APPEAL from the Circuit Court of La Salle County; the Hon.
THOMAS R. FLOOD, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 18, 1978.
This appeal is from a judgment of the circuit court of La Salle County dismissing plaintiffs' complaint. The complaint requested the issuance of a writ of mandamus to defendant, Dr. Joe Mini, Superintendent of Educational Service Region, La Salle County, Illinois, directing him to publish notice of the presentation of a petition for the organization of a community unit school district. Plaintiffs are the Committee of 10 designated in the petition and various school districts supporting the petition. Certain other defendants were allowed to intervene in this mandamus action.
Plaintiffs filed their petition for the organization of a community unit school district with Dr. Mini on February 2, 1976. A part of the territory described by the present petition was also included within the boundaries of the territory described in an earlier petition filed with Dr. Mini on June 11, 1975. The earlier petition was the subject of an appeal to this court in Perry v. Cronin, 61 Ill. App.3d 418. For the sake of clarity, this earlier petition will be referred to as the Perry petition or the first petition. The defendants who were allowed to intervene in this action were the plaintiffs in Perry.
The Perry petition was denied by Dr. Mini on December 31, 1975. The proceedings which culminated in Dr. Mini's denial were reviewed by Dr. Joseph M. Cronin, State Superintendent of Education, and on January 28, 1976, he entered an order affirming the decision of Dr. Mini and denying the petition. The petition in the present cause was filed February 2, 1976, and amended at Dr. Mini's request on February 24, 1976. On March 16, 1976, a complaint for writ of certiorari was filed which sought to review Dr. Cronin's denial of the Perry petition. That complaint was dismissed on December 21, 1976, and the dismissal was affirmed by this court on appeal. Perry v. Cronin, 61 Ill. App.3d 418.
On September 8, 1976, petitioners in the present cause requested the Regional Superintendent to cause notice of the presentation of the petition to be given as required by the provisions of section 11-6(c) of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 11-6(c)). On the basis of the opinion of the Illinois Office of Education that the Perry petition was still on file by virtue of an appeal, Dr. Mini refused to take further action on the petition filed by plaintiffs herein. On September 28, 1976, plaintiffs filed their complaint for writ of mandamus requesting the writ issue to the Regional Superintendent commanding him to issue notice of hearing according to the applicable statutes. On December 21, 1976, the trial court found that because the Perry petition included part of the territory described in the present petition, the Regional Superintendent was precluded from acting upon the second petition so long as the Perry petition was still pending. The circuit court therefore denied plaintiffs motion for summary judgment and dismissed the complaint for writ of mandamus and this appeal followed.
Various statutory provisions are essential to the issues presented for review. Section 11-6 of the School Code (Ill. Rev. Stat. 1975, ch. 122, par. 11-6) provides in part:
The regional superintendent shall not accept for filing hereunder any petition which includes therein any territory already included as part of the territory described in another petition filed hereunder. Hearings on a petition filed hereunder shall not be commenced so long as any part of the territory described therein shall include territory described, whether by amendment or otherwise, in another petition filed hereunder.
Upon petition being filed, the regional superintendent shall first determine if the petition is in the pleading form as herein required. If the regional superintendent determines that the petition is in proper form he shall then proceed with notice of the presentation of the petition as hereinafter set forth.
* * * A decision of the regional superintendent or Superintendent of Public Instruction denying or approving the petition whether made prior or subsequent to the effective date of this Act, shall be a final decision, from which no review or appeal shall be had or taken."
At issue is whether the Perry petition remained on file within the meaning of subsection (a) after the decision of Dr. Cronin denying that petition. Plaintiffs contend that by virtue of the language of subsection (e) prohibiting review or appeal, once a petition is denied by the State Superintendent of Education, that petition is no longer on file and hence not a bar to filing and maintaining another petition, such as the one in this case. Defendants respond arguing that because a complaint for common law writ of certiorari may be issued to review the decision of Dr. Cronin denying the first petition, the first petition is still pending. According to defendants, the Perry petition was still on file and since the ...