Before Swygert, Circuit Judge, and Robson and Parsons,
The opinion of the court was delivered by: Robson, District Judge:
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
The defendants have moved to dismiss. For the reasons set
forth below, this court is of the opinion that the motions
should be granted, and the case remanded to a single-judge
This is a class action by people on public assistance from
the State of Illinois who have large families, and who live in
inadequate housing that costs more than $90 per month. These
plaintiffs are before this three-judge court to challenge the
constitutionality of the Illinois statute which imposes a
maximum shelter allowance of $90 per month for all those on
public assistance. Ill.Rev.Stat. 1967, ch. 23, § 12-4.11 and §
12-14. The plaintiffs contend that the statute is void on its
face and void as applied.*fn1
In order to determine that a statute violates the Equal
Protection Clause of the Fourteenth Amendment to the
Constitution, the statutory classification (or
subclassification) must be unreasonable or arbitrary in the
light of some proper legislative purpose. Johnson v. Robinson,
296 F. Supp. 1165, 67 C. 1883 (N.D.Ill. Dec. 28, 1967), at p.
7; Smith v. King, 277 F. Supp. 31, 38-40 (M.D.Ala. 1967), and
cases cited therein, affirmed 392 U.S. 309, 88 S.Ct. 2128, 20
L.Ed.2d 1118 (1968). The statute involved in this case makes
a broad classification which covers those people who are in
need of public assistance. The legislature sought to "provide
a livelihood compatible with health and well-being for persons
eligible for financial aid * * *." Ill.Rev.Stat. 1967, ch. 23,
§ 12-4.11, clause 2. This general classification is not under
attack here. However, a sub-class is created by the inclusion
of the shelter allowance maximum of $90 per month, which
includes the plaintiffs, and is under attack in this case.
The defendants all but concede that if the statute merely
set forth a flat $90 shelter allowance maximum, it would be
unconstitutional. Without a provision for exceptions, the
purpose that such an across-the-board maximum would serve,
namely to conserve the State's financial resources, could not
be reconciled with the statute's general purpose to provide
aid to needy families. The statute would meet the needs of
that class of people on welfare who do not need more than $90
per month to live in adequate housing, but would not meet the
needs of those large families (such as the plaintiffs') who
cannot find adequate
housing for $90 per month or less. This would violate the
Equal Protection Clause. Cf. Collins v. State Board of Social
Welfare, 248 Iowa 369, 81 N.W.2d 4 (1957); Straub v.
Department of Public Welfare, 31 Wn.2d 707, 198 P.2d 817,
825-826 (1948). While the state may have the power to deny
all aid to needy families, once it enters the field, it must do
so in a non-discriminatory manner. Beck v. Buena Park Hotel
Corp., 30 Ill.2d 343, 346, 196 N.E.2d 686 (1964). Phillips
Chemical Co. v. Dumas Independent School District,
361 U.S. 376, 385, 80 S.Ct. 474, 4 L.Ed.2d 384 (1960).
This statute, however, is broader than that. It clearly
provides for exceptions to the $90 maximum. In § 12-14,
deviations from this $90 ceiling can be allowed by the Illinois
Department of Public Aid, after consultation with a legislative
Advisory Committee.*fn2 The plaintiffs contend that this
provision does not save the constitutionality of the statute.
They argue that these exceptions can be granted without any
standards, and that this vests too much arbitrary discretion in
the hands of the administrators of the public welfare system.
This court does not agree.
While it is true that § 12-14 does not spell out exactly what
criteria the Illinois Department of Public Aid is to use in
granting exceptions to the $90 maximum shelter allowance, this
is not the only reading of the statute. Following the well-worn
doctrine that a statute is to be construed as constitutional
when such a construction is possible, e.g., Harmon v. Brucker,
355 U.S. 579, 581, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), it is
clear to this court that this statute is constitutional when
read together with the purposes of the public welfare code. The
Illinois Department of Public Aid must establish standards
which, as stated before, "shall provide a livelihood compatible
with health and well-being for persons eligible for financial
aid." The legislature in setting forth this $90 ceiling foresaw
the arbitrary nature of a flat maximum and wrote into the
statute the words, "except for adjustments made in the manner
authorized by Section 12-14." By incorporating the procedure
outlined in Section 12-14 into Section 12-4.11, the standards
announced in Section 12-4.11 were not to be forgotten, but were
to be the guidelines for the Illinois Department of Public Aid
to follow in granting exceptions. Read in this way, no
arbitrary classification is made, and the statute on its face
must withstand constitutional attack. Cf. McGowan v. State of
Maryland, 366 U.S. 420, 425-428, 81 S.Ct. 1101, 6 L.Ed.2d 393
(1961); Flemming v. Nestor, 363 U.S. 603, 611-612, 80 S.Ct.
1367, 4 L.Ed.2d 1435 (1960).
Since the statute is constitutional on its face, there are
no remaining questions for a three-judge court to consider.
Any questions that might remain are primarily of a factual
nature, and must be resolved after remand to a single judge.
Phillips v. United States, 312 U.S. 246, 253, 61 S.Ct. 480, 85
L.Ed. 800 (1941); McGuire v. Sadler, 337 F.2d 902, 906 (5th
Cir. 1964); Bartlett and Company, Grain v. State Corporation
Commission of Kansas, 223 F. Supp. 975, 981-982 (D.Kan. 1963).
It is therefore ordered that the defendants' motions to
dismiss be and they are hereby granted.
It is further ordered that this case be and it is hereby
remanded to the judge to whom it was assigned for further