specially concurring in part and dissenting in part:
I agree that the Appellate Court had jurisdiction under Rule 609(c) to stay the order of the circuit court, and that such stay order encompassed the ousters from office. However, I disagree with the majority opinion insofar as it may be thought to imply that a “conviction” of official misconduct (Ill. Rev. Stat. 1969, ch. 38, par. 33 — 3) means final disposition of the case, including appeals, rather than conviction in the trial court.
The majority- distinguishes People ex rel. Keenan v. McGuane, 13 Ill.2d 520, on the basis that infamous crimes-are máluwí in se, while violations of section 33 — 3 (official misconduct) are malum prohibitum. The conclusion apparently drawn from this distinction is that the public policy considerations expressed in Keenan, and relied upon here by petitioner, are of less consequence when an elected official is convicted of official misconduct than when he is -convicted of an infamous crime. It is anomalous, in my judgment,-to hold that conviction of official misconduct, an offense specifically directed at malfeasance añd nonfeasance by an incumbent in his official capacity, is any less destructive of public confidence in elected officials than .an infamous crime conviction of which may or may not reflect a dereliction of official duty. The legislature has accordingly provided that forfeiture of office is a consequence of a section 33 — 3 conviction as well as of an infamous crime conviction- and, absent evidence of a contrary intent, “conviction” should; be similarly construed in both instances to mean conviction at the trial court level. See Annot. (i960), 71 A.L.R. 2d 593.
Both logic and the weight of authority compel the conclusion that forfeiture of office is an inevitable and irreversible consequence of the convictions. (43 Am. Jur. (1942) Public Officers, § 200; Annot. (1937), 106 A.L.R. -644; See Keenan.) Neither the stay order, nor even eventual reversal of the convictions, can prevent the forfeitures. The statutorily prescribed forfeiture is not a punishment, which may be retracted or reversed along with the conviction, but rather it is an implementation of public policy, borne of the need to-maintain public confidence in public officers and assure continuity and stability in the function of public bodies. And this, L believe, is the clear import of Keenan. (Keenan, 13 Ill.2d 520, 536-7; State v. Twitchell, 59 Wash. 2d 419, 367 P.2d 985, 992, and cases cited therein; Annot. (1960), 71 A.L.R. 2d 593, 600.) While-the stay order here cannot, in my opinion, have any effect upon the forfeitures, which "are faits accomplis, I do believe that in the circumstances here present the order may properly hold the ousters in abeyance.
The levee district consists of a substantial and rather complex municipal operation. It is governed by a five-man board of trustees, four of whom would be ousted from office were it not for the stay order. The legislature has provided no method whereby the board could be immediately returned to its full complement, nor have petitioners here suggested any question-proof means of governing the operation of the district pending the statutorily required election of new trustees. (Ill. Rev. Stat. 1969, ch. 42, par. 251.) Thus the policy of preserving public confidence in elected officials conflicts with the doctrine that the law abhors forfeitures and the attendant disruption in the functioning of public bodies. (See 67 C.J.S. (1950), Officers, § 50.) I believe the reasonable effect of the stay order is to hold the ousters in abeyance until lawfully elected successors are available at which time an automatic transition of powers will occur.
In this connection it is pertinent to note that the Governor has authority by statute to determine that “vacancies” exist on the board of trustees, for the purpose of calling a special election. (Ill. Rev. Stat. 1969, ch. 46, par. 25 — 3, and ch. 42, par. 251; see, also, ch. 46, par. 25 — 2, and ch. 38, par. 33 — 3; People ex rel. Comerford v. Miller, 314 Ill. 474; People ex rel. Dever v. Sweitzer, 314 Ill. 330; People ex rel. Anderson v. Czarnecki, 312 Ill. 271.) Since the forfeitures here occurred as of the time of the trial court convictions, and are irreversible, the order staying the ousters would not appear to alter the fact that, for special election purposes, vacancies exist in the offices. It is not necessary that the vacancy underlying a special election be a corporal vacancy in the literal sense. Greening v. Barnes, 355 Ill. 99; People v. Pillman, 284 Ill. App. 287; 67 C.J.S. (1950), Officers, §§ 50-53; 42 Am. Jur. (1942), Public Officers,
In the final analysis, the effect of the stay order here is to delay the inevitable ousters until the prospect of chaos in the district is avoided. Notwithstanding the purport of the order to stay the ousters pursuant to section 33 — 3 until after final disposition on appeal, the qualification of successors lawfully chosen in a special election should, as I see it, bring about the ousters automatically by virtue of the successors’ clearly superior rights to office. (Cf. Greening v. Barnes, 355 Ill. 99.) Thus, while I would find it preferable for the stay order to expressly provide that its effect upon the ousters expires upon the qualification of successor trustees, I anticipate that the same result will obtain under the stay order as issued.
Accordingly, I concur in the conclusion of the majority that a writ of prohibition should not issue, but for the reason that it is unnecessary, rather than inappropriate.
Mr. Justice Davis joins in this special concurrence and dissent.