People ex rel. Harvey v. Vaughan

• Decision Date: 07 February 1918
• Docket Number: No. 11718.,11718.
• Citation: 118 N.E. 479,282 Ill. 163
• Parties: PEOPLE ex rel. HARVEY v. VAUGHAN et al.
• Court: Illinois Supreme Court

282 Ill. 163

118 N.E. 479

PEOPLE ex rel. HARVEY

v.VAUGHAN et al.

No. 11718.

Supreme Court of Illinois.

Dec. 19, 1917.

Rehearing Denied Feb. 7, 1918.

Appeal from Circuit Court, Lee County; Oscar E. Heard, Judge.

Suit by the People, on the relation of M. D. Harvey, against Fred N. Vaughan and others. From a judgment against the defendants, they appeal. Reversed and remanded.

Duncan, J., dissenting.P. M. James, of Amboy, and Ray T. Luney, of Dixon, for appellants.

Harry Edwards, J. W. Watts, and H. A. Brooks, all of Dixon, for appellees.

CARTWRIGHT, J.

By leave of court an information in the name of the people of the state of Illinois, on the relation of M. D. Harvey, was filed in the circuit court of Lee county, requiring the appellants to show by what warrant they exercised the offices of president and members of the board of education of a township high school district organized under section 6 of the act of 1911. Laws 1911, p. 507. The appellants filed a plea of justification, setting forth in detail the proceedings for the organization of the district, and the parties entered into a stipulation of facts forming an issue, which was submitted to the court. The stipulation was:

‘That said high school district was legally organized and said respondents were duly elected and have not been and are not usurping said offices, unless it be that said district is composed, in whole or in part, of another or prior township high school district.’

That question was to be determined from the following facts: On April 4, 1916, an election was held to vote for or against the proposition to establish a township high school for the benefit of township 20, range 10, in Lee county, under the General School Law of 1909 (Laws 1909, p. 342), and women were allowed to vote at the election. Counting only the votes of men the proposition was lost by 6 votes, but counting the votes of women there was a majority of 168 in favor of the proposition, and it was declared carried. On May 8, 1916, a petition was filed with the county superintendent of schools for an election for or against the proposition to establish a township high school under the act of 1911, comprising territory described in the information, including territory embraced in the first proceeding. Notice was given and an election was held on May 20, 1916, and the proposition was carried. On the same day there was an election for a board of education in the first township high school district and a board was elected, but the persons elected never organized nor exercised the duties of the office. On June 15, 1916, an election was held for a board of education under the second proceeding, at which the appellants were elected and organized as a board. The court did not decide the issue submitted by the stipulation, but at the instance of the appellants held this proposition of law, ‘That the law under which the township high school was organized, to wit, the act of 1911 of the School Law of this state, is unconstitutional and void,’ and entered a judgment of ouster, from which this appeal was taken.

[2][3] The parties did not submit to the court the question of the validity of the act of 1911, but agreed that the high school district was legally organized, unless it was composed, in whole or in part, of another and prior township high school district, but the judgment of the court was based on a finding that the act was unconstitutional. Parties cannot stipulate what the law is, but they may waive constitutional rights, and are generally held to have waived any question as to the validity of a statute by failing to make an attack upon it by opportune objection. Failure to make such objection is deemed a waiver. As has been frequently held, constitutional questions are waived by taking a case to an appellate court and assigning error there of which that court has jurisdiction. Barnes v. Drainage Com'rs, 221 Ill. 627, 77 N. E. 1124;Case v. City of Sullivan, 222 Ill. 56, 78 N. E. 37;Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. City of Chicago, 242 Ill. 178, 89 N. E. 1022,44 L. R. A. (N. S.) 358, 134 Am. St. Rep. 316; 6 R. C. L. 94. An estoppel may also be operative to prevent the assertion of a constitutional right (10 R. C. L. 836), so that a right may either be waived or lost. So far as the proposition of law held by the court was concerned, it was correct at the time...