Fiedler v. Eckfeldt

• Decision Date: 06 June 1929
• Docket Number: No. 19067.,19067.
• Citation: 335 Ill. 11,166 N.E. 504
• Parties: FIEDLER et al. v. ECKFELDT et al.
• Court: Illinois Supreme Court

335 Ill. 11

166 N.E. 504

FIEDLER et al.

v.ECKFELDT et al.

No. 19067.

Supreme Court of Illinois.

April 20, 1929.

Rehearing Denied June 6, 1929.

Suit by Carl L. Fiedler and others against J. J. Eckfeldt and others, individually and as the Board of Education of Bloom Township High School District, and others. From an adverse decree, complainants appeal.

Affirmed.Appeal from Circuit Court, Cook County; Ira Ryner, Judge.

D. K. Lindhout, of Chicago Heights, for appellants.

Abbott, Abbott & Bishop and Tolman, Sexton & Chandler, all of Chicago, for appellees.

DUNN, J.

This is a taxpayers' suit to restrain the negotiation and issue of bonds of Bloom Township high school district of Cook and Will counties and the use of any funds of the district in purchasing a new school site or building a new schoolhouse. The bill was filed on June 15, 1928, in the circuit court of Cook county, and an injunction was issued as prayed. On June 18 the defendants, who were the individuals acting as members of the board of education, the board of education, and the township treasurer answered. A general replication was filed on June 21, and on this day, on motion of the defendants, the preliminary injunction was dissolved. The complainants dismissed the bill as to the township treasurer on June 23, and on the same day the cause was heard on the bill, answer, replication, and evidence, and the court entered a decree finding the equities of the cause with the defendants and ordering the bill dismissed for want of equity. The complainants, Carl L. Fiedler and Harry Funk, have appealed.

It appears from the evidence that on June 8, 1928, a special election was held in the district for the purpose of voting upon propositions to locate a school site, to purchase a schoolhouse site, to build a new schoolhouse, and to issue bonds of the district to the amount of $760,000. The election resulted in a vote in favor of all the propositions.

The reasons urged for the reversal of the decree are: (1) That the so-called Bloom Township high school district No. 206 of Cook and Will counties, Ill., is not a high school district; (2) that legal notice of the election was not given; (3) that the form of the official ballots provided for the election was such that the voters had no opportunity to express their choice of a site for the high school; (4) that there was no canvass of the votes cast at the election; (5) that the amount of the bond issue involved, together with the previous indebtedness of the district, exceeds the constitutional limitation of the indebtedness which the district might incur.

The bill alleges that on May 21, 1900, five residents of the township of Bloom met and organized as officers of the twonship high school, and such organization has been since maintained under the style of board of education of Bloom Township high school district; ‘that said board of education caused a building to be built for high school purposes on land purchased by them; that at various times additions were made to said main building, and other parcels of land purchased contiguous to said first purchase; that said high school building, with grounds, comprises about five and one-half acres;’ that the records of Bloom township or Cook county do not show that Bloom Township high school district was ever organized according to law, and that no such record appears in the records of the county superintendent of schools, of the county clerk of Cook county, or of the town clerk, the trustees of schools, or the school treasurer of Bloom township.

[1][2][3][4][5][6] It is a proposition too firmly established and too well known to require the citation of authority, that the legality of the existence of a corporation cannot be inquired into collaterally, but only in a direct proceeding by the state upon an information in the nature of quo warranto-and this applies to corporations de facto as well as corporations de jure. In an action purporting to be brought by a corporation the plaintiff is not required, even upon a plea of nul tiel corporation, to prove more than a de facto existence. This doctrine arises from the necessity of the case and the interest of the public in the stability and validity of business transactions with corporations. The rights and franchises which may have been usurped by a de facto corporation are the rights and franchises of the sovereign, who alone has the right to interpose, and until he does so the exercise of corporate powers under color of law must be regarded as rightful. Although an association may not be able to justify itself when called on by the state to show by what authority it assumes to be and act as a corporation, yet for reasons of public policy no one but the state will be permitted to call in question the lawfulness of its organization. Three things are necessary to constitute an association of persons a corporation: A law authorizing the formation of a corporation with the powers assumed, an attempt in good faith to organize under such law, and a user of the powers conferred by it. There was a law authorizing the organization of township high school districts, and there has been a user for more than 25 years by the Bloom Township high school district of all the privileges and franchises conferred upon such district, known, recognized, and acquiesced in by all the residents, voters, and taxpayers of the district, as must be assumed from the fact that there are no allegations to the contrary. The bill does not allege facts showing any irregularity in the organization of the district. It alleges only that no record shows ‘that the Bloom Township High School District was ever organized in accordance with the laws of the State of Illinois.’ This is not an allegation that there is no record of the attempted organization of the district, but is only the conclusion of the pleader that the record does not show a legal organization, without the statement of any fact on which to base such conclusion. It is consistent with the allegation that there was a complete record, at the time, of all the proceedings for the organization of the district showing a compliance with every requirement of the statute, which has since been wholly or partially destroyed by fire or otherwise. There can be no doubt that there were some proceedings for the organization of the district which were in good faith, or the board of education would not have been permitted for 25 years to levy taxes, purchase a school site, build a schoolhouse, employ and pay teachers, and conduct a school, all with money raised by taxation, and all without objection. Under such circumstances the state itself would not be permitted to question the organization of the district by quo warranto. People v. Hanker, 197 Ill. 409, 64 N. E. 253;People v. City of Le Roy, 293 Ill. 278, 127 N. E. 695;Jameson v. People, 16 Ill. 257, 63 Am. Dec. 304;Soule v. People, 205 Ill. 618, 69 N. E. 22.

[7][8]The statute required 10 days' notice of the election to be given by posting notices in three public places in each voting precinct in the district at least 10 days before the day of election. It appeared by the record of the board of education and the testimony of its secretary, George Whitfield, that these notices were posted in three public places in each voting precinct in the district on May 29, and the election was held on June 8, which was 10 days later. Because they were posted between 3 and 4 o'clock in the afternoon, and the election began at noon and closed at 7, the appellants argue that there was not 10 full days' notice of 24 hours each. But the law does not regard fractions of a day, unless it becomes important to the ends of justice to do so or in order to decide upon conflicting interests. Grosvenor v. Magill, 37 Ill. 239, The day is, in general, regarded as an indivisible unit of time, so that any act done in the compass of it is no more referabel to any one portion of it than to any other portion. Levy v. Chicago Nat. Bank, 158 Ill. 88, 42 N. E. 129,30 L. R. A. 380. The statute provides that: ‘In computing the time for which any notice is to be given, whether required by law, order of court or contract, the first day shall be excluded and the last included, unless the last day is Sunday, and then it also shall be excluded.’ This act, which was passed in 1874 (Rev. Stat. chap. 100, § 6), is but a statutory declaration of the law as it was construed before the enactment of the statute. Where a statute provides that 10 days' notice shall be given of any action to be taken, in computing the time the first day is to be excluded and the last day included, and the action may be taken on the tenth day after the notice. Ewing v. Bailey, 4 Scam. 420;Vairin v. Edmonson, 5 Gilman, 270;Bowman v. Wood, 41 Ill. 203;Higgins v. Halligan, 46 Ill. 173;Harper v. Ely, 56 Ill. 179;Forsyth v. Warren, 62 Ill. 68;Magnusson v. Williams, 111 Ill. 450;Brown v. City of Chicago, 117 Ill. 21, 7 N. E. 108;Gordon v. People, 154 Ill. 664, 39 N. E. 560;People v. Snow, 279 Ill. 289, 116 N. E. 670, Ann. Cas. 1917E, 992.The first day, May 29, being excluded, June 8 was the tenth day.

[9] Another objection made to the notice of election was that it did not show that a description of a site for the schoolhouse would appear on the ballot. The statute did not require this, and, under a statute which said nothing on the question of the necessity of the notice of election having a statement that the ballots would show the sites or a site to be voted on, it was held that, the statute not requiring the notice of the election to specify the site or sites to be voted on, the specification of sites in the notice was surplusage. Thompson v. Trustees of Schools, 218 Ill. 540, 75 N. E. 1048. The section of the statute under which this election was held was section 127 of the School Law as amended in 1927 (Laws of 1927, p. 813), which required that no site should be placed upon the ballot unless petitioned for by at ...