| Ill. | Jan 15, 1860
It is contended by the counsel for the defendants in error, that the action of the school trustees, consolidating districts eight and nine into one district, was inequitable, and a gross abuse of their powers—so gross as to justify the interference of a court of equity to annul their act, it being a case not of the simple abuse of powers, but the inequitable exercise of conceded legal powers, and comes within the principles decided in the case of Grove v. The School Inspectors of Peoria, 20 Ill. R. 541.
In that case it was said, “ to lay off and divide the city into school districts, and from time to time, alter them or create new ones, as circumstances may require, is a very difficult duty to perform, and it is not reasonable to expect, however just, wise and impartial they may be, that there will be no single complaint. It requires much deliberation and the exercise of sound judgment, and in such case a court could not well interfere, unless gross injustice had been done, or the marks of corruption, in the board so evident as to compel the court to interpose.”
In the case of the same board of inspectors against the people, ex relatione Grove, ib. 531-2, we said, “ The board of inspectors are vested with a large discretion in the performance of their important duties, and courts will not attempt to control its exercise, except in a palpable case where a plain violation of the law is manifested.”
We shall be governed, in deciding this case, by the views therein expressed, and if a plain violation of the law is manifested in a palpable case where gross injustice has been done, or corruption manifested, we will not hesitate to interfere and afford the requisite relief.
We think this case depends wholly upon the construction to be put upon the thirty-third section of the act of 1857, “ to establish and maintain a system of free schools.” (Scates’ Comp. 440.) That section provides that, “ Trustees of schools shall lay off the township into districts to suit the wishes and convenience of a majority of the inhabitants of their townships, and shall prepare, or cause to be prepared, a map of their township, as often as may be necessary, on which shall be designated districts, to be styled district No.-, in township No.-, which they may alter or change at any regular session; which map shall be certified by the president and clerk of the board, and filed with, and recorded by the county clerk, in a book to be kept for that purpose, to be paid for out of the county treasury: Provided, that school districts may be formed out of parts of two or more townships or fractional townships; in which case the trustees of the schools of the townships interested shall act in conjunction in the formation of such district. When a new district is formed from one or more districts, the trustees shall make division of any tax funds which are, or may ■be, in the hands of any officer, in proportion to the amount of ■taxes collected from the property remaining in each district; and it shall be the duty of the officer to pay the same on the ■order of the trustees.”
The charge in the bill is, that the order of October 5,1857, .re-districting the township, by which districts eight and nine were consolidated to form district eight, was made without consulting the wishes and convenience of a majority of the inhabitants of district nine, or of the township at large.
This allegation is denied by the answer, and the trustees who made the order testify that, at the time they made it, it did suit •the wishes and convenience of the majority of the inhabitants of the township, as they then thought and believed, and still think.
There is some proof to show that it was not in accordance with the wishes or convenience of district nine, or of the township ; but the law does not provide any mode by which these facts are to be ascertained ; no vote of the people, no petition is required, but the trustees are peremptorily required to lay off the township into districts, and they are directed in so doing, to suit the wishes and convenience of the inhabitants of the township. There being no mode provided by the act by which this is to be accomplished, the board must necessarily take the •responsibility of deciding the question, acting upon the best lights before them, and exercising their best judgment. They must perform that duty, and their honest action cannot, in this manner, be inquired into.
But, we apprehend, if the views of the defendants’ counsel be correct, the validity of this order of October 5th would not be affected by it, for the power to alter and change districts when once established, is expressly given to the trustees, by the same section; the only limitation being, that it shall be done at, a regular meeting of the board. The record shows that this consolidation of districts, which is no more than a change of the districts, was at the regular October meeting, held for the purpose of equalizing certain districts. The alterations and change are, and must be, peculiarly within the control of the board, and if they err in their action, no fraud or corruption being charged, this court cannot interfere. No palpable case is made out—no gross injustice, oppression or corruption is shown.
But if it could be shown that the order changing the districts by consolidating two districts into one, was an unwarrantable exercise of power, it might, with propriety, be claimed that there has been an acquiescence in it by the functionaries of the now complaining district nine.
The evidence is, that the consolidation was made by an order, passed October 5th, 1857, and that immediately thereafter, the trustees of nine surrendered to the trustees of the district as consolidated, the possession of their school-house, and all the books, papers and property belonging to district nine. The new directors of the consolidated district took possession of all of it, employed teachers, and maintained schools in it, from that time until this bill was filed. The inhabitants of district nine sent their children to these schools—many of them voted at the elections held under the school law in the new district, and many of them were voted for, for offices in the district. The directors of the consolidated district, at the request of the old directors of nine, paid a large sum of money on the indebtedness of nine. The inhabitants further recognized the consolidation by petitioning the trustees to rescind the order of consolidation, and place them back in their old district. These acts go far to show an acquiescence in the action of the trustees of the township, and, at any rate, relieve the case from any imputation of gross injustice, oppression, or compulsion, and they constitute, at least, good grounds for the refusal of the restraining power of a court of chancery. These acts, so acquiesced in, constitute the directors, who levied the tax in the consolidated district, officers da facto, at least, and as against them and their acts, the remedy is at law. The tax was levied at the time prescribed by law, and on property subject to taxation for school purposes in the district, and no irregularity is charged upon the mode or object.
We have said in Merritt v. Farris, 22 Ill. R. 303, that where irregularities are charged, equity will not restrain the collection of a tax levied by officers de jure or de facto, much less then when no irregularities are charged. And the same point was ruled in Munson v. Minor, ib. 602. In this case, the court say: It is believed, the cases are rare, even where the tax had been levied by persons having no pretense of legal authority to make such levy, or in cases where the tax was not authorized by law, or where the warrant for its collection was void, that courts have interposed to stay its collection. But in case of a levy of an illegal tax, a court of law has jurisdiction. If persons having no pretense of legal authority were to levy a tax, or if persons not holding an office to which the power to levy a tax is incident, or holding an office to which it is not incident, were to levy a tax, the court might interpose. But if officers de facto or de jure, exercising an office to which the power is incident, exercise it, the court will not interpose to prevent its collection.
We cannot, in such a case as this, try the right of the directors who levied this tax, to hold their office, and do the act in virtue of it. If the tax is illegal and is collected, the remedy at law is complete to recover back the money paid. The right to exercise the office of director can be inquired into by quo warranto, or the original proceedings brought up on certiorari and revised.
The remedy of the defendants, in every view of this case, if there be a wrong, is at law; but we think no wrong or injustice has been done, such, at least, as will warrant our interference. The decree of the court below is reversed, and the bill dismissed.
Decree reversed.
Walker, Justice, did not take part in this decision.