Chesney v. Moews

• Decision Date: 24 April 1925
• Docket Number: No. 15615.,15615.
• Citation: 147 N.E. 497,317 Ill. 111
• Parties: CHESNEY et al. v. MOEWS, County Superintendent of Schools, et al.
• Court: Illinois Supreme Court

317 Ill. 111

147 N.E. 497

CHESNEY et al.

v.MOEWS, County Superintendent of Schools, et al.

No. 15615.

Supreme Court of Illinois.

April 24, 1925.

Petition by Samuel Chesney and others for writ of certiorari to Anna Holliday Moews, County Superintendent of Schools, and others. From the judgment quashing writ and dismissing suit, petitioners appeal.

Affirmed.

Dunn, J., dissenting.

Appeal from Circuit Court of Putnam County; Charles V. Miles, judge.

Claude Brown and J. L. Spaulding, both of Princeton, for appellants.

George W. Hunt, of Peoria, for appellees.

DE YOUNG, J.

On April 14, 1922, a petition purporting to be signed by 110 legal voters and residents of certain territory particularly described was filed in the office of the county superintendent of schools of Putnam county. It requested that the county superintendent, pursuant to section 89a of chapter 122 of the Revised Statutes (Smith's Stat. 1921, p. 1782), order an election, for the purpose of voting for or against the proposition to establish a community high school within the territory. The election was held and the district declared organized. Subsequently, on October 17, 1922, Samuel Chesney and 45 other legal voters and taxpayers of that territory filed their petition for a writ of certiorari in the circuit court of Putnam county, directed to Anna Holliday Moews, the county superintendent of schools, Olden C. Cofoid, the county clerk, and J. M. Williams, the secretary of the board of education of the community high school.

The petition alleged, among other things, that there was no sufficient proof or finding of record that the persons who signed the petition to establish the high school were at the time legal voters of the territory; that the county superintendent had no authority to receive or consider the initiating petition, or to order an election pursuant thereto; that the affidavit of the person who obtained the signatures to that petition was not made until six months after the election had been held; that there was no sufficient proof that at the time of the filing of the petition the signatures thereto were genuine; that the record failed to show the posting of the notices of election as required by law; that the pollbook, tally list, and returns of the election were defective, erroneous, and insufficient to show the result; that the county superintendent had not kept a proper record of her acts in the purported organization of the district; and that the proceedings to that end and for that purpose were illegal.

On consideration of the petition for a writ of certiorari, the court ordered the writ to issue. The defendants made their return thereto on April 16, 1923. It consists of a transcript of the record of the proceedings of the county superintendent of schools. The pertinent facts shown by that record are as follows: (1) Petition to establish a community high school, filed April 14, 1922. (2) Affidavit of August Lith, verified October 17, 1922, and filed on the same day, that he circulated the petition and saw the petitioners sign their names thereto; that each petitioner, both at the time of signing and filing, was a legal voter and resident of the territory described in the petition; that the signatures thereto are genuine except the name of Mrs. Mary Ward, which was signed by W. J. Ward; that Lith caused the petition to be filed without an affidavit, not knowing that proof was necessary; and that the petition is in the condition it was when it left his possession, with the exception of the indorsement of its filing by the county superintendent. (3) Order by the county superintendent that an election be held on May 20, 1922, between the hours of 2 and 5 o'clock p. m., in the school house in district 534, in Senachwine township, Putnam county, in the territory described in the petition, for the purpose of voting for a against the proposition to establish a community high school for the benefit of the inhabitants of that territory; notice of election by the county superintendent dated May 1, 1922, stating the time, place, and purpose of the election, and setting forth a particular description of the territory included within the proposed district; statement by the county superintendent that she caused duplicate originals of the notice to be posted for at least 10 days in 18 of the most public places throughout the same teritory, and proof of posting by the affidavit of George E. Wheeler, dated at Putnam, Ill., May 9, 1922, and verified on the same day, in which he states that he posted the notices of election in 18 places, specifying them, but without stating the district, town, or county in which those places are situated. (4) Statement that the county superintendent appointed the judges and clerk of election and transmitted to them the official ballots, pollbooks, forms, and blanks; that the judges and clerk qualified as such, conducted the election, and made return thereof, consisting of a special pollbook, tally list and certificate, all of which were filed in the county superintendent's office on May 22, 1922. (5) Pollbook or list setting forth the names of 215 voters who cast their ballots at the election; tally list showing that 115 votes were cast for and 100 votes against the establishment of a community high school; returns showing the same result as the tally list, and certificate of the judges of election that the proposition for the establishment of a community high school received 115 votes and that it was carried by a majorityof 15 votes. (6) Canvass of election and finding of result, declaration by the county superintendent that the proposition submitted was carried, and order that the territory described in the petition constitute a community high school district, in which there shall be maintained a community high school for the benefit of its inhabitants; that the board of education of the district, when elected and qualified, shall be a body politic and corporate by the name of ‘Board of Education of Community High School District No. 853, County of Putnam and State of Illinois,’ and by that name may sue and be sued; that the foregoing proceedings and the map of the district and list of taxpayers attached to and made a part of the record be spread upon the records of the county clerk; and that the county clerk extend all taxes assessed by the board of education against the property in the district for the purpose of establishing and maintaining a community high school. The certificates of the county superintendent of schools and of the county clerk that the transcript is a true and correct copy of the record in their respective offices are appended. Samuel Chesney and his copetitioners made a motion to quash the return to the writ of certiorari. The respondents made a counter motion to quash the writ. The motion of the petitioners was denied while respondents' motion to quash the writ was sustained and the suit was dismissed. The petitioners prosecute this appeal.

The proceedings for the organization of the community high school district in question were conducted by authority of section 89a of the act to establish and maintain a system of free schools (Laws 1919, p. 908), effective July 1, 1919. In part, the section provides:

‘Upon the receipt of a petition signed by fifty or more legal voters residing in any contiguous and compact territory, whether in the same or different townships, described in the petition, the county superintendent of schools of the county in which the territory or the greater part thereof is situated, shall order an election to be held for the purpose of voting for or against the proposition to establish a community high school, by posting notices for at least ten days in ten of the most public places throughout the said territory.’

[1] Appellants contend that, because the affidavit of August Lith, which purports to verify the signatures to the petition for an election to vote upon the question of organizing the district, was not verified until October 17, 1922, or more than six months after the filing of the petition, there was no proof that the petition was properly signed by the required number of legal voters at the time it was filed in the office of the county superintendent of schools. A sufficient answer to this contention is that the affidavit which appears in the record is not required by the statute. The county superintendent would have been authorized to act upon a petition signed by the requisite number of qualified legal voters, accepting the signatures appended to the petition as genuine, in the absence of a contrary showing. People v. Logan County, 45 Ill. 162;People v. Dillon, 266 Ill. 272, 107 N. E. 583;People v. Buskirk, 279 Ill. 203, 116 N. E. 683;People v. Lueders, 287 Ill. 107, 122 N. E. 374.

It is further contended by appellants that the election was a special one; that proper notice thereof was jurisdictional; that the giving of such notice must affirmatively appear of record; that, in the instant case, the record fails to show that such notice was given, and hence that the election is void. To support this contention, appellants argue that the affidavit by George E. Wheeler, who posted the notices of the election, does not purport to be directed to the county superintendent of schools of Putnam county, nor does it identify those notices as having any reference whatever to the election for the organization of the district in question; that the places where the notices were posted are not identified as located within the territory described in the petition, nor are they certified to be the most public places throughout that territory; and that the record fails to show the date of the posting of the...