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Pickus v. Board of Education

OPINION FILED NOVEMBER 27, 1956.

SARA PICKUS ET AL., APPELLANTS,

v.

BOARD OF EDUCATION OF THE CITY OF CHICAGO ET AL., APPELLEES. — SHIRLEY LENS, APPELLANT,

v.

BOARD OF EDUCATION OF THE CITY OF CHICAGO ET AL., APPELLEES.



APPEALS from the Circuit Court of Cook County; the Hon. JULIUS H. MINER, Judge, presiding.

MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

These appeals question the validity of section 30b of "An Act in relation to State finance," (Ill. Rev. Stat. 1955, chap. 127, par. 166b,) which withholds compensation from State employees who refuse to sign the loyalty affidavit therein set forth. Also presented is the question of its applicability to teachers in the public schools of Chicago.

Two complaints, for injunction and declaratory judgment respectively, were filed in the circuit court of Cook County against the Chicago Board of Education and its members. The respective plaintiffs are certain Chicago school teachers who refuse to execute the affidavit. They allege that because of such refusal they have been or will be denied compensation; that they are employees of the city and hence are specifically excluded by the terms of the statute; and that in any event the statute is unconstitutional and void. After consolidating the two cases the circuit court sustained defendants' motions to dismiss; and the plaintiffs having elected to stand on their complaints, judgments were entered accordingly. The plaintiffs appeal directly to this court, constitutional questions being involved.

Section 30b was enacted in 1955. It provides as follows: "No employee of the State of Illinois, or any political subdivision, agency or instrumentality thereof, but excluding cities, villages, incorporated towns, townships and counties, shall receive compensation or expenses from any appropriation which has been heretofore made, or which shall hereafter be made until such person has on file with his or her employing authority the following affidavit signed under oath:

State of Illinois | > ss. United States of America |

I, ____ do swear (or affirm) that I am not a member of nor affiliated with the communist party and that I am not knowingly a member of nor knowingly affiliated with any organization which advocates the overthrow or destruction of the Constitutional form of the government of the United States or of the State of Illinois, by force, violence or other unlawful means.

(Signed) _______________ _____________________(seal)

Notary Public"

The contention that plaintiffs are excluded from application of the section, which must be considered first, rests upon the proposition that the Board of Education is a part of the city. It is argued that in view of the close relation of the school board to the city, and the respects in which the legislature has treated it differently from other public school systems in the State, school teachers in Chicago are employees of the city itself and therefore need not file the affidavit in order to receive pay.

It is true, as the plaintiffs point out, that the Board of Education is appointed by the mayor of Chicago with approval of the city council, that the treasurer of the city acts as treasurer of the board, that title to school property is held in the name of the city in trust for the use of schools, and that bond issues must be approved by the city council and countersigned by the mayor and comptroller. But such incidents do not obliterate the existence of the school district as a different corporate entity. (Board of Education v. Upham, 357 Ill. 263.) Bonds issued by authority of the statute, for example, are obligations of the Board of Education, not of the city (Mathews v. City of Chicago, 342 Ill. 120); and the board has its own limit of indebtedness under the constitution, which is not affected by the city's indebtedness. (Board of Education v. Upham, 357 Ill. 263.) The two corporations have separate and distinct governmental purposes. The legislature created the board as a body politic for education of the youth, which is one of the paramount objects of government, and expressly provided that "No power vested in the board or in any of its officers, agents or employees shall be exercised by the city council." Ill. Rev. Stat. 1955, chap. 122, par. 34-16.

There can be little doubt that for some purposes the statutory relation which the Board of Education bears to the city of Chicago is sufficient to prevent their treatment as bodies completely separate and distinct from each other. Thus in People ex rel. Schlaeger v. Jarmuth, 398 Ill. 66, relied upon by plaintiffs, this court upheld the validity of the Municipal Employees' Annuity and Benefit Fund Act, which required the city to raise funds by taxation for the purpose of paying annuities and benefits to employees of the Board of Education. It was urged that the act was void because it required a tax to be levied by one municipality for the use and benefit of another separate and distinct municipality. In rejecting the contention we concluded that the Board of Education is a part of the municipal government of the city "to such extent" that the act did not contravene section 9 of article IX of our constitution. In justification of this result, however, it was further observed that taxes had been levied and collected under the act for more than a quarter of a century, during which time important monetary and human rights had accrued, and that such passage of time created a strong presumption against its invalidity. We do not think that the constitutional decision in the Jarmuth case is decisive in determining the question of construction involved here. Plaintiffs have suggested no reason for a legislative distinction between school teachers in Chicago and those elsewhere, insofar as the present requirement is concerned, nor can we perceive any. The statute should be given a reasonable interpretation, in order that its true intent and meaning may be given effect. It must be construed in recognition of the fact that the city and the Board of Education are essentially different bodies; that each has its peculiar functions to perform, and that neither can perform the functions of the other. As we observed in Schreiner v. City of Chicago, 406 Ill. 75, "although the territory of the city and the school district is coterminous, and some of the officers perform dual duties, they are two separate organizations. The city of Chicago is a municipal corporation, and the statute likewise provides that board of education is a `body politic and corporate.'" We conclude there is not such identity of organization as to warrant classifying teachers employed by the Board of Education as employees of a city, within the meaning of the exclusion in the present statute. We are thus brought to a consideration of the plaintiffs' constitutional objections.

It is contended the requirement in question violates Federal and State guaranties of due process of law. Under each constitutional provision the legislature is prohibited from depriving any person of "life, liberty, or property" without due process of law. It is evident from the face of such provision that before a party can properly invoke the due-process clause he must show wherein the particular law deprives him of life, liberty, or property. The section in question here prescribes the execution of an affidavit as a condition of receiving compensation from the State. In effect it sets one of the terms with which one must comply who desires to obtain or continue public employment. The United States Supreme Court has pointed out that "the loss of a particular position is not the loss of life or liberty," (American Communications Association v. Douds, 339 U.S. 382, 409, 94 L.ed. 925, 949,) and that "an unlawful denial by state action of a right to state political office is not a denial of a right of property or of liberty secured by the due process clause." (Snowden v. Hughes, 321 U.S. 1, 7, 88 L.ed. 497, 502.) There is no indication that the present statute denies compensation for services rendered prior to its effective date or impairs existing contractual rights. The parties, however, have not attempted to show wherein plaintiffs liberty or property are affected or unaffected, but have argued the cases apparently on the assumption that the due-process clause is applicable. Moreover, a careful examination of authorities relied upon respectively reveals a similar approach by the United States Supreme Court in situations factually comparable to that in the case at bar. (See Slochower v. Board of Education, 350 U.S. 551, 100 L.ed. 692; Wieman v. Updegraff, 344 U.S. 183, 97 L.ed. 216; Adler v. Board of Education, 342 U.S. 485, 96 L.ed. 517; Garner v. Board of Public Works, 341 U.S. 716, 95 L.ed. 1317.) We shall therefore proceed upon the ground that the present requirement in some way curtails liberty or takes away property rights.

While it is recognized that government has the power to exclude from public employment communists and others who advocate its violent overthrow, (See Adler v. Board of Education, 342 U.S. 485, 96 L.ed. 517,) requirements of due process are considered applicable to the means adopted to implement the power. A State may validly provide that a person who is knowingly a member of an organization which advocates the overthrow of constitutional government by unlawful means shall not be eligible for public employment. (Adler v. Board of Education, 342 U.S. 485, 96 L.ed. 517.) But a law which disqualifies on the basis of mere membership, regardless of any awareness of the ...


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