Dean v. Bd. of Educ. of Sch. Dist. No. 89

Decision Date21 March 1944
Docket NumberNo. 27832.,27832.
Citation53 N.E.2d 875,386 Ill. 156
PartiesDEAN et al. v. BOARD OF EDUCATION OF SCHOOL DIST. NO. 89 et al.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Suit by Josephine Dean and others against Board of Education of School District No. 89 of Cook County and others for a writ of mandamus commanding respondents to admit plaintiffs to the Washington school in such district as regular resident pupils. From a judgment directing that a writ of mandamus issue, respondents appeal.

Cause transferred to Appellate Court for First District.Appeal from Circuit Court, Cook County; John J. Prystalski, judge.

Zimmerman & Norman, Fred B. Huebenthal, and Harold W. Norman, all of Chicago, for appellants.

Franklin J. Stransky and Dimmitt C. Hutchins, both of Chicago, for appellees.

MURPHY, Justice.

This is an appeal from a judgment of the circuit court of Cook county which directed that a writ of mandamus issue commanding the members of the board of education of school district No. 89 of Cook county and its superintendent of schools to take official action to admit Josephine Dean, Marcella Dean and Charles Dean, Jr., in whose behalf the suit was prosecuted, to the Washington school in said district as regular resident pupils. It was alleged in the petition that section 1, article VIII of the Constitution, Smith-Hurd Stats., and the statutes enacted pursuant to such mandate, gave to said children a right to attend Washington school in said district No. 89, and that the refusal of the board of education of said district and its superintendent of schools to permit their attendance at such school was a violation of their constitutional right.

The appellants contend that a constitutional question is presented which confers jurisdiction on this court by direct appeal. To give this court jurisdiction on direct appeal on the ground that a constitutional question is involved, it must appear that the question thus raised is fairly debatable. Pennsylvania Tank Line v. Jordan, 341 Ill. 94, 173 N.E. 181;People v. Jiras, 340 Ill. 208, 172 N.E. 47. A question which merely calls for a construction of a statute enacted pursuant to a constitutional mandate, or an application of the statute to a certain state of facts is not sufficient to confer jurisdiction by direct appeal. People ex rel. Rexses v. Cermak, 317 Ill. 590, 148 N.E. 382. The mere assertion that a constitutional question is involved is not sufficient. Furthermore, it is well settled that if the constitutional question presented has been settled by prior decisions of this court, a direct appeal will not be entertained for the purpose of reconsidering the question. People v. Dory, 364 Ill. 641, 5 N.E.2d 213;People v. Blenz, 317 Ill. 639, 148 N.E. 249.

The controlling question in this case is as to whether the presence of the children in said school district under the circumstances shown is such as to give them a residence for school purposes and thereby entitle them to attend such school. The facts were stipulated. Those pertinent to the jurisdictional question are that the children in this proceeding were, prior to the juvenile court proceeding herein referred to, residing in Chicago with their father. Their mother was deceased. An order entered in a proceeding in the juvenile division of the circuit court of Cook county declared them to be dependent within the meaning of section 1 of the act to define and punish the crime of contributing to dependency, (Ill.Rev.Stat.1943, chap. 38, par. 100,) and, with the father's consent, it was ordered that the children be committed to the care, custody and control of the Illinois Children's Home and Aid Society, a charitable Illinois corporation. The location of the principal offices of the society or its principal place of business is not shown. It was stipulated that it did not possess facilities for furnishing these and other children adequate living quarters so it obtained places for them in private homes, where they were maintained and supported for a stated compensation. The society obtained a place for the three Dean children in the home of Mrs. S. Wright. Their placement in that home had a degree of permanency about it. The practice of the society in such matters was that...

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10 cases
  • People ex rel. Jones v. Chicago Lloyds
    • United States
    • Illinois Supreme Court
    • November 19, 1945
    ...is settled so as to be no longer debatable. First Nat. Bank v. Village of South Pekin, 371 Ill. 605, 21 N.E.2d 765;Dean v. Board of Education, 386 Ill. 156, 53 N.E.2d 875;Wilson v. Prochnow, 354 Ill. 98, 187 N.E. 914. The question here presented, as set out in the report of the master, is a......
  • Sanitary Dist. of Chicago v. Rhodes
    • United States
    • Illinois Supreme Court
    • March 21, 1944
  • Kraut v. Rachford
    • United States
    • United States Appellate Court of Illinois
    • July 22, 1977
    ...showing a different residence. (Turner v. Board of Education (1973), 54 Ill.2d 68, 294 N.E.2d 264.) Turner cited Dean v. Board of Education (1944), 386 Ill. 156, 53 N.E.2d 875; Ashley v. Board of Education (1916), 275 Ill. 274, 114 N.E. 20; Board of Education v. McCaskill (1918), 212 Ill.Ap......
  • People v. Farley
    • United States
    • Illinois Supreme Court
    • January 18, 1951
    ... ... Maniatis, 297 Ill. 72, 130 N.E. 323; Weyrich v. People, 89 Ill. 90. In the case under consideration it is to be ... Dean v. Board of Education, 386 Ill. 156, 53 N.E.2d 875. So, a ... ...
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