Cook Cnty. v. Chicago Indus. Sch. for Girls

• Decision Date: 28 September 1888
• Citation: Cook Cnty. v. Chicago Indus. Sch. for Girls, 125 Ill. 540, 18 N.E. 183 (Ill. 1888)
• Parties: COOK COUNTY v. CHICAGO INDUSTRIAL SCHOOL FOR GIRLS.
• Court: Illinois Supreme Court

125 Ill. 540

18 N.E. 183

COOK COUNTY

v.CHICAGO INDUSTRIAL SCHOOL FOR GIRLS.

Supreme Court of Illinois.

September 28, 1888.

Appeal from circuit court, Cook county; RICHARD S. TUTHILL, Judge.E. R. Bliss, Co. Atty., and Francis Adams, for appellant.

Smith & Pence and G. A. Koerner, for appellee.

MAGRUDER, J.

Under the provisions of the act of May 28, 1879, entitled ‘An act to aid industrial schools for girls,’ and of the act to amend sections 3,5, and9 thereof, passed on June 26, 1885, female infants to the number of about 189 were brought before the county court of Cook county, at various times between April 1, 1886, and June 4, 1887, on charges of being dependent girls.The case of each girl was submitted to a jury, who found the facts set forth in the petition to be true; and the court thereupon entered an order, in the case of each of such girls, that she‘be committed to the Industrial School for Girls at Chicago, in said county, to be in such school kept and maintained until she arrives at the age of eighteen years, unless sooner discharged therefrom according to law.’These orders were executed, and the commitments were made, in such manner as will hereafter appear.During the same period various certificates were issued by the judge of said county court, certifying that certain bills for clothing alleged to have been furnished by the Chicago Industrial School for Girls, to the dependent girls so committed, were proper, and directing and authorizing the county treasurer of said county to pay the same.

This is an action of assumpsit commenced in the circuit court of Cook county on June 4, 1887, by the Chicago Industrial School for Girls against the county of Cook, for the clothing so furnished to the said girls, and for their ‘tuition, maintenance, and care’ during the period aforesaid, at the rate of $10 per month for each girl.The declaration contains only the common counts.The plea is the general issue, with a stipulation ‘that the defendant may set up any defense under the plea of the general issue, * * * and put in any evidence it might under any and all special pleas well pleaded, including that of nul tiel corporation.’The copy of the account sued upon shows that for the year from April 1, 1886, to April 1, 1887, there is claimed to be due for tuition, etc., $15,664.24; and for clothing, $2,345, making a total of $18,009.24; which, being reduced by a credit of $2,109.16, leaves $15,900.08 as the amount alleged to be due on April 1, 1887.Other bills were offered in evidence for ‘tuition, maintenance, and care’ for the period from April 1, 1887, to June 3, 1887, inclusive; making ‘the total of all bills for tuition, maintenance, and clothing,’ $19,583.A jury was waived by agreement, and the cause was tried before one of the judges of the circuit court, who rendered judgment in favor of the plaintiff for $19,583; from which this appeal is prosecuted.

The board of commissioners of Cook county declined to pay these bills when presented, on the ground that they were forbidden to do so by section 3 of article 8 of the constitution of this state, which reads as follows: ‘Neither the general assembly, nor any county, city, town, township, school-district, or other public corporation, shall ever make any appropriation, or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money, or other personal property, ever be made by the state, or any such public corporation, to any church, or for any sectarian purpose.’

It is claimed on the part of the county of Cook, the appellant herein, that the appellee, the Chicago Industrial School for Girls, never had any existence except on paper; that it never owned or leased any building or conducted any such school, as was contemplated by its charter, and by the act of May 28, 1879; that the corporation known as the ‘Chicago Industrial School for Girls' was a mere tender to two institutions called, respectively, the ‘House of the Good Shepherd’ and the ‘St. Joseph's Orphan Asylum;’ that all the commitments nominally made to appellee were as matter of fact made to these institutions; that appellee never furnished any of the clothing, nor performed any of the services, for which suit is brought, but that the girls, under the warrants for their commitment, were placed at once under the charge and care of these two institutions, and were taught, maintained, and clothed by them alone; that they alone have received all the money heretofore paid nominally to appellee by the county of Cook, and that they alone are to receive all the money that may be recovered in this suit; that the name of appellee is, in other words, nothing more than another name for these two institutions; that the House of the Good Shepherd and the St. Joseph's Orphan Asylum are Roman Catholic schools, under the control of the Roman Catholic Church; that, by paying the bills sued for, the county will be paying money out of the public funds, in aid of a church or sectarian purpose, and to help support and sustain schools controlled by a church or sectarian denomination.

Upon the trial in the court below a stipulation was made between counsel as to some of the facts; and testimony was also introduced, on the one side, to sustain, and on the other to controvert, the claim thus made by the county.As bearing upon the question suggested by the evidence, the defendant below submitted to the trial judge certain written propositions of law, as provided for by section 41 of the practice act.His refusal to hold as law the propositions so submitted, and also his refusal to admit certain testimony offered by the defendant, are assigned as errors.The first question to be passed upon is whether or not the payment of these bills by the appellant will be a violation of the provision of the constitution above quoted.The refused propositions hold the affirmative of this question, and, in order to determine whether they are erroneous or not, it will be necessary to see what the evidence upon which they are based tends to prove.

1.Are the House of the Good Shepherd and the St. Joseph's Orphan Asylum schools controlled by a church or sectarian denomination, or do they have in view and exist for the accomplishment of sectarian purposes?Upon this subject counsel for appellee, in their brief, use the following language: ‘The stipulation, which has been referred to, shows * * * that the House of the Good Shepherd is an incorporated body under the special act of March 7, 1867, and owns the land on which its building stands; that St. Joseph's Orphan Asylum is also incorporated; that those institutions are respectively under the control of orders of sisters of the Roman Catholic Church.’

The record of the incorporation of the orphan asylum appears to have been lost.The charter of the House of the Good Shepherd, approved March 7, 1867, after reciting that the Sisters of the Good Shepherd, in Chicago, ‘are members of an order the object of which is to reform abandoned women,’ etc., enacts that Adeline Noreau, (known as Sister Mary of the Nativity,) superior; Mary Kavanagh, (known as Sister Mary of St. Philomene,) assistant; Catherine Riordan, (known as Sister Mary of St. Joseph,) counsellor; and Clara Nonenkamp, (known as Sister Mary of the Visitation,) counsellor; and their successors, etc., are constituted a body corporate, by the name of ‘The House of the Good Shepherd;’ and by that name shall have the right to carry on an institution at Chicago for the reformation of abandoned women; ‘to make such laws, rules, and regulations as may be necessary for the proper order, conduct, and control of said house; * * * to keep a school or academy, or engage in any other lawful * * * business, for the purpose of maintaining said house.’The stipulation of counsel, which sets forth the admitted facts in the case, contains the following recitals:‘That the House of the Good Shepherd has been maintained since its organization, and is now, for the purposes of its incorporation, as defined by the act aforesaid.That the Sisters of the Good Shepherd named in said act of March 7, 1867, and their successors in office, belong to one of the several orders of the Roman Catholic Church, under the general denomination of ‘nuns.’That, upon their admission to said order, they assumed certain vows, by which they are pledged to belief in the tenets and doctrines of the Roman Catholic Church, to the absolute exclusion of all other religious creeds; and also to yield implicit obedience to the mandates of the superior authorities of said order.That the management and control of said St. Joseph's Orphan Asylum is vested in another order of said church, known as the Sisters of Charity, whose relations to said church are similar to those of the Sisters of the Good Shepherd, and that since its organization said institution has been used for the purposes of its incorporation, viz., as an asylum for orphans.That both of said institutions are in the possession of and under the absolute control and management of said two orders, respectively.'

Murray Nelson, a witness for the defendant, testifies that he was a member of the board of commissioners of Cook county from December, 1886, to December, 1887, and was chairman of the finance committee, and that he spent a day in the House of the Good Shepherd.He says: ‘There is no secret about the religious or sectarian character of the House of the Good Shepherd.The institution is a Roman Catholic institution on the face of it.* * * Everything indicated that it was a Roman Catholic institution.All the paraphernalia of the church-pictures, graven images, candles, crucifixes, crosses-were met at every quarter, in every passage-way, in...