{
  "id": 2969552,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS OR THE CITY OF HARRISBURG, Plaintiff-Appellee, v. WALTER J. KOETZLE, Defendant-Appellant",
  "name_abbreviation": "People v. Koetzle",
  "decision_date": "1976-07-22",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS OR THE CITY OF HARRISBURG, Plaintiff-Appellee, v. WALTER J. KOETZLE, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal by defendant, Walter J. Koetzle, from a judgment entered by the circuit court of Saline County, pursuant to a jury verdict, finding him guilty of driving under the influence of intoxicating liquor and sentencing him to eight months\u2019 imprisonment.\nOn appeal defendant contends that: (1) his conviction should be reversed because the complaint in the instant case charged him with a State offense while he was actually prosecuted under a municipal ordinance; (2) his conviction is a nullity because the ordinance under which he was prosecuted was not in effect until after his conviction; and (3) if he was prosecuted for a violation of the Illinois Vehicle Code, then his conviction must be reversed because the City of Harrisburg was an improper party plaintiff and had no authority to prosecute a State offense. Defendant also filed a motion to strike the brief of the State\u2019s Attorney of Saline County on the grounds that the State was not a party to the action below. We took this motion with the case.\nWe must first ascertain whether the City of Harrisburg was the plaintiff which prosecuted defendant through its city attorney in the trial court.\nOn October 9,1974, defendant was arrested and charged on a standard Illinois citation and complaint form with \u201cDriving under the influence of intoxicating liquor, In Violation of Illinois Vehicle Code Section No. 11\u2014 501a.\u201d The complaint was captioned \u201cHarrisburg Police A Municipality Plaintiff v. Koetzle, Walter J.\u201d and was styled \u201cState of Illinois, County of Saline, City or Village of Harrisburg, Township of Harrisburg.\u201d On October 17,1974, defendant served the City Attorney for Harrisburg with a motion for a speedy trial, captioned \u201cPeople of the State of Illinois vs. Walter Koetzle.\u201d On December 4, 1974, defendant went to trial. The record shows that he was prosecuted by \u201cMr. Charles Ferguson, Attorney for the City of Harrisburg.\u201d In opening argument, the prosecutor stated, \u201cI * * * represent the City of Harrisburg in prosecution of this cause.\u201d However, throughout the trial and in the court\u2019s instruction, \u201ccity\u201d and \u201cstate\u201d were used interchangeably.\nDefendant was sentenced to eight months imprisonment. Both the mittimus and notice of appeal are styled with a preprinted caption \u201cPeople of the State of Illinois\u201d under which was typed \u201cCity of Harrisburg vs. Walter J. Koetzle.\u201d The certification of the common law record, the record sheet and the Report of Proceedings refer to the case as the \u201cCity of Harrisburg vs. Walter Koetzle\u201d whereas defendant\u2019s motion for counsel on appeal and praecipe for the record are captioned \u201cPeople of the State of Illinois vs. Walter J. Koetzle.\u201d\nThus, except for defendant\u2019s own motions, the record clearly shows that the City of Harrisburg was the party plaintiff and it had prosecuted the action through the city attorney. Since the State had not been a party to this action in the lower court, we grant defendant\u2019s motion to strike the State\u2019s brief. Although the City of Harrisburg has received notice, it has nonetheless failed to file a brief in this case.\nDefendant first contends that the complaint upon which this case is based is fatally defective because it charged him with a violation of State law while he was actually prosecuted under a municipal ordinance. The premise of defendant\u2019s argument is that since the City of Harrisburg had prosecuted defendant, it must have, of necessity, based its action on a violation of a city ordinance. This conclusion is a non sequitur. Moreover, the record clearly shows that defendant was charged, tried and convicted for a violation of section 11 \u2014 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95\u00bd, par. 11 \u2014 501(a)). The ordinance then in effect (Harrisburg, Ill., Traffic Ordinance (1964), Ordinance No. 695, \u00a717), prohibited operating any motor vehicle on a street or highway within the city while under the influence of liquor, and it provided a penalty of a fine of not less than $5 nor more than *500, or six months in the county jail, or both, for a violation thereof. No reference is made to this ordinance in the record but instead, a lengthy argument was made over defendant\u2019s motion for a directed verdict, which was based on \u201c11 \u2014 501, chapter 95%\u201d of the \u201cstatute.\u201d In addition, defendant was sentenced to a term of eight months imprisonment; a sentence unpermissible under the ordinance but proper under the Illinois Vehicle Code. (Ill. Rev. Stat. 1975, ch. 95%, par. 11 \u2014 501(i).) Consequently, we find defendant\u2019s contention to be without merit. For the same reasons, we find defendant\u2019s next contention, that his conviction is a nullity because he was prosecuted under a city ordinance enacted subsequent to his conviction, to be without merit.\nWe turn to the propriety of this action, based on a violation of the Illinois Vehicle Code, brought in the name of the City of Harrisburg and prosecuted by a city attorney. Defendant contends that the city was an improper party plaintiff and had no authority to prosecute a State offense. We agree. In City of O\u2019Fallon v. Reynolds, 2 Ill. App. 3d 712, 276 N.E.2d 772, we were faced with a similar issue and we held that the City of O\u2019Fallon was not the proper party plaintiff. (See also City of Rockford v. Watson, 108 Ill. App. 2d 146, 246 N.E.2d 458; Village of Hoffman Estates v. Spychalski, 33 Ill. App. 3d 83, 337 N.E.2d 463; Village of Hoffman Estates v. McWaters, 33 Ill. App. 3d 87, 337 N.E.2d 465; Village of Hoffman Estates v. Johnson, 33 Ill. App. 3d 88, 337 N.E.2d 467.) Section 16 \u2014 102 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95\u00bd par. 16\u2014 102), amended subsequent to O\u2019Fallon, provides in part:\n\u201cThe State\u2019s Attorney of the county in which the violation occurs shall prosecute all violations except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State\u2019s Attorney.\u201d\nIn Village of Hoffman Estates v. Spychalski, the court stated:\n\u201cIt is clear from a reading of section 16 \u2014 102 that the prosecution for an Illinois Vehicle Code violation must be in the name of the People of the State of Illinois; and that the municipality may prosecute only with the written consent of the State\u2019s Attorney.\u201d (33 Ill. App. 3d 83, 85, 337 N.E.2d 463, 465.)\nIn the case at bar, the action was brought in the name of the City of Harrisburg. Moreover, the record does not show that the city attorney had received written permission to prosecute defendant. The city\u2019s action thus stands contrary to the provisions of the Illinois Vehicle Code. We note that section 16 \u2014 105 of the Code (Ill. Rev. Stat. 1973, ch. 95\u00bd, par. 16 \u2014 105) provides that fines and penalties for offenses committed upon a highway within city limits are to be paid to the city, \u201cprovided the police officers and officials of cities, villages, incorporated towns and park districts shall reasonably prosecute for all fines and penalties under this Act.\u201d However, the word \u201cprosecute\u201d as used in this provision only contemplates otherwise permitted activities; making an arrest, initiating the complaint and appearing as a prosecuting witness, but not formally conducting the proceeding. (City of O\u2019Fallon v. Reynolds; City of Rockford v. Watson.) Consequently, we hold that the City of Harrisburg was not a proper party plaintiff and had no authority to prosecute defendant.\nThe judgment entered by the circuit court of Saline County is reversed.\nReversed.\nEARNS, P. J., and G. J. MORAN, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE EBERSPACHER"
      }
    ],
    "attorneys": [
      "Stephen P. Hurley and Ann L. Carr, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.",
      "Michael J. Henshaw, State\u2019s Attorney, of Harrisburg (Bruce D. Irish, of Illinois State\u2019s Attorneys Association, and Russell F. Watters, Law Student, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS OR THE CITY OF HARRISBURG, Plaintiff-Appellee, v. WALTER J. KOETZLE, Defendant-Appellant.\nFifth District\nNo. 75-135\nOpinion filed July 22, 1976.\nStephen P. Hurley and Ann L. Carr, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nMichael J. Henshaw, State\u2019s Attorney, of Harrisburg (Bruce D. Irish, of Illinois State\u2019s Attorneys Association, and Russell F. Watters, Law Student, of counsel), for the People."
  },
  "file_name": "0577-01",
  "first_page_order": 605,
  "last_page_order": 608
}