dissenting:
This is a quo warranto proceeding to inquire into the validity of the organization of a new school district. The relators are the directors of school districts Nos. 7, 8 and 4 in Township 17, etc., lying partly in Champaign County and partly in "Vermilion County. Adjoining these districts was school district No. 5. The information avers that, at the April meeting, 1893, a petition was presented to the trustees of the town, praying for the organization of a new district to include all the lands of districts 5 and 4 and parts of districts 7 and 8; that the trustees. organized a new district, calling it new district No. 5, by consolidating said former district No. 5 with district No. 4, and talcing 160 acres out of district No. 7, and 560 acres out of district No. 8 ; that, upon appeal by the directors of districts 4, 7 and 8, the county superintendents of schools in said counties sustained the trustees; that respondents were elected directors of the new school district No. 5, and are acting as such; that said petition was not signed by a majority of the legal voters of either district No. 7, 8 or 4, nor by two thirds of the legal voters living within certain territory described in the petition detached from either of said districts 7 or 8, nor by two thirds of the legal voters residing in district No. 4; that it was signed by two thirds of the legal voters living within all of the territory included in said proposed new district, but that a large majority of said signers resided in said old district No. 5; and that it was also signed by about one half of the voters residing in district No. 4, and was signed by only one legal voter residing in district No. 8, and was not signed by any leg'al voter in district No. 7; that, upon a petition thus signed without any reference to what district the signers were located in, the trustees organized said new district.
The defendants filed a plea to the information, setting up the location of the township in the two counties, the filing of the petition and its contents, the appeal, the affirmance of the action of the trustees, the organization of the new district, the election of the defendants as directors. This plea was demurred to by the • relators, the demurrer was overruled, exception was taken ; and, relators having elected to stand by their demurrer, judgment was rendered for the defendants, and against relators for costs, from which judgment the present appeal is prosecuted.
The proceeding for the organization of the new district was under the School law of May 21,1889. (Laws of 1889, page 278.) Section 46 of article 3 of that Act provides, that trustees of schools in newly organized townships shall lay off the township into one or more school districts, to meet the wishes or convenience of a majority of the inhabitants of the township, and shall prepare maps of the township, in which the districts shall be designated, etc. Section 47 provides : “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 hereafter provided for, change such districts as lie wholly within their townships, so as, first, to divide 6r 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.” Sec. 48: “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.”
In the recent case of Parr v. Miller, 146 Ill. 596, we said in regard to this statute : “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.” In Parr v. Miller, supra, the purpose of the petition was to obtain the organization of a new district by the trustees out of territory' belonging to two or more districts, and it was held that the petition properly conformed to the requirements of the third clause of section 48.
It is evident, that the second clause of section 47 refers to a new district organized by the union of a part of the territory of one district with a part of the territory of another district, or with a part of the territory of more than one other district. It cannot refer to a new district formed by the consolidation of two districts, because, then, there would be no difference in meaning between the first and second clauses of section 47. Nor can it refer to a new district formed by detaching territory from one district and adding the same to another district adjacent thereto, as, in such case, there would be no difference in meaning between the second and third clauses of section 47.
When two districts are consolidated as provided for in the first clause of section 47, the petition for the consolidation must be signed by a majority of ■ the legal voters of each of the districts so consolidated. Here, an attempt was made to consolidate district No. 4 with district No. 5, but such consolidation could not be legally accomplished, unless it was petitioned for by a majority of the legal voters in district No. 4, and also by a majority of the legal voters in district No. 5. It appears from the face of the pleadings, and is not denied, that the petition was not signed by a majority of the legal voters in district No. 4.
When territory is detached from one district and added to another district adjacent thereto, as provided for in the third clause of section 47, the petition must be signed by two-thirds of the legal voters living in the territory mentioned in the second clause of section 48. Here, an attempt was made to detach 160 acres from district No. 7 and add it to district No. 5, and also to detach 560 acres from district No. 8 and add it to district No. 5, but the petition was not signed 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.”
The petition for the organization of the new district No. 5 was only signed by two thirds of the legal voters living in all the territory of which the new district was to be composed, that is to say, the whole of district No. 4, the whole of the old district No. 5,160 acres of district No. 7, and 560 acres of district No. 8. I do not think that this was sufficient under the statute. Two thirds of all the legal voters in the proposed new district might happen to live in the old district No. 5. If this were so, then, according to the theory upon which the new district was organized, the old district .No. 5 could, by the action of its own legal voters, attach to itself the whole of district No. 4, and the parts of districts 7 and 8 above designated, against the will of the legal voters in districts 4, 7 and 8. Such a result could not have been intended by the Act.
For the reasons here stated, I am of the opinion that the demurrer to the plea should have been sustained, and that the judgment of the Circuit Court should be reversed and the cause remanded to that court with directions to sustain the demurrer to the plea, and render judgment of ouster in accordance with the prayer of the information.