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or preference to any church or sect is to be rigidly enforced, but it is contrary to fact and reason to say that paying less than the actual cost of clothing, medical care and attention, education and training in useful arts and domestic sciences, is aiding the institution where such things are furnished."
The position in this case was distinguished from that in 125 Ill., by virtue of the view that the industrial school in that case had no power to relinquish the care and guardianship of girls committed to it (the school in that case being shown to have no actual existence), and also by virtue of the fact that there was no showing in that case that the sectarian institution would not receive aid from the payments sought to be made.
A view similar to that in the case just discussed will be found in Dunn v. Addison Manual Training School for Boys, 281 Ill. 352 (1917), Trost v. Ketteler Manual Training School for Boys, 282 Ill. 504 (1918), and St. Hedwig's Industrial School for Girls v. County of Cook, 289 Ill. 432 (1919).
These cases may raise an issue before the constitutional convention as to whether the constitutional language shall be so changed as to prevent the use of sectarian institutions for public purposes, even though the sectarian institutions actually sustain a loss in the performance of the service rendered to the public.
In connection with this matter, attention may be called to the fact that in Massachusetts, aid to sectarian institutions was not prohibited by the constitution before 1917. This issue was one of the most important of those presented in the constitutional convention in Massachusetts in 1917. A full discussion of the situation in Massachusetts will be found in Massachusetts Constitutional Convention Bulletin No. 17,1 and a full debate upon this matter will be found in the Debates of the Massachusetts Constitutional Convention, Volume 1, pages 44 to 363. This problem was not a new one in Massachusetts. An amendment regarding the matter had been proposed by the constitutional convention of 1853, but failed. However, an identical proposal was submitted by the Massachusetts general court in 1855 and adopted by the people. This amendment provided?
"That all moneys raised by taxation in the towns and cities for the support of public schools, and all moneys which may be appropriated by the state for the support of common schools, shall be applied to and expended in no other schools than those which are conducted according to law under the order and superintendence of the authorities of the town or city in which the money is to be expended, and such money shall never be appropriated to any religious sect for the maintenance, exclusively, of its own schools."
The supreme judicial court of Massachusetts took the view that the language of this amendment did not prohibit "appropriations for higher educational institutions, societies or undertakings under sectarian or ecclesiastical control".
1 Bulletin No. 17, Appropriations for Sectarian and Private Purposes.
In 1917 the Massachusetts constitutional convention submitted a proposal of amendment, which was adopted by the people of Massachusetts. This amendment seems to make it perfectly clear that public funds may not be used for any higher institution of education under sectarian control, but the amendment adds that "nothing herein contained shall be construed to prevent the commonwealth, or any political division thereof, from paying to privately controlled hospitals, infirmaries or institutions for the deaf, dumb or blind, not more than the ordinary and reasonable compensation for care or support actually rendered or furnished by such hospitals, infirmaries or institutions to such persons as may be, in whole or in part, unable to support or care for themselves". In large part, it will, therefore, be seen that the Massachusetts constitutional amendment authorizes the practice now approved by the supreme court of Illinois.
The subject of Bible readings in the schools may also be presented to the convention. In the case of People ex, rel. Ring v. Board of Education, 245 Ill. 334 (1910) the supreme court took the view that the reading of the Bible in the public schools constitutes sectarian instruction in violation of Article VIII, Section 3, of the constitution. Justices Hand and Cartwright dissented. A full review of the cases upon Bible reading in the public schools will be found in an article by Professor Henry Schofield, in the Illinois Law Review, Vol. VI, pages 19, 71 (1911).
With respect to the matter of religion, attention may also be called to the fact that the preamble to the constitution definitely recognizes religion, and that Article 9, Section 3, of the constitution expressly authorizes the exemption from taxation of property used exclusively for religious purposes. The question of tax exemption may also come before the constitutional convention, and in the Annotated Constitution will be found a full review of the decisions bearing upon what property is held to be used exclusively for religious purposes, so that it may be exempted from taxation.
Comment upon failure of accused to testify in his own behalf. In connection with Article 2, Section 10, of the constitution, proposal will probably be made that comment be permitted upon the failure of an accused person to testify in his own behalf. Ohio, in 1912, adopted a constitutional amendment, which provides that "no person shall be compelled in any criminal case to be a witness against himself; but his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel". A similar proposal was made in the Massachusetts constitutional convention, but was rejected after a brief debate, in which opposing views were well presented.2
In connection with the proposal that comment be permitted upon the failure of an accused to testify in his own behalf, some effort may
Debates in Massachusetts Constitutional Convention, 1917-1918, Vol. I,
be made to prohibit by constitutional change the so-called "third degree". It is questionable, however, whether any constitutional provision would effect any actual change in the method of dealing with prisoners by police and other authorities. The privilege of commenting upon the failure of the accused to testify in his own behalf is oftentimes urged as a means of reducing the incentive of officials to obtain confessions from an accused person by unlawful means.
Capital punishment. The effort to abolish capital punishment will almost certainly come before the constitutional convention. The matter of capital punishment is one as to which legislative power is now sufficient, and bills for the abolition of capital punishment have been before the Illinois general assembly for a number of years, and have failed of enactment. A bill was passed by the two houses of the general assembly in 1917 to remove the death penalty upon conviction of the crime of murder, and to repeal the sections of the statute prescribing the manner of inflicting the death penalty. This bill was vetoed by the governor. The veto was based partly upon the ground that a life convict guilty of murder would, if the bill were enacted, be subject to no penalty, and also that the period of war was an undesirable one for the enactment of such legislation.3
Oregon, in 1914, adopted a constitutional amendment abolishing capital punishment, but in the other states in which capital punishment has been abolished, this action has been taken by legislative enactment. A proposal for the abolition of capital punishment was made in the Massachusetts constitutional convention, and a discussion of this subject will be found in the debates of that convention, Volume 1, pages 439-449.*
Libel. Section 4 of Article II provides that "in all trials for libel, civil and criminal, the truth when published with good motives and for justifiable ends, shall be a sufficient defense". This clause has been applied in a recent important decision of the supreme court. (Ogren v. Rockford Star Printing Co. 288 Ill. 405, 1919), and this decision has been discussed in recent issues of the Illinois Law Review (October, December, 1919, Vol. XIV, pp. 226, 378). An effort may be made to alter the constitutional rule which makes the truth a defense only "when published with good motives and for justifiable ends".
Constitutional provisions duplicating those of the federal constitution. Section 2 of the bill of rights duplicates a similar limitation upon the states in the Fourteenth amendment of the Constitution of the United States, and Section 14 duplicates the prohibitions of the
3 Governor's Veto Messages of Senate and House Bills, Fiftieth general assembly, 1917, page 3.
See also Massachusetts Constitutional Convention Bulletin No. 5. The abolition of capital punishment.
federal constitution against the state enactment of ex post facto laws or laws impairing the obligation of contracts. There has been some discussion in this country of the desirability of having but one set of broad constitutional limitations upon the states. If there was but one set of broad limitations such as that in the due process of law clause, the federal limitation would then receive uniform construction for the whole country. Some difficulty has been occasioned in Illinois and. other states by virtue of the fact that legislation may be held by the United States courts not to be in conflict with the due process of law clause of the federal constitution, but may be held by the state court to be in conflict with the identical clause of the state constitution. In such case the decision of the state supreme court is final, because it is a decision construing the language of the state constitution, and so construing such language as not to raise a federal constitutional question. A full discussion of the problem here suggested will be found in a chapter on legislative powers in Bulletin No. 8 of this series, and it is sufficient here merely to raise the question. If the policy were adopted of omitting from the state constitution guarantees which duplicate those in the constitution of the United States, attention should at the same time be called to the fact that Article 4, Section 22, of the constitution of Illinois has received a construction equally as broad as the due process of law clause, insofar as that section prohibits special or local laws granting special privileges, immunities or franchises.
Proposed clause guaranteeing individual initiative. The constitution of Illinois contains two guarantees which have been construed broadly so as to prohibit legislation which the court may regard as unduly restrictive of individual rights. As has just been indicated, these clauses are the due process of law clause and the clause prohibiting special legislation conferring special privileges, immunities and franchises. These broad clauses probably meet all the requirements that can be met by broad constitutional guarantees. As has been indicated in the discussion under legislative powers in Bulletin No. 8, these broad guarantees have not been defined by the courts, and are probably incapable of judicial definition. The things forbidden by the guarantees change with changing economic and social conditions, and the courts may because of such changes hold a legislative enactment proper at one time, even though the same or a similar enactment has been held improper in an earlier period. Thus the courts apply these broad guarantees (although they have never so indicated) to meet conditions as they present themselves, varying to some extent the actual content of the guarantees with changing conditions.
The suggestion has been made that there be embodied in the bill of rights a statement that every individual should be permitted to use his capacities to the furthest possible extent, independently of legislative prohibition. Such a principle, if announced in the constitution, would probably do no harm, but would also probably accomplish little good. Statements of broad principles in the constitution have usually had little effect, unless such principles were capable of fairly definite
judicial application, and it is probable that the matter here dealt with would not be capable of such judicial application. Not only this, but such a proposal, if embodied in the constitution may be capable of a double interpretation. It may if applied by the courts be held to inhibit legislative action in numerous cases, although it probably would not lead to the annulment of legislation, which might be held proper under the due process of law clause. On the other hand, such a provision might be held to justify legislative action intended to give an equal opportunity to each citizen in the acquisition of education or facilities for the use of such capacities as he might possess; and might, therefore, be employed as a means of aiding the socialistic ideal.