I cannot agree with the conclusion reached in this case. The trustees of schools are simply the legal medium devised for the holding of title to school real estate. They merely hold the bare naked legal title. The only other function they perform is to receive and disburse school tax funds to the proper authorities. In this respect they are a mere fiscal agent. The real party in interest is the board of education for the use of the public. In my opinion the board is the "corporate authority" referred to in the School Code, as revised in 1945. (Ill. Rev. Stat. 1947, chap. 122, par. 14-7.) To hold otherwise would prevent the efficient operation of the schools due to a contrary or adamant stand taken by one or more of the trustees.
In this case the trustees answered their willingness to join with the board as nominal coplaintiffs, although they did refuse to become the sole petitioners. Under the showing made here, the portion of section 23 of the Civil Practice Act quoted in the majority opinion is applicable to the case at bar. (Ill. Rev. Stat. 1947, chap. 110, par. 147.) Rule 2 of this court makes the Civil Practice Act applicable to the separate eminent domain statute, since the issue is one of procedure not regulated by the separate statute. Ill. Rev. Stat. 1947, chap. 110, par. 259.2.
The question of the board's authority to take this particular land from the city of Chicago is the principal and only real issue in the case. The facts here are peculiar in several respects. The general rule, it is true, is that condemnation cannot be had where the property sought is held *Page 302 by another municipality for a public use. (City of Moline v.Greene, 252 Ill. 475.) If this were not so, endless litigation between two public agencies could result upon a change in the necessities surrounding the use.
Here, however, the land owned by the city is located outside the city of Chicago. It was taken in payment of a debt due the city by a defaulting officer and to reimburse the city for a defalcation. It is not now, and never has been, devoted to a necessary public use. On the other hand, the property has peculiar advantages to this board of education, which has shown a real need for it. Under these circumstances the question is not one of inherent right to undisturbed ownership but is one of fair and adequate compensation only. The city with respect to this property stands merely in the same position as a private owner and the right of eminent domain should lie. City of Chicago v.Sanitary Dist. 272 Ill. 37.
For the reasons assigned the superior court was in error in dismissing the amended petition and the judgment should be reversed.