Reich v. McCoy

• Decision Date: 18 September 1944
• Docket Number: No. 27875.,27875.
• Citation: 387 Ill. 288,56 N.E.2d 393
• Parties: PEOPLE ex rel. REICH et al. v. McCOY et al.
• Court: Illinois Supreme Court

387 Ill. 288

56 N.E.2d 393

PEOPLE ex rel. REICH et al.

v.McCOY et al.

No. 27875.

Supreme Court of Illinois.

May 16, 1944.

As Modified on Denial of Rehearing Sept. 18, 1944.

Quo warranto proceeding by the People, on the relation of Ellis H. Reich and others, to require Arthur A. McCoy and others to show by what warrant they hold and exercise the powers of members of the Board of Education of Community High School District No. 67 in Brown County. Judgment for defendants, and relators appeal.

Reversed and remanded, with directions.Charles E. Turner, State's Atty., and Walter I. Manny, both of Mt. Sterling, and John T. Inghram and Wilson & Schmiedeskamp, both of Quincy, for appellants.

Williams & Williams, of Pittsfield, for appellees.

GUNN, Justice.

Appeal from Circuit Court, Brown County; A. Clay Williams, Judge.

The People of the State of Illinois, on the relation of Ellis H. Reich et al., filed in the circuit court of Brown county a complaint in quo warranto to require the defendants, as pretended members of the board of education of Community High School District No. 67 in said county, to show by what warrant they hold and exercise the power of members of the board of education of said community high school district. The complaint was filed in the form authorized by the statute on quo warranto as amended in 1934. Ill.Rev.Stat.1943, chap. 112, sec. 1 et seq. The defendants answered, setting out in detail what they contended was essential under sections 89a to 91 of the School Law. Ill.Rev.Stat.1943, chap. 122, pars. 97-99. A motion to strike was filed and the answer was amended by adding a paragraph setting forth the curative act of March 18, 1943. Laws of 1943, page 1257, Ill.Rev.Stat.1943, c. 122, §§ 406k5, 406k6. Petitioners made a motion to strike the answer and the justification of the respondents, as amended, which was overruled by the court. Petitioners filed a reply, and, among other things, contend they set forth new matter which was not answered. This will be commented upon later.

A hearing was had before the court without a jury, and a judgment was entered finding the defendants not guilty as charged in the complaint. The court also made a finding showing that the several requirements existed bringing said case within the provisions of said curative act, and, in addition, found that the territory described in the petition was compact and contiguous, and that the defendants were not guilty of usurping said offices. This appeal follows.

It is conceded by counsel for appellees that the proceedings taken under the general School Law, prior to the enactment of the curative act, were such as would require the court to find the district had been illegally organized, but contend that after the adoption of the curative act, and proof that the requirements therein contained existed, it had the effect of creating a school district containing the same territory by an act of the legislature, confirming the rights of appellees to act as members of the board of education thereof. The principal contention made by appellants is that the curative act cannot be given effect because in several respects it is in violation of the constitution.

The curative act is too long to set forth in full, but in general it provides that in all cases where (1) the county superintendent of schools of any county has heretofore received a petition signed by one hundred or more legal voters residing in any contiguous and compact territory, which is proposed to be organized into a community high school district; and (2) an election was called for such purpose by the county superintendent of schools, and a majority of the voters voted in favor of such organization; and (3) where at a subsequent election similarly called and held, a board of education was selected by the voters and such persons so acting as board members have met and organized as a board of education and functioned as such, each such election is declared legal, and ‘such territory is hereby declared legally and validly organized and established as a community high school district and a valid and existing school district and body politic and corporate of the State for the purpose of establishing and maintaining a high school;’ and the act then specifies that such district is legal and valid notwithstanding certain omissions required by the general School Law to organize a valid community high school district thereunder.

The omissions, which are waived, cover substantially all of those necessary for a legal organization, such as population of the territory, assessed value, attempting to organize within one year of a prior similar attempt, that no notice of filing the petition was transmitted to the Superintendent of Public Instruction, that no report that the territory was compact and contiguous, or on other matters required by statute, was made by the Superintendent of Public Instruction prior to the filing of the petition, that no publication of such report had been made after the filing of the petition, and that the ballots were not in proper form. The second section of the curative act in effect validates all proceedings by the purported board of education, and the board elected is declared to be legal and valid and to constitute a corporate authority of such district.

The contention of appellants, broadly stated, is that if jurisdiction was absent in the first instance to organize a community high school under the statute, then the curative act is unconstitutional and void, because none of the requirements to bring it within the provisions of the curative act legally existed.

Appellees substantially concede there is such a material failure in the proceedings under the School Law that if the validity of the district rested upon them the writ would be compelled to issue; but content themselves by saying that under the constitution requiring an efficient system of free schools the curative act has the result of a direct declaration that the school district, which the inhabitants thereof intended to create under the general School Law has been created by a special act of the legislature. This requires an examination of the general law upon this subject before the specific points argued by counsel can be applied.

The constitution of the State, Smith-Hurd Stats. provides: ‘The general assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education.’ Art. VIII, sec. 1. We have construed this provision as authorizing school districts by a direct legislative act without any vote upon the question. People ex rel. Russell v. Graham, 301 Ill. 446, 134 N.E. 57;People ex rel. Morris v. Opie, 301 Ill. 11, 133 N.E. 689;People ex rel. Leighty v. Young, 301 Ill. 67, 133 N.E. 693;People ex rel. Vautrin v. Madison, 280 Ill. 96, 117 N.E. 493;People ex rel. Fitzgerald v. Stitt, 280 Ill. 553, 117 N.E. 784;People ex rel. Sievert v. Peltier, 275 Ill. 217, 113 N.E. 856. However, when the legislature undertakes to create a school district, in order to comply with the constitutional requirement of an efficient school system the district so created must be compact, and an absence of this requirement would render the district illegal. People v. Young, 301 Ill. 67, 133 N.E. 693;People ex rel. Vick v. Kirkham, 301 Ill. 45, 133 N.E. 696. It has been also held that the legislature may organize a school district and refer to an election held under the general School Law as descriptive of the territory which the legislature by special act designates as a school district. People v. Graham, 301 Ill. 446, 134 N.E. 57;People v. Madison, 280 Ill. 96, 117 N.E. 493;People v. Opie, 301 Ill. 11, 133 N.E. 689;People v. Young, 301 Ill. 67, 133 N.E. 693.

The appellees contend the legislature can validate anything which the legislature might have authorized, and cite many authorities in which substantially this language is used. Appellants concede the legislature may pass a curative where there is an a defect in a proceeding where there is an omission of an act which the legislature might have dispensed with in the first instance. Between these two views lies the question which requires our consideration, because if an act of the legislature is void in failing to comply with constitutional requirements, then it would appear that a curative act, if it contained the same defect, would likewise be void.

Among the numerous matters in which appellants claim the curative act is violative of the constitution is that there was no notice of the election under which the district purported to be organized in the first instance; and that lack of notice is such a serious failure to observe constitutional processes that no election was ever held, as required by the curative act, before it became effective.

The appellees' answer, as amended, justifying their title to office sets out the record of the county superintendent of schools, and therein shows his order dated August 29, 1941, calling an election to organize a community high school district, fixing the date of the election as September 9, 1941, and designating eight polling places in the territory. The return also contained the affidavit of one F. M. Dorman, dated March 19, 1943, stating an oath that on August 29, 1941, he posted eleven notices of the election called by the county superintendent of schools in eleven of the most public places in said territory. The answer also contains a copy of the notice of the election purported to have been called on September 11, 1941, to be held September 23, 1941, for the purpose of electing a community high school board of education. It also contains the affidavit of the county superintendent of schools, dated March 19, 1943, showing he posted said notices of election in eleven of the most public places in said territory. The return prior to the amended answer showed the affidavit of one Dorman was made August 30, 1941, as to...