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the public interest that the high school districts so attempted to be organized should be regarded as valid districts and passed the act in question, which is general in its terms, making no express reference to the act of 1911 but applying to every attempted organization of a high school district, whether in attempted compliance with the act of 1911 or that of 1895 or without compliance with any statute, so long as there had been an election called by the county superintendent of schools, a majority of the inhabitants of contiguous and compact territory voting on the proposition and a subsequent election similarly called of a board of education.
Where there is no constitutional prohibition the legislature may validate by a curative act any proceeding which it might have authorized in advance. (People v. Militzer, 272 Ill. 387; People v. City of Rock Island, 271 id. 412; People v. Wisconsin Central Railroad Co. 219 id. 94.) The legislature might have authorized the creation of a high school district out of any contiguous and compact territory by a vote of a majority of the inhabitants at an election called by the county superintendent of schools. There is no constitutional provision requiring a vote of the people for the establishment of a school district or prohibiting the passage of local or special laws establishing such districts. The legislature may provide for the organization, division or consolidation of districts, fix their boundaries and afterward change them as it deems best for the public interest, without any petition for that purpose and without any vote on the question.
It is objected that the curative act is unconstitutional because it violates section 22 of article 4 of the constitution, which prohibits the passage of any local or special law granting to any corporation, association or individual any special or exclusive privilege, immunity or franchise whatever. The act is not subject to this objection. In its general terms it applies to all cases of attempted organization
under like circumstances. No question could be raised as to the constitutionality of the act in this respect if it applied to future organizations. It would apply to any contiguous and compact territory in the State whose inhabitants saw fit to organize under its terms. The objection that it is a special law is based upon the proposition that no district can be organized in the future under its terms, and that therefore the privilege of being a high school district is conferred only upon those portions of territory which had attempted to organize at the time the law became effective. Classification for purposes of legislation cannot ordinarily be based entirely upon existing conditions, but this rule does not apply to curative legislation. Such legislation deals only with the past. It does not purport to establish a rule for future action but it deals with present conditions as a result of past action. Where some act necessary to the validity of official, municipal, corporate or other action has been omitted and the legislature might have authorized such action without the doing of the act which has been omitted, the legislature may subsequently make such action legal in the absence of the omitted act, and it is not necessary that the curative act should make such omitted act unnecessary in the future. The very object of a curative act is not to change the law governing future action but to waive some requirement of the law regarding past action, and it is often based solely on existing conditions to remedy which is the object of the act. If the act applies to all cases in the same situation it is not subject to the objection that it is a special law because it applies only to existing conditions.
A like objection, based upon a constitutional objection similar in principle, was made in the case of State v. Brown, 97 Minn. 402, in which was involved the validity of a statute purporting to legalize certain school district bonds, the proposition to issue which had not a two-thirds majority of all the legal voters present and voting at the election, as required by law at the time of the election, although such
proposition had received a two-thirds majority of all the votes cast upon the proposition. It was objected that the law was special because applicable only to cities which had voted for the issuance of bonds, but the court held that curative statutes, or remedial acts which apply to all cases, things or subjects which are affected by the conditions to be remedied, are not special acts within the meaning of constitutional prohibitions. It was said: "Necessarily this class forms an exception to the general rule that classi-. fication cannot be based upon existing conditions, alone. The very object of the statute is to remedy a present condition, and, if possible, avoid its repetition.” This case was followed by the Supreme Court of Kansas in Cole v. Dorr, 80 Kan. 251, and Pollock v. Kansas City, 87 id. 205.
The act which legalized the organization of high school districts by reason of an election at which the votes of women were cast and decided the result of the election although the existing law did not authorize women to vote at such elections was held valid though it applied only to those districts in which such elections had already been held and did not authorize women to vote at such elections in the future. (People v. Militser, supra.) In People v. City of Rock Island, supra, the curative act applied to cases of annexation by one municipal corporation of the territory of another corporation which had already been attempted and did not apply to future cases of the same kind. So in the case of Town of Fox v. Town of Kendall, 97 Ill. 72, and Blake v. People, 109 id. 504, the acts were entirely retroactive and were held valid. In 1904 a county board attempted to levy a tax but did not specify the particular purposes for which it was levied, and the levy was therefore invalid. In 1905 the legislature passed an act declaring all such levies legal and valid, and the act was sustained although applicable only to cases in which such levies had been made before the passage of the act. People v. Wisconsin Central Railroad Co. supra.
It is further contended that the act of June 14, 1917, violates section 10 of article 9 and section 2 of article 2 of the constitution, first, because it attempts to legalize the actions of corporate officers and bonds issued and contracts made by them without a vote of the people; second, because it would take without due process of law the property of tax-payers in satisfaction of such bonds and contracts so made valid. No bonds or contracts are involved in this .proceeding, which questions only the corporate existence of a high school district and the right of the complainants to exercise the offices of president and members of the board of education. The bondholders and contractors, if there are any such, are not parties. Whether bonds issued or contracts made before the passage of the curative act are valid obligations of the district is a question which is not now necessary or proper to be decided. So far as the act attempted to legalize the creation of the high school district it was a valid enactment.
The act directs that all pending actions attacking the organization of districts coming under its provisions shall abate. The legislature is without authority to direct what orders shall be entered by a court in pending actions. It may enact statutes and change the law, but the application of the law to particular cases is a judicial function, and the adjudication as to what orders shall be entered in such cases is the exercise of judicial power, which does not belong to the legislature. We must dispose of the case under the law in force at this time, and not as it was when the judgment was rendered in the circuit court. (Vance v. Rankin, 194 I11. 625.) Since the curative act this action attacking the organization of the district cannot be maintained, and the judgment of the circuit court must therefore be affirmed.
(No. 11508.-Judgment affirmed.) THE RAVENSWOOD HOSPITAL, Appellee, vs. THE MARY
LAND CASUALTY COMPANY, Appellant.
Opinion filed October 23, 1917.
1. INSURANCE—when indemnity company is liable for interest on judgment appealed from. Where an indemnity company insists upon exercising its right, under the policy, to appeal from a judgment against the assured at its own expense, it is liable, upon affirmance of the judgment, for the interest accruing thereon even
hough the judgment exceeds the face of the policy, as interest on the judgment appealed from is part of the expense of the appeal, the same as court costs.
2. SAME--when assured is bound by payment of face of policy to bonding company. Where a judgment is recovered against the holder of an indemnity policy in excess of the face of the policy, and he assents to an agreement between the indemnity company and the bonding company signing the bond, on appeal from the judgment, to pay the face of the policy to the bonding company if the judgment is affirmed, the holder is bound by the payment of the amount of the policy to the bonding company, which was obliged to pay the judgment, and he cannot recover such amount from the indemnity company.
3. SAME-when an indemnity company is not liable for amount paid to compromise a second suit. Where the terms of an indemnity policy expressly limit the company's liability to $5000 for bodily injuries or death of any one person, and such amount is paid in part satisfaction of a judgment recovered against the assured by the person injured, it is not liable for a sum paid by the assured to compromise a second suit begun by the husband of the person injured, based on alleged damage from loss of her services.
APPEAL from the Second Branch Appellate Court for the First District;-heard in that court on appeal from the Municipal Court of Chicago; the Hon. CHARLES A. WilLIAMS, Judge, presiding.
KELLY, HALE, DAMMANN & COOLIDGE, (J. F. DAMMANN, JR., of counsel,) for appellant.
CHARLES C. SPENCER, for appellee.