People ex rel. Dougherty v. City of Rock Island

• Decision Date: 03 February 1916
• Docket Number: No. 10361.,10361.
• Citation: 271 Ill. 412,111 N.E. 291
• Parties: PEOPLE ex rel. DOUGHERTY et al. v. CITY OF ROCK ISLAND.
• Court: Illinois Supreme Court

271 Ill. 412

111 N.E. 291

PEOPLE ex rel. DOUGHERTY et al.

v.CITY OF ROCK ISLAND.

No. 10361.

Supreme Court of Illinois.

Dec. 15, 1915.

Rehearing Denied Feb. 3, 1916.

Appeal from Circuit Court, Rock Island County; Wm. T. Church, Judge.

Quo warranto by the People, on relation of Mary J. Dougherty and others, against the City of Rock Island. Judgment for defendant, and relators appeal, and the defendant assigns cross-errors. Affirmed.

Cartwright and Dunn, JJ., dissenting.Floyd E. Thompson, State's Atty., of Rock Island (Searle & Marshall, of Rock Island, of counsel), for appellants.

John K. Scott, of Rock Island (Wm. McEniry, of Rock Island, of counsel), for appellee.

CRALG, J.

An information in the nature of quo warranto was filed June 30, 1915, in the circuit court of Rock Island county by the state's attorney of that county, on the relation of Mary J. Dougherty and 10 other citizens, residents and legal voters of Rock Island township, in that county, against the city of Rock Island, requiring it to show by what warrant it assumed jurisdiction over certain territory alleged to be included within its corporate limits by virtue of certain proceedings had for the annexation of the village of Sears, in that county, to the city of Rock Island. Process ordered issued, but was not served, as the city entered its voluntary appearance and filed three pleas in justification of its action. The relators filed a general and special demurrer to each plea, which the court sustained to the first and third pleas and overruled as to the second plea. The city elected to abide by its first and third pleas, and the relators by their demurrer to the second plea, and the court thereupon entered judgment in favor of the respondent and dismissed the information and entered judgment against the relators for costs. This appeal followed.

Appellants assign as error the overruling of the demurrer to the second plea, and appellee assigns as cross-error the sustaining of the demurrer to its first and third pleas. In view of the conclusions we have reached, it will be unnecessary to consider the cross-error assigned by appellee.

The pleas filed are voluminous, and we shall only set forth so much of the facts alleged in the second plea as is necessary to a proper understanding of the legal questions raised by the assignments of error and discussed in the briefs of the respective parties.

The second plea filed by respondent sets up that, prior to December, 1914, the city of Rock Island and the village of Sears, in Rock Island county, were separated by a narrow strip of land, which was quite thickly populated; that on December 14, 1914, a petition was filed with the president and board of trustees of the village of Sears, which alleged that it was signed by a majority of the legal voters who were a majority of the property owners in said territory; that the said territory was contiguous to the village of Sears and not embraced within its limits or the corporate limits of any other city or village, and prayed that the village take such action in the premises that such territory may be annexed to the village of Sears; that the village authorities passed an ordinance, reciting that said petition contained the signatures of a majority of the legal voters and property holders of said territory, and provided for a special election to be held on January 4, 1915, to vote upon the proposition of annexing said territory to said village; that such election was held, and resulted in the proposition being carried by a majority of all the legal votes cast at said election; that on January 6, 1915, the village of Sears, by its proper officers, adopted an ordinance declaring the territory annexed to the village, and ordered that the plat of such added territory be filed for record and recorded in the recorder's office of Rock Island county, which was done pursuant to law; that thereafter, on March 27, 1915, the city council of the city of Rock Island and the president and board of trustees of the village of Sears, each, by two-thirds vote of all of the duly elected and qualified aldermen and trustees of the respective municipalities, adopted an ordinance providing for the annexation of the village of Sears to the city of Rock Island, known as the ‘Union ordinance,’ which was submitted to the voters of the respective municipalities at the general election held on the third Tuesday in April, 1915, at which a majority of the legal votes cast in each of those municipalities were in favor of such ordinance and the annexation of the village of Sears to the city of Rock Island, and such further proceedings were subsequently had by the city council of Rock Island and the president and board of trustees of the village of Sears, respectively, that said village was declared duly annexed to the city of Rock Island.

[1][2] The validity of the annexation of the village of Sears to the city of Rock Island is questioned on several grounds. It is first insisted that the territory lying between these two municipalities was never legally annexed to the village of Sears, and that for this reason the attempted annexation of the village of Sears to the city of Rock Island was without authority of law, and its annexation illegal and void. The proceedings for the annexation of the territory in question to the village of Sears were attempted to be had under the provisions of section 1 of the act of 1872, as amended in 1913, entitled ‘An act to provide for annexing and excluding territory to and from cities, towns and villages and to unite cities, towns and villages,’ approved April 10, 1872, and in force July 1, 1872. Hurd's Stat. 1913, p. 321. It is admitted that this petition was not signed by a majority of the legal voters and by a majority of the property owners in the territory proposed to be annexed, as provided in that section, but appellee insists that this defect was remedied by the curative act passed by the Forty-Ninth General Assembly, approved June 4, 1915, entitled:

‘An act to legalize the annexation of any incorporated city, village or town, and the territory comprising such city, village or town, annexed to another incorporated city, village or town, under section 2 of an act entitled, ‘An act to provide for annexing and excluding territory to and from any village, city or town, and to unite cities, towns and villages, approved April 10, 1872, in force July 1, 1872.’

Said act consists of one section, and is as follows:

‘Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That whenever the inhabitants of any incorporated city, village or town, and the inhabitants of any other incorporated city, village or town, possessing all the legal qualifications therefor, having in good faith attempted to annex any incorporated city, village or town, and the territory comprising such city, village or town, to another incorporated city, village or town, under and in pursuance of section 2 of an act entitled, ‘An act to provide for annexing and excluding territory to and from cities, towns and villages, and to unite cities, towns and villages,’ approved April 10, 1872, in force July 1, 1872, and having complied with all the requirements of said section 2, although the said incorporated city, village or town so annexed may not be lawfully organized as such city, village or town, in part or in its entirety, by reason of defective prior annexation proceedings or otherwise, such incorporated city, village or town, and the territory comprising such city, village or town in its entirety is hereby declared to have been legally and validly annexed to the other incorporated city, village or town.' Laws of 1915, p. 258.

The appellants insist that this statute did not cure the defects in the annexation proceedings, for the reason that a petition signed by the requisite number of legal voters and property owners in the territory proposed to be annexed is essential to give the corporate authorities jurisdiction to act in the premises, and that without such a petition all proceedings had of that character are null and void and cannot be validated by a curative statute; that the Legislature is powerless to give validity to a void act by a curative statute. The power of the Legislature, by curative or remedial acts, to validate irregular or void proceedings of municipal corporations is well established by the authorities. Cooley, in his work on Constitutional Limitations (6th Ed. p. 457) states the rule as follows:

‘If the thing wanted or failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute; and if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by subsequent law.’

To the same effect are 7 Cyc. 765, Town of Fox v. Town of Kendall, 97 Ill. 72,Blake v. People, 109 Ill. 504, and Steger v. Traveling Men's Building Ass'n, 208 Ill. 236, 70 N. E. 236,100 Am. St. Rep. 225. The only limitation upon the power of the Legislature in this respect seems to be that the act ratified and confirmed must be one which it was lawful for the Legislature to authorize in the first instance, and that the power be so exercised as not to infringe or divest property rights and vested interests of persons which are secure against such legislative action. In Town of Fox v. Town of Kendall, supra, we held that the Legislature might cure defects in an illegal election held in a county to vote upon the question of township support of paupers. In that case the question was submitted to the voters of the county before the law providing for the submission of such question became a law, and it was held that...