People ex rel. Bensenville Cmty. High Sch. Dist. No. 100 v. Rathje

• Decision Date: 08 February 1929
• Docket Number: No. 19321.,19321.
• Citation: People ex rel. Bensenville Cmty. High Sch. Dist. No. 100 v. Rathje, 333 Ill. 304, 164 N.E. 696 (Ill. 1929)
• Parties: PEOPLE ex rel. BENSENVILLE COMMUNITY HIGH SCHOOL DISTRICT NO. 100 et al. v. RATHJE et al.
• Court: Illinois Supreme Court

333 Ill. 304

164 N.E. 696

PEOPLE ex rel. BENSENVILLE COMMUNITY HIGH SCHOOL DISTRICT NO. 100 et al.

v.RATHJE et al.

No. 19321.

Supreme Court of Illinois.

Dec. 20, 1928.

Rehearing Denied Feb. 8, 1929.

Quo warranto by the People, on the relation of the Bensenville Community High School District No. 100 and others, against S. L. Rathje and others. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Farmer, J., dissenting.

Appeal from Circuit Court, Du Page County; William J. Fulton, judge.

Claude W. Schutter and David Larson, both of Chicago, for appellants.

C. W. Reed. State's Atty., of Naperville, and Locke, Baker & Snyder, of Glen Ellyn (Richard F. Locke and Harold V. Snyder, both of Glen Ellyn, of counsel), for appellees.

HEARD, J.

The state's attorney of Du Page county filed an information in the nature of quo warranto, on the relation of the Bensenville community high school district No. 100, in Du Page county, and others, against S. L. Rathje, Clarence V. Wagemann, and Nick W. Lies, appellants here and defendants below, alleging the due organization of the Bensenville high school district; that in October, 1927, two petitions for the detachment of certain territory from that high school district were filed with an ex officio board composedof the three defendants; that the defendants had posted notices of a public hearing on the petitions, had held such a hearing and continued the same from time to time, had heard evidence, and were about to render decisions on the petitions; that defendants, as members of the ex officio board, had so acted without warrant or authority.

Defendants filed a plea of justification, alleging that Rathje was county judge of Du Page county, that Wagemann was county clerk of Du Page county, and Lies was chairman of the board of supervisors of Du Page county; that by virtue of an act of the Legislature approved July 7, 1927, defendants had held and executed, during the time in the information mentioned, the franchise or offices of officers, and members of the ex officio board of Du Page county for changing the boundaries of township and community high school districts. The plea concluded with a verification. The state's attorney demurred generally to the plea, upon the ground, as stated in the demurrer, that the act of the General Assembly set out in the defendants' plea is unconstitutional and void. The circuit court sustained the demurrer, and entered judgment against the defendants, from which judgment they have appealed to this court.

On July 7, 1927, there was approved by the Governor an act of the Legislature entitled‘An act to add sections 91a and 91b to ‘An act to establish and maintain a system of free schools.’' Section 91a, so far as it pertains to this case, is as follows:

‘Sec. 91a. An ex officio board composed of the chairman of the county board of supervisors or board of county commissioners, the county judge and county clerk, may in its discretion change the boundaries of any township or community high school districts so as

‘First-To detach territory from one high school district and add the same to another high school district when petitioned by two-thirds of the legal voters residing within the territory described in the petition asking that said territorybe detached from one high school district and added to an adjacent high school district, or when petitioned by a majority of the legal voters of each high school district. * * *

‘Third-To detach territory from a high school district and add the same to a nonhigh school district when petitioned by two-thirds of the legal voters residing within such territory. * * *

‘Fifth-* * * If the districts involved in the change of boundaries lie in two or more counties, the change may be made by the concurrent action of the ex officio boards of said counties, in districts comprising territory in more than one county, an appeal may be taken from the action of said ex officio board of said counties to the circuit court of the county wherein lies the largest amount of territory in said district; said appeal shall be taken within ten days after the decision of said boards is rendered.

‘The ex officio board vested with power to change the boundaries of any township or community high school district shall, after the filing of any petition as provided above, give thirty days' public notice, by posting in at least five public places in each district whose boundaries are to be affected, of a public hearing upon such petition, and at such hearing the ex officio board shall hear objections if any against such proposed change. * * *

‘However no attachment or annexation involving such high school districts shall be made unless the petitioners prove the change to be necessary for the reasonable convenience and comfort of children in attending high school in such district. * * *

‘The necessary traveling expenses of the ex officio board shall be paid by the county.’ Laws 1927, p. 839.

It is contended by appellees that the act in question is in contravention of article 3 and of section 2 of article 2 of the Constitution of 1870. Article 3 is as follows: ‘The powers of the government of this state are divided into three distinct departments-the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.’

While under the Constitutions of 1848 and 1818 the county judge performed duties other than judicial, under the Constitution of 1870 his duties are now merely judicial. The county clerk, who is ex officio the clerk of the county court, is an officer of the court who has charge of the clerical part of its business and keeps its records and seal, and such an officer manifestly belongs to the judicial department of the state. People v. Brady, 275 Ill. 261, 114 N. E. 25. The laying out of a school district and the altering of the boundaries of established school districts is a legislative function. North v. Board of Education, 313 Ill. 422, 145 N. E. 158;People v. Graham, 301 Ill. 446, 134 N. E. 57;People v. Opie, 301 Ill. 11, 133 N. E. 689;Jackson v. Blair, 298 Ill. 605, 132 N. E. 221;Kenyon v. Moore, 287 Ill. 233, 122 N. E. 548. It is the province of the Legislature to declare the method by which school districts shall be organized, and to fix the limitations which it considers necessary for the establishment of a thorough and efficient system of free schools, and it is the province of the courts to decide whether a particular school district has been organized in accordance with the authority granted by the Legislature. North v. Board of Education, supra.

In Saxby v. Sonnemann, 318 Ill. 600, 149 N. E. 526, it was held that a member of the legislative department of the government has no authority to exercise any power belonging to the executive department of government, and in the opinion in that case, among other things, it is said: ‘In McQuade v. City of Joliet, 293 Ill. 515 [127 N. E. 690], the question arose whether the persons holding the offices of county judge, circuit judge and judge of the probate court could constitute a trial board to hear complaints filed with the police and fire commissioners against members of those departments. It was held that the powers and duties devolvingupon such trial board were executive or ministerial rather than judicial, and that members of the judicial department could not, under article 3 of the Constitution, exercise any powers properly belonging to the executive department of the government; that while the trial board provided for in the act was not a court, persons of whom it was to be constituted were of the judicial department, and were prevented by article 3 of the Constitution from exercising executive powers, and that the act was therefore void. In People v. Brady, 275 Ill. 261 [114 N. E. 25], the same principle was announced. While it was held in People v. Morgan, 90 Ill. 558, and People v. Hoffman, 116 Ill. 587 [5 N. E. 596,8 N. E. 788,56 Am. St. Rep. 793], that the power of a member of one department of government to make appointments in another department of government does not violate article 3 of the Constitution, it was so held on the ground that such appointment does not constitute an exercise of powers of the department to which the appointments are made. In Bottom v. City of Edwardsville, 308 Ill. 68 [139 N. E. 5], it was held that a master in chancery is a ministerial and not a judicial officer, and therefore duties and powers of a judicial officer cannot be conferred on him. It was held in People v. Dunne, 258 Ill. 441 [101 N. E. 560,45 L. R. A. (N. S.) 500], following People v. Bissell, 19 Ill. 229 [68 Am. Dec. 591], that under article 3 of the Constitution the judicial department is without jurisdiction to award a writ of mandamus to compel the Governor to perform a duty, either ministerial or...