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Konald v. Board of Education





Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.


The plaintiffs, Toni M. Konald et al., brought a petition to detach certain territory from Community Unit School District No. 220 and annex that territory to Community Consolidated School District 15 and Township High School District 211, under article 7 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 7-01 et seq.). In concurrent decisions, the Regional Board of School Trustees of Lake County granted the petition and the Regional Board of School Trustees of Cook County denied the petition. Pursuant to the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 264 et seq.), recodified as article 3 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 3-101 et seq.), the plaintiffs brought an administrative review action in the circuit court of Lake County challenging the denial of their petition. The defendants were the three school districts involved and the regional boards. The circuit court reversed the decision of the Cook County board, and the defendant Board of Education of Community Unit School District No. 220 appealed that order.

The issues presented for review are (1) whether the withdrawal of signatures of certain petitioners prior to the decision of the Regional Board of School Trustees of Cook County was a proper basis for denying the petition, (2) whether the decision of the Regional Board of School Trustees of Cook County was against the manifest weight of the evidence, and (3) whether petitions to detach territory under the School Code must comply with the Election Code provisions for circulation of petitions.

Section 7-2 of the School Code provides, inter alia, that to change the boundaries of existing school districts by detachment, a petition may be brought by two-thirds of the legal voters residing in any territory proposed to be detached. Here, there were 697 registered voters in the detachment area at the time the petition was filed, of which 534 initially signed the petition. This was a sufficient number under the statute, and the requisite number of names was on the petition at the time the Lake County regional board conducted the hearing on the petition and issued its decision in favor of detachment.

Section 7-2 of the School Code also provides that detachment be by "concurrent action" of (a) the county board of school trustees in which the county superintendent has supervision over the greatest portion of the detachment territory and (b) the county board of school trustees of the county in which the county superintendent of schools has supervision over the district to which the territory is proposed to be annexed. Section 7-6 of the School Code provides that the detachment territory hold a hearing on the petition and, after entering its final order, send a certified copy of the transcript of the hearing to any other regional board that must act. The other regional board must then "conduct a hearing as provided in this section on the transcript and either grant or deny the request in the petition." (Ill. Rev. Stat. 1979, ch. 122, par. 7-6.) The Cook County regional board had supervision over the district to which annexation was sought. In compliance with section 7-6, the Lake County board sent to the Cook County board the transcript of the hearing conducted on the detachment petition.

During the Cook County board's hearing on the matter, a document was submitted to the Cook County board signed by 78 of the original petitioners requesting withdrawal of their names from the petition to detach. This would have dropped the number of signatures on the petition to detach to less than two-thirds of the registered voters residing in the proposed detachment territory.

The order of the Cook County board denied the petition for detachment and annexation on two bases: (1) that the petition was insufficient at law in that 464 signatures were needed to validate the petition and that at the time of the hearing before the Cook County board there were only 437 valid signatures and (2) that the petition was not in the best interests of the schools and the educational welfare of the pupils would not be improved by the proposed boundary change. On administrative review, the circuit court reversed the Cook County board's order, finding that the Cook County board acted contrary to law in accepting the evidence not determined by the Lake County board and that the Cook County board's order was contrary to the manifest weight of the evidence.

On appeal, the defendant argues that the withdrawal of signatures deprived the Cook County board of jurisdiction to hear the detachment petition and that jurisdiction is a matter that may be raised at any time prior to a final decision. The final decision, the defendant argues, does not occur until both boards have acted, in light of the requirement of concurrent action. The plaintiffs contend that the hearing by the Cook County board should have been limited strictly to the contents of the transcript and that the petition withdrawing the 78 names was additional evidence, which the Cook County board should have been precluded from considering.

Our supreme court first articulated the general rule for the withdrawal of signatures from a petition in Littell v. Board of Supervisors (1902), 198 Ill. 205. There, the issue was whether petitioners for the organization of a new township could, after the petition had been presented to the county board, withdraw their names so as to leave it with a statutorily insufficient number of names, thereby defeating the organization, and if so at what time they must request withdrawal. The request to withdraw the names was made after the county board posted notice of the hearing. Under the applicable statute, if the petition conformed to all its requirements the county board had no discretion and had to allow it. However, the board was required to give notice before it could take any final action, in order to allow interested parties to appear at the final hearing. The supreme court found that the act of signing such petitions "may be revoked at any time before the jurisdiction of the body authorized to act has been determined by it." 198 Ill. 205, 208.) In Littell, a determination of jurisdiction in effect was the final action of the board, since it had no discretion in deciding the matter. The court also stated:

"If all the petitioners had sought to dismiss the petition at any time before final action by the county board it would scarcely be claimed that they would not have had the right to do so. Each petitioner acts on his individual responsibility, and if he should change his mind on the question whether a new township would better serve the convenience of the inhabitants residing therein, or if he should be induced to sign it under a misapprehension or through undue influence, he ought to have the right to correct his mistake, if he does so before the rights of others have attached by the final action on the part of the board. * * * To absolutely prohibit a citizen from withdrawing his name from a petition voluntarily signed by him, at any time after it has been presented to a body authorized to act upon it, would be a harsh and unreasonable rule and also liable to work a great hardship." (Emphasis added.) 198 Ill. 205, 210.)

The principles announced in Littell have been followed in numerous cases involving different statutory schemes for petitions. In Theurer v. People ex rel. Deneen (1904), 211 Ill. 296, the court was asked to decide whether a signature could be withdrawn from an application for a dramshop license after the application was filed and the mayor gave provisional consent to open the dramshop but before the license was issued. The court held that final action was not taken until the license was issued and cited Littell for the rule that a "petitioner [may] withdraw his name from a petition at any time prior to the time the tribunal created by law to pass upon and determine the proposition submitted by the petition has finally acted." 211 Ill. 296, 303.

The Littell rule was also applied to allow the withdrawal of signatures from the petition for the removal of a county seat, when the request to withdraw was made on the convening of the county court at the term at which the petition came up for hearing. (Kinsloe v. Pogue (1904), 213 Ill. 302, 305-06.) Where a petition for the organization of a drainage district was filed in court, followed by giving requisite notice and setting a hearing date, the court did not acquire general jurisdiction until it ascertained whether the petition was signed by the requisite number of property owners, and the withdrawal of names from the petition was permitted since the jurisdiction had not yet attached. (Mack v. Polecat Drainage District (1905), 216 Ill. 56, 60-61.) Similarly, even where a court must grant a petition to abolish a drainage district upon presentation of a petition signed by the required number of landowners, it is the order of court and not the presentation of the petition that abolishes the district, and names may be withdrawn after the petition is filed if done so before the order is entered. (Boston v. Kickapoo Drainage District (1910), 244 Ill. 577, 578-79.) In such a case, the board has a reasonable time to examine the petition, during which the right to withdraw is viable. Sayers v. Drainage Commissioners (1919), 214 Ill. App. 576, 580.

The request of certain petitioners to withdraw their names from a petition for the alteration of a public highway was too late when it was made after the commissioners of highways had passed upon the petition and an appeal was taken to the supervisors. (Commissioners of Highways v. Bear (1906), 224 Ill. 259, 261.) In that case, the commissioners' action was final for the purposes of jurisdiction, and the jurisdiction could not be destroyed during the appeal. Merely meeting, noting that a petition has been filed, setting a date for hearing, and ordering that notice be given is not such final action upon which a petition to vacate a highway thus deprives the subscribers of their right to withdraw from the petition. Malcomson v. Strong (1910), 245 Ill. 166, 168.

In Commissioners of Sny Island Levee Drainage District v. Dewell (1912), 256 Ill. 126, a sufficient application for a subdrainage district was presented to the commissioners, and after the commissioners passed upon the application and filed their report recommending the establishment of the subdistrict, certain landowners were properly permitted to withdraw their signatures, where the statute provided that the court upon hearing should pass upon the sufficiency of the application. The commissioners' report was considered preliminary to the hearing. The court ...

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