People ex rel. City of North Chicago v. City of Waukegan

• Decision Date: 05 July 1983
• Docket Number: No. 82-861,82-861
• Citation: 116 Ill.App.3d 88,451 N.E.2d 293,71 Ill.Dec. 578
• Parties: , 71 Ill.Dec. 578 PEOPLE of the State of Illinois ex rel. the CITY OF NORTH CHICAGO, a municipal corporation, Plaintiff-Appellee, v. The CITY OF WAUKEGAN, a municipal corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 293

451 N.E.2d 293

116 Ill.App.3d 88, 71 Ill.Dec. 578

PEOPLE of the State of Illinois ex rel. the CITY OF NORTH CHICAGO, a municipal corporation, Plaintiff-Appellee, v. The CITY OF WAUKEGAN, a municipal corporation, Defendant-Appellant.

No. 82-861.

Appellate Court of Illinois Second District.

July 5, 1983.

Diver, Bollman, Grach, Quade & Lessman, Robert E. Lessman, Waukegan, for defendant-appellant.

Sullivan, Smith, Hauser & Noonan, Ltd., Richard J. Smith, William Rosing, Waukegan, for plaintiff-appellee.

NASH, Justice:

Defendant, City of Waukegan, appeals from a judgment of ouster entered on the pleadings in a quo warranto action brought by plaintiff, City of North Chicago. The issues we consider are whether North Chicago had standing to bring quo warranto; whether the trial court erred in entering judgment on the pleadings; and, whether Waukegan's motion to amend its answer to the complaint should have been granted.

This case arises out of Waukegan's effort to annex approximately 600 acres of farmland lying south of its border as requested by all of the owners and 51 percent of the electors residing therein. The territory consists of two parcels bounded on the north by Pulaski Drive and Waukegan city limits; on the east by U.S. Route 41; on the south by 22nd Street and on the west by the Milwaukee Road Railroad and Waukegan Road. As described by metes and bounds in the petition for annexation presented to Waukegan on February 22, 1982, pursuant to section 7-1-8 of the Illinois Municipal Code (Ill.Rev.Stat.1981, ch. 24, par. 7-1-8), the territory had a common boundary with Waukegan for approximately 2,360 feet. The notices required by section 7-1-1 of the Municipal Code (Ill.Rev.Stat.1981, ch. 24, par. 7-1-1) to be given to other interested governmental units were made by Waukegan and described the territory in the same manner as did the petition. Thereafter, on June 14, 1982, the city council adopted an ordinance annexing the territory as requested in the annexation petition. However, in section 1 of this ordinance, by which the territory was declared annexed, an error in the metes and bounds description created an 82-foot gap between Waukegan and the territory sought to be annexed. In section 2 of the ordinance, however, in which the territory was described for zoning and development purposes, it was correctly described so as to establish contiguity with the city.

North Chicago thereafter presented a petition for leave to file a complaint in quo warranto, alleging the Attorney General and State's Attorney had on request declined to do so. It also alleged that roadway portions of the subject property were within the corporate limits of the City of North Chicago and that it had a substantial private interest in the matter to preserve its corporate boundaries. Waukegan objected, asserting the petition failed to allege facts demonstrating a private interest in North Chicago sufficient to provide standing to institute quo warranto after the Attorney General and State's Attorney had refused to do so. The trial court overruled defendant's objections and granted North Chicago leave to proceed in quo warranto.

North Chicago's complaint alleged generally that the disputed annexation unlawfully included within its boundaries portions of the City of North Chicago. It prayed that Waukegan be required to show by what right and authority it exercised jurisdiction over that territory and on its failure to justify or disclaim that it be ousted by the court from the exercise of authority over the territory. Waukegan answered the complaint setting forth, inter alia, the petition for annexation, notices, an annexation agreement with the owners, and the ordinance annexing the property which was adopted on June 14, 1982. It also raised as affirmative defenses the allegedly improper prior annexations of certain roads by North Chicago, and disclaimed any interest on the part of Waukegan to portions of U.S. Route 41.

Prior to a hearing on the merits of the quo warranto proceeding, Waukegan discovered the error in the description of the territory contained in its annexation ordinance and on October 18, 1982, its council adopted a new ordinance annexing the property in which the error was corrected to show that the subject property was in fact contiguous with Waukegan's boundaries. When Waukegan then sought to amend its answer to incorporate the new annexation ordinance and a plat of annexation, North Chicago objected and moved for judgment on the pleadings. The trial court denied the amendment and entered judgment in favor of North Chicago on the grounds that under the June 14, 1982 annexation ordinance no portion of the subject property was contiguous to the City of Waukegan as is required by statute. (Ill.Rev.Stat.1981, ch. 24, pars. 7-1-1, 7-1-8.) The judgment of ouster from which this appeal is taken was thereafter entered.

We consider first whether North Chicago has standing to bring an action under the quo warranto statute (Ill.Rev.Stat.1981, ch. 110, par. 18-101 et seq.) to challenge the purported annexation by the City of Waukegan of territory located within the corporate limits of the City of North Chicago.

Section 18-102 of the Act provides:

"The proceeding shall be brought in the name of the People of the State of Illinois by the Attorney General or State's Attorney of the proper county, either of his or her own accord or at the instance of any individual relator; or by any citizen having an interest in the question on his or her own relation, when he or she has requested the Attorney General and State's Attorney to bring the same, and the Attorney General and State's Attorney have refused or failed to do so, and when, after notice to the Attorney General and State's Attorney, and to the adverse party, of the intended application, leave has been granted by the circuit court." Ill.Rev.Stat.1981, ch. 110, par. 18-102.

It has been established that quo warranto is the proper remedy to test the validity of an annexation by a municipality. (See, e.g., People ex rel. Hanrahan v. Village of Wheeling (1976), 42 Ill.App.3d 825, 833, 1 Ill.Dec. 524, 356 N.E.2d 806, leave to appeal denied; People ex rel. Town of Richwoods v. City of Peoria (1967), 80 Ill.App.2d 359, 363, 225 N.E.2d 48.) It has also been determined that only the Attorney General or State's Attorney may apply for a writ of quo warranto in matters of purely public concern or interest and their discretion in such matters is absolute. (People ex rel. Turner v. Lewis (1982), 104 Ill.App.3d 75, 77-78, 59 Ill.Dec. 879, 432 N.E.2d 665; People ex rel. Freeport Fire Protection District v. City of Freeport (1980), 90 Ill.App.3d 112, 113, 45 Ill.Dec. 367, 412 N.E.2d 718; People ex rel. Brooks v. Village of Lisle (1974), 24 Ill.App.3d 432, 434, 321 N.E.2d 65.) In the present case the Attorney General declined to institute the action as it "appears to be primarily of local interest" and the State's Attorney also declined noting the dispute concerned the interests of the City of North Chicago and City of Waukegan and his refusal "will clear the way to enable you to file your own quo warranto action."

A citizen may not, however, institute a quo warranto proceeding in his own interest unless it has been shown that a private interest has been invaded and adversely affected by the action sought to be challenged. (People ex rel. Turner v. Lewis (1982), 104 Ill.App.3d 75, 77, 59 Ill.Dec. 879, 432 N.E.2d 665.) If a sufficient private interest is alleged, the fact that the wrong sought to be remedied may also have a public aspect would not be sufficient to require denial of a citizen's request to bring a quo warranto action. People ex rel. Brooks v. Village of Lisle (1974), 24 Ill.App.3d 432, 434, 321 N.E.2d 65; People ex rel. McCarthy v. Firek (1955), 5 Ill.2d 317, 323, 125 N.E.2d 637.

Waukegan relies primarily upon People ex rel. Brooks v. Village of Lisle to support its argument that North Chicago lacks standing to challenge by quo warranto the annexation of territory by Waukegan which is alleged to be within the corporate boundaries of North Chicago. That case must be distinguished, however, as there the court...