*1 (No. 3709 0 Petitioner, Kubala, vs. ex rel. Charles
The al., et Respondent. Kinney,
Charles F. 28, Opinion September J.J., dissenting. Hershey, Schaefer Ray- P. of Chicago, Sullivan, (Thompson, Thomas Mayer petitioner. counsel,) mond, & Jenner, General, of Springfield, Attorney Clark, William G. At- Assistant O’Brien, G. Leaci-i E. Michael (Fred General, torneys counsel,) respondents. the court: delivered the opinion House action mandamus involved in this original 1 of the Sentence section
is whether the added to 801) 1961, chap. and Parole Rev. (Ill. 38, Stat. Act “that sentenced to every person penitentiary be eligible shall of such
at the end of sentenced years” applies amendment. the effective date of the Kubala, of murder was convicted
Charles who and sentenced confinement peni- August *2 under a for tentiary for term years, parole 100 Parole Board The Prison and newly enacted proviso. on that refused to consider his the ground application to section sentenced on proviso applies only 1 to persons not and that would petitioner his for until he served one-third eligible parole had sentence. then a Kubala an for writ original petition of mandamus in to sec- this court proviso alleging tion 1 to him Parole Board and that the applicable a mandatory duty to consider his application. respond- ents, Board, members of the that they not deny Parole do to duty consider applications by prisoners eligible for or that mandamus en- parole remedy is the proper force this but duty, do contend that is not they petitioner for eligible because he parole was sentenced effective date of the section 1.
Respondents out that would not point become petitioner for under parole provisions of Sentence and Parole Act in force the time he he was sentenced until had served of his sentence and then section 1 pro- Ji “* * * vided it shall be deemed and taken as a part of every such sentence that all of the and in this Act discharge contained shall be a of said part sentence as fully as written though (Cahill’s it.” Stat. chap. 38, par. 795). They contend the proviso 1933» in question cannot therefore be because petitioner it would constitute the of a changing judicial judgment by the legislature.
Under our system government legislature has the inherent within power, limits, constitutional to prohibit any crime, act aas to fix the punishment commission of the and to crime determine the manner of executing punish-
493 v. Joyce, Burnett, 420; Ill. People v. ment. (People 394 power provide has the exclusive Il. It also 124.) 246 Latimer v. Randolph, rel. ex system, (People penological and rules regulations and to establish 552,) 13 v. the inmates. (George government discipline. an has held that allowing This court Ill. People, 447.) 167 falls within inmate outside of go prison government legislature’s power relating prison Dixon, v. Ill. 449; People Joyce, v. (People discipline, 440 Pace, Ill. v. 124; 224; George Ill. v. People, People 246 362 matter of clemency Ill. is a 447), grace 167 ex rel. Castle v. 10 Ill.2d and not of Spivey, right (People ex rel. Richardson v. Ill. People Ragen, 586; 191; and that is not a v. Ill. People 71,) Thompson, Dixon, of the sentence the court. v. People imposed 11; Nowak, Doras, Ill. Ill. v. 449; People Ill. 188. While the of whether a precise question change *3 terms and conditions for can be to persons parole never been sentenced has in this already squarely presented State, there is line of in a decisions which this court long be foregoing principles relationship a sentence In tween and for v. eligibility parole. People Pace, Ill. the defendant contended his sentence 362 for a term of was because imprisonment years illegal 199 it circumvented the Parole Act. a sentence for Although sentence, in effect a life Pace is years argued 199 was because if he were sentenced im illegal sentence to life he for after would be 20 eligible parole prisonment serving sentence, under the of the while year sentence years 199 to serve he was °f the sentence before required becoming Y for that he would not live parole, eligible long enough and that the become eligible parole 199-year sentence and circumvents the objects therefore defeats the Parole defendant’s In contention this Act. court rejecting held the Parole Act had to do with the nothing sentence 494 court; is a matter of
imposed
clemency
parole
and-
and that
it relates to
and
grace
prison government
Pace
in
of the
case was followed
discipline.
holding
Rucker,
v.
Ill.
matter of
People
371, 375, (“The
parole
364
is not a judicial but
a
People
purely legislative function”);
v.
Ill.
v.
Ill.
Hetherington,
71; People
Thompson,
379
381
grace,
an act of
and
(“parole
merely
clemency
[is]
72
;
People
which defendant
invoke
his
will”)
own
[cannot]
Grant,
Ill.
(“under
v.
the rule of stare decisis
385
63
;
no
an
is
in this
v.
longer
People
open
State”)
Nowak,
Ill.
(defendant who is
effect serving
387
life sentence but not
eligible
twenty
serving
of his
is not
sentence
denied
of the
years
equal protection
;
Bernovich,
under the
laws
Federal constitution)
v.
People
Woods,
Ill.
v.
141;
586; People
Ill.
v.
People
Dixon,
Ill.
cannot be
449, 452-3, (“it
contended
sentence is an
such
to evade the
of the
attempt
Act, as that
is
Parole
law one of
and
re
clemency
grace,
and
and has
lating
prison government
discipline,
nothing
;
do with the
such
v.
imposed
case”) People
Shrum,
Touhy,
462; and
In while the has taken into account the nature and of sentence imposed determining when shall become prisoner the de- parole, is, nonetheless, termination a legislative function relating prison government not a discipline and, sentence; judicial since is an act of clemency grace, legislature may con- change terms and ditions for and make such change immediately ap- *4 as, those sentenced as plicable well prior, subsequent- date the of change.
Since the legislature the to make power in changes the terms and conditions for parole immediately effective of the of date the next sentencing, is enacted, This is be so applied. as the whether proviso, commented Ill.2d McCarthy, 342, court in Orlicki amendments of of the retroactive application “The problem * * * law, in Some Illinois not novel Illinois case in terms of vested or decisions considered the issue others terms of analyze rights nonvested [citations]; ; have considered whether the others jurisdiction [citations] ; was substantive or other provision procedural [citations] intention of the courts have relied the legislature upon and there are also decisions [citations]; predicated ; statutes of construction or a combination upon [citations] these rules.” of concepts (4 342, 345). legal Several of these and rules have been discussed legal concepts General, by "and At respondents by Attorney (1961 General’s torny of the Opinions, p. 347,) support pro of spective application proviso.
It is to consider each unnecessary of these concepts in further rules detail than note that has no prisoner it, as the right, to be except legislature gives paroled, do not mitigate any penalty, forfeiture or within punishment of section meaning “An Act to revise the law relation to the construction of the statutes” (Ill. Rev. Stat. 1961, 4,) chap. because the out, as we have parole provisions, just pointed do not become a of the penalty punishment pro nounced court. The obvious of the purpose is to include within the system those sentenced to the penitentiary under the type in the Pace case approved and those In it. following making determination, policy did not indicate that it only apply persons sentenced on or after 1,: but stated that “every person penitentiary regardless of such sentence shall the end of 20 years.” Were the proviso to be applied only sentences pronounced on or after January operation of the de- legislative *5 that the termination sentenced to every penitentiary person be the would be years delayed end of The the years. facts that can make twenty in the immediately terms and conditions changes effective of date the of the sentencing, proviso its terms to sentenced to applies every penitentiary person regardless of date of and that the legislative sentencing in the would be no policy expressed proviso practical for 20 years effect if the were not to proviso applied per- date, sons sentenced its effective lead us to the con- prior to clusion that the be to should proviso question sentenced prior persons
The writ of mandamus is ordered to issue.
Writ awarded. Schaefer, dissenting: The first in this case is a one of question statutory simple construction and in to that my opinion answer question of the case. The normal rule disposes is that statute oper ates unless the intention prospectively should have effect is That retrospective rule of plainly expressed. construction is in section crystalized Con Statutory struction Act which “No new law shall be con provides: law, strued to a former whether such law is repeal former - not, expressly repealed or as to offense committed any law, done, the former or as to act against any any penalty, * * n incurred, forfeiture or punishment Ill. Rev. Stat. 1961, chap. 131, par. 4. before
Nothing language statute us sug- that it is I gests intended and see operate retrospectively, reason it why no should be such an effect. given The argu- ment that “the legislative policy expressed proviso would of no effect for if practical years not were its effective me, date” not for it seems convincing to assume answer to the to be decided. If the General As- only prospectively, wanted the amendment to sembly apply effect for 20 not want it to have any “practical it would such with consistent entirely The used is years.” language ' n (cid:127) a legislative policy, Assembly adopted session of General same added section amendment to the Parole Act also 9.1 release authorizes conditional act. The added section they before shortly completed prisoners *6 sentences, ret intention that it should their and the operate “On or September rospectively plainly expressed: serving any person ** *.” Rev. Stat. (Ill. Illinois State Penitentiary A similar could 1961, chap. 38, 810a.) readily provision have been before us if included amendment retro intended, had been the absence spective operation of such a I would hold that provision prospective operation was intended. only Hershey in this concurs dissent.
(No. 3706 1 Defendant in Er Illinois, of the State of ror, al., vs. Frank et Plaintiffs Error. Brokowski
Opinion September