Carrico v. People
| Citation | 123 Ill. 198,14 N.E. 66 |
| Parties | CARRICO and others v. PEOPLE ex rel. |
| Decision Date | 09 November 1887 |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Macoupin county; W. R. WELCH, Judge.
Rinaker & Rinaker and R. B. Shirley, for appellants.
Palmer & Chapman, for appellees.
This is an information in the nature of quo warranto, filed, on leave, in the circuit court of Macoupin county, by the state's attorney of that county, requiring Nathaniel Carrico and other, appellants, to show by what authority they assume to hold and exercise the office of school directors of a certain school-district. Two pleas were filed to the information. These pleas were demurred to, and the demurrer was carried back and sustained to the information. Upon leave had, the information was amended, and the pleas to the original information were withdrawn. A plea was then filed to the amended information, and to the latter plea a demurrer was interposed and sustained. The appellants elected to stand by their plea to the amended information, and judgment of ouster was entered by the circuit court. To this judgment appellant excepted.
The question in the case is whether the court below erred in sustaining the demurrer to the plea. Several reasons are assigned by the appellees why the plea is not good. We do not deem it necessary to notice more than one of these reasons.
The petition, filed with the trustees of the several townships, and asking for the formation of the proposed district, should have alleged that the territory sought to be formed into a new district contained not less than 10 families. The plea is defective in not averring that the allegation here referred to was made in the petition to the trustees. Section 33 of chapter 122 of the Revised Statutes, being ‘An act to establish and maintain a system of free schools,’ approved April 1, 1872, in force July 1, 1872, was amended in 1877, and again in 1879, and still again in 1881. Section 33, as amended in 1881, is the law which was in force in February or March, 1882, when the petition referred to in the information and plea in this case was filed with the trustees of the townships. Bradw Laws 1881, p. 115. Section 33, as so amended in 1881, provides that trustees of schools in newly-organized townships shall lay off the township into one or more districts, to suit the wishes and convenience of a majority of the inhabitants of the township, etc.; that, when petitioned to do so, they may, having discretion in the matter, at the regular meeting in April, change such districts as lie wholly within their townships so as to divide or consolidate districts, to organize a new district out of territory belonging to two of more districts, or to detach territory from one district and add the same to another district adjacent thereto; ‘and, at the same meeting, by the concurrent action of the several boards of trustees of the township in which the district or districts affected lie, each board being petitioned as hereinafter provided, the same changes may be made in the boundaries, both of districts which lie in separate townships but adjacent to each other, and of districts formed of parts of two or more townships: provided, that none of these changes shall be made unless petitioned for (1) by a majority of the legal voters of each of the districts affected the proposed change; or (2) by two-thirds of the legal voters living within certain territory, described in the petition, asking that said territory be detached from one district and added to another; or (3) by two-thirds of all the legal voters living within certain territory containing not less than ten families, asking that said territory be made a new district.’ The last or third clause of the above proviso is the one which applies to the case at bar.
Section 33, after providing for the filing of the petition with the clerk of the board of trustees, and delivering a copy thereof, with notice of such filing, to the president or clerk of the board of directors of each district whose boundaries are to be changed, directs that the trustees, when the petition comes before them, at their April meeting, must ascertain ‘whether the foregoing provisions have been strictly complied with,’ and they can only consider the petition, and grant or refuse its prayer, when it shall appear that such provisions have been complied with.
Trustees of schools have no powers except those conferred by the statute, nor can they exercise the powers conferred upon them in any other mode than that prescribed by the statute. They cannot be compelled to act, and will not be permitted to act, until the law is...
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