People ex rel. Duckwitz v. Brown

• Decision Date: 08 February 1923
• Docket Number: No. 14955.,14955.
• Citation: 306 Ill. 245,137 N.E. 854
• Parties: PEOPLE ex rel. DUCKWITZ et al. v. BROWN et al.
• Court: Illinois Supreme Court

306 Ill. 245

137 N.E. 854

PEOPLE ex rel. DUCKWITZ et al.

v.BROWN et al.

No. 14955.

Supreme Court of Illinois.

Dec. 19, 1922.

Rehearing Denied Feb. 8, 1923.

Quo warranto by the People, on the relation of George Duckwitz and others, against M. B. Brown and others, to oust defendants from the office, duties, and powers of the members of the board of education of community high school district No. 82, in Effingham county. From a judgment of ouster rendered against defendants on the overruling of their demurrer to the amended information, defendants appeal.

Reversed.

Appeal from Circuit Court, Effingham County; F. R. Dove, judge.

Walter C. Klitzing, of Altamont, and G. F. Taylor, of Effingham, for appellants.

Byron Piper, of Effingham, and David Lester Wright, of Greenville, for appellees.

FARMER, J.

This appeal is prosecuted from a judgment of the circuit court in a quo warranto proceeding to oust appellants from the office, duties, and powers of members of the board of education of community high school district No. 82, in Effingham county. Relators (hereafter called appellees) presented their petition to the circuit court for leave to file an information in the nature of quo warranto. The petition alleges the county superintendent of schools did not cause to be posted valid legal notices of the election to establish a district; that the election to establish the district and the subsequent election of a board of education were not conducted in the manner required by the Australian Ballot Law. Laws 1891, p. 107. Leave was granted and the information was filed. It contained three counts. Appellants filed their plea setting out their title to the office, whereupon appellees asked and were granted leave to file an amended information. Count 1 of the amended information alleged the county superintendent of schools designated the schoolhouse in each of the 12 districts embraced in the proposed community high school district as the polling places, but failed to post 10 notices designating all the polling places in each notice posted. Count 2 avers the election was not held under the provisions of the Australian Ballot Law. The third count alleges the same failure to give notice as alleged in count 1, and further alleges that at some of the polling places where votes were cast there were certain irregularities specified in the manner of conducting the election. An additional count was filed to the amended information, alleging the district is not compact and contignous; that its greatest length east and west is 8 miles and north and south 9 1/2 miles; that the schoolhouse would be built in the city of Altamont, which is about 4 miles from the south line of the district, 5 1/2 miles from the north line, 5 miles from the east line, and 3 miles from the west line; that pupils living in the district would have to travel from 6 to 10 miles; that the roads through the territory are bad and impassable during the greater part of the school year; that on account of hills in the southeast part of the district and the condition of the roads the pupils would be unable to reach the schoolhouse. Appellants demurred to the entire amended information. The demurrer was sustained to the first and second counts, but overruled as to the third and additional counts. Appellants stood by their demurrer, and the court rendered judgment of ouster against them, from which judgment this appeal is prosecuted.

Appellees have assigned cross-errors on the ruling of the court in sustaining the demurrer to counts 1 and 2.

The information set out the reasons relied on for asking a judgment of ouster. This is not the usual practice in quo warranto proceedings, but is not without precedent.

We will first consider the cross-errors. The point made under the first count was that valid notices of the election to organize the district were not posted by the county superintendent of schools. No copy of the notices posted or their form is in the abstract. It is not claimed that the required number of notices was not posted, but, as we understand the briefs, the complaint is that all the polling places designated were not given in each notice. There were 12 common school districts embraced in the territory proposed to be organized into a community high school district. The county superintendent designated each of the 12 schoolhouses as a polling place, and, as we understand, a notice of the election was posted in each, designating the schoolhouse in the district where the notice was posted as a polling place. This was sufficient to inform the electors where they might cast their votes and was substantialcompliance with the law, which is all that is required in that respect. City of Chicago v. People, 80 Ill. 496;People v. Darrough, 266 Ill. 506, 107 N. E. 844.

The second count is based on the theory that the elections to establish the district and for the board of education are governed by and required to be conducted under the Australian Ballot Law. The determination of that question will require reference to a number of acts of the Legislature.

The general election laws apply to school elections unless otherwise expressly provided. In 1909 it was deemed advisable to revise and arrange in an orderly manner the entire legislation pertaining to the maintenance of a system of free schools. The revised act was passed, approved, and went into effect June 12, 1909. Laws 1909, p. 342. Section 86 of the revised act of 1909 related solely to the election of boards of education where the people had voted to establish township high schools. The elections for the organization of township high schools and boards of education for such schools were to be held in the manner provided by law for the election of township trustees of schools. Section 26 of the revised act provided for the election of trustees of schools in the manner prescribed by the general election laws for the election of magistrates and constables.

In 1917 (Laws 1917, p. 735) an act was passed to amend section 86 of the act of 1909 as amended in 1911 (Laws 1911, p. 508). By the 1917 amendment to section 86 it was provided that elections for members of the boards of education for township high schools should be held under the Australian Ballot Law. Section 85 was not amended, and the method of conducting the elections for the organization of township high schools was not mentioned. That subject is provided for in section 85.

In 1919 (Laws 1919, p. 908) the revised act of 1909 was amended by adding to it a section numbered 89a, and at the same session another act was passed amending section 86 of the revised act. Section 89a authorized elections to establish community high schools and elections for members of the boards of education for such schools. That act did not amend section 86 or any other section of the School Law, but provided a method for establishing a community high school district and electing a board of education. It contained a provision that ‘the manner of holding elections shall be governed by section 86 of this act.’ The amendment of 1917 to section 86 required elections for members of boards of education of township high schools to be conducted under the provisions of the Australian Ballot Law. The title of the act of 1919 was ‘An Act to amend an act entitled ‘An act to establish and maintain a system of free schools' approved and in force June 12, 1909, by adding thereto a section to be numbered 89a.’ Section 1 recites that the act approved and in force June 12, 1909, be amended by adding a section to be numbered 89a. Then follows the amendment. No reference is made to the act of 1909 ‘as amended.’

Appellants contend that section 86 of the act of 1909 as originally enacted was incorporated in the act of 1919; that the amendment of 1917 was not incorporated and does not control; that, if the amendment of 1917 be held to have been incorporated in the amendment of 1919, then it must follow that the amendment of 1921 (Laws 1921, p. 803) controls the elections to establish community high schools and to elect boards of education. Appellees contend that the act of 1919 adding section 89a to the revised School Law of 1909 adopted section 86, as amended in 1917, by reference, and has the same effect as if the amendatory act-namely, section 89a-had incorporated into it section 86 as amended in 1917, and the adopting act is not affected by subsequent amendments of the section adopted. Both parties have argued these propositions at length in their briefs.

A fundamental rule in the construction of statutes is that effect should be given to the legislative intent. People v. Harrison, 191 Ill. 257, 61 N. E. 99.

‘A thing within the intention is regarded as within the statute though not within the letter, and a thing within the letter is not within the statute unless within the intention.’ People v. City of Chicago, 152 Ill. 546, 38 N. E. 744.

In view of the apparent obsession since the passage of the revised act of 1909 to amend various sections of that act and to add new sections and provisions to it, it is not always clear just what was intended by the amendatory acts. We said in discussing this subject in People v. Williams, 298 Ill. 86, 131 N. E. 270, that the Legislature did not seem to have any general plan as to the method of holding elections provided for by the School Law. Briefly summarizing, by the...