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Comm. Con. School Dist. No. 210 v. Mini

OPINION FILED OCTOBER 1, 1973.

COMMUNITY CONSOLIDATED SCHOOL DISTRICT NUMBER 210 ET AL., APPELLEES,

v.

JOE L. MINI, COUNTY SUPERINTENDENT OF SCHOOLS, ET AL., APPELLANTS.



APPEAL from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County; the Hon. LEONARD E. HOFFMAN, Judge, presiding.

MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 28, 1973.

On April 14, 1969, defendant Joe L. Mini, the Superintendent of Schools for La Salle county, entered an order holding sufficient a petition requesting that an election be called for the purpose of voting on the establishment of a community unit school district that would include territory within La Salle, Grundy and Kendall counties. The order found, inter alia, that the population of the proposed district was more than 1,750 persons but less than 4,000 and that additional action by the Superintendent of Public Instruction was necessary in order to call an election pursuant to section 11-6 of the School Code. Ill. Rev. Stat. 1967, ch. 122, par. 11-6.

Following entry of this order an action for administrative review was filed in the circuit court of La Salle County by Community Consolidated School District No. 210, its Board of Education, its Board president, and certain residents of the territory involved, all of whom had filed objections to the original petition. After a hearing, the circuit court of La Salle County ruled against the plaintiffs on all of their contentions, including those questioning the validity of section 11-6 of the school Code, and affirmed the order of the defendant Mini. The Appellate Court for the Third District reversed (5 Ill. App.3d 807), and we allowed defendants' petition for leave to appeal.

The parties have briefed and argued this cause on issues relative to section 11-6 as it existed at the time of the events in question; we note, however, that section 11-6 has been substantially amended in the interval since review of defendant Mini's order was initiated and that no saving clause for pending district organizations was enacted. (See Laws of 1971, p. 1217; Laws of 1971, p. 1225; Laws of 1972, p. 1966; Laws of 1972, p. 2266, sec. 60.) This is similar to the factual situation in Board of Education of Waverly Community Unit School District v. Nickell (1951), 410 Ill. 98, in which amendments to the School Code completely revised the procedure for altering district boundaries without a saving clause for proceedings then pending on appeal. We there held that subsequent amendments were applicable to the proceedings then on review. (Nickell, at 103.) Accordingly, we now conclude that no rights have vested under the old procedure for the creation of a community unit school district and that decision of this appeal is governed by the current statutory provision; we make no judgment on the constitutionality of section 11-6 as it existed from 1967 through 1969. See also Dolan v. Whitney (1952), 413 Ill.2d 274.

We turn then to an examination of section 11-6 as it presently exists. If that section provides a constitutionally valid procedure for the creation of community unit school districts in territories of this size, remandment of this cause to the regional superintendent is appropriate in order to enable him to determine whether the proceedings heretofore conducted comply with current statutory requirements.

In June of 1971 the General Assembly passed two separate acts, subsequently approved by the Governor, amending section 11-6 of the School Code. Public Act 77-598, passed on June 27, described four situations in which a community unit school district might be organized, the fourth being:

"* * * [A]ny contiguous and compact territory, no part of which is included within any community unit school district or other unit district, having a population of not less than 1500 and not more than 500,000 persons and an equalized assessed valuation of not less than $10,000,000 may be organized into a community unit school district as provided in this Article, if the special procedure later set forth in this Section for a district below 4,000 population is followed by the Superintendent of Public Instruction and the superintendent of an educational service region containing the greater percent of the assessed valuation of the proposed district than is contained in any other region in which assessed valuation of the proposed district is situated." Ill. Rev. Stat. 1971, ch. 122, par. 11-6.

An extended procedure was set forth with particularity for the petitions, hearings and elections necessary to the establishment of community unit school districts. Contained within this material was the following proviso:

"* * * However, prior to calling any such election for organizing any such proposed district that does not have 4,000 or more population, the regional superintendent shall transmit to the Superintendent of Public Instruction a notice of the petition whereupon the Superintendent of Public Instruction shall prepare the notification or report indicating whether or not he deems it possible for the proposed district to provide a recognized school program for a 12-grade district under conditions set forth in that Section. The regional superintendent shall cause a copy of such report to be published as provided in that Section." Ill. Rev. Stat. 1971, ch. 122, par. 11-6.

The amendatory act made certain changes in section 11-6 not pertinent to this appeal.

Three days later, the legislature passed Public Act 77-604, also amending section 11-6 and differing from Public Act 77-598 in a number of respects. The second amendment continued in force the four situations in which a community unit school district might be organized, including the requirement set out above that a "special procedure" must be complied with for a district below 4,000 in population. In that portion establishing procedures for a hearing upon petitions for elections, however, two important changes are to be found. First, the regional superintendent could no longer grant such petitions in his own right, but was obliged to forward all those petitions which he had approved, together with any pertinent evidence, to the Superintendent of Public Instruction. Within thirty days, the Superintendent of Public Instruction was to grant or deny all such petitions, communicating his reasons to interested parties in the event of a denial. Should the petition be approved, the regional superintendent was to call an election on the petition. Succinctly stated, a procedure similar to that previously required only of districts below 4,000 in population, the so-called "special procedure", was made applicable to all petitioners seeking to establish a community unit school district.

Second, that language which described the former "special procedure" for districts under 4,000 was specifically deleted from the section. Subsequent enactments have continued both the reference to a "special procedure" in the section's first paragraph and the deletion of the "special procedure" coupled with a revised "regular procedure" in the fourth paragraph. (See Laws of 1972, p. 1966; Laws of 1972, p. 2266, sec. 60.) If the General Assembly intended at the time of passage of Public Act 77-604 to retain a distinction in treatment between districts over 4,000 in population and districts under 4,000, but failed to provide the specific procedure to effectuate that intention, then the statute as passed and subsequently amended is unconstitutionally vague.

We believe, however, that the clear legislative intent manifested by the passage of Public Act 77-604 was to the contrary. That act specifically excised the language establishing a separate and distinct procedure for districts under 4,000 population; moreover, it made a modified version of the prior "special procedure" the standard to be followed on all petitions. It is apparent that the legislature considered review by the Superintendent of Public ...


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