People ex rel. Douglas v. Powell

• Decision Date: 04 October 1916
• Docket Number: No. 10549.,10549.
• Citation: 113 N.E. 614,274 Ill. 222
• Parties: PEOPLE ex rel. DOUGLAS et al. v. POWELL, County Clerk.
• Court: Illinois Supreme Court

274 Ill. 222

113 N.E. 614

PEOPLE ex rel. DOUGLAS et al.

v.POWELL, County Clerk.

No. 10549.

Supreme Court of Illinois.

June 22, 1916.

Rehearing Denied Oct. 4, 1916.

Appeal from Circuit Court Jasper County; William B. Wright, Judge.

Proceeding for mandamus by the People, on the relation of E. L. Douglas and others, against H. K. Powell, County Clerk. From judgment awarding the writ, respondent appeals. Affirmed.Fithian & Kasserman, of Newton, and Andrews & Real, of Mattoon, for appellant.

Newlin, Parker & Newlin, of Robinson (C. A. Davidson, of Newton, of counsel), for appellees.

CARTWRIGHT, J.

A petition in the name of the people, on the relation of appellees, alleging that they were president and members of the board of education of high school district No. 203 of Crawford and Jasper counties, was filed in the circuit court of Jasper county, praying for a writ of mandamus commanding the appellant, H. K. Powell, county clerk of Jasper county, to proceed according to the statute for the extension of a tax levied by said board of education. The defendant demurred to the petition, and the demurrer was overruled. An answer was then filed, to which the relators demurred. The demurrer to the answer was sustained, and the defendant then moved to carry it back to the petition, but that motion was denied. The defendant elected to stand by his answer, and judgment was rendered awarding a writ as prayed. This appeal was prosecuted for the purpose of reversing the judgment.

It is assigned for error that the court erred in overruling the demurrer to the petition, and the reply made is that the argument under that assignment cannot be considered because of the failure of the defendant to except to the ruling of the court on the demurrer. It was never necessary to save an exception to such a ruling, since exceptions were only required as to matters which became a part of the record by a bill of exceptions, and not otherwise. Hamlin v. Reynolds, 22 Ill. 207;Baker v. People, 105 Ill. 452;Bennett v. Union Central Life Ins. Co., 203 Ill. 439, 67 N. E. 971. The assignment, however, cannot be considered, for the reason that the defendant did not stand by his demurrer, but answered over, and therefore waived the right to assign error on the ruling. An error committed in overruling a demurrer is waived by pleading over, but the waiver does not extend to innate and substantial defects which would render the petition insufficient to sustain the judgment. The question of the sufficiency of a petition to sustain the judgment may be reviewed on appeal or error. Chicago & Eastern Illinois Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021,22 Am. St. Rep. 515;Chicage & Alton Railroad Co. v. Clausen, 173 Ill. 100, 50 N. E. 680.

One of the grounds on which it is claimed the petition was insufficient to sustain the judgment is that there are three separate and distinct acts for organizing township high school districts, and the petition did not allege under which one the district of which the relators constituted a board of education was organized. No reason is given why it would make any difference, in the performance of defendant's duty, under which act the district was organized. Under either the board of education had power to levy a tax.

Another objection to the petition is that there was a failure to allege that the county clerk of Crawford county had certified to the defendant, as county clerk of Jasper county, the equalized valuation of the taxable part of the property of the district in Crawford county, as required by the statute. The petition alleged that it was the duty of the refendant to ascertain the total equalized valuation of the taxable part of the property in Jasper county and to certify it to the county clerk of Crawford county, but did not specifically aver that the like duty had been performed by the county clerk of Crawford county. It was not a condition of the law that the defendant should perform his duty after the county clerk of Crawford county had performed his, and the defendant, in pointing out his objections by the demurrer, did not suggest anything of that kind. If he had, the objection would not have been good, because the petition set out the reason for the refusal of defendant to comply with the demand of the relators and extend the tax, and the failure of the county clerk of Crawford county was not given as a reason. The refusal of the defendant was given in a reply to the relators, stating that he had been advised by the state's attorney that the organization of the district represented by the relators was illegal, and that he had accepted the counsel and advice of the state's attorney and therefore refused to extend the tax. Everything necessary to create the duty which the relators asked to have performed was either expressly averred or fairly implied from express allegations, and the petition was sufficient to sustain the judgment.

The answer of the defendant denied seriatim every averment of fact contained in the petition and the conclusion of law alleged concerning his duty, and after these denials he set up the real defense to the action. That defense was that there were two township high school districts covering the same twelve sections of land described in the answer, and, inasmuch as two could not exist in the same territory, he had a right to, and did correctly, decide that the relators' district was not legally organized, and therefore they had no right, as a board of education, to levy any tax. He elected to recognize the other high school district and extend the tax levied...