Board of Ed. of Waverly Community Unit School Dist. No. 6 v. Nickell

• Decision Date: 21 September 1951
• Docket Number: No. 31586,31586
• Citation: Board of Ed. of Waverly Community Unit School Dist. No. 6 v. Nickell, 101 N.E.2d 438, 410 Ill. 98 (Ill. 1951)
• Parties: BOARD OF EDUCATION OF WAVERLY COMMUNITY UNIT SCHOOL DIST. NO. 6 et al. v. NICKELL, Superintendent of Public Instruction, et al.
• Court: Illinois Supreme Court

Page 438

101 N.E.2d 438

410 Ill. 98

BOARD OF EDUCATION OF WAVERLY COMMUNITY UNIT SCHOOL DIST. NO. 6 et al. v. NICKELL, Superintendent of Public Instruction, et al.

No. 31586.

Supreme Court of Illinois.

Sept. 21, 1951.

Motion to Modify Opinion Denied Nov. 13, 1951.

Roy M. Rhodes and S. S. DuHamel, both of Springfield, Murphy & Murphy, of Carlinville, and N. E. Hutson, of Monticello, Vernon L. Nickell, Superintendent of Public Instruction, and I. K. Juergensmeyer, Superintendent of Schools of Macoupin County, pro sese, for appellants.

Barber & Barber, of Springfield (Clayton J. Barber, Alton G. Hall, and Samuel C. Fielden, all of Springfield, of counsel), for appellees.

SCHAEFER, Justice.

This appeal challenges the validity of the 1949 amendments to sections 6 and 7 of article VIII of the School Code (Ill.Rev.Stat.1949, chap. 122, pars. 8-6, 8-7), and raises questions as to the applicability of those amendments to proceedings for the alteration of school district boundaries which were pending when the amendments became effective. It also presents a subsidiary question as to who are proper parties to a proceeding to review the action of a county superintendent of schools in detaching territory from a school district. Jurisdiction upon direct appeal exists because the constitutionality of a statute is involved.

Waverly Community Unit School District No. 6 is composed of territory in Sangamon, Morgan and Macoupin counties. Virden Community Unit District No. 4 is composed of territory in Macoupin and Sangamon counties. A petition signed by 116 of the 137 legal voters residing in certain described territory in Sangamon County was presented to the county superintendent of schools, requesting that the territory be detached from the Waverly district and annexed to the Virden district. Objections were filed by the board of education of the Waverly district, a hearing was had, and, on March 15, 1949, the county superintendent entered an order detaching the territory from the Waverly district and annexing it to the Virden district. On appeal to the State Superintendent of Public Instruction, this order was affirmed on August 24, 1949.

In the meantime, on July 28, 1949, amendments to sections 6 and 7 of article VIII of the School Code had become effective. Prior to the adoption of these amendments, the county superintendent of schools was authorized to detach territory from a community unit school district upon a petition signed by two thirds of the legal voters residing in the territory to be detached. (Ill.Rev.Stat.1947, chap. 122, par. 8-6.) From the decision of the County superintendent, an appeal to the State Superintendent of Public Instruction was authorized. (Ill.Rev.Stat.1947, chap. 122, par. 8-7.) The amendments transferred authority to pass upon petitions for changes in boundaries from the county superintendent of schools to the county judge, and provided an appeal to the circuit court in lieu of an appeal to the Superintendent of Public Instruction. Ill.Rev.Stat.1949, chap. 122, pars. 8-6, 8-7.

The board of education of the Waverly district and others commenced the present action by filing their complaint for a writ of certiorari and for a declaratory judgment in the circuit court of Sangamon County. The complaint attacks the order of the county superintendent of schools detaching territory from the district upon the ground that its effectiveness was suspended while the proceedings were pending on appeal before the Superintendent of Public Instruction, and it alleges that the 1949 amendments terminated the jurisdiction of the Superintendent of Public Instruction before his final order was entered. The relief sought was an order quashing the proceedings for the detachment of territory and declaring the territory in question to be a part of the Waverly district and subject to taxes levied by that district, including taxes levied to pay the principal and interest upon school building bonds issued by the Waverly district on June 27, 1949.

Defendants' answer asserts that the 1949 amendments are unconstitutional because they attempt to confer legislative authority upon the judicial department of the State in violation of article III of the constitution, and also because their provisions are so vague and uncertain as to render them void.

The trial court held that the amendments are valid; that the proceedings to change the boundaries of the two districts pending on appeal before the State Superintendent of Public Instruction, abated immediately when the amendments to the School Code became effective, and that, in consequence, the boundaries of the districts remained unchanged. The declaratory relief requested by the plaintiffs was granted. This appeal followed.

Initially, defendants contend that the amendments are not applicable to the proceedings which took place before the county superintendent of schools and the State Superintendent of Public Instruction. They first argue that the order of the county superintendent of schools directing that the boundaries be changed was a final order, and that its finality was not impaired by the appeal taken to the Superintendent of Public Instruction. It is said that no statutory provision existed for a supersedeas to stay the operation of the order of the county superintendent of schools pending review of that order by the Superintendent of Public Instruction, and it is argued that since the order of the county superintendent was entered and became final on March 15, 1949, before the statute was amended, it was not affected by subsequent changes in the statute.

It is clear, however, that the statute contemplated that the order of the county superintendent should be final only if no appeal was perfected. Section 8-7 provided for notice of appeal, imposed upon the appellant the duty of perfecting the appeal by furnishing a transcript of the evidence and copies of all papers within a specified time, and then continued: 'In case of the failure to furnish the copy and transcript within said time, the county superintendent shall enter an order dismissing the appeal, and the decision of the county superintendent upon the petition shall be final.' If the appeal was perfected, the State Superintendent was required to conduct a hearing and 'make or refuse to make any changes prayed for in the petition, reversing or affirming the decision of the county superintendent of the schools, and his action shall be final.' (Ill.Rev.Stat.1947, chap. 122, par. 8-7.) It is clear that the action of the county superintendent was intended to be final only if no appeal was perfected, and that where, as here, an appeal was perfected no change in boundaries could become effective until the completion of the statutory proceedings by the entry of a final order by the State Superintendent. During the interim, the order of the county superintendent was without force or effect.

Defendants next argue that the amendments should not be construed to apply to proceedings pending under the former statute. The amendments to sections 8-6 and 8-7 of the School Code completely revised the statutory procedure for the alteration of school district boundaries. The amendatory act repealed those sections as they formerly existed. Krimmel v. Eielson, 406 Ill. 202, 92 N.E.2d 767; People ex rel. Hines v. Baltimore and Ohio Southwestern Railroad Co., 366 Ill. 318, 8 N.E.2d 655;, Goodall v. People 123 Ill. 389, 15 N.E. 171. It contained no saving clause protecting pending proceedings. Defendants argue, however, that section 4 of the Statutory Construction Act (Ill.Rev.Stat.1949, chap. 131, par. 4), supplies a saving clause. Relating to the construction of statutes generally, this section provides that no new law shall be construed to repeal a former law 'as to any act done * * * or any right accrued, or claim arising under the former law.' In our opinion, defendants' contention is unsound. The effect of the Statutory Construction Act was thoroughly considered in People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318, 321, 124 A.L.R. 1472, where this court said: 'The unconditional repeal...