People v. Bowen

• Decision Date: 15 April 1941
• Docket Number: No. 25947.,25947.
• Citation: 33 N.E.2d 587,376 Ill. 317
• Parties: PEOPLE v. BOWEN.
• Court: Illinois Supreme Court

376 Ill. 317

33 N.E.2d 587

PEOPLE

v.BOWEN.

No. 25947.

Supreme Court of Illinois.

April 15, 1941.

Error to Circuit Court, Kankakee County; J. V. Bartley, Judge.

Archie Leonard Bowen was convicted of violating Smith-Hurd Stats. c. 38, § 449, penalizing a person holding any public office who shall be guilty of any palpable omission of duty, and he brings error.

Reversed.Stone & Taylor, of Bloomington, Harold F. Trapp, of Lincoln, and John A. Mayhew, of Kankakee, for plaintiff in error.

John E. Cassidy, Atty. Gen., Samuel H. Shapiro, State's Atty., of Kankakee, A. B. Dennis, of Springfield, and Victor Lauridsen, of Kankakee, for defendant in error.

SHAW, Justice.

Archie Leonard Bowen, then director of the Department of Public Welfare of the State of Illinois, was indicted by a special grand jury in the circuit court of Kankakee county for the alleged violation of section 208 of the Criminal Code. Ill.Rev.Stat.1939, chap. 38, par. 449. This act provides a penalty of a fine not exceeding $10,000 and removal from office for every person holding any public office, who shall be guilty of any palpable omission of duty, etc. It was charged that the plaintiff in error failed to take proper measures to render the drinking water at the Manteno State Hospital fit for drinking purposes and that, by reason thereof, an epidemic of typhoid fever occurred, resulting in many serious illnesses and deaths. The cause was first heard by a jury which failed to agree. The second trial was before the court without a jury and, by stipulation, was had upon a transcript of the same evidence which had been heard by the jury in the first trial. The court found the defendant guilty, imposed a fine of $1,000 and removed him from his office as Director of the Department of Public Welfare, and that is the judgment reviewed by this writ of error.

The plaintiff in error makes a number of contentions, only one of which needs to be considered. He urges (1) that the evidence is insufficient to sustain the judgment, (2) that the statute under which he was indicted is unconstitutional, (3) that the venue was improperly laid in Kankakee county, and (4) that the grand jury which indicted him was illegally selected. A consideration of the first point only disposes of the case.

It is to be noted at the very outset that Bowen is not a doctor, bacteriologist, nor any kind of a scientist, and that for such technical matters he was dependent upon the advice of the doctors in the Department of Public Health. He started in life as a newspaper man, having been born in 1869, and is now seventy-two years of age. From newspaper work he went into public charitable work and thereafter into supervising State charitable institutions, in which capacity he served under five Governors, namely, Dunne, Deneen, Lowden, Emmerson and Horner. He served the State of Illinois from 1909 to 1921 and again from 1929 until 1940. Since 1909, he has served under every Governor except Governor Small, and his original commission was obtained under the Civil Service Law.

At the time of the unfortunate events at Manteno State Hospital, which are hereinafter set forth, Bowen's duties were very extensive. The Department of Public Welfare, of which he was in charge, had more than ten thousand employees under his direction and supervision and these, in turn, had direct supervision over the following State Institutions: Ten Insane Hospitals, with 32,000 patients, five penal institutions with 14,000 inmates, two institutions for juvenile research, two schools for technical education of the blind and deaf, three institutions for veterans, an infirmary in Chicago, treating 350,000 patients per year, five clinics for control of trachoma, treating 4,000 to 5,000 patients per year, a division of child welfare, the State Board of Pardons and Paroles, with supervision of all paroled prisoners during their period of rehabilitation, and the division of old age assistance, caring for approximately 138,000 pensioners. Without any effort at a detailed statement of the entire record, it is apparent from a mere recital of the foregoing facts, that the Manteno State Hospital could not have been expected to receive more than a small portion of the time of the director and the appropriations for the department.

The first case of typhoid fever at the Manteno State Hospital occurred in July, 1939, which was approximately the period of incubation for the typhoid bacillus, after the admission of one Mary Ores, whose case will be noted later in this opinion. The next case was on or about August 15, 1939, and others followed swiftly thereafter until a total of 411 cases had developed. Nothing out of the ordinary, in the way of an epidemic, took place prior to August 15, 1939, at which time Bowen was taken rather desperately sick with a streptococcus infection, and, for several weeks and during the height of the epidemic, was so far disabled as to not know, except by hearsay, during part of the time, as to what the Department of Health was doing at the Manteno State Hospital.

It was the theory of the People that the epidemic was caused by pollution of the drinking water at the hospital, which came from four deep wells. The record indicates that the terrain at that place is underlaid with a creviced niagaran limestone, which is of such a character as to permit the subsurface drainage of water to get through without being filtered. There were four wells, varying in depth from 227 feet to 1,760 feet, and these were cased from the surface of the ground to varying depths. It is a further theory of the People that sewage escaped from the sewage disposal system of the hospital and, percolating through this creviced limestone, entered the various wells and thereby caused a pollution which brought about the epidemic of typhoid. It is contended that it was the defendant's duty to have a chlorinating plant installed, or by some other means to have prevented this alleged contamination. In this connection, it is to be noted that it was neither alleged nor proved that the defendant had any authority to expend the necessary eight or ten thousand dollars for a chlorination plant, nor that the Department of Health of the State of Illinois had ever recommended it.

It appears from the record that the State Department of Health has laboratories at Springfield, which regularly, at approximately monthly intervals, examines samples of drinking water from the various State institutions, and that this department has a series of stock-form recommendations numbered from 1 to 14 which are stamped on the back of the reports sent to the various institutions. These analyses of drinking water are made by chemists or bacteriologists and not by doctors nor by any one qualified to express any medical opinion. It seems that the routine procedure is for the examiner, who is sometimes a...