dissenting:
I do not understand that the right of action in plaintiffs below is barred by limitation. They proved a fee simple title in themselves for the use and benefit of the public. Section 32 of the School law (Hurd’s Stat. 1899, chap. 122, p. 1526,) provides that the school business of the township shall be done by three trustees to be elected by the legal voters of the township, as thereinafter provided for. Section 33 makes said trustees a body politic and corporate by the name and style of “Trustees of schools of township No....., range No.....,” according to the number, and provides that such corporation shall have perpetual existence, shall have power to sue and be sued, to plead and be impleaded in all courts and places where judicial proceedings are had. Section 60 authorizes the trustees of schools in each township in the State to receive any gift, grant, donation or devise made for the use of any school or schools or library, or other school purposes, within their jurisdiction, and provides that “they shall be and are hereby invested, in .their corporate capacity, with the title, care and custody of all school houses and school house sites: Provided, that the supervision and control of such school houses ■ and school sites shall be vested in the board of directors of the district.” Section 61 authorizes the trustees, when in the opinion of any board of directors the school house site or any buildings have become unnecessary or unsuitable or inconvenient for a school, on petition of a majority of the voters of .the district, to sell and convey the same in the name of said board, after giving at least twenty days’ notice of such sale by posting up written or printed notices thereof particularly describing said property and the terms of sale.
It has always been the doctrine of this court that the Statute of Limitations does not run against a municipal corporation in respect to property held for public use. I do not think it can be said the trustees of schools do not hold property the .title to which is vested in them for school purposes, for the public use. Such property is held for the benefit of all the people of the school district. It cannot be sold by the trustees without the pétition of a majority of the voters in the district. They have no power to dispose of .the fee to such property or convey it away at their own will and independently of the will of a majority of the voters. A sale or conveyance by them, otherwise than upon the petition required by the School law, would be a plain violation of duty. The public have an interest in the land in common with the citizens and tax-payers of the district and township. The laws providing for public schools are passed in pursuance of the constitutional provision that “the General Assembly shall provide a thorough and efficient system of free schools, whereby all children of this State may receive a good common school education.” (Const. 1870, art 8, sec. 1.) The public school of each township or district is a part of the common school system of the State, and the interest of the public in it is as broad as the system itself. In Logan County v. City of Lincoln, 81 Ill. 156, this court said: “Our understanding of the law is, that as respects all public rights, or as respects property held for public use upon trusts, municipal corporations are not within the operation of the Statute of Limitations; but in regard to contracts or mere private rights the rule is different, and such corporations, like private citizens, may plead or have pleaded against them the Statute of Limitations.” (See, also, Martel v. City of East St. Louis, 94 Ill. 67; Village of Lee v. Harris, 206 id. 428.) Here the school trustees, as a municipality, held this school lot not in a private capacity, nor do they hold the fee with unlimited power of disposal. The power of disposal is subject to the will of a majority of the voters of the school district. In my opinion the trustees cannot, by mere neglect of duty or laches, deprive the public of its right to the property. Section 8 of our Statute of Limitations expressly excepts such property from the operation of the seven years’ limitation.
I think the judgment below should be affirmed.