Ill. 62, 80 N.E. 60;McBride v. People ex rel. Goodman Manufacturing Co., 225 Ill. 315, 80 N.E. 306; 49 A.L.R. 978. If it is a criminal contempt the evidence must establish the guilt of the defendants beyond a reasonable doubt (People v. Spain, 307 Ill. 283, 138 N.E. 614), but since we have so many times held that a proceeding of this character here involved is a civil contempt it is sufficient if the guilt of the respondents be established by a preponderance of the evidence.The Appellate Court made a number of specific findings of fact, and, without enumerating the same at length, among other things it was found that the ‘Respondents are charged with unlawfully permitting and acquiescing in permitting the filing of false applications; unlawfully permitting and acquiescing in permitting false ballots to be cast; and unlawfully making a false canvass. The first two charges involve intentional omissions, and the last, intentional acts of misconduct. Under the charge, guilty knowledge and intention are necessary elements in the case. It is conceded that some person was guilty of misconduct at the polls. The record does not show when, where or by whom the offense was committed. There is nothing to show that the acts were committed in the sight or hearing of the respondents, or that any of them were aware of what took place.’

This finding raises the question as to whether this court has any power to review the evidence on the contention of the petitioners that the evidence is sufficient to show the respondents are guilty. Section 89 of the Civil Practice Act (Ill.Rev.Stat.1945, chap. 110, par. 213) provides: ‘If any final determination of any cause or proceeding tried without a jury, except as to equitable issues, shall be made by the Appellate Court, as the result wholly or in part of the finding of the facts, concerning the matter in controversy, different from the finding of the court from which such cause or proceeding was brought by appeal, it shall be the duty of such Appellate Court to indicate in its opinion or in its final order, judgment or decree, the facts as found; and the statement of such facts by the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause or proceeding’

There can be no doubt that the Appellant Court found specifically as to each of the respondents that there was not proof sufficient to show their guilt. If the proceeding here before us is a civil proceeding then we are bound by the finding of the Appellate Court. Davis v. Chicago Edison Co., 195 Ill. 31, 62 N.E. 829;Berkowitz v. Chicago Terminal Transfer Railroad Co. 234...