McKeown v. Moore

• Court: Illinois Supreme Court
• Writing for the Court: DUNN
• Citation: McKeown v. Moore, 303 Ill. 448, 135 N.E. 747 (Ill. 1922)
• Decision Date: 21 June 1922
• Docket Number: Nos. 14669-14674.,s. 14669-14674.
• Parties: McKEOWN et al. v. MOORE, County Superintendent of Schools, et al.

303 Ill. 448

135 N.E. 747

McKEOWN et al.

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

Nos. 14669-14674.

Supreme Court of Illinois.

June 21, 1922.

Certiorari by W. H. McKeown and others against Theo. C. Moore, County Superintendent of Schools, and others. Writ quashed, and petitioners appeal.

Reversed and remanded, with directions.

Appeals from Circuit Court, Pike County; Harry Higbee, Judge.

Capps & Weaver, of Pittsfield, and Stevens Herndon, of Springfield, for appellants.

Williams & Williams, of Pittsfield, for appellees.

DUNN, J.

In 1917 the General Assembly amended section 90 of the School Law by enacting another section bearing the same number, which omitted all reference to the subject-matter of the original section 90 and covered an entirely different subject. Laws 1917, p. 739. The amended law created an ex officio board, composed of the county superintendent of schools, the county judge, and the county clerk, with discretionary power, upon petition of legal voters, to change the boundaries of high school districts, by detaching or annexing territory, and to create community high school districts. This amendment was held unconstitutional in the case of Jackson v. Blair, 298 Ill. 605, 132 N. E. 221, at the June term, 1921.

Before that decision, in February, 1920, a petition was filed with the ex officio board of Pike county, requesting that the territory known as school district No. 70 in Fairmount and Perry townships, Pike county, Ill., be detached from community high school district No. 171 and added to the non-high school territory in Pike county, and the ex officio board on June 16, 1920, granted the prayer of the petition. On July 14, 1921, the members of the board of education of community high school district No. 171, together with two other residents and legal votersof that district, filed in the circuit court of Pike county a petition for a writ of certiorari, directed to the members of the ex officio board, requiring them to certify to the court the petition for the detachment of the territory from the district, and all proceedings and orders upon such petition, and all records, papers, plats, documents, and files pertaining to such proceedings, and their final decision and action. The writ was ordered to issue, and the respondents made a return certifying a copy of the petition for the detachment of the territory from community high school district No. 171, together with all records, papers, plats, documents, files, and orders pertaining to said proceedings. Upon such return the petitioners for the writ moved the court to quash the record of the ex officio board, and the respondents entered their motion to quash the writ. The court denied the motion to quash the record, and sustained the motion to quash the writ, and entered judgment against the petitioners for costs, from which they have appealed.

On the part of the appellees it is contended that certiorari will not lie, because the statute creating the ex officio board did not require the board to keep a record. The only office of the common-law writ of certiorari is to cause the record of an inferior tribunal to be brought before the court for its determination whether the inferior tribunal had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed according to the essential requirements of the law, where no appeal or other direct means of reviewing the proceeing is given, and the court determines from an inspection of the record alone whether the inferior tribunal had jurisdiction of the parties and the subject-matter and whether it had exceeded its jurisdiction, or had otherwise proceeded in violation of law. No presumption of jurisdiction is entertained, but the facts upon which jurisdiction is founded must appear in the record. Funkhouser v. Coffin, 301 Ill. 257, 133 N. E. 649. Assuming the constitutionality of section 90 as amended, an ex officio board is a public board exercising duties similar, in some respects, to some of those performed by school trustees, highway commissioners, or drainage commissioners. Their acts within the authority conferred upon them by law conclude the rights of the inhabitants and taxpayers of the territory affected by their acts. These acts are intended to establish liabilities and confer privileges, and to have permanent force until changed by competent legal authority. The change as established by the ex officio board must be recognized and complied with by all persons within the territory concerned. How can that change be recognized and complied with, unless some record of it exists? Must the community depend for its information on its promulgation by word of mouth? If so, how is the word transmitted to the authenticated?

The section under which the acts were done gives an appeal to the superintendent of public instruction. How was he to know what the order was from which the appeal was taken? It was necessarily implied from the nature of the board and the nature and effect of its powers that a record should be made of its official acts. In regard to a board of trustees created by the Legislature of Virginia to lay off in town lots certain lands which had been granted and to dispose of them for the sue of certain beneficiaries, the Supreme Court of the United States held that the book of the body thus created for public purposes, in which were recorded its proceedings, was the best evidence of its acts and ought to be admitted, wherever those acts were to be proved. Owings v. Speed, 5 Wheat. 420, 5 L. Ed. 124. A book of minutes kept by the trustees of a town, though not required to be kept by law, is evidence of the acts of the trustees. State v. Van Winkle, 25 N. J. Law, 73. So a township or district school book is the best evidence of the proceedings of the school board. Gearhart v. Dixon, 1 Pa. 224. Although not expressly required by statute, it was the duty of the ex officio board to keep a record of its proceedings. It would introduce inextricable confusion, if the acts of such a publicbody creating school districts and changing their boundaries were not authenticated by a record, but rested entirely in parol, subject to be proved by the testimony of witnesses.

The return of appellees consists of two parts, marked, respectively, Exhibit A and Exhibit B. Exhibit A is stated to be a true, correct, and complete copy of the petition for the detachment of the territory, together with all records, papers, documents, files, and orders pertaining to said proceedings, and Exhibit B a true, correct, and...