delivered the opinion of the court.
This prosecution is based upon Sec. 42 of the Revenue Law, Hurd’s Stat., 1899, p. 1454, which section is as follows :
“ It shall be lawful for the board of review to summon any assessor or deputy or other person to appear before them respectively, to be inquired of under oath with respect to the method by which he or they has or have ascertained or fixed any valuation or valuations returned by him or them, and as to the correctness of any such valuation or valuations, and to administer and examine under oath the assessor or other person so summoned before them, and any assessor or person so summoned who shall fail, without good cause, to appear, or appearing shall refuse to submit to such inquiry or answer such questions as may be propounded to him by said board or any member thereof or any attorney representing them, shall be guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding $50U.”
If the counts of the indictment upon which judgment was rendered do not state an offense under this section of the law, they should have been quashed, and if not quashed, a motion in arrest of judgment should have been sustained. The indictment was returned to the Circuit Court of Union County. There is nothing in the record to show how the case came for trial in the County Court. The statute provides that when indictments are returned for offenses cou-nizable in the County Court, that they may be certified by the judge to the County Court, and gives a form of certificate under seal of the court, to be indorsed upon the indictment, showing that the case has been so certified. In the absence of a certificate of transfer, the County Court has no jurisdiction of the case. But as no point is made as to the jurisdiction of the County Court, we will assume that the case was duty transferred.
The clause of section 42 (Hurd’s Stat. 1899, p. 1454), provides a fine not exceeding $500 for the violation of the provisions of the section, and makes such violation a misdemeanor. It is therefore a penal statute, and is to be strictly construed, and not extended by implication to persons or things not expressly brought within its terms. People v. Peacock, 98 Ill. 172.
A technical objection to the indictment is urged, which we will first consider. The indictment has the following indorsement:
“ A true bill. Foreman of the Grand Jury, James T. Stafford.”
It is insisted that because the words, “ Foreman of the Grand Jury,” precede the signature of “ James T. Stafford,” instead of following the signature, that the statute, which provides that the foreman shall sign his name at the foot of the indorsement, is not complied with, and for that reason the indictment should be quashed. The object of the requirement is, that the foreman shall attest the bill as “a true bill,” and shall do so by signing his name below the words, “ a true bill.” This he has done in the case at bar. The words “ Foreman of Grand Jury,” designate his official character, and do as well immediately preceding, as following his signature.
The specific charge in the second count is, that the said board of review offered and proposed the following oath to plaintiff in error:
“ You do solemnly swear that you will true, full and perfect answers make to all questions that may be propounded to * * * by this board or by its attorney touching the ownership or value of any stock in the Anna Building & Loan Association subject to taxation in Union county, Illinois, for the year A. D. 1899, so help you God.”
And that he then and there willfully and unlawfully refused to take said oath, and thereby unlawfully and willfully refused to submit to the inquiry being made as aforesaid, contrary to the form of the statute, etc. Simplifying the charge, it is, that he refused to take the oath tendered, and thereby refused to submit to the inquiry being made. The specific allegation is a refusal to “ take the oath,” the following statement being a conclusion of the grand jury as to the effect of refusing to “ take the oath.” Befusing to take the oath is not made a misdemeanor by the statute, but “ refusing to submit to such inquiry or answer such questions,” etc., is the gist of the offense.
For all that appears in the count, plaintiff in error may have been willing to affirm, and an affirmation would have served all the purposes of an oath.
The right of a witness to affirm, instead of taking an oath, is given by statute. Sec. 4, Chap. 10, Hurd’s Stat.
It follows that the allegation of a refusal to take the oath is not broad enough to sustain the allegation that “ thereby he refused to submit to inquiries and answer questions.”
But if it were broad enough, the count would be defective. The material allegation of an indictment must be direct and positive, not argumentative and consequential. In the case at bar there is no direct averment that plaintiff in error refused to submit to inquiries, but the averment in substance is that he refused to take an oath, and that the refusal to take the oath amounted to a refusal to submit to inquiries.
In addition to this, what authority is there for indicting a witness who refuses either to affirm or be sworn ? It is not given in the statute upon which the prosecution is based, nor is it found in our criminal code; nor are we aware of any such procedure at common law. Such refusal before a court of competent jurisdiction is a contempt of court, when done in the course of a judicial proceeding, to .be summarily punished, such power being of necessity in the court in its administration of law. In re Wm. Clark, 28 L. R. A., p. 244; Com. v. Willard, 22 Pick. (Mass). 476; Cartwright’s case, 114 Mass. 238.
For the reasons assigned, the second count of the indictment should have been quashed.
Counsel for defendant in error say: “ As we understand it, the main question in the case is, whether Sec. 42 is broad enough to make the charges in the second, third and fourth counts of the indictment offenses under that section.” They also say, “ it is not a criminal statute at all;” thereby claiming that the rule as to the construction of penal statutes should not apply. We have already held that so much of Sec. 42 as defines the offense and fixes the 'penalty is a penal statute, and that said section is to be construed as penal statutes are construed. Counsel for plaintiff in error insist that neither the third nor fourth counts sufficiently state an offense under Sec. 42. Both parties then agree as to what the main question is in this case.
This requires a construction of said section, with reference to what examination or investigation is referred to in said section. Analyzing the section, it is as follows:
“ The board of review may summon any assessor, or deputy, or other person, to be inquired of under oath, with respect to the method by which he or they have ascertained or fixed any valuation or valuations returned by him or them, and to administer and examine under oath the assessor or other person so summoned, and any assessor or person so summoned who shall fail to appear,” etc.
It is not alleged in the third or fourth counts that any return, of the method by which any valuation, or the correctness of any valuation, was being investigated, when the offenses charged against plaintiff in error are alleged to have been committed. It is insisted that unless a return by some person or corporation was being inquired into, or the method by which a valuation was made, or the correctness of the valuation, was being investigated, the penalty provided in Sec. 42 does not apply.
If this is true, a failure to aver these conditions in the indictment is fatal, as without them, no offense under the section was committed. The words of the first part of section 42 authorize the board of review to summon “ any assessor or deputy, or other person, to appear before them, to be inquired of under oath,” (for what purpose) “ with respect to the method by which he or they has or have ascertained and fixed any valuation or valuations returned by him or them, and as to the correctness of any such valuation or valuations.” By the terms used, the purpose oí the inquiry is clearly limited to two things, namely: first, to inquire as to the method by which the assessor, his deputies or other persón, fixed a valuation returned by him or them; and, second, to inquire as to the correctness of said valuation so returned. There must, then, have been a valuation returned before the method by which the valuation was fixed, or before its correctness could be inquired into. This is a condition precedent, before the board of review, under this section, is authorized to summon witnesses and require them to answer questions. It is not claimed that this condition precedent is alleged in either the third or fourth count of the indictment upon which plaintiff in error was convicted. Neither return nor valuation, nor method of valuation, was alleged to be under investigation. The sole purpose of the inquiry, as shown by the terms of the indictment in each count, and by the oath tendered in the second count, was to ascertain generally who were stockholders, owning “ free ” stock in a certain building and loan association. The offense charged in the third and fourth counts is, in effect, a refusal to answer who were owners of certain property in Union county, when no return involving the ownership of said property, or the correctness of its valuation, or the method of its valuation, was under investigation.
In other words, it is charged that the section is violated and an offense committed, where the board of review seeks to make a witness a drag net or informer as to the ownership of property, when no return of an assessment or of a valuation, or of a method of valuation of such property is before such board. This construction of the statute is not warranted by its terms, or by fair implication.
We conclude, then, that for the reason aforesaid, the second, third and fourth counts of the indictments should have been quashed, and that the motion in arrest of judgment upon each of the counts upon which there was a conviction should have been sustained. Judgment reversed.