Miller v. Trustees of Schools Township 15 North, Range 6 East

88 Ill. 26

• Court: Illinois Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Mr. Justice Craig

delivered the opinion of the Court:

This was a petition for a common law writ of certiorari, to bring before the circuit court the record of the proceedings of the trustees of schools, in order to test the legality of the action of the trustees in uniting certain school districts named in the petition. At the term of court at which the writ was returnable the - defendants appeared, and, upon motion, the court quashed the writ and dismissed the suit. This decision is assigned for error.

It is not claimed that the writ or proceedings are informal, but the decision of the circuit court is attempted to be sustained upon the ground that the proper remedy was not by common law writ of certiorari, but by information, in the nature of a quo warranto.

It is true, as suggested by counsel for the defendants in error, that, upon a hearing in a proceeding of this character, evidence other than the record of the inferior tribunal can not be heard or considered, but that fact did not deprive the court of jurisdiction to determine this case. There may, too, be cases where the action of the trustees of schools might be illegal, which could not be reached in a proceeding of this character—where, for instance, it was necessary to resort to evidence outside the record to show the illegality of the action; but such is not this case.

The alleged illegal action of the trustees, here, appears upon the face of the proceedings of the board, which the court could determine by an inspection of the record containing the action of the trustees. The legislature has made no provision for an appeal from the decision of trustees of schools, for the purpose of reviewing their action, where they have created new districts, or consolidated two or more old districts into a new one; hence arises the necessity for the exercise of the common law writ of certiorari.

This court has held, in a number of cases, that the common law writ of certiorari may issue to all inferior tribunals and jurisdictions, in cases where they exceed their jurisdiction, and in cases where they proceed illegally, and there is no appeal or other mode of directly reviewing their proceedings. Doolittle v. Galena and Chicago Union Railroad, Co. 14 Ill. 381; Commissioners, etc. v. Supervisor of Carthage, 27 id. 140; Commissioner v. Harper, 38 id. 103.

The rule adopted in the cases cited is in harmony with the law as settled in England, and in this country.' Dillon on Municipal Corporations, sec. 739, says: “In this country, the rule has been very generally adopted by the courts, where a new jurisdiction is created by statute, and the inferior court, board, tribunal or officer exercising it proceeds in a summary manner, or in a course different from the common law, that the circuit or district court of the State, or other tribunal exercising general, original, common law jurisdiction, has, in the absence of a specific remedy being given, an inherent authority to revise the proceedings of such inferior jurisdiction, by certiorari.”

We have, however, been referred by defendants in error to Trumbo v. The People, 75 Ill. 561, as an authority sustaining their position. Some expressions’ may have been used, in deciding that case, from which it might be inferred that the proper mode to test the legality of the formation of a school district was by information in the nature of a quo warranto, but the question, whether the legality of the action of trustees of schools could be tested by the common law writ of certiorari, was not before the court, and was not decided. The real question in the case cited was, whether the illegality in the formation of a school district could be availed of as á defense, on an application for judgment against delinquent lands, in the collection of a school tax levied by the school district. What was, therefore, said in that case can have no bearing here.

The common law writ of certiorari was the appropriate remedy to bring before the circuit court, for review, the proceedings of the trustees of schools in uniting the school districts named in the petition, and we are of opinion it was error to quash the writ and dismiss the suit.

The judgment will be reversed and the cause remanded.

Judgment reversed,