Appeal by petitioners from the Circuit Court of McDonough
county; the Hon. WILLIAM M. BARDENS, Judge, presiding. Heard in
this court for the first district at the May term, 1952. Judgment
affirmed. Opinion filed June 10, 1952. Released for publication
July 7, 1952.
MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment of the circuit court of McDonough county in a mandamus proceeding involving a school question.
The People on the relation of the Board of Education of Community School District Number 180 petitioned that a writ of mandamus be issued requiring the School Trustees and Township Treasurer in one of the townships in McDonough county to pay over certain school funds to District 180. By its judgment order the trial court found that only a certain small portion of the funds were due to District 180 and accordingly the writ of mandamus was denied except as to that small portion. District 180 thereupon prosecuted this appeal.
The facts in the case, which arises entirely upon the pleadings and a stipulation, reveal that District 180, a community unit school district, was organized and came into existence July 1, 1948. It then embraced all of Common School Districts 121, 123, 126 and 200, and a portion of District 122. On July 1, 1948, the above common school districts had funds totaling $4,793.80 in the hands of the school treasurer. On August 12, 1948 the county superintendent of schools detached from Community Unit District 180 all of the territory that formerly comprised Districts 121, 126 and 200 and part of the territory that formerly comprised Districts 122 and 123. The detached territory was annexed to Community Consolidated School District 319. No school had been conducted and no bonded indebtedness had been incurred by Community Unit School District 180 prior to the detachment of the common school district territories mentioned above.
The court allowed the writ of mandamus for the funds of the districts which remained after the detachment within Community Unit School District 180, but denied the writ for the balance of the funds.
The questions presented thus are: first, is a community unit school district entitled to the personal property and funds of common school districts embraced by it upon the community unit school district's organization? If so, the second question then becomes may that right be divested by the detachment of the common school districts from the community unit district and their annexation to another district before the community unit district has held any school or has incurred any bonded indebtedness?
It is admitted by all parties that on July 1, 1948, when Community Unit School District 180 was organized and came into existence, that Unit District 180 was entitled to all of the funds of Districts 121, 123, 126 and 200, and a portion of the funds of District 122. Kocsis v. Chicago Park District, 362 Ill. 24.
It is whether the right to these funds is affected by the subsequent detachment of territory from Community Unit School District 180 that is the crucial question in this case.
There is no provision of the School Code of Illinois which applies clearly and unmistakably to the instant case. Section 4-46 of the School Code (chapter 122, section 4-46, Ill. Rev. Stat. 1949) [Jones Ill. Stats. Ann. 123.748] provided for the distribution of funds when a new district was formed. It is District 180's position that this statutory provision for distribution on the formation of a new district did not apply to the instant case, which involved a detachment, and that since there is no other statutory provision specifically dealing with the distribution of funds on detachment that it clearly has a right at common law to the funds irrespective of the fact that no school was held and no bonded indebtedness incurred by it prior to the detachment.
The defendants, including the Trustees of Schools of the Township and individuals, in their individual capacity and as Treasurer, etc., and the Board of Education of Community Consolidated School District 319, contend that section 4-46 does not apply to the case at bar and that if it does not, then clearly the disposition of the funds should be determined by common law and that the common-law rule as to the funds justifies the trial court's holding.
Section 4-46 as it was in force at the time of the creation of District 180 and the detachment of the various common school districts from District 180, provided as follows:
"When a new district has been formed by the trustees, or by the county superintendent or county superintendents, from a part of a district or parts of two or more districts, the trustees of the township or townships concerned shall make forthwith a distribution of tax funds, or other funds in the hands of the treasurer, or to which the district may, at the time of such division, be entitled, so that the old and new districts shall receive parts of such funds in proportion to the amount of taxes collected next preceding such division from the taxable property in the territory composing the several districts. If the new districts are composed of parts of two or more districts, the trustees shall make distribution of such funds between the new district and the old districts respectively, so that the new district shall receive a distribution of the funds of each of the old districts in the proportion which the amount of taxes collected from the property in the territory of the new district bears to the whole taxes collected next before the division in the old district; and the township treasurer shall forthwith place the sum so distributed to the credit of the respective districts, and shall immediately place the proportion of the funds to which the new district may be entitled to its credit on his books, and the funds on hand shall be subject at once to the order of the directors or board members of the new district, and those not on hand, as soon as collected."
It is apparent from a reading of the provisions of section 4-46 that that statute does not provide specifically for this case, involving a detachment. Two cases dealing with situations similar to that presented here in that situations not precisely within the language of section 4-46 or its substantially identical predecessor, have held that section 4-46 and the following section, 4-47, applied, and have held that the personal property and funds followed a district being detached from a larger district of which it had formerly been a component.
In Ketcham v. Board of Education, 324 Ill. 314, eight common school districts were organized into a community consolidated school district in 1920. In 1923 five districts were detached. At the time of the detachment the consolidated school district had a sum of money in the hands of the school treasurer of the township in which the district was situated. The directors of the detached districts requested the trustees of the consolidated school district to make a distribution of the funds in the hands of the treasurer as provided by section 64 of the then School Act, which is substantially section 4-46 of the School Code cited above. The petitions for writs of mandamus filed by the detached school districts were denied. The Appellate Court of the Second District reversed the holding of the trial court, and on appeal the Supreme Court affirmed the Appellate Court holding. The Supreme Court noted that the literal construction of the language of section 64 would not be decisive of the controversy with which they were then faced because the "detached common school districts were not new districts" within the language of section 64. The court noted that there was then in effect section 84-i of the School Code, which provided for the discontinuance of a community consolidated school district, and for a distribution ...