Trustees of Schools v. Kay

Pleasants, J. Petition by appellee filed Nov. 4, 1879, for mandamus to compel the • trustees to set off territory from one district to another, under the 3d clause of the 33d section of the school law of 1877. Hurd’s R. S. 1877, p. 900. A demurrer thereto was overruled and the writ awarded. The clause referred to requires a petition of two thirds of all the voters in the territory desiring to be set off, while the others providing for changing the boundaries of school districts and creating new districts in other cases, require a petition of only a majority. By the sixth clause of said section discretionary powers are granted to the trustees “ in the matter of changing the boundaries of school districts, and in creating new districts, when petitioned by a majority of the legal voters to do so,” which therefore did not apply to proceedings under the third clause. But the act of 1879 (Laws of 1879 p. 287), amending said section in several particular's, which the circuit court and counsel seem to have overlooked, extends this grant of discretionary power to the trustees in the matter aforesaid, “ when petitioned as hereinbefore provided,” thus reaching the proceedings under the third clause, as well as the others. Mandamus therefore would not lie, and the demurrer should have been sustained. The People, ex rel. v. The Board of Supervisors of LaSalle County, 84 Ill. 307; County of St. Clair v. The People, 85 Ill. 401; Hildreth v. Heath et al. 1 Brad well, 85-6. The case of the Trustees of Schools v. The People, 76 Ill. 621, arose under the act of 1874, which was mandatory, and is not in point. The judgment of the circuit court is reversed and the cause remanded. Iteversed and remanded.