People ex rel. Rusch v. Cunningham

• Decision Date: 05 February 1941
• Docket Number: Gen. No. 40896.
• Citation: 31 N.E.2d 369,308 Ill.App. 63
• Parties: PEOPLE EX REL. RUSCH v. CUNNINGHAM ET AL.
• Court: United States Appellate Court of Illinois

308 Ill.App. 63

31 N.E.2d 369

PEOPLE EX REL. RUSCH

v.CUNNINGHAM ET AL.

Gen. No. 40896.

Appellate Court of Illinois, First District, First Division.

Jan. 20, 1941.

Rehearing Denied Feb. 5, 1941.

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

Proceeding by the People, on the relation of John S. Rusch, against Margaret Cunningham and others. Respondents were found guilty of contempt of court for alleged misbehavior as primary election judges or clerks, and were sentenced to various terms in jail, and they appeal.

Reversed and remanded, with directions. Simon Herr and Mayer Goldberg, both of Chicago, for appellants.

Thomas J. Courtney and John F. Cashen, Jr., both of Chicago, for appellee.

MATCHETT, Justice.

The respondents, who April 12, 1938, served as judges and clerks of election in the 58th precinct of the 24th Ward of Chicago, have been tried and found guilty of contempt of court for alleged misbehavior as such primary judges or clerks. See Laws of 1927, p. 459, § 17; Smith-Hurd Ann.Stats. ch. 46, par. 381, p. 709; Ill.State Bar Stats.1939, ch. 46, § 17, par. 381. Pallard, who acted as Republican judge, was sentenced to serve one year; Mrs. Cunningham and Feinberg, Democrat judges, were sentenced to serve six months; and Frish and Ebert, Democrat and Republican clerks, respectively, were sentenced to serve three months, all in the county jail. They appeal and with other alleged errors argue that the trial judge by reason of personal interest was disqualified from hearing the charges against them. Because of one of the points argued in the briefs the decision of this case has awaited the decision of the Supreme Court in Stockholm v. Daly, 374 Ill. 441, 29 N.E.2d 1010.

When first arrested respondents joined in a petition for a change of venue under the statute. Ill.State Bar Stats.1939, ch. 146, § 17. Their prayers were denied. This court has held in a number of cases that the act is not applicable. The Supreme Court in some of these has denied leave to appeal. People ex rel. Rusch v. Williams, 292 Ill.App. 228, 11 N.E.2d 37;People ex rel. Rusch v. Savaiano, 293 Ill.App. 515, 13 N.E.2d 81;People ex rel. Rusch v. Sulli, 296 Ill.App. 639, 16 N.E.2d 174;People ex rel. Rusch v. Freedman, 297 Ill.App. 73, 17 N.E.2d 332, and People ex rel. Rusch v. Levin, 305 Ill.App. 142, 26 N.E.2d 895.

Thereafter, respondents made a motion for the assignment of the cause to another upon the ground of disqualification of the trial judge. The briefs of the People argue this motion as if it were a second application for change of venue under the statute. It is not. The theory of the motion was that irrespective of the statute the cause should be assigned to another because the trial judge was disqualified under the rules of the common law and as a matter of common right, because he was a candidate at the primary concerning which these respondents were accused. The fact that the legislature did not see fit to make the change of venue statute applicable does not necessarily deprive respondents of their right to have the accusation against them heard by a qualified judge. This is more apparent if we reflect that § 17 dispenses with formal pleadings and with trial by jury.

In 1701, Lord Holt said: “If an act of Parliament should ordain that the same person should be party and judge, or which is the same thing, judge in his own cause, it would be a void act of Parliament.” 12 Mod.Reps. 688.

In Medlin v. Taylor, 101 Ala. 239, 13 So. 310, Medlin filed a petition for a writ of mandamus directed to Taylor, who was judge of the Probate Court of his county, to compel him to hear a case involving the contest of an election to the office of tax collector of the county. Taylor refused to hear and determine the same for the reason that he (Taylor) and the contestee, who was one Esslinger, were candidates at the same election--Esslinger for the office of tax collector and Taylor for the office of probate judge. Taylor's election was at the time being contested before the judge of the Circuit Court upon grounds, causes and for reasons similar to the reasons specified by Medlin in his contest against Esslinger. A rule nisi was entered, and upon the coming in of the respondent he demurred to the petition on two grounds; first, that it appeared therefrom that he was “for legal cause incompetent,” and, secondly, because in the jurisdiction with which by law he was clothed Judge Taylor had entered a judgment declaring his incompetency. The court said: “That Judge Taylor did not have a disqualifying interest in the result of the case, within the provisions of our constitution and statutes, is virtually confessed in the argument of counsel and cannot be doubted. To come within these inhibitions the interest must be a pecuniary one to be affected by the judgment in the particular case, and not merely an interest, pecuniary or other, in the question involved, but not in the result of the particular case, and which, though not precluded by the judgment therein, may be affected by the ‘general operation of law on the status fixed by the decision.’ Judge Taylor not only had no pecuniary interest in the result of this contestation, but he had no interest whatever that could be affected by any possible termination of the issues involved. * * * It is the opinion of the court, however, that under the doctrines of the common law, aside from our constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, in the nature of things,--such a bias in favor of one of the parties to the case,--as disqualified him to hear and determine the same, and justified his action in declining so to do. Gill v. State, 61 Ala. 169,...