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This bulletin will seek to deal with certain subjects that have not been dealt with in other bulletins issued for the use of the constitutional convention. It will confine itself primarily to problems raised by the bill of rights and to related problems involved in other parts of the constitution. In connection with certain suffrage provisions of the bill of rights, there will be a brief discussion also of Art. VII of the constitution. In connection with the subject of religious liberty there will be some discussion of Art. VIII dealing with education; and in connection with guarantees regarding military matters, there will be a brief discussion of Art. XII of the constitution. The preamble, the article on boundaries, the article on separation of powers and the schedule require little comment beyond what will be found in the Annotated Constitution.
A number of important matters with respect to the bill of rights have been dealt with in other bulletins of this series. The subjects of jury trial and of the grand jury will be found fully discussed in Bulletin No. 10, dealing with the judicial department. Problems as to the extension of the power of eminent domain and excess condemnation are considered in Bulletin No. 7. The problem of injunctions in labor cases is fully discussed in Bulletin No. 14, devoted to economic and industrial problems, and further reference to this subject is unnecessary in this bulletin. The question as to the extent to which social and industrial legislation has been prevented by interpretation of the present constitution is to some extent covered in the bulletin dealing with the judicial department (Bulletin No. 10), where a chapter will be found upon the power of the courts to declare laws unconstitutional; and in Bulletin No. 8, on the legislative department, where a chapter will be found on legislative powers. With respect to certain matters upon which the constitutionality of legislation may be doubtful without a change in the present constitutional text, a discussion will be found in Bulletin No. 14, dealing with social and industrial problems.
II. BILL OF RIGHTS.
The bill of rights of the constitution of Illinois is similar in general to the bills of rights in other state constitutions. No questions whatever are raised by a number of the provisions of the bill of rights, and such provisions will probably be carried forward into a new constitution without change. The sections of the bill of rights which may present the most serious questions to the constitutional convention are discussed in other bulletins in this series. The sections which will probably present the most serious problems are Section 5, dealing with the jury, Section 8, dealing with the grand jury, Section 9, dealing with certain guarantees regarding criminal trials (including the jury in criminal cases), and Section 13, dealing with eminent domain. All of these matters have been fully discussed in other bulletins, and it is sufficient here merely to call attention to this fact. This discussion will limit itself to certain other matters which are perhaps less important, but which may receive consideration in the constitutional convention.
Religious liberty and aid to sectarian institutions. Section 3 of Article 2 contains a broad guarantee of religious liberty, and no suggestion has been made regarding a change in the language of this section. This section must, however, be read in relationship with Article VIII, Section 3, of the constitution, which provides that:
"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."
The language of Article VIII, Section 3, is broad and inclusive, and no question would arise regarding a possible change in this language, were it not for recent decisions of the Illinois supreme court. The real problem which presents itself is that as to whether a county or other public corporation may commit its wards to sectarian institutions, paying such institutions for the care of such wards. In the case of County of Cook v. Industrial School for Girls, 125 Ill. 540 (1888), a statute was involved under which a girl was to 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. No Chicago Industrial School for Girls had actually been established as a separate institution and girls were committed under the act to two institutions which were admittedly sectarian. The Board of Commissioners of Cook county declined to pay bills for girls committed to these sectarian institutions, on the ground that such payment would be in violation of Article VIII, Section 3, of the constitution. In the above case, involving an action to recover for the care of children by sectarian institutions, Judge Magruder said:
"It cannot be said that a contribution is no aid to an institution because such contribution is made in return for services rendered or work done. The school is aided by the patronage of its pupils, even if they do pay for their tuition. Because the customers of a merchant pay for their goods, it is none the less true that his business is aided by their custom. The act under discussion is entitled 'An act to aid Industrial Schools for Girls'. If the payment by the county of $10 per month on account of each dependent girl committed to such a school is no aid to the school simply because 'tuition, maintenance and care' are furnished in return for such payment, then the act is not properly entitled. It is an untenable position that public funds may be paid out to help support sectarian schools, provided only such schools shall render a quid pro quo for the payments made to them. The constitution declares against the use of public funds to aid sectarian schools independently of the question whether there is or is not a consideration furnished in return for the funds so used."
It would have been possible to have reached the same conclusion in the Chicago Industrial School for Girls case without a square pronouncement upon the question of aid to sectarian institutions.
The problem of committing public wards to a sectarian institution came up again in the case of Dunn v. Chicago Industrial School for Girls, 280 Ill. 613 (1917). In this case an injunction was sought to prevent the payment of a sum of money for the care and maintenance of girls committed to the Chicago Industrial School for Girls by the Juvenile Court of Cook county, upon the ground that making a payment of an appropriation would violate Article VIII, Section 3, of the constitution. The facts showed that the institution was under the control and management of the Roman Catholic Church, and that the children committed to the school by the Juvenile court were children of Catholic parents and members of that church. The school was to receive $15 per month for each girl, and this was said to be less than the cost of maintaining a girl in a similar state institution, and less than the cost of food, clothing, training, medical care and tuition furnished to the wards of the county, the institution making up the balance through private sources. The court said:
"It would be contrary to the letter and spirit of the constitution to exclude from religious exercises the members of any denomination when the state assumes their control, or to prevent children of members from receiving the religious instruction which they would have received at home. The constitutional prohibition against furnishing aid