Sch. Directors of Dist. No. 5 v. Sch. Directors of Dist. No. 10.

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Sch. Directors of Dist. No. 5 v. Sch. Directors of Dist. No. 10., 73 Ill. 249, 1874 WL 8970 (Ill. 1874)
• Decision Date: 30 September 1874
• Parties: SCHOOL DIRECTORS OF DISTRICT NO. 5v.SCHOOL DIRECTORS OF DISTRICT NO. 10.

73 Ill. 249

1874 WL 8970 (Ill.)

SCHOOL DIRECTORS OF DISTRICT NO. 5

v.SCHOOL DIRECTORS OF DISTRICT NO. 10.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Winnebago county; the Hon. WILLIAM BROWN, Judge, presiding.

This was a bill in chancery, filed by the school directors of district No. 10, in township 43, in Winnebago county, against the school directors of district No. 5, in the same township, to compel the payment by the defendant to the complainant, or to the trustees of schools of township 43 for the use of complainant, of the amount of an estimate and award made by the trustees of schools, of the school fund, to be paid by the defendant to the trustees of schools for the use of complainant, as a new school district formed out of parts of other school districts, of which the defendant was one, all the other districts having complied with the order of the directors, and paid over the portion of the school funds by them respectively ordered to be paid. Upon the hearing, the court rendered a decree granting the prayer of the bill, and the defendant appealed to this court.

Mr. C. M. BRAZEE, for the appellant.

Mr. WILLIAM LATHROP, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It is first urged that, when district No. 10 was formed, there was no law in this State which authorized the trustees to apportion the school fund and property of the districts out of which the new district is formed. It is insisted that there is no 33d section of the amended school law of 1865. Whilst this may be true, and the reference to the 33d section of the amended school law in the order passed by the trustees was erroneous, the criticism seems to be hypercritical, as there is a 33d section of a school law, and that school law was amended at that session. Had the trustees referred to it as the school law as amended at that session, it would have been literally accurate, but we can see no loss of power on the part of the trustees because they referred to the law in the mode they did, the question being whether they had power to perform the act, and the result could not be affected if they made a wrong reference to the law, or even if no law had been referred to in the proceedings.

It is also urged that the act of 1865, in its first section, declares that section one of “An act to establish and maintain a system of free schools,” approved February 22d, 1861, “be and the same is hereby amended,” etc. (Sess. Laws, p. 112.) On turning to the acts of 1861, p. 187, we find an act entitled “An act to amend the school law,” and it refers to an act of the title of that referred to in the first section of the law of 1865, as approved the 16th of February, 1857, and this last named act is manifestly that to which reference was intended to be made in the act of 1865. It has the sections referred to in the act of 1865, and the sections thus referred to are found in each instance to contain the same matter as the amendatory sections do severally. The wrong reference is obviously a mistake, but we regard it immaterial, as, even if there had been no act on the subject of common schools, such a reference could not defeat the will of the General Assembly. Here we have a law possessing all the requisites of a valid statute, passed by the General Assembly, containing clear requirements capable of being carried into effect in connection with the general school law, and we have no right, simply because there is a mistaken reference to a previous statute, to defeat that will.

Had there been no other law on the subject, and what purported to be the amendatory law had been so incomplete as to be incapable of being carried into effect, it would have necessarily fallen, until aided by further legislation; but suppose the act of 1865 had been entitled, as it is, to amend the school law, and contained its present provisions, or had its title been an act in reference to schools, without naming any act or section of any act, and had contained its present provisions, can any one doubt that it would have been enforced, repealing such portions of other acts as were repugnant, and adding its provisions to previous laws, and applying them to all subjects to which they were properly applicable? An unessential false description can never defeat a grant, contract, or other instrument, nor should it defeat a statute. The general description in the bill, as amendatory of the act to establish and maintain a system of free schools, sufficiently describes the law to be amended and is true, whilst what follows, as to the date of its approval, is not true, and is impossible, and may be rejected without affecting that which is true. There is no force in this objection.

There are a large number of other objections urged against the decree, some of which are only technical, whilst others do not have the force of technicalities. We shall proceed to consider such as we deem of sufficient importance to demand a discussion.

It is said that the town trustees, who failed to answer, were not defaulted. The decree finds they had been, and we will presume such to have been the fact, although appearing in no other place in the record; and we are not prepared to hold that such a recital would not be considered as evidence that the default was entered before the case was called, or whilst on trial. This is not ground for requiring a reversal, even if it could be held an error, which we think it can not be considered. The trustees did have power to divide the other districts and form a new one, and to divide the property, as prescribed in the 33d section...