Page images

Opinion Per Curiam.

trict. The ballots on which their names appeared were headed :

“For Members of Board of Education" "Vote for not more than three."

No designation of or reference to the term, or length thereof, of any candidate was made on any ballot, nor had there been any such designation upon the ballots in the primary election whereat said candidates were nominated. The defendants Schaefer, Strawsburg and Kitchen, in the order stated, received the highest number of votes at said election. They were declared elected as members of said board of education, certificates of election for a term of four years each were issued, and in pursuance of that authority they assumed to qualify and enter upon, and ever since have discharged, the duties of such position—more than 15 months -the validity of their election not having been challenged until the bringing of this suit in quo warranto, April 14, 1917.

It is now contended that because of such want of designation of terms, whether for four years or two years, on the ballot or elsewhere, it is impossible to ascertain which of said candidates were elected for the four-year term and which one for the two-year term, and that, therefore, there was no valid election for either term and the certificates of election issued were unauthorized.

An examination of the sections of the General Code above cited discloses that as applied to the city of Springfield their several provisions were not in accord, and, therefore, could not be fully observed. Under their provisions no existing term

Opinion Per Curiam.

should be disturbed. If necessary to accomplish the reduction in numbers required by law, two-year terms could be provided by resolution; but an election to such two-year term was limited to the year 1913. It was expressly provided in above sections that all elections thereafter should be for four-year terms; thenceforward one-half of the remainder, after diminishing the total number of members of the board by one, should be elected in the year preceding the calendar year divisible by four, and the remaining number the year following such calendar year. Under that provision, directory in its nature, two members would be elected in 1915, three in 1917, and so on. There was no provision whatever for a two-year-term member to be elected in 1915, and if only two members should be elected the board would consist of but four instead of five members, as had been determined by the board under authority conferred by law.

These provisions are inconsistent; they cannot all be enforced; therefore the rational solution of the situation seems to lie in such construction and application of the law as to make it feasible and practicable and capable of accomplishing the obvious design and purpose of its enactment, which was to create small boards of education, the terms of the members of which should be four years, and, presumably, to bring about that condition and situation at the earliest possible time. The mere order in which members are elected seems quite immaterial, and that provision might well have been regarded by the board as only directory. In the theory that all three of the defendants were in fact

Opinion Per Curiam.

elected for four-year terms that is the only provision disregarded; and, as we have seen, it is a provision in direct conflict with other and more important and essential provisions of the law.

Although the resolution provided for the election of a short-term member in 1915 such was not authorized by law, and thereafter all matters concerning the election, including notice, proclamation, form of ballots and certificate of election, proceeded in a manner consistent only with the theory that three members for the full term of four years were being elected. For the reasons we have indicated, the tenure of those members should not now be disturbed.

Writ refused.


JOHNSON, J., not participating.

Opinion Per Curiam.



[ocr errors]

Juvenile court Jurisdiction continuing, when -- Delinquent or

neglected child - Petition or motion to modify order of commitment - Mandamus to compel hearing thereof.

(No. 15551 – Decided May 29, 1917.)


Mr. Ben W. Johnson, for relatrix.
Mr. Earl K. Solether, for respondent.

BY THE COURT. Where a delinquent or neglected child has become the ward of the juvenile court and has been committed to an institution, under the provisions of the General Code relating to juvenile courts, the jurisdiction of the juvenile court over such child is a continuing jurisdiction, and it has authority to vacate its original order or modify the same, or make such further and additional orders in relation thereto as to it may seem just and proper.

The discretion of the juvenile court in relation to the care, custody and control of a delinquent or neglected child is a judicial discretion that must be exercised in good faith, and in the interest of the child, upon evidence introduced in the usual and ordinary course of the administration of justice.

Mandamus will not lie to control judicial discretion or the judicial determination of an issue by an inferior court, but it will lie to compel the exer

Opinion Per Curiam,

cise of such discretion and the exercise of judicial functions conferred by law upon such inferior tribunals.

Where an order has been made and entered by a juvenile court, finding that certain children are neglected and abandoned by their mother, and committing their custody to an institution named in the sections of the General Code relating to juvenile courts, upon an affidavit filed in that court charging in substance that the minor children named therein are dependent and neglected children, that their mother has deserted and abandoned them and is an unfit person to have the care and custody of them, and that the residence of the mother is unknown, a petition filed in that court by the mother, after such order has been entered, asking the court to open up and vacate the same, averring in substance that the affidavit was false, that affiant knew at the time he filed such affidavit or with reasonable diligence could have discovered her residence, that she had no notice of such proceeding, that she had not abandoned and deserted her minor children, that the affidavit and the proceedings had thereunder and the evidence offered in support thereof were false and a fraud upon the court and in fraud of petitioner's rights, that the order was irregularly obtained, and that the petitioner, the mother, had no notice of such proceedings whatever and by unavoidable casualty and misfortune and without any fault or want of diligence on her part was prevented from appearing in court and defending her parental rights and vindicating her

« PreviousContinue »