The original act in relation to interlocutory appeals provided that such appeals must be taken within thirty days from the entry of the judgment appealed from and perfected in the Appellate Court within sixty days from the date of such order; that such interlocutory appeals should be at once docketed in the Appellate Court and should take precedence of other cases, and that the force and effect of such interlocutory order and the proceedings in the court below should not be stayed during the pendency of such appeal. (Cahill's Stat. 1931, chap. 110, par. 122.) The new Practice act has made certain material changes in this regard which I believe are unconstitutional and deprive plaintiff in error of his constitutional right to due process of law. The new Practice act first lays down the general rule that such appeals shall be taken and the record "filed *Page 32 in said Appellate Court within thirty days from the entry of such interlocutory order or decree," but thereupon adds: "provided further that the time for filing such record may be extended by an order of the Appellate Court or by a judge thereof in vacation." Ill. State Bar Stat. 1935, chap. 110, par. 206.
It will be observed that this proviso in effect nullifies the mandatory provision of the old statute which required the appeal to be perfected within sixty days, but makes it possible, with the permission of the court or a judge thereof, to delay indefinitely the filing of the record in the Appellate Court. Manifestly, this is contrary to the spirit of the interlocutory appeals act as originally adopted, for it was then regarded as essential that such interlocutory matters should be speedily decided, so as not to unduly delay the main case.
While the original act provided that the force and effect of such interlocutory order and the proceedings in the court below should not be stayed during the pendency of such appeal, the new act adds the proviso, "except upon order of the Appellate Court or a judge thereof in vacation." This court has heretofore held that in the case of an appeal from a final decree granting an injunction, the appeal, even though it constitutes a supersedeas, does not stay a prohibitory injunction during the pendency of the appeal, the purpose of asupersedeas being merely to maintain the status quo during the pendency of the appeal and not to authorize either party to do any affirmative acts that would disturb the status quo. (Barites Co. v. Chicago Typographical Union, 232 Ill. 402;Hohenadel v. Steele, 237 id. 229; People v.David, 328 id. 230.) The above section of the new Practice act, however, purports to empower the Appellate Court, or a judge thereof in vacation, to stay the "force and effect of such interlocutory order or decree." That is a much greater power than that of issuing a common law supersedeas. The act in question thus purports to give to the Appellate Court, or a judge thereof, a much *Page 33 greater power over an interlocutory appeal than over an appeal from a final decree. Barites Co. v. Chicago TypographicalUnion, supra.
The substance of a temporary injunction is its temporary efficacy. If that is stayed then the temporary injunction is to all intents or purposes wiped out and the very merits of the case have been adjudicated. The fact that an act purports to clothe the court or judge with such unusual power would not of itself render the act unconstitutional, but in this case the matter is aggravated by the fact that the act permits this to be done by the court, or a judge thereof, on mere motion, before there has been a hearing on the merits and before even the record has been filed in the Appellate Court. It is no answer to say that the court or judge would not ordinarily do that. As this court has repeatedly said, the validity of a statute depends upon what it permits to be done — not on what is actually done under it. Mere process is not necessarily due process of law. A statute which thus permits the court or a judge thereof to summarily adjudicate the very merits of a case on a mere motion in advance of a hearing, and even before the record has been filed, is lacking in the elements of due process of law, and therefore violative of the constitution of this State. Walter Cabinet Co. v. Russell, 250 Ill. 416;Galphin v. Page, 18 Wall. 350; People v. Supervisors, 70 N.Y. 234.
Section 78 of the Practice act of 1933, which purports to empower the Appellate Court, or a judge thereof in vacation, to stay the force and effect of the interlocutory order or decree appealed from, during the pendency of the appeal, is, in my opinion, unconstitutional and void. The orders of the Appellate Court should therefore have been reversed. *Page 34