delivered the opinion of the court:
This is a proceeding in the nature of a quo warranto, questioning the right of each of the defendants to hold the office of school director. The amended information, upon which the hearing below was had, is by the State’s attorney of Champaign county, on the relation of certain alleged school directors of districts numbered 4, 7 and 8, in the counties of Champaign and Vermilion. It avers that prior to the first day of April, 1893, relators had been lawfully elected, and were then severally exercising the duties of boards of directors in said districts, No. 4 including all of sections 27, 28, 33 and 34, township 17, range 14, west; No. 7, the north half of the north half of section 16, in the same town and range, and other lands; No. 8, the south half of the north-west quarter, the southwest quarter of the north-east quarter, and the southwest quarter and the east half of the south-east quarter of section 16, and the north-west quarter of the northwest quarter of the north-east quarter of section 21, same town and range, and other lands. It further sets up that another district, numbered 5, then existed, which included all of sections 22 and 15, and parts of sections 16 and 21, in the same town and range, with school directors rightfully exercising the duties of their office. It then proceeds as follows : “And the said people, upon the relation aforesaid, here give the court to understand and be informed that at the April meeting of the trustees of said town 17, north, range 14, west of the second principal meridian, a petition was presented to the said trustees to organize a new school district, including all the lands of the former district No. 5 ; also, all the lands included in district No. 4; also, a part of the lands included in district No. 7, which said part of district No. 7 so taken was about 160 acres ; and also took in about 560 acres of the lands belonging to district No. 8. * "::" And the said trustees granted the prayer of said petition, and ordered a new school district organized, * * and declared the same organized into a new district, called district No. 5;” that thereafter the directors of districts 4, 7 and 8 appealed from that order to the superintendent of schools of Champaign county, who called to sit with him, in the consideration thereof, the superintendent of schools of Vermilion county; that the two, having heard the appeal, confirmed the order of the trustees ; “that the defendants were afterwards elected school directors of said so-called new district No. 5, and have been acting as such,” etc. It is then alleged that district No. 5 was not legally organized, in that the petition for the same was “not signed by a majority of the legal voters of either district No. 7, or district No. 8, or district. No. 4; and further, that said petition was not signed by two-thirds of the legal voters living within certain territory described in the petition, detached from either of said districts No. 7 or No. 8; neither was said petition signed by two-thirds of the legal voters residing in district No. 4; and further, that said petition was not signed by two-thirds of the legal voters living within certain territory containing not less than ten families, detached from either of said district No. 7 or No. 8, neither was it signed by two-thirds of the legal voters living within the territory of district No. 4, which was attached to or consolidated with said district No. 5 that said petition was in fact signed by two-thirds of the legal voters living within all of the territory included in. said proposed new district,—that is to say, said petition was in fact signed by two-thirds of the legal voters residing upon sections 15, 16, 21, 27, 28, 33 and 34, but a very large majority of said signers resided in the old district No. 5, and was also signed by about one-half of the legal voters residing in said former district. No. 4, and was also signed by one of the legal voters residing in the territory detached from district No. 8, and that said petition was not signed by any legal voter residing in district No. 7; “and that by virtue of the fact that said signers of said petition were two-thirds in number of all the legal voters residing in the territory proposed to be organized into said new district called No. 5, the said trustees sustained said petition, and organized said new district No. 5 without any regard to where the said petitioners were located,—whether in district No. 4, No. 5, No. 7 or No. 8.”
To this information a general demurrer was filed, but overruled, and leave given the defendants to plead. Thereupon they filed a plea, alleging that Vermilion and Champaign counties are both organized under the Township Organization law of this State, and that a part of township 17, north, range 14, west, lies within each of said counties; that at least twenty days before the regular meeting in April, 1893, of the board of trustees of schools in said township, there was duly filed with the clerk of the board “a certain petition for the formation or organization of a new school district out of territory belonging to two or more districts in said township,” setting out the petition, and also setting up in detail the granting of the prayer of the petition by the board of trustees, appeal to the superintendents of schools, and their final order, as alleged in the information. To this plea relators filed a demurrer, which was overruled, and judgment entered against relators for the cost of suit. From that judgment this appeal is prosecuted.
Whether, for the purposes of this case, the averments of the plea be taken as true on the demurrer to it, or that demurrer is carried back to the information, the only question presented for our decision is, whether the petition upon which the new district No. 5 was organized was signed by the requisite persons, as to locality and numbers.
Section 46, article 3, of the School law of this State, in force May 21,1889, (3 Starr & Curtis, 1158,) under which the district was formed, provides that the trustees of schools in newly organized townships shall lay off the same into school districts, etc. Section 47 says: “In a township where such division into districts has been made, the said trustees may, in their discretion, at the regular meeting in April, when petitioned as hereinafter provided for, change such districts as lie wholly within their townships so as, first, to divide or consolidate districts; second, to organize a new district out of territory belonging to two or more districts; third, to detach territory from one district and add the same to another district adjacent thereto.” Section48 provides: “No change shall be made, as provided for in the preceding section, unless petitioned for, first, by a majority of the legal voters of each of the districts affected by the proposed change; second, by two-thirds of the legal voters living within certain territory described in the petition, asking that the said territory be detached from one district and added to another; third, by two-thirds of all the legal voters living within certain territory containing not less than ten (10) families, asking that said territory may be made a new district.”
Appellants contend that the petition upon which district No. 5 was organized must/have been signed by a majority of the legal voters of each of the old districts numbered 4, 7 and 8; also, by two-thirds of the legal voters living within the territory taken from districts 7 and 8, and two-thirds of the legal voters residing in district No. 4, and two-thirds of the legal voters living within certain territory containing not less than ten families, detached from districts 7 and 8. On the other hand, appellees insist that the trustees and superintendents of schools to whom the matter was appealed, decided correctly in holding that it was only necessary that the petition should be signed by two-thirds of all the legal voters residing in the territory proposed to be organized into said new district. That it was so signed is shown by the information.
The merits of this controversy must depend upon whether the petition was “to divide or consolidate districts,” or “to detach territory from one district and add the same to another district adjacent thereto,” as authorized by the first and third clauses of section 47, supra, or “to organize a new district out of territory belonging to two or more districts,” under the power conferred by the second clause of that section. If the latter,' the case of Parr v. Miller, 146 Ill. 596, is decisive of the correctness of the position of appellees. The petition in question in that case was for the formation of a new district out of territory belonging to two or more districts, and it was signed as required by the third clause of section 48. There, as here, it was contended by counsel for appellants that it should have been signed as required by all three of the clauses of that section; but we held otherwise, and said: “The second clause of section 47 confers the power upon the trustees to organize a new district out of territory belonging to two or more districts, and, in our opinion, when a petition is presented, signed by two-thirds of the legal voters living within a certain territory containing not less than ten families, asking that said territory may be made a new district, as specified in clause 3 of section 48, then the trustees are clothed with authority to act. The first and second clauses of section 48 have nothing to do with the organization of a new district. They do not relate to that subject. The first relates to an application to divide or consolidate districts. The second, as is apparent from its language, relates to an application addressed to the trustees to detach territory from one district and add the same to another adjacent thereto.” The reasons for that construction, and the impracticability of giving effect to the statute under that contended for by appellants, is there pointed out, and need not be repeated here.
But counsel for appellants say this case is distinguishable from the Parr case, because the information shows plainly that the petition was to consolidate districts, and at the same time detach territory from one district and add it to another. We do not so understand the information. On the contrary, it says : “A petition was presented to the said trustees to organize a new school district, including all the lands of the former district No. 5; also, all the lands included in district No. 4; also, part of the lands included in district No. 7, which said part of district No. 7 so taken was about 160 acres; and also took in about 560 acres of the lands belonging to district No. 8.” We are at a loss to perceive how it could have beeu more clearly and specifically stated that the petition was to organize a new district out of territory-belonging to two or more districts, than is here done. The plea avers that the petition was “for the formation or organization of a new school district out of territory belonging to two or more districts in said township,” and the petition itself shows that it was to form “a new district” out of territory therein described. On the face of the petition, then, as shown both by the information and plea, the trustees were asked to act under the power conferred upon them by the second clause of said section 47, and not under either of the other clauses.
But it is said the action of the trustees was under the first and second clauses, because the organization of the new district did, in fact, “consolidate two districts, 4 and 5,” and “detach territory from not only one district, but from two, 7 and 8, and attach it to 5,” and “to evade the provisions of the statute the parties called it the organization of a new district, and pretended to act under the third clause of section 48.” The position, as we understand it, is, that although a petition may, both in form and substance, be a petition “to organize a new district out of territory belonging to two or more districts,” and conform in every respect to the requirements of section 48 by being signed by two-thirds of all the legal voters living within the territory described in it, still, if it appears that the effect of granting the prayer of it will be to include the whole, or any part, of the territory of two or more existing districts in the new one, the petition should be treated as one “to divide or consolidate districts,” or “to detach territory from one district and add the same to another district adjacent thereto.” To so hold would render nugatory the second clause of section 47. A new district cannot be formed out of territory belonging to others without taking all or some part of such territory. Certainly, a petition for one purpose can not be made to serve another, by merely calling it a petition for the other purpose, but when it is, in fact, a petition to organize a new district, and properly signed as such, the trustees have no right to say it should be signed as though for a different purpose. They may, in their discretion, refuse to grant the prayer of it, but they can not refuse to entertain it because it is not properly signed. If, as contended, the petitioners sought to evade the statute, the remedy was before the trustees or superintendents, on appeal.
Nor can the fact that a majority of the signers of the petition were residents of the old district No. 5, or that none of them resided in one of the districts from which territory was taken for the new district, avail the relators here. The question with which we have to deal is, was the petition presented to the trustees signed by a sufficient number of the persons required by the statute to give them jurisdiction to act. The wisdom of their action cannot be reviewed in this proceeding.
The contention that, under the construction of the statute, thickly populated portions of a township, as one school district, may unjustly deprive others of their territory without their consent, goes back to the case of Parr v. Miller. Presumably the trustees, in the exercise of the discretionary power vested in them by section 47, supra, will see that such abuses are not practiced. Moreover, the construction contended for by appellants might work equal injustice, because, as said in Parr v. Miller, supra, “if a new district could not be organized unless the petitioners, in their application to the trustees, conformed to the requirements contained in the first, second and third clauses of section 48, it would be almost impossible in any case, however great the necessity might be, to obtain the formation of a new district.”
The judgment of the circuit court is in our opinion correct, and it will be affirmed.
Judgment affirmed.