People ex rel. Morris v. Opie

• Decision Date: 22 December 1921
• Docket Number: No. 14166.,14166.
• Citation: 301 Ill. 11,133 N.E. 689
• Parties: PEOPLE ex rel. MORRIS et al. v. OPIE et al.
• Court: Illinois Supreme Court

301 Ill. 11

133 N.E. 689

PEOPLE ex rel. MORRIS et al.

v.OPIE et al.

No. 14166.

Supreme Court of Illinois.

Dec. 22, 1921.

Quo warranto proceedings by the People, on relation of John A. Morris and others, against Fremont Opie and others. From a judgment ousting respondents from office as members of the Board of Education of community high school district No. 201, in Peoria county, respondents appeal.

Reversed and remanded.

Cartwright, Carter, and Dunn, JJ., dissenting.

Appeal from Circuit Court, Peoria County; C. V. Miles, Judge.

Cameron & Anderson, of Peoria, for appellants.

Ernest J. Galbraith, State's Atty., and Dailey, Miller, McCormick & Radley, all of Peoria, for appellees.

THOMPSON, J.

This appeal is from a judgment of ouster rendered in quo warranto against appellants April 29, 1921. The information filed charged appellants with usurping the office of members of the board of education of community high school district No. 201, in Peoria county. Appellants filed a plea of justification, to which a demurrer was sustained and appellants elected to stand by their plea.

Appellees contended that the plea was bad for the following reasons: (1) The petition to the county superintendent of schools was not signed by 50 legal voters, as required by section 89a of the School Law, but was signed by 39 men and 14 women; (2) the 10 notices posted were not posted in 10 of the most public places throughout the territory; (3) the ballot was not in the form prescribed by section 89a of the School Law; and (4) women were allowed to vote at the election, and their votes were not kept separate from the votes of the men.

Shortly after the judgment of ouster was rendered the General Assembly passed an act to validate the organization of certain community high school districts. This act became a law May 10, 1921. Laws of 1921, p. 797. In the brief filed by appellees in this case it is said:

‘On the record as it now stands it must be admitted that by the plain provisions of sections 1 and 2 of the validating act the fact of women voting at the election and the irregularities in the form of the ballot and the posting of the notices are cured. We will therefore devote no time to the discussion of these points.’

[2] Appellees contend that the petition to the county superintendent of schools being signed by 39 men and 14 women at a time when women were not legal voters was not a sufficient compliance with the provisions of the statute requiring the petition to be signed by 50 legal voters to give the county superintendent of schools jurisdiction to call and hold the election. For this reason appellees argue that the validating act does not apply. This court has repeatedly held that there is no constitutional provision requiring a petition or a vote of the people to establish a school district, and that the Legislature may therefore establish school districts without any petition, and even without a vote on the question. There being no constitutional prohibition, the Legislature may validate by law that which it might have authorized in advance. Since it might have authorized the organization of this territory into a district without a petition and without an election, it may validate the organization without a petition. The validating act does not require a petition, but provides:

‘That in all cases where a majority of the inhabitants of any contiguous territory, voting on the proposition, have voted at an election called for the purpose by the county superintendent of schools, in favor of the organization of such territory into a community high school district, and where, at a subsequent election similarly called and held, a board of educationhas been chosen for such district, such territory is hereby declared legally and validly organized and established as a high school district, and a valid and existing school district and body politic and corporate of this state for the purpose of establishing and maintaining a high school.’

Under this validating act, if there has been an election called by the county superintendent of schools for the purpose of voting on the organization of certain territory into a community high school district, at which a majority of the inhabitants who voted, voted in favor of the proposition, and a subsequent election similarly called, at which a board of education has been chosen, the territory constitutes a valid high school district. People v. Madison, 280 Ill. 96, 117 N. E. 493.Fisher v. Fay, 288 Ill. 11, 122 N. E. 811. We have held that, where the law under which the attempted organization of school districts was effected is unconstitutional, the district may be validated by an act of the Legislature declaring the territory so attempted to be organized a valid district. In such cases the county superintendent of schools had no authority to call the election to organize the district, and all steps taken by him under the unconstitutional law were void. The purpose of mentioning in the validating act that an election has been called and held is to describe the territory which the Legislature declares to be a school district. The irregularities and defects in the proceedings are immaterial, for the reason that the Legislature might have dispensed with the preliminary steps in the first instance. People v. Roberts, 284 Ill. 519, 120 N. E. 499;People v. Taylor, 281 Ill. 355,177 N. E. 1047;People v. Fifer, 280 Ill. 506, 117 N. E. 790.

On the oral argument appellees suggest that the validating act under consideration violates section 22 of article 4 of the Constitution, in that it is a local or special law pertaining to the conducting of elections. The act does not in terms purport to validate any election. It merely creates the territory in which an election was held into a valid school district. The Legislature had a right, as we have noted above, to do this without any election. Similar validating acts of 1917 (Laws 1917, p. 744) and 1919 (Laws 1919, p. 907) were substantially in the form of the act now under consideration, but the 1917 and 1919 acts in terms purported to validate the elections, and we have repeatedly held those acts constitutional. People v. Edwards, 290 Ill. 464, 125 N. E. 364. In many of the cases cited above, validating acts were questioned on the ground that they violated section 22 of article 4 of the Constitution, which prohibits the passage of a local or special law in certain enumerated cases. It was argued that these acts came under several of the different provisions enumerated in section 22 of article 4, but whether they come under one or the other provision is immaterial, as the question is, Are they local or special laws? This court has many times held that such validating acts are not local or special laws. If they were, there is no constitutional prohibition against the establishment of school districts by local or special laws. People v. Long, 297 Ill. 194, 130 N. E. 515; People v. Madison, supra; People v. Woodruff, 280 Ill. 472, 117 N. E. 791;People v. Stitt, 280 Ill. 533, 117 N. E. 784;People v. Craft, 282 Ill. 483, 118 N. E. 777.

In view of the present state of the law the judgment must be reversed. The cause is remanded to the circuit court of Peoria county for further proceedings consistent with the views herein expressed.

Reversed and remanded.

CARTWRIGHT, CARTER, and DUNN, JJ. (dissenting).

We dissent from the foregoing opinion so far as it holds that community high school district No. 201 was created and brought into existence by the act of May 10, 1921, and that the General Assembly had power, under the Constitution, to validate by a special and local law an election or elections not held, opened, or conducted in accordance with the provisions of the general law. The action in question provides:

‘That in all cases where a majority of the inhabitants of any contiguous territory, voting on the proposition,have voted at an election called for the purpose by the county superintendent of schools, in favor of the organization of such territory into a community high school district, and where, at a subsequent election similarly called and held, a board of education has been chosen for such district, such territory is hereby declared legally and validly organized and established as a high school district, and a valid and existing school district and body politic and corporate of this state for the purpose of establishing and maintaining a high school. The board of education acting for such district is hereby declared to be the duly constituted authority thereof.’

Section 2 is as follows:

‘No irregularity, defect or omission whatsoever, in the time or manner of calling, holding or conducting any such elections or in the notice thereof, ballots used therein, or returns thereof, shall be held to invalidate any such elections.’

Section 3 provides that all acts and proceedings theretofore done, had, or performed by each such district, and the persons from time to time elected and acting as the board of education thereof, shall be legal and valid in all respects. Section 4 provides that taxes levied by the board of education of any such district shall be legal and valid. This was not the creation of a school district in certain territory in which the elections had been held, but was an attempt to validate the elections and to declare the territory legally and validly organized by virtue thereof. This is not only clear from the provisions of section 1, above quoted, but also by the declaration of section 2 that no irregularity, defect, or omission in the manner of calling, holding, or conducting any such elections should be held to invalidate the same.

There is no express prohibition against the creation of school districts by a legislative act without a petition or election, but it may be by the exercise of the legislative judgment that certain territory shall be created as a school district. The General Assembly formerly exercised its power by creating...