Hamer v. Board of Ed. of School Dist. #109, Lake County

• Decision Date: 31 January 1973
• Docket Number: No. 71--293,71--293
• Citation: 9 Ill.App.3d 663,292 N.E.2d 569
• Parties: Page 569 292 N.E.2d 569 9 Ill.App.3d 663 Paul E. HAMER, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. BOARD OF EDUCATION OF SCHOOL DISTRICT #109, COUNTY OF LAKE, State of Illinois, a municipal corporation, Defendant-Appellee. Appellate Court of Illinois, Second District
• Court: United States Appellate Court of Illinois

Page 569

292 N.E.2d 569

9 Ill.App.3d 663

Paul E. HAMER, on behalf of himself and all others similarly situated, Plaintiffs-Appellants v BOARD OF EDUCATION OF SCHOOL DISTRICT #109, COUNTY OF LAKE State of Illinois, a municipal corporation Defendant-Appellee.

No. 71--293.

Appellate Court of Illinois, Second District.

Jan. 31, 1973.

Paul E. Hamer, Northbrook, for plaintiffs-appellants.

Norman & Billick, Ralph Miller, Allyn J. Franke, Chicago, for defendant-appellee.

GUILD, Justice.

The plaintiff herein, Paul E. Hamer, has again filed a suit in the Circuit Court of Lake County against the Board of Education of School District $109, and said appeal is presently before this court. Hamer had previously filed a similar suit in the Circuit Court of Lake County which was pending upon appeal at the time of the filing of the instant cause of action. The Supreme Court of Illinois filed its decision on December 4, 1970, Hamer v. Board of Education of School District No. 109, 47 Ill.2d 480, 265 N.E.2d 616; a rehearing was denied January 27, 1971, and certiorari was denied by the Supreme Court of the United States.

The apparent difference between the two suits is that in the suit now before this court, Hamer filed a suit in three counts, the first count on behalf of himself and others, and he has now added a second count on behalf of himself and others; the second being for an injunction; and the third count being for a mandamus against the school district filed on behalf of Hamer individually.

Examination of the complaint in the prior action and in the instant suit discloses that the two suits are substantially the same. In the present case, Hamer primarily based his cause of action upon a book rental fee for Eleanor Hamer in the sum of $8.50; John Hamer in the sum of.$9.00; Tom Hamer in the sum of.$9.00; and a towel fee for the year for Tom Hamer in the sum of $3.50, these being the three children of the complainant. He paid these sums under protest on September 15, 1970, and two weeks later filed the instant suit. An additional element not found in the prior suit is that the text book rental fees are unreasonable, and the objectionto 'supply fees' including $3.50 yearly fee for the furnishing of clean towels throughout the school year for the one child. The complaint before us challenges the constitutionality of Ill.Rev.Stat.1969, ch. 122, pars. 10--20.13, 10--22.25 and 34--8. The complaint further states that charging pupils for the use of text books and towels is not allowed under the School Code or the Illinois Constitution (Art. 8, Sec. 1).

A motion for summary judgment filed by the defendant was granted on March 24, 1971. Plaintiff's motion for summary judgment and his motion to re-hear, vacate or reconsider was denied. This appeal followed from these orders.

The plaintiff contends in his brief that the primary issue in this case is whether sections 10--20.13 and 10--22.25 of the School Code contravene the provisions of the federal and the 1970 State Constitutions. The defendant has in its brief, likewise, considered this question and contends the provisions of the 1970 Constitution are not basically changed from the provisions of the 1870 Constitution. ^* However, this issue was never presented to the trial court and obviously cannot now be presented to this court as a matter of first impression. The complaint herein sets forth and refers to Art. 8 § 1 of the Constitution, but at no time mentions the year of the Constitution. It is obvious that Art. 8 § 1 must therefore refer to the 1870 Constitution. Interestingly enough, the 1970 Constitution became effective on January 1, 1971, and was not in effect at the time Hamer filed the suit now before us. Examination of the complaint before us and the prior complaint which was considered by the Supreme Court discloses but little difference. The constitutionality of the quoted statutory provisions was upheld in that opinion. Likewise, the court also considered the statutory provisions quoted with relation to the 1870 Constitution and those issues are res adjudicata at this time.

The first new issue is as to whether the fees set forth above for the use of textbooks for the year in question and prior years, and school supply charges including the $3.50 yearly towel charge and laundering thereof, are reasonable.

The trial court was more than amply justified in considering the affidavit of the Assistant Superintendent of Schools as to the cost of furnishing textbooks and the income secured for the rental thereof. Likewise, it is scarcely necessary to mention that the furnishing of a bath towel and the yearly laundering thereof for an annual sum of $3.50 is modest indeed. It should also...