Cessna v. Montgomery ( 1975 )

Mr. JUSTICE EBERSPACHER,

dissenting.

In view of the holdings in City of Chicago v. Birnbaum, 49 Ill.2d 250, 274 N.E.2d 22, and in People v. Amerman, 50 Ill.2d 196, 279 N.E.2d 353, both decided subsequent to Hux v. Raben, 38 Ill.2d 223, I do not consider Hux v. Raben as authority for this court reaching the constitutional questions raised; in this case, raised the first time in this court. I would therefore dismiss the appeal. In the court below the only argument that was made was that the complaint came within the exception created by acknowledgment, included in section 4 of the Paternity Act (Ill. Rev. Stat. 1971, ch. 1063/4, par. 54). That argument was abandoned in this court, and here for the first time appellant contends, first, that the statute of limitations as set out in the statute is overly broad and as such is against public policy, and secondly, that such statute results in an invidious discrimination against a class (children born out of wedlock) and as such violates the child’s fourteenth amendment rights to equal protection. The briefs do not contend invidious discrimination against unwed mothers, on which the majority seems to rely.

I do not agree that the public concern, or the matter is of such grave importance, that we should ignore the holdings of City of Chicago v. Birnham and People v. Ameitnan. If there is a social problem involved which cries out for reform, to provide different means of support for those bom out of wedlock, or their mothers, than exists in our statutory scheme and Federal and State programs such as aid for dependent children, the appeal should be made to legislative bodies, rather than an intermediate appellate court to volunteer to take up the cause.

As was said in Zepeda v. Zepeda, 41 Ill.App.2d 240, 262-63, 190 N.E. 2d 849, 859:

“* * * lawmaking, while inherent in the judicial process, should not be indulged in where the result could be as sweeping as here. The interest of society is so involved, the action needed to redress the tort could be so far-reaching, that the policy of the State should be declared by the representatives of the people.”

It is interesting to note that in Zepeda there was a direct appeal to our Supreme Court, which refused to take the case and transferred it to the Appellate Court, despite the fact that constitutional issues were advanced on behalf of a child bom out of wedlock in an action brought on the child’s behalf against his admitted natural father for damages for deprivation of the right to be a legitimate child and the incidents thereto.

Assuming that this court was to properly consider the constitutional arguments here advanced, I do not consider that the Illinois cases cited, nor the United States Supreme Court cases cited, compel the result which has been reached. See Annot., 38 A.L.R. 3d 613 et seq. (1971).