Opinion op the Court,
Boggs, J.The board of trustees of T. 24 N., R. 4, E. 3d P. M., in McLean County, Illinois, organized a new school district composed of territory taken out of two existing districts. This action of the trustees was sustained by the superintendent of schools of the county on appeal.
The school directors of the districts out of which the territory for the new district was taken by petition to the Circuit Court of McLean County, caused the record of the establishment of such new district to be brought into court by a writ of certiorari. The court sustained the record and quashed the writ. This is an appeal by the petitioning directors from the judgment of the Circuit Court.
Two questions only arise: The first is, are school trustees under the act of the General Assembly, approved May 21, 1889, authorized to organize a new school district out of territory belonging to two other districts upon a petition signed only by legal voters (two-thirds in number) living within the boundaries of the proposed new district. The other question is, must the record of the proceedings of the trustees in the organization of such new district, show affirmatively that the allegations of facts contained in the petition were supported by evidence presented to and heard by the board.
The question last mentioned is disposed of by the construction we are disposed to put upon the final sentence of Sec. 53 of the act mentioned, which is as follows: “ After the trustees shall consider a petition no objection shall be thereafter raised as to its form, and their actions shall be prima facie evidence that all the formal requirements have been complied with.” The substance of the proceeding at bar is the proposed change asked for by the petitioners. Before the trotees could consider this question, certain ¡requirements of the statute must be complied with. While these requirements are important and touch the jurisdiction and power of the trustees, yet they are, as to the substance of the proceedings, preliminary, and in a sense formal, and it is in that sense that the word formal is used in said Sec. 53. The preliminaries must be determined by the commissioners before the real matter in issue is considered, and the fact that the commissioners advanced to the consideration of and acted upon the material and substantial matters of flie proceeding is, by force of the statute, we think to be accepted %$, prima facie evidence, that all requirements preliminary to a legal consideration of such matters has been complied with.
Whether the petition invested the trustees Avith power to act remains to be determined. The petition asks for the formation of anew school district out of territory belonging to tAvo other districts.
Trustees have poAver to make changes in districts only in certain respects as enumerated in Sec. 76, Chap. 122, R. S., (3d Vol. S. & C. Stat. 1159) namely, first, to divide or consolidate 'districts; second, to organize a neAV district out of territory belonging to tAvo others; third, to detach territory from one district and add same to another district adjacent thereto.
The powers thus given are not to be exercised by the trustees upon their oavu motion, but only when they are petitioned so to do. Sec. 77 of the same chapter provides for such petitions, and it is as follows:
“ Sec. 77. Eo 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 Avithin certain territory, containing not less than ten (10) families, asking that said territory may be made a neAV district.
Of the different petitions thus provided, the third, it is clear from the words of the statute, is to be used when the organization of a new district is sought. The petition in the case at bar seeks the creation of a new district, and meets all the requirements of a petition of the third class.
It is, however, urged that it should meet the requirements of each and every class of petitions mentioned in the section. We think not. The purpose of a petition is to empower the trustees to consider the advisability of making the proposed change. If two-thirds of the legal voters, living in certain territory, desire and petition to be detached from one district and added to another, they, we' think, have a right to have their desires heard and considered by the trustees. A petition of the second class secures them this right. So, if two-thirds of the legal voters, living in a certain territory, containing not less that ten families, desire and petition that such territory be made a new district, they are entitled to have their desires considered and acted upon by the board of trustees, their petition being of the third class.- It must be kept in mind that it is only the right of citizens to have their grievances and desires brought before the trustee for consideration that is involved.
The legal voters of the district or districts affected by the proposed changes, are entitled to be heard before the trustees, or upon appeal, as to the propriety of granting the prayers of such petitioners, but we do not think it was the legislative intent that the requisite number of legal petitioners, who might present a petition of the second or third class, should be denied a hearing, unless a majority of all the legal voters of the district or districts affected by the proposed change, would j'oin in asking that such hearing be granted.
The construction we are constrained .to give the statute is consistent with the words employed by the legislature and accords the larger measure of liberty to the citizen.
If the views expressed are correct, it follows that the judgment of the Circuit Court must be, and it is affirmed.