APPEAL from the Circuit Court of McLean County; the Hon.
CHARLES E. GLENNON, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 31, 1978.
This case comes on appeal from a trial court order dismissing plaintiffs' complaint. We reverse and remand.
The complaint, filed on February 19, 1976, contains three counts. Upon motion in her behalf Kymberly Mason was dismissed as party-plaintiff. Count I is an individual action by James Johnston against the defendants the City of Bloomington and its treasurer, Paul W. Krueger. It alleges that on February 27, 1973, Johnston paid $17 for a violation of chapter 32, section 27, of the Bloomington Municipal Code. (The trial court and the parties refer to this section as the city's speeding ordinance.) On January 6, 1976, in City of Bloomington v. Guess, section 27 of the Municipal Code was declared unconstitutional by the circuit court of McLean County. We are not aware of why the ordinance was declared unconstitutional, but it does not matter in this appeal. The city did not appeal that judgment and the time for appeal has passed. Johnston prayed for the return of his $17 plus costs.
Count II is a class action against the same defendants by James Johnston as representative of a class described as those persons who, between January 1, 1961, and October 16, 1975, paid a fine for violating section 27 of the Bloomington Municipal Code. The count makes further allegations for a class action and requests that all convictions against persons prosecuted under section 27 be vacated and their fines returned. Count III is an individual action by William Fike, and he makes the same allegations as in Count I.
Initially, we point out that a city's enforcement of an ordinance, as in the instant case, is quasicriminal in nature, e.g., City of Carbondale v. Irving (1977), 45 Ill. App.3d 699, 360 N.E.2d 118. Therefore, plaintiffs are attacking something less than criminal convictions.
When a case comes on appeal from a trial court order dismissing a complaint, all the facts alleged in the complaint are taken as true, albeit, legal conclusions are not admitted. (E.g., Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 187 N.E.2d 722.) Therefore, for purposes of appeal, we assume as true that plaintiffs paid fines under a city ordinance that was later declared as unconstitutional.
The trial court, in a written opinion, entered judgments for the defendants and dismissed the complaint. The court's opinion emphasized that he was neither addressing the question of the constitutionality of the ordinance, nor whether the class action could be maintained. The trial court considered the issue to be whether this cause of action could be maintained long after the appeal period had expired. The opinion relies principally on two cases People v. Warr (1973), 54 Ill.2d 487, 298 N.E.2d 164, and Berg v. City of Chicago (1968), 97 Ill. App.2d 410, 240 N.E.2d 344.
In Warr, defendants did not directly appeal their convictions, but made unsuccessful collateral attacks on their misdemeanor convictions. The Illinois Supreme Court noted that there are three ways to collaterally attack criminal convictions: (1) habeas corpus; (2) post-conviction hearings; and (3) a section 72 petition. For various reasons, these remedies were not available to the Warr defendants. Therefore, the supreme court promulgated a rule that a defendant, convicted of misdemeanor, who asserts that there was a substantial denial of his constitutional rights, may institute a proceeding under the Post-Conviction Hearing Act within four months of a conviction if he pleaded guilty, and within six months if he had a trial. (Accord, People v. Davis (1973), 54 Ill.2d 494, 298 N.E.2d 161.) Previously, post-conviction proceedings were available only to those persons convicted of felonies.
In the instant case, the trial judge felt that Warr precluded plaintiffs' class action because no member of the class appealed the judgment on the ordinance violation within the time set for appeal, and the attack now made was beyond the four and six months' deadline as set by the supreme court in Warr. Plaintiffs assert that Warr has no applicability to the present case. We agree.
1 The court in Warr was concerned with the constitutional deficiencies in the procedure resulting in criminal convictions. The present case does not involve a "conviction" or post-conviction proceedings, nor is it an attempt to collaterally attack judgments based on constitutional error. The City's prosecution of its ordinance was not a criminal prosecution under section 1-2-1.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1975, ch. 24, par. 1-2-1.1), but was an action for debt. City of Danville v. Hartshorn (1973), 53 Ill.2d 399, 292 N.E.2d 382.
A statute that is declared unconstitutional is void, ab initio. Such a law confers no rights, imposes no duty, and affords no protection. (Board of Highway Commissioners v. City of Bloomington (1911), 253 Ill. 164, 97 N.E. 280; Grasso v. Kucharski (1968), 93 Ill. App.2d 233, 236 N.E.2d 262.) One court explained this principle as follows:
"Holding that a law is unconstitutional is quite different from holding that a defendant has not received constitutional treatment under a law. * * * But, if the law is unconstitutional, there is no law and there can be no question about proper procedures for protecting his rights under the law because in theory his rights have never been threatened or affected, and he should be placed in the position he occupied before he was arrested." (People v. Weintraub (1974), 20 ...