WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
THOMAS J. LYNCH, Judge, presiding.
MR. JUSTICE SIMPSON DELIVERED THE OPINION OF THE COURT:
This case, here on writ of error, involves the validity of the Post-Conviction Act which the criminal court of Cook County held unconstitutional. Frank Dale, plaintiff in error, was convicted in that court August 22, 1933, under the Habitual Criminal Act and sentenced to the Illinois State Penitentiary for his natural life. Alleging that he had been deprived of due process of law in the prior proceeding, he filed a petition September 6, 1949, seeking relief under the act entitled: "AN ACT to provide a remedy for persons convicted and imprisoned in the penitentiary, who assert that rights guaranteed to them by the Constitution of the United States or the State of Illinois, or both, have been denied or violated, in proceedings in which they were convicted. Approved Aug. 4, 1949." Ill. Rev. Stat., 1949, chap. 38, pars. 826-832.
The People moved that the petition be stricken and the proceedings dismissed on the grounds that the statute upon which the petition was based is contrary to the State constitution, which invests the Supreme Court of Illinois with final appellate jurisdiction and which forbids the legislature from adopting class legislation, i.e., legislation which allows appeal to one prisoner and not to another; that said constitution precludes the lower court from exercising jurisdiction to review questions that have been, or could have been, raised upon a prior review of the case by the Supreme Court of Illinois, and for the further reason that said statute violates article III of the State constitution, which provides for separation of the powers of the legislative, executive and judicial departments. The motion contained the further ground that the petition was insufficient in law, in that the matters and things alleged did not present a violation of plaintiff in error's constitutional rights.
The court sustained the motion to dismiss and dismissed the petition for the reason that the statute under which it was brought is unconstitutional, and did not pass upon the sufficiency of the allegations in the petition. The act in question being short, we set it out in full:
"§ 1. Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Act. The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit. Petitioner shall also serve another copy upon the state's attorney by any of the methods provided in Rule 7 of the supreme court. The clerk shall docket the petition upon his receipt thereof and bring the same promptly to the attention of the court. No proceeding under this Act shall be commenced more than five years after rendition of final judgment, or more than three years after the effective date of this act, whichever is later, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.
"§ 2. The petition shall identify the proceeding in which the petitioner was convicted, give the date of the rendition of the final judgment complained of, and shall clearly set forth the respects in which petitioner's constitutional rights were violated. The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The petition shall identify any previous proceedings that the petitioner may have taken to secure relief from his conviction. Argument and citations and discussion of authorities shall be omitted from the petition.
"§ 3. Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.
"§ 4. If the petition alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person. If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.
"§ 5. Within thirty days after the filing and docketing of the petition, or within such further time as the court may fix, the State shall answer or move to dismiss. No other or further pleadings shall be filed except as the court may order on its own motion or on that of either party. The court may in its discretion grant leave, at any stage of the proceeding prior to entry of judgment, to withdraw the petition. The court may in its discretion make such orders as to amendment of the petition or any other pleading, or as to pleading over, or filing further pleadings, or extending the time of filing any pleading other than the original petition, as shall be appropriate, just and reasonable and as is generally provided in Rule 8 of the supreme court and section 46 of the Civil Practice Act.
"§ 6. The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the judgment or sentence in the former proceedings and such supplementary orders as to rearraignment, retrial, custody, bail or discharge as may be necessary and proper.
"§ 7. Any final judgment entered upon such a petition may be reviewed by the supreme court on writ of error brought within six months from the entry of the judgment."
As indicating lack of due process, plaintiff in error alleged that the trial court appointed counsel contrary to law; that counsel was incompetent; that he was denied due process by being compelled to go to trial immediately after the return of the indictment; that he was not permitted to summon witnesses to testify in his behalf; that the court lost jurisdiction and that he was denied due process generally.
The State's Attorney, to sustain his position that the act is unconstitutional, argues that present remedies in Illinois are adequate for presentation of post-conviction constitutional claims; that by the act in question the legislature has encroached upon the power of the judiciary by making it mandatory that a nisi prius court take jurisdiction of a previously adjudicated cause, whereas the constitution makes the power of the Supreme Court final; that a statute which requires a court to accept the opinion of an affiant on a given matter is unconstitutional; that in its attempts to exercise power over trial courts and appellate practice the legislature is subject to the provisions of the constitution; that an act which attempts to bestow a remedy upon only certain persons in prison and deprived of their liberty is an unreasonable classification and therefore unconstitutional.
The Attorney General and the plaintiff in error both take the position that the act in question is constitutional. The Illinois State Bar Association and the Chicago Bar Association take the same position and have filed a brief herein as amici curiae. The Attorney General, however, urges that the judgment be affirmed because of the insufficiency of the petition filed in the lower court. Had that court held the petition insufficient, plaintiff in error doubtless would have been permitted to amend it in an attempt to obviate the charge ...