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Community Unit School Dist. No. 2 v. Moore

JANUARY 23, 1964.

COMMUNITY UNIT SCHOOL DISTRICT NO. 2, MARSHALL COUNTY, ILLINOIS, ET AL., PLAINTIFFS-APPELLANTS,

v.

DALE MOORE, COUNTY SUPERINTENDENT OF SCHOOLS OF WOODFORD COUNTY, ILLINOIS, ET AL., DEFENDANTS-APPELLEES. APPEAL OF BOARD OF EDUCATION, LOW POINT-WASHBURN COMMUNITY UNIT DISTRICT NO. 7, WOODFORD COUNTY, ILLINOIS, ET AL., PLAINTIFFS,

v.

COUNTY BOARD OF SCHOOL TRUSTEES OF MARSHALL COUNTY, ILLINOIS, ET AL., DEFENDANTS. BOARD OF EDUCATION, LOW POINT-WASHBURN COMMUNITY UNIT DISTRICT NO. 7, WOODFORD COUNTY, ILLINOIS, CERTAIN PLAINTIFF-APPELLANT, DELBERT SHIRLEY, ET AL., CERTAIN PLAINTIFFS-APPELLEES, AND COUNTY BOARD OF SCHOOL TRUSTEES OF MARSHALL COUNTY, ILLINOIS, ET AL., CERTAIN DEFENDANTS-APPELLEES.



Appeals from the Circuit Courts of Woodford and Marshall Counties; the Hon. R. BURNELL PHILLIPS and JOHN T. CULBERTSON, Judges, presiding. Accordingly, the judgments of the Circuit Courts of Woodford and Marshall Counties are each affirmed.

SMITH, J.

At the behest of all parties we consolidated two cases apparently in conflict for hearing in this court. No. 11806 is an appeal from a judgment of the Circuit Court of Woodford County affirming an order of the County Superintendent of Schools of that county calling an election to form a new community unit school district from territory in Woodford and Marshall Counties. No. 11825 is an appeal from a judgment of the Circuit Court of Marshall County affirming an order of the School Trustees of that county attaching much of the same territory to adjoining school districts. We note at the outset that two educational functionaries were presumably each laboring in its own legislatively authorized sphere. Our problem is to determine whether they meet head-on in a jurisdictional conflict and, if so, the effect of such a collision.

That the annexation proceedings in Marshall County were started before the petition for the organization of the new unit district in Woodford County was filed is not in dispute. Institution by the losers in each instance of proceedings for administrative review of the respective orders by the appropriate circuit courts had the effect, under proper statutes, of suspending further action in each instance and operated as a supersedeas. Ill Rev Stats 1961, Chap 122, Pars 7-7 and 11-6. Thus everything is quiescent on the home front.

The territory described in the petition to organize the new unit district included all of Community Unit School District No. 7, a part of Community High School District No. 18 and a part of Common School District No. 103, the latter two districts having common boundaries and located solely in Marshall County. District No. 103 had maintained its accredited status with the State. District No. 18 had failed to conduct a recognized High School for two consecutive years. Acting under the provisions of Par 5-32 of the School Code, the State Superintendent of Public Instruction issued a directive to the School Trustees of Marshall County to dissolve said district and dispose of its territory in the manner provided by Par 7-11 of the School Code by attaching its territory to surrounding districts. To provide education for the students of District 18 some action on the part of somebody was patently required.

Interested parties in No. 11806 moved to dismiss the petition to organize a new unit district for the reason that (a) the previously filed annexation petitions covering a part of the same territory precluded consideration of the petition by the County Superintendent, (b) that it was mandatory for the School Trustees to attach the territory of District No. 18 to adjoining districts, (c) that the new district, if formed, would fragment District No. 103, and (d) would leave District No. 103 without school buildings or equipment.

Appellants in 11806 rely heavily on a statement in People v. Newman Community Unit School Dist. No. 303, 1 Ill.2d 370, 115 N.E.2d 606, that a "proper petition is one which does not include within the territory described any territory in another petition already on file." In Newman, while waiting for an election to be held for the organization of a new district, petitions for the annexation of part of the same territory were filed. The annexation petitions were held invalid. The court pointed out that the legislature over a decade had fostered larger, stronger and economically sound districts and that it was obviously not the intention of the legislature that this benign purpose could be defeated by annexation petitions subsequently filed. It will be observed that the factual situation in Newman is just the converse of the one facing us. Text in one context is not always text for the next.

In Pritchett v. County Board of School Trustees, 5 Ill.2d 356, 125 N.E.2d 476 the School Trustees of Gallatin County had instituted proceedings to annex certain territory to some adjoining high school districts. Thereafter a petition was filed with the County Superintendent of White County to annex the same territory to a community unit district. The trial court held that the White County petition had priority. In affirming, the Supreme Court discussed Newman and said:

"In the instant case, considering the language used and the object to be obtained, we are of the opinion that the circuit court properly held that the appellees were not prohibited from acting until the annexation proceedings instituted by the Gallatin County Board had been disposed of."

A careful analysis of the cases suggests that the principle of "first come first served" may well apply to competing annexation proceedings or to competing new district petitions involving a part or all of the same territory. It does not apply to the case at bar. We necessarily conclude that a petition to organize a new unit district, as here, whether filed before or after the filing of annexation proceedings involving all or a part of the same territory, has priority and proceeds independently of the annexation proceedings.

Pritchett likewise disposes of appellants' second contention. It was there urged that it was mandatory upon the school trustees of Gallatin County to dispose of all nonhigh school territory after August 30, 1953 and their action in so doing was valid and the only method of so doing. In repudiating that doctrine the Supreme Court said:

"We concur that the general plan of the legislature to eliminate nonhigh school districts made it mandatory that some action be taken so to do, but we disagree that the form of annexation provided in said sections was to be the exclusive mode of procedure."

We think the same philosophy applies to the case at bar and that the duty of the school trustees to dissolve District No. 18 and distribute its territory is no bar to the proceedings to organize the unit district.

It has been noted that only a part of Districts 18 and 103 are included in the petition to organize the unit district. The record shows that what will remain in those districts will be completely isolated from an area comprising seven and one-half acres. It is urged that this may not be done as a matter of law and that its effect will be to leave the remaining territory in these districts without school buildings or facilities. As to the lack of facilities the record leaves us with a dead heat on our hands. The complaint for administrative review asserts it and the answer denies it. One counsel says it does; another says it doesn't. Neither was sworn as a witness. One witness implies that there are two buildings in 103, but nowhere in the record are they located for us. We are thus left in a vacuum on the question.

It seems to be well established that in attachment or detachment proceedings no part of the remaining territory may be isolated or separated. Its contiguity must be maintained. People v. Camargo Community Consol. School Dist. No. 158, 313 Ill. 321, 145 N.E. 154; People ex rel. Dixon v. Community Unit School Dist. No. 3, 2 Ill.2d 454, 118 N.E.2d 241. Since the territory in original organization must be contiguous these cases hold that you cannot, through attachment or detachment, destroy that contiguity. In brief, you may not do by indirection what the statute prohibits at the time of the formation of the district. But, there are substantial differences between the formation of unit districts and attachment or detachment proceedings. Radford v. Withrow, 401 Ill. 14, 81 N.E.2d 417. The fact that ...


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