People ex rel. Lutz v. France

• Decision Date: 28 October 1924
• Docket Number: No. 14953.,14953.
• Parties: PEOPLE ex rel. LUTZ v. FRANCE et al.
• Court: Illinois Supreme Court

314 Ill. 51

145 N.E. 240

PEOPLE ex rel. LUTZ

v.FRANCE et al.

No. 14953.

Supreme Court of Illinois.

Oct. 28, 1924.

Petition by the People, on the relation of Orval Lutz, for leave to file information in nature of quo warranto against Kersey France and others as the Board of Education of Community High School District No. 226 in the Counties of Fulton and McDonough. From an order refusing leave to file information and dismissing petition, relator appeals.

Affirmed.Appeal from Circuit Court, Fulton County; Walter C. Frank, judge.

Floyd F. Putman, State's Atty., of Canton, and Flack, Flack & Kerman, of Macomb, for appellant.

E. L. Weber, Harvey H. Atherton, and Glenn Ratcliff, all of Lewistown, for appellees.

DUNCAN, C. J.

Floyd F. Putman, state's attorney of Fulton county, presented to the circuit court of said county, on March 14, 1921, his petition on the relation of Orval Lutz, a citizen, resident and taxpayer in territory constituting community high school district No. 226 in the counties of Fulton and McDonough, for leave to file an information against the persons acting as a board of education of that district, challenging the legal existence of such district, and calling upon them to show by what warrant and authority they attempted to hold office as a board of education. The petition was verified by the affidavit of Lutz, and gave a copy of the notice of an election to organize the district, but alleged that the county superintendent of schools did not post 10 copies of said notice 10 days prior to the election, and failed to comply with the statute in that regard. It alleged that the territory comprised within the pretended district did not consist of compact territory, but a part of it 2 miles in width and 5 miles in length extended west from the main body of the territory, forming an L; that some parts of the territory were 9 miles from the village of Table Grove, where the school was located; that much of the territory was nearer to Adair, in McDonough county, than to Table Grove, and Adair was the community center of much of the territory; that there was located in Adair a community high school; that both men and women voted at the election, and separate ballot boxes were not kept for men and women, but the votes were commingled and counted together; that there were 243 votes cast for the community high school and 29 against it; and that the territory was of such form and so situated as not to satisfy the constitutional requirement for an efficient system of free schools.

[1][2][3][4][5] When such a petition is presented to a court, if it shows prima facie cause for the filing of an information, the court may act upon the petition or may enter a rule nisi upon the respondents to show cause why the information should not be filed, and in response to such rule the respondents may show by counter affidavits any sufficient reasons for denying the petition. People v. Waite, 70 Ill. 25;People v. Moore, 73 Ill. 132;People v. Golden Rule, 114 Ill. 34, 28 N. E. 383;People v. McFall, 124 Ill. 642, 17 N. E. 63. The granting or withholding leave to file an information rests in the sound discretion of the court to which the application is made, even though there is a substantial defect in the title by which the office or franchise is held. People v. Waite, supra; People v. Moore, supra; People v. Callaghan, 83 Ill. 128;People v. North Chicago Railway Co., 88 Ill. 537. If the facts shown by respondents in answer to the rule are disputed, or if the answer presents new and doubtful questions of law, the court may make the rule for the information absolute, in order that questions at issue may receive a full and final determination. If, however, the facts are not disputed, and if the questions of law involved may receive as full and careful consideration upon the original application as if the rule to show cause were made absolute, such questions may be thus determined in the first instance without making the rule absolute. People v. McFall, supra. The petition must recite facts-not mere conclusions of the pleader-sufficient to satisfy the court or judge that there are competent grounds for the proceeding, and the petition must be full and positive, and be drawn in such manner that perjury may be assigned thereon if any material allegation contained therein is false. People v. Union Elevated Railway Co., 263 Ill. 32, 105 N. E. 12, Ann. Cas. 1915C, 388;People v. Roberts, 279 Ill. 540, 117 N. E. 68;People v. Graham, 301 Ill. 446, 134 N. E. 57.

Apparently a rule nisi was entered in this case. At any rate, affidavits were filed in the case by appellees for the purpose of showing cause why the information should not be filed. The affidavit of P. H. Hellyer, county superintendent of schools, is to the effect that he posted 10 notices of the election. The affidavit of C. L. Swedell, one of the respondents, states that the village of Table Grove is the center of the population of the community high school district; that all the lands and the territory are accessible to the village; that the part of the district in McDonough county 2 miles wide and running west five miles is accessible to the village, and the public highways of said part are among the best highways leading into the village; that no part is cut off or separated by a creek or river which during flood times would make it impossible for the inhabitants...