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Mcrell v. Jackson

OPINION FILED JUNE 8, 1977.

JAMES MCRELL ET AL., PLAINTIFFS-APPELLANTS,

v.

WILLIAM N. JACKSON, JR., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Knox County; the Hon. WILLIAM K. RICHARDSON, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The plaintiffs, John McRell et al., appeal from a dismissal of their petition for a writ of mandamus requesting that the defendants, members of the Board of Education of Community Unit School District No. 202, be required to conduct an election pursuant to section 28-1 of the Illinois Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 28-1), asking whether two specific schools in the school district should be kept in operation.

The plaintiffs are all voters and taxpayers of the defendant Community Unit School District. On June 3, 1976, the plaintiffs delivered to the secretary of the School Board a petition signed by 1,094 of 3,575 registered voters asking for the election. The petition set the date of August 21, 1976, as the date of the proposed election and requested specifically that the following questions be submitted to the voters of the school district:

(1). Shall Appleton School be kept in operation after the 1975-1976 school year?

(2). Shall the DeLong School be kept in operation after the 1975-1976 school year?

Previously the School Board had voted 4-3 to close both schools. Subsequently on June 28, 1976, the School Board voted 3-2 not to hold the petitioned for election. The refusal resulted in the plaintiffs' petition for writ of mandamus. Plaintiffs' motion to expedite the proceedings was filed on August 3, 1976, and heard and denied on August 10, 1976. The trial court entered an order with memorandum opinion on August 18, 1976, finding that because of affidavits of a majority of the School Board stating that the outcome of the proposed election would not affect their vote to close the two schools, "it is clear that compelling an election would have no beneficial result." The trial court also found there was no reason for delaying enforcement or appeal.

The comprehensive issue preserved for review is whether the trial court erred in granting the motion to dismiss plaintiffs' petition for writ of mandamus under the existing facts and law.

• 1 Defendants initially argue that the election sought in this case is an election or referendum relative to school matters and accordingly should be governed by article 9 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 9-2) rather than the Illinois Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 28-1). To support their position defendants produced a letter received from the Illinois Office of Education's legal counsel (attached as Exhibit A to the motion to dismiss) which concurred in defendants position on the applicable law. We have examined both cited statutes and conclude from the express language contained therein that article 9 of the School Code does not purport to govern all elections involving school matters but only those expressly provided for under article 9 of the School Code. We will attempt to construe both the Election Code and the School Code in harmony with each other, if possible consistent with the legislative intent of both statutes. Scofield v. Board of Education (1952), 411 Ill. 11, 103 N.E.2d 640.

• 2, 3 The plaintiffs' main contention is that the purpose of section 28-1 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 28-1) is to allow voters to express their opinion on questions of public policy and that such purpose was frustrated by the School Board's refusal to hold the election. The defendants' claim that the two items proposed to be submitted to the voters do not constitute questions of public policy within the meaning of the Election Code. That problem, presented by this case, was stated concisely in People ex rel. Koelling v. Cannon (1908), 236 Ill. 179, 182, 86 N.E. 215, 217, "If the question presented by the petition was one of public policy within the meaning of the statute, the election commission had no discretion in the matter, and it became their duty to submit it to be voted upon at the election. If the question, however, was not one of public policy within the meaning of the law, then it was their duty to refuse to submit the question." However it has been held that the result of such an election on a question of public policy is not mandatory upon the authorities, but is directory only. (City of Litchfield v. Hart (1940), 306 Ill. App. 621, 29 N.E.2d 678.) Therefore the thrust of the affidavits of a majority of the School Board, that the results of the proposed election would not cause them to change their vote to close the two schools as part of an overall economic austerity package, is not the controlling fact. Thus the purpose for holding the election, to give the voters the chance to express their opinion on public policy, is accomplished merely by holding the election, regardless of whether an affirmative vote to keep the two schools open would have any effect on changing school board policy or membership. See Nordine v. Illinois Power Co. (4th Dist. 1964), 48 Ill. App.2d 424, 199 N.E.2d 34.

While we generally agree with plaintiffs' position that the closing of the two schools may well have been a legitimate area of public policy and that an election pursuant to the petition should have been held, we feel justified in affirming the trial court on other grounds.

• 4 The writ of mandamus is an extraordinary remedy. As was stated in People ex rel. County of Cook v. Nelson (1932), 349 Ill. 193, 197, 181 N.E. 635, 637, "The writ of mandamus is a summary writ issued from a court of competent jurisdiction commanding the officer or officers to whom it is addressed to perform some public duty which the relator is entitled of right to have performed and which the party owing the duty has failed to perform." Granting or denying such a summary and drastic remedy is a matter resting within the discretion of the court. (People v. School Directors (1965), 58 Ill. App.2d 282, 208 N.E.2d 301.) We believe that the trial court can in a sound exercise of discretion refuse to grant a writ of mandamus where the attendant circumstances demand that result, such as where issuing the writ would create disorder or cause confusion in the public at large. (People ex. rel. Cannella v. City of Chicago (1955), 7 Ill.2d 416, 131 N.E.2d 98; Lenit v. Powers (1970), 120 Ill. App.2d 411, 257 N.E.2d 142.) A similar cause for denying a writ of mandamus is where the act ordered cannot be effectuated by the process of the issuing court. People ex rel. Yarrow v. Lueders (1919), 287 Ill. 107, 122 N.E. 374.

• 5 In the instant case the trial court observed that the petitions requesting the election set the date it would be held on August 21, 1976. In the written opinion and order dated August 18, 1976, the trial court correctly ruled that "It would be impossible to give statutory notice of the election for that date * * *." We agree with the trial court that no beneficial result could be obtained by issuance of the writ at that late date. Further the record reveals no delay or stall tactics caused by the defendants. Plaintiffs' reliance on People ex rel. Yarrow v. Lueders (1919), 287 Ill. 107, 122 N.E. 374, for approval of issuing the writ of mandamus and ordering the election to be held on a later date is misplaced. In Lueders the petitions did not set down a date certain for the election and the petition for writ of mandamus was amended to request that if the writ of mandamus could not be issued in time for the upcoming election, it should be granted for an election thereafter. The instant case is lacking factually as to both such elements. The plaintiffs put the trial court in a position of violating the statutory notice provisions for an election if it issued the writ as requested. We believe the trial court properly exercised its discretion by denying the writ of mandamus.

The judgment of the Circuit Court of Knox ...


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