People v. Heise

• Decision Date: 20 February 1913
• Citation: 100 N.E. 1000,257 Ill. 443
• Parties: PEOPLE v. HEISE.
• Court: Illinois Supreme Court

257 Ill. 443

100 N.E. 1000

PEOPLE

v.HEISE.

Supreme Court of Illinois.

Feb. 20, 1913.

Error to Municipal Court of Chicago; William N. Gemmill, Judge.

Paul Heise was convicted of wife abandonment, and he brings error. Reversed.Thomas E. Swanson and Richard J. Cooney, both of Chicago, for plaintiff in error.

W. H. Stead, Atty. Gen., John E. W. Wayman, State's Atty., of Chicago, and D. B. Snow, of Ottawa, for the People.

COOKE, J.

Plaintiff in error, Paul Heise, was convicted in the municipal court of Chicago of the crime of wife abandonment, under section 1 of an act making it a misdemeanor to abandon and willfully neglect to provide for the support and maintenance by any person of his wife or of his or her minor children in destitute or necessitous circumstances, approved May 13, 1903, in force July 1, 1903 (Laws 1903, p. 155). After overruling motions for a new trial and in arrest of judgment, the court entered an order requiring plaintiff in error to pay his wife the sum of $8 per week for the period of one year, and plaintiff in error, having entered into the recognizance provided for by the statute, was released from custody on probation for the space of one year. Plaintiff in error has sued out a writ of error from this court to review this judgment, and numerous reasons are urged for its reversal. We deem it necessary to notice but two of the assignments of error: First, that said section 1 of the wife abandonment act is unconstitutional; and, second, that this prosecution is barred by the statute of limitations.

The section of the statute involved is as follows: ‘That every person who shall, without good cause, abandon his wife and neglect and refuse to maintain and provide for her, or who shall abandon his or her minor child or children, under the age of twelve years, in destitute or necessitous circumstances, and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not less than $100 or more than $500, or by imprisonment in the county jail, house of correction or workhouse not less than one month or more than twelve months, or by both such fine and imprisonment; and should a fine be imposed it may be directed by the court to be paid, in whole or in part, to the wife, or to the guardian or custodian of the minor child or children: Provided, that before the trial (with the consent of the defendant), or after conviction, instead of imposing the punishment hereinbefore provided, or in addition thereto the court in its discretion, having regarded the circumstances and financial ability of the defendant, shall have the power to pass an order, which shall be subject to change by it from time to time as the circumstances may require, directing the defendant to pay a certain sum weekly for one year to the wife, guardian or custodian of the minor child or children, and to release the defendant from the custody, on probation, for the space of one year upon his or her entering into a recognizance, with or without sureties, in such sums as the court may direct. The conditions of the recognizance shall be such that if the defendant shall make his or her personal appearance in court whenever ordered to do so within a year, and shall further comply with the terms of the order, then the recognizance shall be void, otherwise of full force and effect. If the court be satisfied by information and due proof, under oath, that at any time during the year the defendant has violated the terms of such order, it may forthwith proceed with the trial of the defendant under the original indictment, or sentence him or her under the original conviction, as the case may be. In a case of forfeiture of a recognizance and enforcement thereof by execution, the sum recovered may, in the discretion of the court, be paid in whole or in part to the wife, guardian or custodian of the minor child or children.’

It is contended that this statute violates nine separate provisions of the Constitution, namely, section 2 of the schedule, sections 1, 16, 17, 20, and 22 of article 4, and sections 2, 5, and 12 of article 2. These provisions of the Constitution are as follows:

Section 2 of the schedule: ‘That all fines, taxes, penalties and forfeitures, due and owing to the state of Illinois under the present Constitution and laws, shall inure to the use of the people of the state of Illinois, under this Constitution.’

Section 1 of article 4: ‘The legislative power shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both to be elected by the people.’

Section 16 of article 4: ‘The General Assembly shall make no appropriation of money out of the treasury in any private law. Bills making appropriations for the pay of members and officers of the General Assembly, and for the salaries of the officers of the government, shall contain no provision on any other subject.’

Section 17 of article 4: ‘No money shall be drawn from the treasury except in pursuance of an appropriation made by law, and on the presentation of a warrant issued by the auditor thereon; and no money shall be diverted from any appropriation made for any purpose, or taken from any fund whatever, either by joint or separate resolution. The auditor shall, within sixty days after the adjournment of each session of the General Assembly, prepare and publish a full statement of all money expended at such session, specifying the amount of each item, and to whom and for what paid.’

Section 20 of article 4: ‘The state shall never pay, assume or become responsible for the debts or liabilities of, or in any manner give, loan or extend its credit to or in aid of any public or other corporation, association or individual.’

Section 22 of article 4: ‘The General Assembly shall not pass local or special laws in any of the following enumeratedcases, that is to say: For * * * remitting fines, penalties or forfeitures.’

Section 2 of article 2: ‘No person shall be deprived of life, liberty or property, without due process of law.’

Section 5 of article 2: ‘The right of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of civil cases before justices of the peace by a jury of less than twelve men may be authorized by law.’

Section 12 of article 2: ‘No person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.’

[1] Section 2 of the schedule is clearly a saving clause inserted in the Constitution, saving to the state all fines, taxes, penalties, and forfeitures then due and owing to the state, and applies to nothing else. This statute in no wise affects any fines, taxes, penalties, or forfeitures which were due and owing to the state of Illinois at the time of the adoption of the Constitution of 1870.

[2] The ground upon which it is claimed the act violates section 1 of article 4 is that legislative power has been delegated to the courts in cases of this kind. This contention is without force. Under an indictment or an information charging a person with the crime of wife abandonment he is tried as in other misdemeanor cases, and the punishment is inflicted by the court. The Legislature has indicated the extent of the punishment, and the court is given an option whether to inflict a fine, as in other cases of misdemeanor, or to require the defendant, by way of...