Bd. of Educ. of Rockford v. City of Rockford

• Decision Date: 15 December 1939
• Docket Number: No. 25405.,25405.
• Citation: 372 Ill. 442,24 N.E.2d 366
• Parties: BOARD OF EDUCATION OF CITY OF ROCKFORD v. CITY OF ROCKFORD et al.
• Court: Illinois Supreme Court

372 Ill. 442

24 N.E.2d 366

BOARD OF EDUCATION OF CITY OF ROCKFORD

v.CITY OF ROCKFORD et al.

No. 25405.

Supreme Court of Illinois.

Dec. 15, 1939.

Action by the Board of Education of the City of Rockford against the City of Rockford and others for alteration, cy pres, of the use of lands under deed, and for other relief. From a judgment dismissing the complaint, as amended, plaintiff appeals.

Reversed and remanded with directions.Appeal from Circuit Court, Winnebago County; Arthur E. fisher, judge.

Charles H. Davis, of Rockford, for appellant.

Lathrop, Lathrop, Brown & Lathrop, of Rockford (Roy H. Brown and David Connolly, both of Rockford, of counsel), for appellees.

WILSON, Chief Justice.

This case presents the question of whether the cy pres doctrine is applicable to the factual situation narrated in plaintiff's amended complaint. Plaintiff is the board of education in and for the school district of the city of Rockford, otherwise known as school district No. 205 of Winnebago county. Defendants are the city of Rockford, the heirs-at-law and devisees of Selden M. Church and Thomas D. Robertson and their respective wives, the Booker Washington Community Association and its directors, as representatives of a class consisting of the members of the association. Motions to dismiss interposed by the association and its officers and, also, by some of the heirs and devisees were allowed, the plaintiff elected to abide by its pleading, and a decree of the circuit court of Winnebago county dismissed the complaint, as amended, for the want of equity. Plaintiff prosecutes this appeal.

The amended complaint alleges that the plaintiff seeks, among other things, to carry out the intention of the creators of a trust under the cy pres doctrine. Pertinent facts charged, and admitted to be true by the motions to dismiss, are as follows: June 20, 1855, the common council of Rockford passed ‘An ordinance to divide the city of Rockford into school districts, and to establish and regulate schools therein.’ This ordinance divided the city into two school districts, namely, district No. 1, comprising the portion of Rockford lying on the east side of Rock river, and district No. 2, the part of the city located on the west side of the river. The ordinance commanded the city to establish at least one common school in each school district for the free instruction of resident children over the age of five years attending the school. To accomplish this purpose, the ordinance provided, further, that the council should determine when it was necessary to build a school house in either district and appoint a freeholder residing in the district, to be denominated school agent, empowered to select and purchase suitable grounds and to make the requisite contracts for the erection of the structure, such contracts being subject to approval by the council. The concluding provision of the ordinance, paragraph 16, ordained that ‘The land, buildings, furniture and fixtures, purchased, erected or constructed under any of the provisions of this ordinance shall be conveyed to and become vested in this city for the use and in trust for the respective school districts in which the same shall be located.’ On June 23, 1855, pursuant to the authority of the ordinance of June 20, the council, resolving that it was necessary, ordered that one school house costing not less than seven thousand dollars be erected in each school district as soon as practicable. By a resolution adopted on June 30, the council instructed the school agent in district No. 2 to ascertain and report the best terms upon which an appropriate site could be obtained for the purpose of erecting a school house in the fifth ward. December 31, 1855, the council, by another resolution, authorized the school agent to procure plans and specifications for school houses in the district. Subsequently, on February 26, 1856, the council accepted the school agent's report describing proposals for building school houses in district No. 2 and directed him to make a contract with A. F. Warring for two schools. March 25, 1856, the council instructed the school agent to close the contract as soon as feasible, to purchase two lots owned by one Dr. Gantt ‘and also to purchase the three lots heretofore negotiated for with T. D. Robertson and contract for building a school house on the last mentioned lot at a cost not exceeding one thousand dollars ($1,000.00).’ Thereafter, on April 12, 1856, Robertson and Church, and their wives, by warranty deed, conveyed the three lots to the city ‘for the use of the inhabitants of School District No. Two in said city’ and the council, on April 28, 1856, directed the city clerk to cause the deed to be recorded. This he did on May 1, 1856. The city went into possession of the property conveyed by Church and Robertson and, on July 28, 1856, the council passed another resolution authorizing William Peters to erect a school house in South Rockford, ward five, according to plans submitted, at a cost not in excess of one thousand dollars. The school erected on the premises in 1856, in ward five, was designated ‘Kent School’ and still bears the name.

A special charter, it appears, was granted to the city of Rockford in 1865, and school district No. 205 was established conformably to its terms. From 1856 to 1865 schools were conducted by the city in conformity with the ordinance of 1855, and from 1865 to 1906 in accordance with the special charter. In 1906, a board of education was appointed by the mayor of Rockford, subject to the approval of the city council, as provided by the applicable statute (Ill.Rev.Stat.1939, c. 122, § 306, p. 2939) and has since been in continuous existence, performing the duties essential to the maintenance of an efficient system of free city schools.

February 19, 1912, the city conveyed three parcels of land by particular description, and all other school property including the tract conveyed to it in 1856, by general description, to the plaintiff board of education. Kent School was then in existence and was being used exclusively for school purposes. In 1920, the board, having purchased two lots contiguous to the lots purchased in 1856 built an addition to Kent School. The school, as enlarged, was used exclusively for school purposes until January 31, 1936, when classes were discontinued by virtue of a resolution passed by the board of education.

Subsequently, on September 14, 1936, plaintiff permitted the defendant the Booker Washington Community Association to occupy the school building as a tenant at will rent-free. This defendant is a voluntary association, organized, as disclosed by its charter, ‘to promote civic, cultural, recreational interest and activities, and to serve all ages and both sexes and to direct character building and community betterment programs among the colored citizens of Rockford and its suburbs.’ The complaint charges that none of the association's activities are under plaintiff's control or supervision; that the persons enjoying the association's occupancy of the premises reside on both the east and west sides of Rock river and, also, in the environs; that these colored residents have come to Rockford since 1865 and, hence, subsequent to the date of the deed conveying the premises in controversy to the city, and that approximately forty-five thousand persons of all races reside in the terrirory formerly referred to as school district No. 2, whereas less than two hundred individuals, relatively few in comparison with the total number of inhabitants of the territory, are now in possession of the property.

Further allegations are that the school agent of the council was authorized by the ordinance of 1855 to obtain the lots for school purposes; that the original grantors intended the premises to be so used by the inhabitants of a part of the city; that the Kent School Building has become obsolete; that the area where it stands is now served by a new and modern school known as Barbour School; that since 1856 when Kent School was constructed the population center about the school has shifted, and that, in 1936, the plaintiff decided to abandon use of the structure as a school, believing the best interests of the school district demanded that its physical use for school purposes be discontinued. An expenditure of twelve thousand dollars, it is asserted, would be required to render the building suitable for the operation of a school. Particular changes, among others, which would be necessitated are set forth, namely, a new heating and ventilating system, plumbing equipment, decoration of the exterior and interior of the building, modernization of the lighting system to meet the recommendations of the State, reconditioning of the exterior drainage, and the purchase of new desks. By reason of the conditions recounted, plaintiff alleges that the use of the school for school purposes is not only impracticable but is neither economical nor advisable.

The relief sought was a decree (1) altering, cy pres, the use of the three lots and permitting and directing either the plaintiff board or the city, as trustee, to sell the premises, apply the proceeds of the sale to the building fund of the board of education, and use such proceeds for school building purposes on the west side of Rock river in the territory initially designated school district No. 2, or, in the alternative, altering, cy pres, the use of the property, authorizing a sale and prescribing the method, cy pres, whereby the proceeds will be used for school purposes in the territory described, and (2) adjudging whether (a) the city, by the deed of February 19, 1912, conveyed title in fee to the plaintiff; (b) the city thereby refused to act as trustee and designated plaintiff to hold title to the three lots in trust for the use of the inhabitants of school district No. 2 for school purposes, and (c) the city or the plaintiff now holds title to the lots in...