People ex rel. Russell v. Graham

• Decision Date: 22 February 1922
• Docket Number: No. 14195.,14195.
• Citation: 301 Ill. 446,134 N.E. 57
• Parties: PEOPLE ex rel. RUSSELL et al. v. GRAHAM et al.
• Court: Illinois Supreme Court

301 Ill. 446

134 N.E. 57

PEOPLE ex rel. RUSSELL et al.

v.GRAHAM et al.

No. 14195.

Supreme Court of Illinois.

Feb. 22, 1922.

Application by the People, on the relation of Joe Russell and another, for leave to file an information in the nature of quo warranto against Irving M. Graham and others. From a judgment denying the motion for leave, relators appeal.

Affirmed.

Cartwright and Dunn, JJ., dissenting.Appeal from Circuit Court, Hancock County; Willis F. Graham, judge.

Lee Siebenborn, State's Atty., of Carthage (Hartzell, Cavanagh, Martin & Hartzell and Scofield, Califf & Bell, all of Carthage, of counsel), for appellants.

O'Harras, Wood & Walker, of Carthage, for appellees.

THOMPSON, J.

This appeal is from a judgment of the circuit court of Hancock county denying a motion made by the state's attorney on behalf of the people, on relation of Joe Russell and Bert Biggs, for leave to file an information in the nature of quo warranto against appellees, whom the petition alleged to be holding and executing, without any warrant or title, the offices of president and members of the board of education of Community Consolidated School District No. 306, in Hancock county.

The district was organized under the provisions of an act approved June 24, 1919 (Laws 1919, p. 904). This act provides that any compact and contiguous territory bounded by school district lines may be organized into a community consolidated school district and provides the means for perfecting such an organization. It further providesthat boards of education in such districts shall perform the same duties and exercise the same powers as are imposed and conferred upon boards of education in school districts having a population of not less than 1,000 nor more than 100,000 inhabitants, and shall also exercise any and all powers granted to boards of school directors under the provisions of section 121a of the School Law (Hurd's Rev. St. 1919, c. 122). In 1909 there was a general revision of the school laws. Sections 123 to 127, inclusive (Laws 1909, p. 377), provide that in all school districts having a population of not fewer than 1,000 and not more than 100,000 inhabitants the boards of education shall have all the powers of school directors, be subject to the same limitations, and in addition thereto shall have the power, and it shall be their duty, among other things, ‘to divide the district into subdistricts, to create new ones, and to alter or consolidate them,’ and ‘to apportion the pupils to the several schools.’ School directors were required by section 114 (Laws 1909, p. 373) ‘to establish and keep in operation for at least six months in each year, and longer if practicable, a sufficient number of free schools for the accommodation of all persons in the district over the age of six and under twenty-one years, and to secure for all such persons the right and opportunity to an equal education in such schools,’ and ‘to assign pupils to the several schools in the district.’ These sections have been amended several times, but the provisions quoted have been re-enacted in substantially the original form. Section 121a of the School Law was enacted in 1917 (Laws of 1917, p. 733). By this act adjoining school districts may be consolidated by a majority vote of the voters residing in each district. The board of directors of the consolidated district is given the same powers and is required to perform the same duties as boards of directors under the general School Law, and in addition thereto it is required to provide free transportation for pupils residing at a distance from the school site.

It is contended, first, that the act of June 24, 1919, is unconstitutional for the reason that it does not ‘provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education,’ in accordance with the mandate of section 1 of article 8 of the Constitution of 1870. This provision was not in the Constitutions of 1818 and 1848, nor was there a similar provision in either of those Constitutions providing for a system of free schools. On the same day that the convention adopted the Constitution of 1818 it adopted an ordinance by which it accepted certain propositions offered to the convention by Congress in the Enabling Act, authorizing the people of Illinois to form a state Constitution and state government. Among the propositions accepted was one setting aside and granting to the state section 16 in every township for the use of the inhabitants of such township for the use of schools and another reserving 3 per cent. of the net proceeds from the sale of lands lying within the state, to be appropriated by the Legislature for the encouragement of learning, one-sixth of which proceeds was required to be used exclusively for the benefit of a college or university. The following year there was some legislation concerning the preservation of the public school funds, but it was not until 1825 that an effort was made to provide for a system of free schools. These schools were to be supported by voluntary contributions in cash or good merchantable produce, and the Code was wholly inefficient to accomplish the purposes for which the system was established. The desire of these early lawmakers to establish a system by which their children might receive a good common school education is best expressed in the preamble of the Code, where it is said:

‘Believing that the advancement of literature always has been, and ever will be the means of developing more fully the rights of man, that the mind of every citizen in a republic is the common property of society, and constitutes the basis of its strength and happiness; it is therefore considered the peculiar duty of a free government, like ours, to encourage and extend the improvement and cultivation of the intellectual energies of the whole.’ Laws 1824-25, p. 121.

The first effective Code establishing a system of free schools in this state appears in the Revised Statutes of 1845 as chapter 98. This act provided for the distribution of the state school fund among the several school districts, and provided that the voters of the different school districts might authorize, by a majority vote, the levying of a tax for school purposes in their respective districts. In 1857 (Laws 1957, p. 259) an act to establish and maintain a system of free schools was adopted, and it was by far the most elaborate in its details of any act on the subject passed by the Legislature up to that date. It seems to have been the ground-work for all subsequent legislation respecting schools. There was a general revision of the school laws in 1865 (Laws 1865, p. 112), in 1872 (Laws 1871-72, p. 700) and in 1889 (Laws 1889, p. 239), and, as we have said, in 1909. Since 1845 the congressional township has been the unit of the school system, and the school business of the township has been done by three trustees elected by the legal voters of the township. These trustees were given authority by the act of 1845 to divide the township into school districts suited to the wishes and convenience of a majority of the inhabitants of such districts, and that power has continued in them through all the revisions down to date. They have had the authority, when petitioned by a majority of the legal voters of the district, in their discretion to divide a district into two or more districts, to consolidate two or more districts into one district, to detach territory from one district and attach the same to an adjacent district, to create a new district from territory belonging to two or more districts, to create a new district by dividing the territory of an existing district, and to change the boundaries of districts-and this authority is carried into the latest revision of the School Law (Laws of 1909, p. 354). The law has provided different methods at different times for making changes in districts and the boundaries thereof, but the law prior to 1919 has always required that such changes should be initiated by a majority of the legal voters of the district or districts affected.

The act of 1919, under which the district under consideration is organized, makes a radical departure from the methods heretofore provided for the consolidation of school districts, and provides a method of consolidating districts without the consent of a majority of the legal voters of each district affected. Under this act a populous district may seize and destrory a smaller district or several smaller districts against their unanimous vote, if the larger district can cast a vote favorable to consolidation that is larger than the combined vote of the smaller districts. A village of a few hundred or a city of several thousand population can annex to itself for school purposes all the school districts for miles around without consulting the wishes or convenience of the residents of the surrouding districts. The wisdom or justice of such legislation is not a question for the courts. The courts are concerned only with the question of the legislative power to enact it.

The section of the Constitution hereinbefore quoted is a command to the General Assembly to provide a thorough and efficient system of free schools, and the only limitation placed on the broad and far-reaching powers inherent in the state to provide a system of free schools is the requirement that the system shall be one whereby all the children of the state may receive a good common school education. The Constitution has not provided the mode by which the thorough and efficient system of free schools required to be provided shall be organized nor the officers by whom its affairs shall be administered and directed. It is left to the General Assembly to declare what shall constitute a common school education and what system of free schools will be thorough and efficient. The Legislature has the power to act directly and create school districts by general or...