APPEAL from the Circuit Court of Gallatin County; the Hon.
CHARLES T. RANDOLPH, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Gallatin County in a proceeding in quo warrantor challenging the legality of the annexation of certain territory out of Omaha Community Consolidated School District No. 4 in Gallatin County to Community Unit School District No. 3 of White and Hamilton Counties, known herein as the Norris City School District. The trial court dismissed the complaint and entered judgment against the plaintiffs for costs. Plaintiffs prosecute this direct appeal, the constitutionality of a statute and a franchise being involved.
Community Consolidated School District No. 4 in Gallatin County was organized under section 8-1 of article 8 of the School Code as the same existed in the year 1949. (Ill. Rev. Stat. 1951, chap. 122, par. 8-1; Jones Ann. Stat. 123.850.) The district was formed by a consolidation of common school districts Nos. 5, 6, 7, 8, and 102 of Gallatin County.
One of the defendants, the Norris City School District, was established as a unit school district under the authority of section 8-9 of article 8 of the School Code. (Ill. Rev. Stat. 1953, chap. 122, par. 8-9.) The legality of the organization of the Norris City School District was admitted.
On March 9, 1953, the proper number of legal voters residing in the Norris City School District had, in the area to be annexed in Gallatin County, filed a petition with the county superintendent of schools of the County of White asking that certain described territory be detached from Community Consolidated District No. 4 and annexed to the Norris City School District. That territory consisted of all of several sections and parts of several other sections of Township 7 South, Range 8 East of the 3rd P.M., in Gallatin County, Illinois, including "the E/2, and the N/2 of the NW/4 of Section 27, * * *."
The county superintendent of schools of White County called the election pursuant to the petition, and fixed two precincts and two polling places for holding the same. Precinct No. 1 consisted of all the territory sought to be annexed, and the town hall in the village of Omaha was fixed as the polling place therefor. Precinct No. 2 consisted of all that territory then comprising the Norris City School District, and the polling place designated was the high school building in Norris City. The proposition for annexation carried in both precincts, the results were certifield by the county superintendent of schools of White County, and he ordered the territory detached from Community Consolidated School District No. 4 and annexed to the Norris City School District.
The People by relators, who are residents and owners of property within the annexed territory, filed a complaint in quo warrantor in the circuit court of Gallatin County on July 1, 1953, by the State's Attorney of Gallatin County. Count I of said complaint averred that the Norris City School District was exercising the governmental functions and franchises of a legally organized school district over the purportedly annexed territory without any warrant, charter, grant, right or authority of law whatever and prayed that said school district be made to answer by what warrant or authority they exercise said authority, functions, and governmental powers over such territory. Count II of said complaint averred that the board of education of the Norris City School District was exercising the same powers over the said territory without right of authority and prayed said board be made to answer what warrant or authority they claim to have to exercise such authority, functions, and powers over said territory.
Defendants answered averring they exercised authority over said territory by virtue of an election held on March 23, 1953, annexing said territory to the Norris City School District in full compliance with the laws of the State of Illinois relating thereto.
The People replied, denying each and every allegation of the answer, and set up seven affirmative defenses: (1) That the territory attempted to be annexed to the Norris City School District consisted of a part of a former common school district which would leave the remaining part of Community Consolidated School District No. 4 not compact or contiguous; (2) the only school house of said district No. 4 is located on territory attempted to be annexed; (3) that said school house is of the value of $25,000 and said annexation, if legal, would leave said District No. 4 without a school house; (4) the assessed valuation of property in District No. 4 would be so reduced by the attempted annexation as to render said district financially unable to construct a new school house and operate a school; (5) it will be impossible for the children in the annexed territory to attend the school at Norris City where the high school building of said district is located by reason of the distances being too great and the impossibility of furnishing transportation, the roads being insufficient for bus travel; (6) article 4B, and section 4B-6 particularly, violates section 2 of article II of the constitution of this State in that it fails to provide compensation for property taken or for division of property and assets of school districts from which territory is taken; and (7) by said annexation, the Norris City School District becomes so large that it will not be reasonably possible for children abiding therein to attend the high school in Norris City, Illinois.
Defendants moved to strike the affirmative defenses urged by the People. The motion was sustained as to paragraphs 2, 3, 4, 5 and 7 of the affirmative defenses but overruled as to paragraphs 1 and 6 since it appeared they might be defenses.
The cause was heard by the court on September 17, 1953. On the trial defendants put in evidence the petition filed with the superintendent of schools calling the election, designating the precincts and appointing judges and clerks to hold the election, notice of the election with proof of publication of the same in the Ridgeway News, and the Norris City News, specimen ballots used in both precincts, the pollbooks and tally sheets of both precincts, the certificate of the canvass of the election returns by the superintendent of schools proclaiming the result thereof, a copy of the map of the annexed territory, proof of the filing of the same in the office of the county clerks of each of the counties of White, Hamilton and Gallatin, and also proof of filing copies of such map with the superintendents of schools of each of the counties of Hamilton and Gallatin. The court rendered judgment in favor of the defendants, dismissing the complaint and giving judgment against the relators for costs. From that judgment the People prosecute this appeal.
The People first object that persons not living within the territory described to be annexed were permitted to vote, and that the polling place designated for precinct 1 was located outside of the precinct as described in the petition. Specifically the relators object that part of the description contained in the petition was "the E/2, and the N/2 of the NW/4 of Section 27." The People assert that such description describes the east one-half of the northwest quarter of section 27 and the north one-half of the northwest quarter of section 27, while those people residing in the east one-half of section 27 were permitted to vote and the polling place was located in the east half of section 27, all of which area was not included within the territory described in the petition that was to be annexed to the Norris City School District.
Defendants in answer assert that the above questioned description describes the east one-half of section 27 and the north one-half of ...