
    Antioch Community High School Teachers’ Association, Plaintiff-Appellant, v. The Board of Education of Antioch Community High School District No. 117, Defendant-Appellee.
    (No. 70-256;
    Second District
    — November 17, 1971.
    Drach, Terrell & Defenbaugh, of Springfield, for appellant.
    Larson & Lumber, Ted C. Larson, and F. James Lumber, all of Antioch, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This appeal arises from judgment of the trial court dismissing with prejudice plaintiff’s complaint for declaratory judgment and other relief pursuant to 111. Rev. Stat. 1969, ch. 110, par. 57.1.

The complaint alleges that a contractual agreement with the defendant Board of Education existed during the 1969-70 school year providing for sick leave to teachers and further providing that “* * * Requests for personal leave will be granted in accordance with the existing sick leave policy * * Allegedly, in March, 1970, a teacher requested personal leave to attend a court hearing in Oklahoma pursuant to court order. The defendant Board of Education advised plaintiff through Charles Lindholm that the teacher’s request for personal leave was denied solely because the Board had been advised that granting personal leave was illegal. The complaint continued that the following week, the defendant Board directed a letter to plaintiff’s Teacher Negotiation Committee through its chairman, Charles Lindholm, which states in part the following:

“. . . The Board directs the Negotiating Committee that personal leave will not be granted in any new agreement on the advice of our legal attorney, Mr. Ted Larson. This opinion is based on the fact that it is not granted under the school code and that it is an illegal expenditure of funds. Mr. Larson talked to the State Superintendent’s Office as of March 18, 1970, and their position is that personal leave is illegal and cannot be granted by the Board.”

The complaint alleged a controversy between the parties in that plaintiff maintains state law does not prohibit contracting for or granting personal leave days to teachers. Plaintiff prayed for a “declaration of rights of the parties that Defendant Board of Education may (emphasis supplied) contract for or grant paid personal leave days to its certificated employees” and for an order requiring that defendant consider requests for personal leave by members of plaintiff Association and not deny them on the ground such leaves are illegal.

Defendant Board of Education responded July 31, 1970, with a motion to dismiss the complaint on the ground there was no actual controversy in that school was not in session and no person was presently requesting personal leave. The motion continued that should the court approve the concept of personal leave, defendant was not obligated to consider such an item in its pending contract with plaintiff, and that the court had no authority to order defendant to consider any item in such negotiations. On August 27, 1971, defendant was given leave to amend its motion by adding the following:

“* * * School Boards must be guided by the School Code, which is statutory and thus to be strictly construed; and that further, said School Code does not provide for personal leave; and further that it is the responsibility of the legislature and not the Courts to expand the School Code.”

In what appears to be a summary action, the trial court on the same day entered the order dismissing plaintiff’s complaint with prejudice. No transcript of hearing has been filed in this Court.

An actual controversy is, of course, essential to the maintenance of a declaratory judgment action (Ill. Rev. Stat. 1969, ch. 110, par. 57), but in our opinion defendant’s reliance on the circumstance that school was not in session and no person was requesting personal leave on the filing date of the motion to dismiss is obviously without merit. The controversy alleged in the complaint and documented in exhibits attached to it is a controversy between the parties in the interpretation of a state statute which affects the interests of members of the plaintiff Association in a continuing manner sufficient to establish a condition of justiciability under the Declaratory Judgment Act. Roberts v. Roberts (1967), 90 Ill.App.2d 184 at 187, 234 N.E.2d 372 states tire following:

“Mere existence of a claim, assertion or challenge to plaintiff’s legal interests, in which the ripening seeds of litigation may be seen and which cast doubt, insecurity, and uncertainty upon plaintiff’s rights or status, damages plaintiff’s pecuniary or material interests and establishes a condition of justiciability.”

We agree with defendant that it would not be appropriate for the trial court, even if it approved the concept, to obligate the defendant Board of Education to consider the item of personal leave in its pending contract negotiations with plaintiff Association, but this is not the relief plaintiff seeks. The contract ultimately arrived at between the parties will be determined by the items raised by either of them and the provisions mutually agreed upon by both of them. Plaintiff seeks only to remove from pending negotiations the doubt cast upon the item of personal leave, however the parties might otherwise feel or agree, by defendant’s assertion of illegality, and similarly to settle defendant’s claim of illegality as a reason invoked to deny rights already agreed upon. An opinion of illegality was held to give rise to a declaratory judgment action in Walton Playboy Clubs, Inc. v. Chicago (1962), 37 Ill.App.2d 425, 185 N.E.2d 719.

Defendant’s concise position is that the School Code provides for sabbatical leave, sick leave, and leave for jury duty (Ill. Rev. Stat. 1969, ch. 122, pars. 24 — 6.1, 24 — 6, and 10 — 20.7), that personal leave is illegal because the legislature did not provide it and its brief addresses itself entirely to this proposition. Whether defendant’s position may ultimately prevail is not the question. La Salle Casualty Co. v. Lobono (1968), 93 Ill.App.2d 114, 236 N.E.2d 405 illuminated the basic distinction between refusal to grant declaratory relief and refusal to entertain the action as against a motion to dismiss, saying at 93 Ill.App.2d 119:

“The trial court has a discretion as to granting declaratory judgment even though the statute would permit a judgment under the facts. (Citations) However, when considering a motion to dismiss the complaint, the court has no exercise of discretion where the complaint states a cause of action. It is only where the plaintiff is entitled to no relief on the facts alleged that the complaint should be dismissed, [citations.]”

See also Greene v. Gust (1960), 26 Ill.App.2d 2,6, 167 N.E.2d 438 and Emcasco Ins. Co. v. Alvarez, (1969), 110 Ill.App.2d 307, 314-315, 249 N.E.2d 190.

We hold plaintiff has stated a cause of action in its complaint and is entitled to a determination of the legality or illegality under the School Code of paid personal leave for its teacher members. The trial court’s judgment dismissing plaintiff’s complaint was error.

Reversed and remanded.

ABRAHAMSON and DIXON, JJ., concur.  