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People Ex Rel. Harty v. Gulley

OPINION FILED MAY 10, 1954.

PEOPLE EX REL. DANIEL HARTY ET AL., PETITIONERS-APPELLANTS,

v.

ROY O. GULLEY, COUNTY JUDGE OF FRANKLIN COUNTY, ILLINOIS ET AL., RESPONDENTS-APPELLEES.



Appeal by petitioners from the Circuit Court of Franklin county; the Hon. B.W. EOVALDI, Judge, presiding. Heard in this court at the February term, 1954. Judgment affirmed. Opinion filed May 10, 1954. Released for publication June 3, 1954.

MR. PRESIDING JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.

This is a mandamus suit brought by the members of the Board of Education of Community Consolidated School District No. 101 of Franklin and Hamilton counties, Illinois, and a resident taxpayer of that district, against the county judge of Franklin county to expunge two orders of that court entered on June 4 and June 6, 1952, purporting to detach 670 acres of land lying in Franklin and Hamilton counties from said District No. 101 and annexing the same to Community Consolidated School District No. 115 of Franklin county, pursuant to sec. 8-6 of the School Code then in force (1949 Ill. Rev. Stats., chap. 122, sec. 8-6 [Jones Ill. Stats. Ann. 123.855]).

The Board of Education of District No. 115 filed a petition for leave to intervene which was allowed over the objections of the relators, and this is one of the errors assigned.

The respondent county judge and the intervenor filed separate motions to dismiss the petition for mandamus, which were sustained. The relators elected to stand on their petition for mandamus and judgment was entered dismissing the suit and that relators take nothing. They have perfected this appeal.

As to the question of intervention, the action of the court in permitting the Board of Education of the affected area to intervene was clearly correct. Undoubtedly the board has been acting in reliance upon the orders entered in 1952, and if those orders are nullified, new arrangements would be involved. Intervention in mandamus follows the general principle that a person directly affected by the proceedings will be permitted to intervene. 34 Am. Jur. Mandamus, sec. 339.

The prayer to expunge the court orders was based upon the assertion that they were void for want of jurisdiction in the court which entered them. The principal ground for this assertion is based upon the statutory provision previously mentioned (sec. 8-6 School Code of 1949) which contains these words: "The county judge of the county in which the greater part of the territory of the district lies shall have the power to grant or deny a petition to change the boundaries of community consolidated school districts . . . so as: . . .

"3. To detach territory from any community consolidated school district or from any community unit school district and annex to an adjacent community consolidated school district . . .

"3-1. . . . the county judge shall cause a notice of the presentation of such petition to be given by publishing a notice thereof at least once each week for three successive weeks in at least one newspaper having general circulation within the area of the territory involved in the proposed change of boundaries."

It will be seen that the jurisdiction to pass on a petition to "change the boundaries" of a school district was placed in the county where "the greater part of the territory of the district lies." The petition for mandamus alleges facts, admitted by the motion, that show the greater part of District No. 101 lies in Hamilton county. It is undisputed that the greater part of District 115 lies in Franklin county where the orders were entered.

[2-4] When territory is detached from one district and annexed to another, there will necessarily be two districts having a change in boundaries. The statute does not give any preference to one over the other. Since the proceedings involved the purpose of changing the boundaries of District 115, the greater part of which lies in Franklin county, that county came within the precise terms of the statute. Obviously the statute does not, and could not, require that the greater part of both districts be in the county, for there would be no place answering that description. Franklin county fulfilled the only requirement mentioned in the statute, therefore, we must hold the orders were entered in a proper jurisdiction.

However, relators also contend that the proceedings were void for the reason that the court orders did not contain any specific finding that the greater part of any district was within the county. Actually the orders did contain some findings: they recited that the proceedings in the cause were in accordance with the statute, that the statute had been fully complied with, and that after hearing evidence the issues were found in favor of the petitioners.

In our opinion, the content of the orders, in respect to findings, is unimportant. There are, of course, statutory proceedings in which special findings of some sort are expressly required. The procedure before the Illinois Commerce Commission is an example. There is nothing of that nature involved in this case. The statute merely gives power to the county court to grant or deny the petition, without requiring findings of any kind. There is no authority in this court to insert by construction, requirements as to findings which are not found in the statute.

Relators' argument is based upon the principle that the presumptions in favor of jurisdiction, which are applied to courts of general jurisdiction, are not extended to a court exercising a special statutory jurisdiction. There is no doubt of the validity of the principle, but it has reference to the proceedings, not the form of the order. Where the record shows some attempt to meet legal requirements, but which falls short thereof, or where the record is silent, presumptions are sometimes indulged in courts of general jurisdiction, that there was some action taken in full compliance with the statute, but not in cases of special statutory jurisdiction.

Relators cite cases in the course of argument, three of which will serve to illustrate the application of the above principle. They are People v. Brewer, 328 Ill. 472; Hook v. Wright, 329 ...


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