People v. Birdsong

• Decision Date: 20 November 1947
• Docket Number: No. 30380.,30380.
• Citation: 398 Ill. 455,76 N.E.2d 185
• Parties: PEOPLE v. BIRDSONG et al.
• Court: Illinois Supreme Court

398 Ill. 455

76 N.E.2d 185

PEOPLE

v.BIRDSONG et al.

No. 30380.

Supreme Court of Illinois.

Nov. 20, 1947.

Appeal from Circuit Court, Morgan County; Clem Smith, Judge.

Proceeding in quo warranto by the People of the State of Illinois against M. A. Birdsong and others challenging the organization and legal existence of Community Consolidated School DistrictNo. 2 of Morgan County and the election of defendants as president and members of the Board of Education for the district.Judgment for defendants, and plaintiff appeals.

Judgment affirmed.

Oscar C. Zachary, State's Atty., and William L. Fay, both of Jacksonville, for appellant.

Thomson & Thomson, of Jacksonville, for appellees.

WILSON, Justice.

On March 3, 1947, a petition bearing 237 signatures was filed in the office of the county superintendent of schools of Morgan County requesting the superintendent to call an election for the purpose of voting for or against the proposition to establish a community consolidated school district within the contiguous territory consisting of school districts Nos. 50, 51, 64, 65 and 79, all situated in the county.The county superintendent ordered an election to be held on March 15, 1947.Of 232 votes cast, 215 votes favored the organization of the community consolidated school district.On March 18, the superintendent designated the new district ‘Community Consolidated School DistrictNo. 2 of the County of Morgan and State of Illinois.’March 31, the superintendent ordered an election to be held on April 12, 1947, for the purpose of electing a board of education for the district.M. A. Birdsong was elected president, and Milton N. Birdsell, Lloyd L. Black, H. E. Hembrough, W. Chauncy Carter, Thomas Cosgriff, and Charles W. Rhodes, members, of the board of education.

On July 12, 1947, the People of the State, by the State's Attorney of Morgan County, filed a complaint in quo warranto in the circuit court of Morgan County challenging the organization and legal existence of the school district and the election of the defendants, Birdsong, as president, and Birdsell, Black, Hembrough, Carter, Cosgriff, and Rhodes, as members, of its board of education.Defendants answered the complaint, justifying their membership on the board of education by the proceedings incident to the formation of the district and their election as president and members of the board.Plaintiff's motion to dismiss the answer and for judgment was denied, plaintiff elected to abide by the complaint, and defendants' motion for judgment was allowed.From the judgment rendered in favor of defendants, plaintiff prosecutes this appeal.

Plaintiff attacks, first, the validity of the petition filed with the superintendent of schools requesting him to call an election, asserting that it did not, on its face, meet the requisite statutory provisions.Section 8-1 of the School Code (Ill.Rev.Stat. 1945, chap. 122, par. 8-1) provides that any contiguous territory bounded by school district lines may be organized into a community consolidated school district, as provided in article 8.Section 8-1, so far as relevant, ordains, ‘A petition shall be filed with county superintendent of schools of the county in which the territory described in the petition or the greater part thereof is situated, signed by at least twenty per cent (20%) or 200 of the voters, whichever is fewer, residing within the territory.’The statute does not prescribe any exact form or the precise context of the petition.The challenged petition commences, ‘We, the undersigned voters and residents of the contiguous territory hereinafter described.’It bears 237 signatures with school district designations given for 230 and with addresses for 234.Plaintiff contends the petition was fatally defective, invalidating the proceedings to organize the district, since it contained no allegation, either express or implied, that it was signed by at least twenty per cent or by 200 voters of the territory, or that signers were voters residing within the territory.If the petition filed appears to have been properly signed by the prescribed number of legal voters residing in contiguous and compact territory, a mandatory duty devolved upon the superintendent of schools, under the statute, as a ministerial officer, to call the election requested.On the other hand, if the petition showed on its face that it did not satisfy the requirements on the statute, he should have refused to call the election.Frye v. Hunt, 365 Ill. 32, 5 N.E.2d 398, 599.

The petition assailed in Frye v. Hunt, relied upon by plaintiff as decisive of the first contention, commenced, ‘We, the undersigned legal voters of Hamilton and Franklin counties, State of Illinois, and of the territory below described.’The names and addresses of fifty-eight signers followed but the face of the petition failed to show that the signers were legal voters residing in the described territory.There was no allegation or any showing otherwise that at least fifty-eight signers resided in the territory.The signatures themselves afforded no information as to whether the signers actually resided or lived in the territory.We pointed out that the words ‘legal voters' did not necessarily mean ‘legal voters residing in the territory described’ for the obvious reason a person may be a legal resident of one place and an actual resident of another.The petition in the present case is free from the vice of the petition condemned in Frye v. Hunt.It expressly declares that the signers are ‘voters and residents of the contiguous territory hereinafter described.’Containing more than 200 signatures, the petition shows upon its face compliance with the statutory requirement that it be signed by twenty per cent, or 200, whichever is the fewer of the voters.The superintendent could readily ascertain the fact of compliance with the statute by inspecting the petition and counting the signatures.The presence of the specified number of signatures on the petition satisfies the statutory requirements in this regard.An allegation in the petition of the number signing is not essential.Following the word ‘We’ in the opening sentence of the petition, the explanatory phrase follows, ‘the undersigned voters and residents of the contiguous territory hereinafter described.’The words last quoted obviously refer to ‘We’ and proclaim that the signers are both voters and residents of the territory described.Plaintiff's argument that the words ‘voters and residents' do not mean ‘voters and actual residents' is hypercritical.Where the expression, ‘voters and residents,’ is used, as here its manifest meaning is that the voters are actual residents of the territory.The organization of a community high school district has been sustained where the petition purported to be signed by 110 ‘legal voters and residents of certain territory particularly described.’Chesney v. Moews, 317 Ill. 111, 147 N.E. 497.In People ex rel. Board of Education of LaPrairie Community High School District No. 10 v. Board of Education, of Bowen Community High School Dist. No. 304, 380 Ill. 311, 43 N.E.2d 1012, 1013, petitions were signed by 33 ‘residents and legal voters, in the territory described in the petitions.’We hold that the language, ‘We, the undersigned voters and residents of the contiguous territory hereinafter described,’ in the petition in this case, carries the same connotation as if it had read, ‘We, the undersigned voters residing in the contiguous territory hereinafter described.’

Plaintiff's next contention is that the election for the organization of the district was void because illegal ballots were used.The caption on the face of the ballot bears the designation, ‘Official Ballot’ for the election on Saturday, March 15, 1947, in school districts Nos. 50, 51, 64, 65 and 79, in Morgan County.Then follows the facsimile signature of the county superintendent of schools.Immediately below this signature are instructions to voters.Next appears the statement of the proposition in the language of the statute.Ill.Rev.Stat.1945, chap. 122, par. 8-2.Plaintiff's complaint is that the back or outside of the ballot does not meet the requirements of section 16-3 of the Election Code(Ill.Rev.Stat.1945, chap. 46, par. 16-3), which prescribes, ‘On the back or outside of the ballot, so as to appear when folded, shall be printed the words ‘Official Ballot,’ followed by the designation of the polling place for which the ballot is prepared, the date of the election and a facsimile of the signature of the clerk or other officer who has caused the ballots to be printed.'Section 16-7 of the Election Code provides that, whenever a public measure is submitted to be voted upon by the electorate within any district or political subdivision less than the State the substance of such public measure shall be clearly indicated on a separate ballot, and that ‘All provisions of this Act relating to ballots shall apply to such separate ballot.’Obviously, section 16-3 relating to indorsements upon the back of a ballot can apply only to the ballots to which section 16-7 is applicable.Admittedly, the ballots used at the election on March 15, 1947, did not comply with the requirements of the Ballot Law, now incorporated in the Election Code.The School Code contains no provision requiring a printed indorsement on the back of the ballot.

Plaintiff asserts, however, that the School Code does not supersede or contradict the provisions of the Election Code in this respect, pointing out that while the School Code prescribes the form and wording of the proposition to be voted upon, it does not detail or provide for the manner of printing ballots.Plaintiff places reliance upon People ex rel. Drennan v. Williams, 298 Ill. 86, 131 N.E. 270, andPeople ex rel. School Directors v. Exton, 298 Ill. 119, 131 N.E. 275, decided in 1921, construing the School Law (now the School Code) after amendments were added in 1919....