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Hamer v. Board of Education

OPINION FILED DECEMBER 4, 1970.

PAUL E. HAMER, APPELLANT,

v.

BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 109, APPELLEE.



APPEAL from the Circuit Court of Lake County; the Hon. MINARD E. HULSE, Judge, presiding.

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

Rehearing denied January 27, 1971.

Paul E. Hamer filed his complaint in the circuit court of Lake County for a declaratory judgment that sections 10-20.13, 10-22.25 and 34-8 of the School Code of 1961 (Ill. Rev. Stat. 1969, ch. 122, pars. 10-20.13, 10-22.25 and 34-8) are unconstitutional. The court dismissed the complaint on motion of defendant Board of Education of School District No. 109, Lake County, Illinois. Hamer appeals from that order pursuant to Rule 302.

Section 10-20.13 provides in part that the school board has the duty "to purchase, at the expense of the district, a sufficient number of textbooks for children whose parents are unable to buy them." Section 10-22.25 provides that the school board shall have the power "To purchase textbooks and rent them to the pupils." Section 34-8 provides in part that the board of education in cities having a population exceeding 500,000 "may furnish free textbooks to pupils and may publish its own textbooks and manufacture its own apparatus, equipment and supplies."

The complaint alleges that Hamer is a resident of School District No. 109 and has four children attending schools in the district. In August 1969 he was asked to pay a textbook rental fee for each of his children attending school and told that if he had a problem making the payment, he could work out a confidential arrangement with the treasurer of the district. Although Hamer did not pay the textbook rental or make any arrangement with the district treasurer, the children were supplied with textbooks at the beginning of the 1969-1970 school year. As the school year progressed and the failure to pay the textbook rental or make the confidential arrangement with the treasurer continued, the textbooks were taken from the children. Hamer then instituted this action against the school board.

The constitutional attacks on sections 10-20.13, 10-22.25 and 34-8 and the action of the school board are numerous and involved. They concern the first amendment (right of assembly), the fourth amendment (search and seizure), and the fourteenth amendment (due process and equal protection of the laws) of the Federal constitution; sections 1 (right to privacy), 2 (due process), 6 (search and seizure, 14 (law granting special privileges), 17 (right of assembly), 19 (right to remedy and justice) and 20 (recurrence to fundamental principles) of article II; article III (distribution of powers); sections 22 (special laws prohibited) and 23 (release of public debts prohibited) of article IV; section 1 (right to free common school education) of article VIII; and sections 1, 2, 3, 9 and 10 (taxation) of article IX of the Illinois constitution. It is unnecessary to further detail these contentions because most of them simply are not properly before us.

The complaint does not allege that plaintiff cannot afford to pay the textbook rental or purchase the textbooks. Thus, he does not bring himself within the operation of section 10-20.13 and he has not been adversely affected by it. He argues, nevertheless, that as a resident and taxpayer of the district, he has standing to challenge its constitutionality, even though he is not affected by the section except as a taxpayer. This may be true, but he did not bring the action as a taxpayer. Furthermore, the complaint does not allege that the school board has bought textbooks and loaned them to children whose parents could not buy them and consequently affected him as a taxpayer.

What we have just stated with respect to section 10-20.13, also applies to plaintiff's standing to question the constitutionality of section 34-8. Since defendant is not a city having a population exceeding 500,000, plaintiff is not affected by section 34-8 as a taxpayer or otherwise. Furthermore, his principal attack on section 34-8 is that permitting the Board of Education of the City of Chicago to issue free textbooks without a referendum, while permitting all other school districts to issue free textbooks only after being authorized by a referendum (see Ill. Rev. Stat. 1969, ch. 122, par. 28-14) constitutes special legislation in violation of section 22 of article IV of our constitution. Plaintiff has not alleged any facts showing that the legislative authority to issue free textbooks without a referendum in cities with a population of over 500,000 is based on an unreasonable classification and we have recently found this classification to be reasonable with respect to various school matters. See Latham v. Board of Education, 31 Ill.2d 178.

This brings us to the real question raised by this appeal. It is argued that charging pupils for the use of textbooks violates section 1 of article VIII of our constitution which provides: "The general assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education." In support of this argument plaintiff cites Paulson v. Minidoka County School District No. 331, 93 Idaho 469, 463 P.2d 935, and Bond v. Public Schools of the Ann Arbor School District, 383 Mich. 693, 178 N.W.2d 484.

In Paulson the Minidoka County School District refused to furnish the State university a transcript of courses studied and grades achieved for one of its high school graduates because the graduate had not paid the $12.50 "textbook fees" and the $12.50 "school activity fees" while he was attending high school. Section 1 of article 9 of the 1890 Idaho constitution provides "* * * it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools." While indicating that school districts could require "reasonable deposits" from students as protection against "extraordinary wear and tear or damage to school books", the Idaho Supreme Court held that the "textbook fees" violated the free school provision of the Idaho Constitution. The reasoning of the Court was "Textbooks are necessary elements of any school's activity. They represent a fixed expense peculiar to education, the benefits from which inure to every student in equal proportion (ignoring differences in ability and motivation) solely as a function of his being a student. Unlike pencils and paper, the student has no choice in the quality or quantity of textbooks he will use if he is to earn his education. He will use exactly the books, prescribed by the school authorities, that his classmates use; and no voluntary act of his can obviate the need for books nor lessen their expense. School books are, thus, indistinguishable from other fixed educational expense items such as school building maintenance or teachers' salaries. The appellants may not charge students for items because the common schools are to be `free as our constitution requires'." 93 Idaho 469, 463 P.2d 935, 938-939.

In Bond the Supreme Court of Michigan was asked to determine whether the elementary and secondary schools of that State could compel students to furnish textbooks and supplies at their own expense when article VIII, section 2 of the 1963 Michigan constitution provides: "The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law." The Michigan court quoted and adopted the rationale of the Idaho court in holding the Michigan constitutional provision for free public elementary and secondary schools prohibited the schools from collecting fees for textbooks and school supplies. However, it seems to us significant that there were substantial changes in the educational provisions of the pre-1963 Michigan constitution as contrasted with the 1963 constitutional provisions above quoted. The earlier provisions had required only that "The legislature shall continue a system of primary schools, whereby every school district in the state shall provide for the education of its pupils without charge for tuition." (Emphasis added.)

This court expressed a contrary opinion in Segar v. Board of Education of the School District of the City of Rockford, 317 Ill. 418. In that case the voters of the school district had approved a proposition to issue free textbooks pursuant to the Free Text-book Act. (Laws of 1919, p. 915.) The board of education passed a resolution requiring a deposit from the students which was to be refunded if the books were returned in "reasonably good condition." A mandamus action was brought against the board to compel the issuance of the textbooks without requiring the deposit. In rejecting the contention that the book deposit violated section 1 of article VIII, this court stated: "While they [plaintiffs] do not point out in what respect this section of the constitution is transgressed, we assume it is their position that provision for a system of free schools is not made until text-books are provided at public expense for the use of pupils attending the public schools. No authority is cited in support of such a contention, and we are of the opinion that none can be found. The authorities seem to be uniform that a board of education has no power to furnish text-books to the pupils at public expense without specific authority so to do. (Annotations, 17 A.L.R. 299; 45 L.R.A. ___ N.S. ___ 972.) A system of schools which permits all persons of school age residing in the district to attend classes and receive instruction in the subjects taught, without a tuition charge, provides free schools, and the fact that the parents of pupils financially able to do so are required to provide their children with text-books, writing materials and other supplies required for the personal use of such pupils does not change the character of the school." 317 Ill. 418, 421.

The statement in Segar that there was no authority for the contention that a constitutional provision for "free schools" means that textbooks must be furnished to all students free of charge appears to have been an accurate statement in 1925 when the decision was rendered. The Idaho decision to the contrary was decided in 1970 without any citation of authority and the Michigan decision, also to the contrary, was also decided in 1970 with only the Idaho decision cited as authority.

In determining the intention and purpose of a constitutional provision, this court will look to the natural and popular meaning of the language used as it was understood at the time the constitution was adopted. American ...


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