Husser v. Fouth
| Decision Date | 21 March 1944 |
| Docket Number | No. 27862.,27862. |
| Citation | 53 N.E.2d 949,386 Ill. 188 |
| Parties | HUSSER et al. v. FOUTH et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Proceeding by Arthur Fouth and others to detach certain land from Malden Community High School District No. 511 and and such land to LaMoille Community High School District No. 509, opposed by J. E. Husser and Malden Community High School District No. 511. From a judgment of the circuit court upholding a decision by the county superintendent of schools of Bureau County approving the detachment and annexation, J. E. Husser and Malden Community High School District No. 511 appeal.
Affirmed.Appeal from Circuit Court, Bureau County; Louis A. Zearing, judge.
J. L. Spaulding, Carey R. Johnson, and J. T. Skinner, all of Princeton, for appellants.
Trimble & Trimble, of Princeton, and Hibbs & Pool, of Ottawa, for appellees.
This case comes to this court on an appeal from a judgment of the circuit court of Bureau county, Illinois, entered September 20, 1943, detaching 1360 acres of land from Malden Community High School District No. 511 and adding same to LaMoille Community High School District No. 509.
Petitions signed by thirteen out of fifteen of the legal voters residing in the territory in question and by two thirds of the legal voters residing in LaMoille Community High School District 509 were filed with the county superintendent of schools of Bureau county seeking the detachment of land from school district No. 511 asking that said territory be added to the territory of school district No. 509, pursuant to the provisions of section 99d of an act entitled ‘An Act to establish and maintain a system of free schools', approved June 12, 1909, as amended by the Legislature in 1941.
The pertinent provisions of section 99d read as follows: Ill.Rev.Stat.1943, chap. 122, par. 99d. The section makes provision for appeal to the circuit court from the decision of the county superintendent.
On March 17, 1943, at a hearing held by him, the county superintendent of schools of Bureau county approved the prayer of the petition for detachment from school district No. 511 and annexation to school district No. 509. An appeal was taken to the circuit court of Bureau county where the appellants filed a motion to dismiss the petition for reasons hereinafter discussed. On the hearing of the motion, testimony of witnesses was taken and, after arguments, the court affirmed the county superintendent and found that the requirements of the act had been complied with; that the petitions were in the form prescribed by the statute and that the territory described was compact and contiguous and is adjacent to LaMoille Community High School District No. 509 and that said school district is more reasonably located as to the comfort and convenience of the high school pupils of said territory than is Malden Community High School District No. 511 and found that the detachment of territory from district No. 511 would not make it impossible for said district to thereafter meet the recognized standards of the Superintendent of Public Instruction.
Before the circuit court it was conceded that the petitions were in proper form and signed by the requisite number of legal voters. The evidence submitted indicated that the persons residing in the territory sought to be detached nearest to the Malden school in district No. 511 and farthest from the LaMoille school in district No. 509 lived five miles from the LaMoille school and six miles from the Malden school; that one of the petitioners lived four miles nearer the LaMoille school than to the Malden school; that another petitioner lived two and one-half miles nearer to the LaMoille school than to the Malden school; that the nearest point in the territory sought to be annexed to the LaMoille school was three and one-half miles, which point was also more than eight miles from the Malden school; that in going to the LaMoille school it was not necessary, by the best roads, to pass over any railroad tracks, whereas the road to Malden passed over the main line and a branch line of the Chicago, Burlington & Quincy railroad. It was further shown that the grade school which was attended by the children in the territory to be detached was on the way to LaMoille, making it convenient for persons taking children for attendance to either or both schools; that the people of the territory generally traded at LaMoille; that the territory was on the LaMoille telephone exchange which permitted telephone communications without additional charges and that there were likewise for the convenience of the public three good restaurants in LaMoille, which eliminated the necessity of the children taking lunches to school, whereas there were no good restaurants in Malden. No testimony was offered to rebut the testimony of the detaching petitioners.
It was stipulated that the assessed valuation for 1942 in Malden High School District was $1,437,441 and that for said year there was levied the sum of $11,500 for educational and $500 for building purposes, totaling $12,000 and that the county clerk extended taxes for the district of 79 cents for educational purposes and 4 cents for building purposes, totaling 83 cents; that the total assessed valuation of the property sought to be detached was $51,660 plus $5,375 levied against the Burlington railroad, making a total of $57,035; that the assessed valuation for 1942 in LaMoille High School District was 1,775,556 and taxes were extended at the rate of 98 cents for educational purposes and 5 cents for building purposes, making a total rate of $1.03.
The appellants, consisting of the Malden Community High School District and a taxpayer, J. E. Husser, rely on two propositions as grounds for reversal of the judgment of the circuit court: (1) That the school maintained by district No. 511 is reasonably enough located as to the comfort and convenience of the high school pupils of the territory in question within the meaning of section 91d of the School Law, and (2) that section 91d of the School Law is unconstitutional and void as delegating legislative power and authority to the county superintendent of schools in allowing him to construe the meaning of the words ‘compact, contiguous and adjacent;’ to determine whether or not, under the decisions of this court and the provisions of section 91d, the high school mainained by the LaMoille school district is more reasonably locatd as to confort and convenience to the high school pupils of the territory sought to be detached than the location of the high school maintained by the Malden School District, and to determine whether the detachment of the territory from the school district makes it impossible for that district to thereafter maintain the recognition standards of the Superintendent of Public Instruction.
As to the first point raised by the appellants, the only evidence offered was the evidence of the petitioners as to the advantages and conveniences offered by the annexation of the territory in question to the LaMoille school district. The testimony that the territory sought to be annexed to the LaMoille district shortened the distance which the students must traverse by a minimum of one mile to a maximum of four miles; that no railroad tracks had to be crossed on the way to the LaMoille school and that better eating facilities were prevalent, among other reasons, without any contradiction thereof, seems sufficient to merit the approval of the petition upon the ground that the LaMoille school was more reasonably located as to the comfort and convenience of the high school pupils of the territory sought to be detached than is the Malden school.
The second point made by the appellants that section 91d of the School Law is unconstitutional and void raises a more difficult question. Article III of the Illinois Constitution of 1870, Smith-Hurd Stats., provides for the separation of the three departments of government...
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