People ex rel. Lafferty v. Feicke

• Decision Date: 21 December 1911
• Parties: PEOPLE ex rel. LAFFERTY et al. v. FEICKE et al.
• Court: Illinois Supreme Court

252 Ill. 414

96 N.E. 1052

PEOPLE ex rel. LAFFERTY et al.

v.FEICKE et al.

Supreme Court of Illinois.

Dec. 21, 1911.

Appeal from Circuit Court, De Witt County; W. G. Cochran, Judge.

Proceeding by the People, on the relation of Isaac C. Lafferty and others, against Leonard Feicke and others. From a judgment dismissing the petition, relators appeal. Reversed and remanded.

V. F. Browne, State's Atty., and Herrick & Herrick, for appellants.

Ingham & Ingham, for appellees.

VICKERS, J.

The state's attorney of De Witt county, on the relation of Isaac C. Lafferty and the school directors of district No. 11 in said county, filed an information in the nature of a quo warranto in the circuit court of the said county against Leonard Feicke, James D. North, and Joseph Kinnett, and against school district No. 107, of which the three persons named pretended to be school directors. The purpose of the information was to require the defendants to show by what right and authority they pretended to exercise the office of school directors, and by what right said school district assumed to be a legally incorporated school district. To the amended information the defendants filed a plea, which purported to set out all of the proceedings by which a school district was organized out of territory detached from school districts Nos. 10, 11, and 20, and also the calling and holding of an election in the said district No. 107, at which Feicke, North, and Kinnett were declared elected school directors of the new school district. To this plea a demurrer was interposed and overruled. The plaintiffs elected to abide by their demurrer, and their petition was dismissed. The present appeal is prosecuted by plaintiffs below from the judgment overruling the demurrer and dismissing the petition, and adjudging costs against relators.

The controversy in this case grows out of an attempt to organize a new school district out of territory belonging to three school districts. The territory composing the school districts affected was in three different townships. Districts Nos. 10 and 11 are wholly within township 21 N., range 4 E., which is known as Rutledge township. District No. 20 is partly in Rutledge township and partly in township 20 N., range 3 E., called Hart township, and partly in township 20 N., range 4 E., called De Witt township. Three school districts and three townships were therefore interested in the formation of the proposed new district. The statute provides that, when a new district is to be formed out of parts of other districts, a petition shall be filed with the clerk of the board of trustees of the township in which such territory is located, at least 20 days before the regular meeting in April, and also requires that a copy of the petition, with notice in writing signed by one or more of the petitioners, shall be delivered by one of the petitioners, not less than 10 days before the day on which the petition is to be considered, to either the president or the clerk of the school directors of the district that will be affected by granting the prayer of such petition. The plea filed by appellees sets out in detail what was done by the petitioners as a compliance with the statute in regard to serving a copy of the petition and written notice upon the three boards of school directors whose districts were affected by the proposed change. Leonard Feicke was one of the petitioners for the formation of the new district. He was also a school director and clerk of the board in school district No. 11, in Rutledge township. The plea shows that Feicke, as a petitioner, attempted to serve a copy of the petition and notice in writing upon the board of directors of district No. 11 by delivering to himself a copy of said petition and written notice. In other words, the plea shows that the only service of the petition and written notice upon district No. 11 was a service by Leonard Feicke, as a petitioner for the formation of the new district, upon Leonard Feicke, clerk of the board of school directors of district No. 11, by delivering to himself the copy of the petition and notice set out in the plea. The only question discussed by counsel on either side is the sufficiency of the service shown by the plea upon the board of directors of district No. 11.

[1][2][3][4] The statute contemplates a hearing before the trustees upon a petition for the formation of a new school district, and the purpose of requiring a copy of the petition and written notice to be served upon the president or clerk of the board of directors in each district whose territory is affected by the proposed change is to afford an opportunity for the districts concerned to appear and present reasons for or against the allowance of such petition. The giving of this notice and serving a copy of the petition upon the president or clerk of the board of school directors of the districts affected is necessary to give the trustees jurisdiction to act upon the petition. In a plea to an information in quo warranto seeking to justify, it must affirmatively be shown that jurisdiction existed in the proceeding by which the municipal body was organized. Miller v. Trustees of Schools, 88 Ill. 26;Mason v. People, 185 Ill. 302, 56 N. E. 1069. The law is well established that a party to a suit cannot serve his own writ. Filkins v. O'Sullivan, 79 Ill. 524. The reason for this rule is that the party serving process should be a wholly disinterested person. Tallon v. Schempf, 67 Ill. 472. If such a practice were sanctioned, there would be great danger of abuse and inducement to the person making the service to make a false return, and thereby put himself in a position to obtain judgment by default, or some other undue advantage over the opposite party, who would, perhaps, not know anything of the proceeding until after judgment had been rendered against him. The courts have therefore generally adhered, with great propriety and justice, to the rule that in no case can a person be both officer and party in the same proceeding. Woods v. Gilson, 17 Ill. 218;Gage v....