dissenting:
The burden of establishing by evidence the legal organization of the district was upon the defendants, and the People were entitled to judgment unless the defendants exhibited good authority for the exercise of the right claimed by them. They failed to justify by proving that there was a majority of the legal votes cast in favor of the organization of the district but conceded that 129 votes were illegal and only 188 legal votes were cast, that the ballots were all deposited in one box, and that there was no evidence how anyone voted. The cause was submitted to this court for decision upon the record made in the circuit court, and the only possible judgment upon that record would have been one of ouster. After the cause was argued and submitted to the court and taken under advisement for decision under the evidence and the existing law the legislature passed an act as follows:
“Sec. 1. * * * That in all cases where a majority of the inhabitants of any contiguous territory, having therein all or part of a school district established by special legislative act, voting on the proposition, have voted at an election called by the county superintendent of schools for the purpose, in favor of the organization of such territory into a community high school district, and where at a subsequent election similarly called and held, a board of education has been chosen for such district, such territory is hereby declared legally and validly organized and established as a community high school district, and a valid and existing school district and body politic and corporate of this State for the purpose of establishing and maintaining a high school. The board of education acting for each such district is hereby declared to be the duly constituted authority thereof, and each such board shall hereafter consist of five members and shall be elected and organized in the same manner and have the powers and discharge the duties of boards of education of school districts as provided by sections 86, 126 and 127 of an act entitled, -'An act to establish and maintain a system of free schools,’ approved and in force June 12, 1909, as said sections now exist or may from time to time be amended or supplemented.
“Sec. 2. No irregularity, defect or omission whatsoever, in the time or manner of calling, holding or conducting any such elections or in the notice thereof, ballots used therein, or returns thereof, shall be held to invalidate any such elections.
“Sec. 3. All acts and proceedings heretofore done, had or performed by each such district and the persons from time to time elected and acting as the board of education thereof, such as are authorized to be done, had or performed by school districts or boards of education thereof by the general school laws of the State, are hereby declared to be legal and valid in all respects.” (Laws of 1921, p. 799.)
Section 4 declared valid taxes levied by a board of education of any such district notwithstanding the levy had not been made, filed or certified in the manner or within the time prescribed by law. Section 5 provided that when there were two districts overlapping in territory the district first established was validated, and section 6 repealed special legislative acts establishing school districts affected by the act.
Whether the act was a decision of this case by the legislature, and therefore an usurpation of judicial power, or not, is of no importance, because the act did not validate or purport to validate the election which had been held nor make the territory a high school district. The purpose and scope of the act and the legislative intent seem to us as clear and definite as language can make them. There were two conditions precedent to the declaration that the territory referred to in the act was declared legally and validly organized and established as a community high school district : First, that there should have been an election called by the county superintendent of schools at which a majority of the inhabitants of the territory voted in favor of the organization of the territory into a community high school district; and second, that at a subsequent election similarly called and held a board of education had been chosen for such district. The purpose of the act was plainly stated in section 2, which declared that no irregularity, defect or omission whatsoever in the time or manner of calling, holding or conducting any such election, or in the notice thereof, ballots used therein or returns thereof, should be held to invalidate any such election. The act contained no hint of any intention to validate an election where the votes of women were the deciding factor in carrying the election. If the legislature had had such an intention it knew how to make it effective, since it had passed an act in 1915 validating elections of that kind previously held, (Laws of 1915, p. 630,) and such an act had been held within the legislative power in People v. Militzer, 272 Ill. 387. The condition that there should have been an election at which a majority had voted in favor of the organization of the territory into a community high school district negatives any intention to validate an election where the proposition was carried by the votes of persons not entitled to participate in the election. An election is the expression of a choice by the voters of a body politic. (9 R. C. L. 976.) It is the choice or selection of officers or to determine the issue of questions submitted to the legal voters. (20 Corpus Juris, 55.) By validating an election called by the county superintendent of schools at which a majority voted in favor of the organization of a community high school district the legislature certainly meant by inhabitants of the territory voting at such election persons residing therein, enjoying the right and privilege of voting at elections, and did not mean an assemblage composed not only of legal voters, but of minors, aliens or other classes not entitled to vote or to participate in elections. The legislature could not have intended to give to an election any other than its ordinary meaning as a determination of a question submitted to the legal voters whether the territory should be organized as a community high school district. The omission of any provision that an election should be legal where the votes of women were the deciding factor, and section 2, make it clear that the only intention was to cure irregularities and omissions such as are named in section 2 and to create a district regardless of such irregularities or omissions.