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Latham v. Board of Education





APPEAL from the Circuit Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding.


Rehearing denied September 25, 1964.

Plaintiffs appeal from an order of the circuit court of Cook County sustaining a motion to strike their complaint for declaratory judgment and for injunction, denying them leave to file an amended and supplemental complaint and dismissing the suit. The presence of constitutional questions warrants this direct appeal.

This is a representative suit filed by plaintiffs as citizens, taxpayers, voters, and residents of the city of Chicago wherein they seek a judgment declaring the statutes providing for the creation and corporate existence of the Board of Education of the City of Chicago to be unconstitutional, and also seek to enjoin the levy, collection and expenditure of any and all taxes for the support of the School District of the City of Chicago.

Plaintiffs' original complaint consists of five counts, the first of which alleges the status of plaintiffs to maintain the action and states, in substance, that the procedures required by article 34 of the School Code (Ill. Rev. Stat. 1963, chap. 122, art. 34,) which applies only to cities having a population over 500,000, result in the Board of Education of the City of Chicago levying taxes for the city's educational system, and that such levy by the Board, whose members are appointed rather than elected, constitutes an unlawful exercise of the power to tax in violation of section 9 of article IX of the constitution of the State of Illinois. The procedures referred to involve a detailed report of estimated financial needs and receipts by the general superintendent to the Board, Board preparation of a budget, hearings thereon prior to submission thereof to the city council, and, it is alleged, determination by the Board of the rate of tax to be extended in order to produce the revenue desired. Plaintiffs contend these acts constitute the actual tax levy and that the subsequent passage of a levy ordinance by the city council is a perfunctory act.

To support their argument that, in fact, the Board rather than the city council levies the taxes needed to support the Chicago school system, plaintiffs points to language found in sections 34-53, 34-54, 34-57 and 34-58 of the School Code. Of the four provisions the principal one is section 34-53, and the pertinent language therein is as follows: "For the purpose of establishing and supporting free schools * * * the board of education and the authorities of such district or city * * * may levy annually * * * a tax * * * provided that the taxes so levied * * * shall not exceed the estimated amounts of taxes to be levied for such year * * * and set forth in the annual school budget of the Board * * *." (Italics ours). It is significant that in this section and in sections 34-54 and 34-57 the statutory language authorizing the levy is always framed in the conjunctive, joining the Board and the municipal authorities. Only section 34-58 of the provisions cited by plaintiffs does not contain such conjunctive language but states that: "* * * the board may levy or cause to be levied annually for the purpose of carrying out the provisions thereof a tax * * *." Such language considered alone might be thought to indicate that the Board itself may levy a tax. However, in section 34-55 the legislature expressly negates such an implication by the following language: "This Article does not authorize the board to levy or collect any tax, but the city council shall, upon the demand and under the direction of the board, annually levy all school taxes." Ill. Rev. Stat. 1963, chap. 122, par. 34-55.

The conclusion that the statute provides that only the municipal authority may levy is strengthened by the provisions of many other sections of the article dealing with tax levies for special purposes where the express terms require action by the city council. See, for example, sections 34-22.1 et seq. (tax to retire bonds), 34-23 (issuance of tax anticipation warrants), 34-60 (tax for teachers' pension and retirement fund). The fallacy of plaintiffs' argument that the Board makes the levy is clear when we consider that even though all preliminary steps have been taken by the Board and a final budget has been adopted, not a penny of school taxes will be forthcoming without the adoption by the city council of an ordinance levying the tax. Plaintiffs' allegation that the Board sets the rate at which the tax is extended is a mere conclusion not founded on any factual allegations and, in fact, is contrary to the statutory provisions vesting the authority to determine such rate in the county clerk. Ill. Rev. Stat. 1963, chap. 122, par. 34-56 et seq. and chap. 120, par. 643.

The substance of count II charges that the provisions of article 34 which provide for the appointment of members to the board of education in cities exceeding 500,000 population, whereas board members are elected elsewhere in the State, is special legislation violative of section 22 of article IV of the constitution of Illinois, and that the classification thus established on the basis of population bears no reasonable relationship to the objectives sought to be accomplished.

When considering the validity of a legislative classification there is always a presumption that the General Assembly acted conscientiously, and this court will not interfere with its judgment except where the classification is clearly unreasonable and palpably arbitrary. Du Bois v. Gibbons, 2 Ill.2d 392.

The controlling rule is well established that: "Classification on the basis of population is not objectionable where there is a reasonable basis therefor in view of the object and purposes to be accomplished by the legislation and such an act is not local or special merely because it operates in only one place, if that is where the conditions necessary to its operation exist." Apex Motor Fuel Co. v. Barrett, 20 Ill.2d 395, 404; People ex rel. County of Du Page v. Smith, 21 Ill.2d 572; Alexander v. City of Chicago, 14 Ill.2d 261; Gaca v. City of Chicago, 411 Ill. 146; Mathews v. City of Chicago, 342 Ill. 120.

In Mathews the appellant, in a representative suit as a taxpayer of the city of Chicago, attacked the constitutionality of legislation establishing working cash funds in cities, counties and school districts above certain stated populations, which actually applied only to the city of Chicago, the Chicago School District and the county of Cook, raising the identical constitutional contentions made by plaintiffs herein. This court said therein at page 128:

"The prohibition contained in section 22 of article 4 of the constitution against the passage of local or special laws in certain enumerated cases does not mean that every law shall affect alike every place and every person in the State but it does mean that it shall operate alike in all places and on all persons in the same condition. When referring to legislation the term `local' means laws relating to a portion, only, of the territory of the State, and the term `special,' laws which impose a particular burden or confer a special right, privilege or immunity upon a portion of the people of the State. (People v. Wilcox, 237 Ill. 421; People v. Day, 277 id. 543; People v. Diekmann, 285 id. 97.) Whether laws are general, local or special does not depend upon the number of those within the scope of their operation. They are general not because they operate in every place or upon every person in the State, but because every place or person brought within the relations or circumstances provided for is affected by the law. (People v. Diekmann, supra.) A law general in its nature and uniform in its operation upon all persons coming within its scope is a general law. The legislature may impose limitations upon the action of individuals or classes of individuals but it may do so only by general laws, and if it imposes restrictions on some and not upon others the difference must be based upon a substantial difference of conditions having a reasonable relation to the object of the legislation which differentiates the one class from the other. (People v. Kewanee Light Co. 262 Ill. 255.) All reasonable doubts are to be resolved in favor of upholding the validity of the statute. (People v. Gordon, 274 Ill. 462.) An act is not local merely because it operates in but one place. We have repeatedly held that a law may be general and yet operative in a single place where the condition necessary to its operation exists. (People v. Kaelber, 253 Ill. 552; West Chicago Park Comrs. v. McMullen, 134 id. 170; Martens v. Brady, 264 id. 178.) Whether the condition exists in one place or many, if the classification is reasonable and just it does not violate the constitution and it applies to all places now within its terms and to all that may hereafter come within its terms." Mathews v. City of Chicago, 342 Ill. 120, 128-129.

When drafting article 34 the legislature determined that it should apply only to cities having a population exceeding 500,000 and that each such city should constitute one school district. The legislature further provided that in each such district, the Board members should be appointed by the mayor with the approval of the city council. In the briefs of both parties herein may be found statistics suggesting the magnitude of the Chicago school system. The fact that, in 1964, the Chicago Board of Education will spend in excess of $300,000,000, or that in the Chicago School District there are more than 1,700,000 voters are but examples. Moreover, this court takes judicial notice that the problems inherent in the supervision and management of a school system in a metropolitan area of 500,000 or more, and particularly, in the city of Chicago, are far more complex and may well require different modes of operation than a system in an average-size district. The intricacies of a metropolitan school district of this magnitude require an especially high degree of competence in the members of the Board. The legislature has determined that such personnel can best be obtained as Board members in large cities having a population of over 500,000 by the appointive process rather than by a general city election, and has so provided in sections 34-1 to 34-4. Whether or not the General Assembly has chosen the best method to accomplish an objective is a legislative and not a judicial question. Fiedler v. Eckfeldt, 335 Ill. 11, 31.

Hence, the classification found in article 34 restricting its operation to cities having a population exceeding 500,000, being based upon exigencies found in such metropolitan areas, does not create local or special legislation and is therefore ...

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