Fairbanks Morse & Co. v. City of Freeport

• Decision Date: 21 January 1955
• Docket Number: No. 33287,33287
• Citation: 5 Ill.2d 85,125 N.E.2d 57
• Parties: FAIRBANKS MORSE & CO. et al., Appellees, v. The CITY OF FREEPORT, Appellant.
• Court: Illinois Supreme Court

Page 57

125 N.E.2d 57

5 Ill.2d 85

FAIRBANKS MORSE & CO. et al., Appellees, v. The CITY OF FREEPORT, Appellant.

No. 33287.

Supreme Court of Illinois.

Jan. 21, 1955.

Rehearing Denied March 22, 1955.

Harold R. Nettles, Corporation Counsel, and John G. Garrity, Freeport, for appellant.

Burrell & Holtan, Freeport, Johnston, Thompson, Raymond & Mayer, Chicago, and Nack & Nack, Galena (David M. Burrell, Freeport, Anan Raymond, Chicago, Louis Nack, Galena, Edward E. Lynn, and William D. Randolph, Chicago, of counsel), for appellees.

HERSHEY, Justice.

This is an appeal from a decision of the circuit court of Stephenson County entered in a declaratory judgment action wherein sections 7-1 through 7-6.1 of the Revised Cities and Villages Act (Ill.Rev.Stat.1953, chap. 24, pars. 7-1 through 7-6.1,) were declared unconstitutional. Said provisions relate to the annexation of territory to a municipality and were contained in House Bill No. 360 of the 68th General Assembly. Laws of 1953, p. 1132.

Fairbanks Morse & Co., herein referred to as plaintiff, initiated the action on February 4, 1954, by filing a complaint for a declaratory judgment against the city of Freeport, herein referred to as the city, and the county judge of Stephenson County. The county judge was subsequently dismissed and is not a party to this appeal.

The complaint alleged, in substance, that the plaintiff owned a tract of land situated partly within the corporate limits of the city and partly outside the city; that the city by ordinance, proposed to annex a portion of said land lying outside the corporate limits, said portion being slightly less than ten acres; that said ordinance was passed on January 18, 1954, pursuant to authority contained in said sections 7-1 through 7-6.1 of the Revised Cities and Villages Act; and that in accordance with said statutory authority the ordinance was filed with the county clerk of Stephenson County on January 19, 1954, and an order was entered by the county judge fixing a hearing thereon for February 11, 1954.

The complaint charged that said statutory provisions were unconstitutional. Briefly, the plaintiff asserted that sections 1 and 18 of article VI (judicial article) and article III (separation of powers) were violated by section 7-4, which makes the decision of the county court, in passing upon petitions for annexation or objections thereto, an 'administrative decision' subject to review under the provisions of the Administrative Review Act. (Ill.Rev.Stat.1953, chap. 110, pars. 264 et seq.) The plaintiff further asserted that even if section 7-4 is not violative of the judicial article and the separation of powers provision of the Illinois constitution, it amounts to an amendment of the Administrative Review Act without appropriate reference thereto contrary to section 13 of article IV of the constitution, S.H.A. In addition, other contentions based upon alleged constitutional infringements are made with reference to the cited sections of the statute.

Finally, the complaint alleged the existence of a controversy between the plaintiff and the city as to the meaning of the words 'tract' and 'territory' as used in said annexation statute, as well as a controversy over the construction to be given sections thereof. The plaintiff sought a declaration that the said provisions of House Bill No. 360 were unconstitutional, or, as an alternative, a construction thereof by the circuit court, and an order enjoining the defendants, both the city and county judge, from proceeding to a hearing on the ordinance pursuant to the terms of said statute.

The city moved to dismiss the complaint on the grounds that the circuit court had no jurisdiction; that a declaratory judgment would not lie; that the county court pursuant to the statute had assumed jurisdiction of the subject matter; that the plaintiff had an adequate remedy at law as to the equitable relief sought; and that the same parties were then litigating the matter in the county court. An exhibit attached to the motion showed that the plaintiff had appeared in the county court and filed objections to the ordinance, presumably in accordance with the terms of the statute now under attack.

The motion to dismiss was denied. Thirteen other parties, herein referred to as intervenors, were allowed to intervene, and they adopted the complaint of the plaintiff. The city's motion to dismiss as to these parties was likewise denied. The city then filed an answer denying the material allegations of the complaint and again asked dismissal of the action.

The cause was heard by the circuit court on a stipulation of facts, and after hearing the court found for the plaintiff and declared said sections to be unconstitutional. This appeal is from that judgment.

Section 7-2 provides, among other things, that under certain circumstances the corporate authorities of any municipality may initiate proceedings for annexation by enacting an ordinance and filing the same with the county court. The county court is to then fix a date for a hearing and provision is made for notice of that hearing. Section 7-3 empowers 'any interested person' to object to the ordinance on the grounds that the territory therein described is not contiguous to the annexing municipality or that...