People ex rel. Cooney v. City of Peoria

• Citation: 46 N.E. 1075,166 Ill. 517
• Parties: PEOPLE ex rel. COONEY v. CITY OF PEORIA.
• Decision Date: 11 May 1897
• Court: Supreme Court of Illinois

166 Ill. 517

46 N.E. 1075

PEOPLE ex rel. COONEY

v.CITY OF PEORIA.

Supreme Court of Illinois.

May 11, 1897.

Appeal from circuit court, Peoria county; T. M. Shaw, Judge.

Information in the nature of quo warranto on the relation of Richard J. Cooney, state's attorney of the county of Peoria, on behalf of the people, against the city of Peoria. From a judgment in favor of defendant, relator appeals. Reversed.

R. J. Cooney, D. F. Raum, and W. T. Whiting, for appellant.

W. T. Irwin, for appellee.

CARTER, J.

On September 24, 1895, the state's attorney of Peoria county, on behalf of the people of the state, filed an information in the nature of quo warranto in the circuit court of Peoria county against the city of Peoria, alleging that said city, for 20 months and more prior to the filing of said information, had exercised, without any warrant, charter, grant, or authority of law whatsoever, the governmental functions and franchises of a legally authorized and constituted city, in levying and collecting taxes, and also other municipal powers and authority under the statutes of Illinois, in, upon, and over the inhabitants and property of certain territory alleged to be without the territorial jurisdiction of said city. It is further alleged in said petition that said territory was never legally annexed to said city, for the reason that said city failed to comply with the requisite conditions required by law; and it is prayed that said city answer by what warrant or authority it exercises municipal authority, functions, and governmental powers over the inhabitants and territory described in the information. The territory which the city of Peoria attempted to annex is described as follows: ‘Beginning at the intersection lines of Adams street and Western avenue; thence north along the center line of Western avenue, which is also line between sections seventeen (17) and eighteen (18), township eight (8) north, range eight (8) east of the fourth (4th) principal meridian, to its intersection with the center line of Lincoln avenue, which point of intersection is the northeast corner of section eighteen (18); thence west along the center line of Lincoln avenue, which is the line between sections seven (7) and eighteen (18), to the intersection with the west line of the east half (E. 1/2) of the east half (E. 1/2) of section eighteen (18); thence south along said line to its intersection with the center line of Grinnell street; thence east along the center line of Grinnell street to its intersection with the center line of Adams street; thence northeasterly along the center line of Adams street to the place of beginning,-all in the county of Peoria and state of Illinois, contiguous to the said city of Peoria,’ and is known as ‘No Man's Land,’ because it lies between the village of South Peoria and the city of Peoria. The city of Peoria filed a general demurrer to the information, which was overruled by the court below; and the city then filed its plea, setting up in justification a petition of some of the residents and inhabitants of the territory in controversy for the appointment of a committee of the city council to confer with a like committee of the inhabitants of such territory in regard to annexing the said territory, known as ‘No Man's Land,’ to the city of Peoria. The plea also set up the action of the city council, showing the appointment of a special committee to confer with the citizens of said territory on annexation; a petition to the city council, which it is alleged was signed by more than three-fourths of the legal voters, and more than three-fourths of the owners (in value) of the property within the territory proposed to be annexed, praying that the same be annexed to and as a part of the city of Peoria; the proceedings of the city council of date November 21, 1893, showing the report of the special committee of the city council upon the aforesaid petition, finding that more than three-fourths of all the legal voters, and the owners of more than three-fourths (in value) of the property in said territory, have petitioned for annexation, that all the legal requirements had been met, and recommending the passage of an ordinance annexing said territory; the action of the city council, of date November 21, 1893, showing the adoption of an ordinance, reciting that more than three-fourths of all the legal voters, and the onwers of more than three-fourths (in value) of the property in the said territory, had petitioned in writing, as provided by law, to annex the same, and annexing said territory to and as a part of the city of Peoria; the certificates of filing a duly-certified copy of said ordinance, together with an accurate map of the territory annexed, with the recorder of deeds of the county of Peoria, together with the certificates of the mayor and clerk of the city of Peoria; and that by that warrant and authority the defendant had exercised the franchises complained of. To this plea the people replied that the said petition to the city council was not signed by three-fourths of the legal voters residing within the territory therein described. The city of Peoria demurred to this replication, which demurrer was overruled by the court, and issue joined, and the case was tried before a jury. The city, to maintain the issue, introduced in evidence the various proceedings as set forth in their plea, and then rested. The people then moved the court to exclude the evidence offered, and to instruct the jury to find the city of Peoria guilty, which motion was overruled. The people then proceeded with the trial, and offered a number of witnesses on their behalf to show that the petition for annexation did not contain the signatures of three-fourths of the legal voters residing in the territory to be annexed, which is the only disputed question of fact. The jury returned a verdict of not guilty, upon which judgment was entered in favor of the city, and the people have appealed to this court.

A question is raised as to whether quo warranto against the corporation is the proper remedy. A full discussion of the question as to the proper remedy in cases of this sort may be found in Commissioners v. Griffin, 134 Ill. 330, 25 N. E. 995, where it is said: ‘Nor do we perceive any good reason why a municipal body, which has exceeded its jurisdiction and has proceeded illegally, may not, on sound legal principles, be proceeded against by quo warranto, by scire facias, or by the commonlaw writ of certiorari, indifferently, as the one or the other may afford a proper and sufficient remedy. All of these several writs are direct remedies afforded by law, and in respect to neither of them can it be said that it is a collateral attack upon the legal existence or organization of the corporation.’ That certiorari would not be proper in this case is fully shown by the following from the same case: ‘Undoubtedly, where the controversy involves the investigation of facts not appearing upon the record, certiorari is not the proper remedy. Thus, if in the present case the right to have the proceedings by which the lands in question were annexed to the drainage district set aside, and the drainage commissioners ousted of the corporate authority they now claim to exercise over said lands, depended upon facts which could be established only by evidence dehors the record, the writ of certiorari would manifestly be of no avail. It may be admitted that in such case quo warranto would be the exclusive remedy.’

It is contended that the information should have been against the officers of the city, and not against the corporation itself. In this case, however, the existence of the corporation is not questioned, but only the legality of its attempt to annex the territory in controversy. The corporation, as such, in its corporate capacity, attempted to make this annexation. The annexation ordinance begins, ‘Be it ordained by the city council of...