APPEAL from the Circuit Court of St. Clair County; the Hon.
QUINTEN SPIVEY, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
These two cases have been consolidated for opinion because they involve common questions of law and similar questions of fact. Both are actions to quiet title to certain school lands, and both are here upon direct appeal from decrees of the circuit court of St. Clair County which held unconstitutional the Reverter Act of 1947. Ill. Rev. Stat. 1953, chap. 30, pars. 37b to 37h.
One case involves the Batdorf school site, located on a one-half acre tract conveyed by warranty deed dated July 1, 1895, from John and Anna E. Batdorf to the Board of School Trustees and their successors for the purpose of "maintaining thereon a nonsectarian Free school according to the school laws of the State of Illinois, * * * Provided however that in case the Directors of said District No. Six fail to maintain a school, or said school shall be discontinued or removed then the above half acre to revert to the tract from which it was taken."
The other case involves the one-acre Hertel school site, which was conveyed to the school trustees by a warranty deed, dated June 26, 1893, from Frederick and Dorothea Helms "to be used for a publick school building site, providing the same shal- not be used for dwelling purposes, and further provided, that when the premises cease to be used as a publick school site, the land hereby conveyed shalrevert back to the tract from which it is now taken. All property belonging to the School District may be removed within one year from the time the premices have ceased to be used as above specified."
On March 12, 1949, the school districts which had operated the Batdorf school and the Hertel school were taken over by the newly organized Community Consolidated School District No. 70 of St. Clair County, Illinois. Classes were held in the Batdorf School continuously from 1895 until sometime in October, 1946. Since then the building has been rented intermittently as a residence by District No. 70. The Hertel school operated continuously from 1893 until May 2, 1947. Since then the building has been vacant. No formal action has been taken at any time by District No. 70, or its predecessors, declaring either school site unsuitable, unnecessary, or inconvenient for a school. In 1951, however, the trustees of schools of the township anticipated the possibility of sale of the two sites, and brought these actions to have declared invalid, under the Reverter Act, any possibilities of reverter that might exist by reason of the deeds under which the school sites had originally been acquired.
The complaint in each case alleged that the plaintiff trustees held legal title to the school sites and the buildings thereon for the use and benefit of the plaintiff school districts; that the defendants claimed some interest because of the reversionary provision in each deed; that the defendants' claim was invalid by reason of the Reverter Act, and prayed that title be quieted in the plaintiffs.
The heirs of the respective grantors were made parties defendant in each of the cases. In the Batdorf case C. Don Donley and Jessie Donley filed a bill of interpleader which alleged that they were owners of the property by mesne conveyances from the original grantor; that school was no longer conducted in the building; that it was being rented for residential purposes, and prayed that they be decreed the owners. In the Hertel case Russell Classen and Alice Classen filed a joint answer and counterclaim which alleged that they were owners of 160 acres which included the one-acre school tract, by virtue of an award to them in kind in a partition suit; that they had been seized of an undivided one-tenth interest as heirs of the original grantor; that the tract had been abandoned for school purposes, and that as a consequence they were now its owners by way of reverter.
Each case was referred to a master, who recommended quieting title in the plaintiffs. In the Batdorf case the master held that the possibility of reverter was inalienable, that the evidence of abandonment of the site for school uses was insufficient, and that the possibility of reverter had been destroyed by the Reverter Act, regardless of whether there had been an abandonment or of whether such abandonment had occurred before or after July 21, 1947, the effective date of the act. In the Hertel case the master held the possibility of reverter invalid under the act without reaching the question of abandonment. The circuit court declined to follow the recommendations of the master and entered a decree in each case holding that the possibility of reverter was alienable, and that the Reverter Act was unconstitutional as being an ex post facto law and in violation of the due process clauses of the State and Federal constitutions. The decree in the Batdorf case found that C. Don Donley and Jessie Donley, his wife, as joint tenants, were the owners of the property, and in the Hertel case that Russell Classen and Alice Classen were the owners.
Before we reach the principal issues, two preliminary matters should be mentioned. The first relates to the language of the original conveyances. Each deed provided that in the event the premises therein described ceased to be used as a school, the land should "revert to the tract from which it was taken." This language is anomalous, but the parties have construed the instruments as effective to create valid possibilities of reverter in the grantors, and we accept their construction. The second concerns the right of the Donleys and the Classens, appellees here, to claim an interest by way of reverter. In each case the plaintiffs have challenged that right. Since the attempts to alienate did not destroy the possibilities of reverter (Pure Oil Co. v. Miller-McFarland Drilling Co. 376 Ill. 486,) and since in each case the heirs of the original grantors were parties defendant, it is unnecessary to analyze the circumstances under which the claims of the appellees arose. The possibilities of reverter survived the attempts to alienate in any event, and under our conclusion upon the primary issues in the case it makes no difference whether that interest was in the heirs of the grantors or in the appellees.
Sections 4 and 5 of the Reverter Act, if valid, control the decision of this case. They are:
"Sec. 4. Neither possibilities of reverter nor rights of entry or re-entry for breach of condition subsequent whether heretofore or hereafter created, where the condition has not been broken, shall be valid for a longer period than fifty years from the date of the creation of the condition or possibility of reverter. If such a possibility of reverter or right of entry or re-entry is created to endure for a longer period than fifty years, it shall be valid for fifty years.
"Sec. 5. If by reason of a possibility of reverter created more than fifty years prior to the effective date of this Act, a reverter has come into existence prior to the time of the effective date of this Act, no person shall commence an action for the recovery of the land or any part thereof based upon such possibility of reverter after one year from the effective date of this Act. * * *" Ill. Rev. Stat. 1953, chap. 30, pars. 37e and 37f.
Each of the deeds in these cases was executed more than fifty years before the effective date of the act, July 21, 1947. The trial court found that the two sites had been abandoned for school purposes, but made no finding as to when the abandonments occurred. Under the Reverter Act such a finding is not essential in this case. If the abandonment took place after July 21, 1947, the possibilities or reverter are invalid under section 4. If the abandonment took place before July 21, 1947, section 5 bars defendants from asserting any claim based on these possibilities of reverter in this suit which was filed nearly three years after the effective date of the act.
Defendants challenge the constitutionality of the statute on the ground that it impairs the obligation of contracts, is an ex post facto law, and deprives persons of their property without due process of law, in violation ...