Richards v. Raymond

• Decision Date: 30 September 1879
• Citation: 92 Ill. 612,34 Am.Rep. 151,1879 WL 8569
• Parties: FREDERICK RICHARDSv.SAMUEL W. RAYMOND.
• Court: Illinois Supreme Court

92 Ill. 612

1879 WL 8569 (Ill.)

34 Am.Rep. 151

FREDERICK RICHARDS

v.SAMUEL W. RAYMOND.

Supreme Court of Illinois.

September Term, 1879.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court of the Second District; the Hon. NATHANIEL J. PILLSBURY, presiding Justice, and Hon. JOSEPH SIBLEY and Hon. E. S. LELAND, Justices.

This was a bill in chancery, by Frederick Richards, against Samuel W. Raymond, county treasurer of LaSalle county, to enjoin the collection of a school tax.

The court below, the Hon. EDWIN S. LELAND, presiding, sustained a demurrer to the bill and dismissed the bill. The case was taken by writ of error to the Appellate Court, where the decree of the circuit court was affirmed. The case comes to this court by appeal from the decree of the Appellate Court.

Mr. G. S. ELDRIDGE, for the appellant:

The school established, as set forth in the bill, is not such a school as can be said to fall within and constitute a part of a thorough and efficient system of common school education, whereby its benefits may be made practically available to all the children of the State. This is shown by the bill, and is a fact of which this court must take judicial notice, that is,--what is a common school education, as provided in the statute. The law being unconstitutional the tax is void. The People v. McAdams, 82 Ill. 356; The People v. Mayor, etc. 51 Id. 17; The People v. Salomon, Id. 37; Fisher v. The People, 84 Id. 491; Const. of 1870, art. 9, secs. 9 and 10; Const. of 1848, art. 9, sec. 5.

Messrs. MAYO & WIDMER, and Mr. E. F. BULL, for the appellee:

Taxes for the support of high schools have been sustained by this court and the law upheld. Fisher v. The People, 84 Ill. 491; Trustees of Schools v. The People ex rel. 87 Id. 303.

One rule for the construction of State constitutions, adopted by the courts of all the States, so far as we are informed, and a rule in harmony with the common law, upon which our institutions are founded, is this: “The legislature is supreme, and its acts valid and binding unless they are in express conflict with the constitution of the United States or of the State. Limitations upon the power of the legislature arise either from express words in the constitution or necessary implication.” Cooley's Const. Lim. 89-168; Potter's Dwarris on Stat. and Const. 62-4; The People v. Marshall, 1 Gilm. 672; Chicago, Danville and Vincennes Railroad Co. et al. v. Smith, 62 Ill. 271; Lane v. Dorman, 3 Scam. 238; The People v. Hatch, 33 Ill. 130; McVeagh v. City of Chicago, 49 Id. 318; The People v. Salomon, 46 Id. 333; Bunn v. The People, 45 Id. 397; Morris v. The People, 3 Denio, 382; The People v. Draper, 15 N. Y. 543; Fletcher v. Peck, 6 Cranch, 128; Sill v. Village of Corning, 15 N. Y. 303; Bank v. Brown, 26 Id. 469; The People v. Denniston, 23 Id. 251; The People v. Fisher, 24 Wend. 220.

Another rule equally well established is, that courts will never indulge in the supposition that a law is unconstitutional unless the repugnancy is manifest to the understanding. Chicago, Danville and Vincennes Railroad Co. et al. v. Smith, 62 Ill. 271; Lane v. Dorman, 3 Scam. 238; The People v. Marshall, 1 Gilm. 672; The People v. Hatch, 33 Ill. 130; McVeagh v. City of Chicago, 49 Id. 318; The People v. Salomon 46 Id. 333; Bunn v. The People, 45 Id. 397; Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 Id. 229.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, to enjoin the collection of a tax levied to sustain a high school established in township 31, range 3, in LaSalle county, under the provisions of section 35 of the School law, (Rev. Stat. of 1874, p. 957,) which is as follows:

“Upon petition of fifty voters of any school township, filed with the township treasurer at least fifteen days preceding a regular election of trustees, it shall be the duty of said treasurer to notify the voters of the township that an election for and against a high school will be held at the next ensuing election of trustees, and the ballots to such effect shall be received and canvassed at such election; and if a majority of the voters at such election shall be found to be in favor of a high school it shall be the duty of the trustees of the township to establish at some central point, most convenient for a majority of the pupils of the township, a high school for the education of the more advanced pupils.”

The sole ground relied upon to enjoin the collection of the tax is, that this section of the statute is unconstitutional,--that it is in conflict with section 1 of article 8 of the present constitution, which provides that the General Assembly shall provide a thorough and efficient system of free schools whereby all children of the State may receive a good common school education. This provision of the constitution was doubtless intended as a limitation upon the power of the legislature to provide for the maintenance of free schools by local taxation of a different character from that named in the section. In other words, under the section of the constitution the legislature has the power to enact laws under which a thorough and efficient system of free schools may be established and maintained by local taxation, in which all the children of the State may receive a good common school education, but to go farther than this, the legislature would seem to be powerless. We can not perceive what other purpose was designed by the section of the constitution. It could not have been intended as a grant of power to the legislature, for the reason that the legislature has the power to enact any and all laws proper for the government or welfare of the people of the State not prohibited by the constitution of the United States or of this State. It is not the mission of a constitution of a State to confer power upon the law-making department of the State, but to limit and restrain the power which it possesses independent of constitutions. We are, therefore, satisfied, as the section of the constitution could not have been designed as a grant of power, it was intended as a limitation upon the power of the General Assembly.

But, conceding that the section of the constitution referred to is a limitation upon the power of the legislature, it by no means follows that the section of the statute in question is in conflict with the constitution.

It has been well said that the question, whether a law is void for repugnancy to the...