The court granted a rehearing in this case upon the petition of counsel for Fitzsimmons, plaintiff in error in this court. His contention that Charles L. Capen had no authority to sue out the writ of error as president of the Board of Education of the State of Illinois was the principal reason for granting a rehearing, but we have again considered the other questions passed upon in our opinion.
Counsel for plaintiff in error say that in its last analysis the question to be determined in deciding this case is whether anyone appeared in the trial court and represented the State Board of Education under de jure or de facto authority to do so. This contention is based upon the fact that the declaration as originally filed made defendants the chairman, secretary and members of the Normal School Board, who were all named, "constituting the Normal School Board, successor of and exercising the rights, powers and duties of the Board of Education of the State of Illinois." The declaration was amended by substituting "the names of the defendants to this suit, as follows," naming the *Page 381 chairman, secretary and members, "constituting the Normal School Board as trustees exercising the rights, powers and duties of the Board of Education of the State of Illinois, a corporation." The Appellate Court and this court held that the suit was against the Normal School Board as defendant. Plaintiff in error contended originally, and now contends, that we overlooked the fact that the summons informed the Normal School Board that it was not sued but was brought into court as representative of the real party defendant, the Board of Education of the State of Illinois, and that the Normal School Board was merely named in a representative capacity. That contention is based upon the Civil Administrative Code, adopted in 1917, which purported to abolish certain offices, boards, commissions, arms and agencies of the State government, among which was the Board of Education of the State of Illinois, the exercise of whose powers and duties the act vested in the Department of Registration and Education. The act created the Normal School Board, and provided that it should have power and it should be its duty to succeed to and to administer all trusts and trust property now or hereafter belonging or pertaining to any of the State normal universities or schools and to perform the duties which had previously been performed by the various boards of trustees of the normal schools of the State. No one has questioned the validity of that act. It does not purport to repeal the act of 1857 creating the State Board of Education, and both parties to this suit admit the act could not take from that board the charter powers conferred upon it by the act of 1857. For the reason that the constitutionality of no statute was involved this court transferred the direct appeal to this court to the Appellate Court.Fitzsimmons v. Miller, 308 Ill. 85.
In our opinion we referred to the former decisions of this court that the charter of the State Board of Education could not be repealed by act of the legislature or the charter *Page 382 powers of the corporation taken from said board and transferred elsewhere. Plaintiff in error insists that in so holding we passed upon the constitutionality of the Civil Administrative Code, which we had previously held was not involved in this case. We do not so understand it. We merely construed the effect of the Civil Administrative Code, and this construction is not disputed by either party, and neither one of them denies or questions its constitutionality.
F.W. Shepardson was named in the declaration as chairman, the State Superintendent of Public Instruction was named as secretary and Charles L. Capen was named as a member of the Normal School Board. By the act of 1857 the State Superintendent of Public Instruction is madeex-officio secretary of the Board of Education of the State of Illinois and by the Civil Administrative Code he is made secretary of the Normal School Board. Service upon him as secretary of the Normal School Board and upon Capen as a member of that board was not service upon the president and secretary of the State Board of Education, and although it is averred that board is successor of and exercising the rights, powers and duties of the State Board of Education, no judgment could be rendered against that board under the declaration unless it appeared in some manner at the trial, and we are of opinion it did not. We are unable to come to any different conclusion from that arrived at in our opinion, — that the Board of Education of the State of Illinois was not a defendant to the suit, that it did not appear and was not represented at the trial, and was not estopped to prosecute a writ of error from the Appellate Court to reverse the judgment.
Charles L. Capen testified he was president of the State Board of Education from May, 1916, to June, 1917. There is no evidence we can discover that his term as a member of the board had expired, and there is no evidence that anyone was elected president to succeed him. The charter of the board provides that at each biennial meeting after the *Page 383 first meeting of the board it shall elect one of its members president, who shall serve until the next biennial meeting "and until his successor is elected." In his affidavit to the petition for the writ of error, which was filed December 18, 1923, Capen swears he is president of the State Board of Education. In that capacity he sued out the writ. We held in this case that the Civil Administrative Code did not abolish the State Board of Education, but its effect was to transfer to the Normal School Board duties the State Board of Education had previously performed as an agency of the State, but did not and could not take from the State Board of Education its charter powers conferred by the act of 1857. Plaintiff in error here recognized the existence of the State Board of Education by causing judgment to be entered against it. As president of the corporation Capen had authority to act in its behalf in suing out the writ. (Wetherbee v. Fitch, 117 Ill. 67; 14 Corpus Juris, 437; Bank of Minneapolis v. Griffin, 168 Ill. 314;Anderson v. Brewing Co. 173 id. 213; Anderson TransferCo. v. Fuller, 174 id. 221.) Even if Capen's term as president had expired, he acted, in suing out the writ, as a de facto officer, and his act was valid. (Sharp v. Thompson, 100 Ill. 447; 14 Corpus Juris, 78; 22 R. C. L. 598.) His right to do so cannot be attacked collaterally. Lawson v. Kolbenson, 61 Ill. 405; Samuels v. Drainage Comrs. 125 id. 536.
We held in our opinion that the writ of error was properly sued out, and are convinced upon further consideration and investigation that our decision upon that question, as well as the other questions involved, is supported by the law, and therefore adhere to it.
Judgment affirmed. *Page 384