People ex rel. Hopf v. Village of Bensenville

• Decision Date: 26 July 1971
• Docket Number: Gen. No. 70--222
• Citation: 272 N.E.2d 50,132 Ill.App.2d 907
• Parties: PEOPLE of the State of Illinois ex rel. William V. HOPF, State's Attorney in and for the County of Du Page, Plaintiff-Appellee, v. VILLAGE OF BENSENVILLE, a Municipal Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 50

272 N.E.2d 50

132 Ill.App.2d 907

PEOPLE of the State of Illinois ex rel. William V. HOPF State's Attorney in and for the County of Du Page Plaintiff-Appellee, v. VILLAGE OF BENSENVILLE, a Municipal Corporation, Defendant-Appellant.

Gen. No. 70--222.

Appellate Court of Illinois, Second District.

July 26, 1971.

Stephen J. Nagy, Tenney, Bentley, Howell, Askow & Lewis, Chicago, for defendant-appellant.

William V. Hopf, State's Atty., Wheaton, M. S. Howard, Sp. Asst. State's Atty., Chicago, for plaintiff-appellee.

GUILD, Justice.

This appeal arises from a quo warranto action brought against the Village of Bensenville, calling upon it to show by what authority, right or warrant the Village of Bensenville purported to hold and exercise jurisdiction over certain land. Judgment was entered on July 17, 1970, when the trial court struck the Village's answer and amendments thereto and ordered the land disconnected from the Village. No questions are raised on the pleadings.

The parties agree that the issue presented for review is whether the notice and recording requirements of the Illinois Municipal Code, Ill.Rev.Stat. (1969) Chapter 24, Sec. 7--1--1, pertaining to annexation of territory by a municipality are mandatory statutory requirements.

The case was determined upon a stipulation of facts which are not in dispute. Owners of the territory did sign a preannexation agreement with defendant; a petition for annexation directed to the President and Board of Trustees of the Village was signed and presented; notice of public hearing was published; a public hearing was held; an ordinance of annexation was adopted at a regular meeting of the Trustees; various notices were given, and the ordinance was recorded. The Trustees of the Fire Protection District and of the Public Library District, however, were not notified in writing prior to adoption of the ordinance. It appears the public hearing was had on the proposed annexation on December 12, 1969. Subsequently, on January 2nd, 1970, the Village adopted the ordinance of annexation of the territory in question. Not until January 28, 1970, did the Village notify by registered or certified mail the Trustees of the Public Libary District, and not until May 18, 1970, did the Village notify by registered mail the Trustees of the Fire Protection District. These notices obviously demonstrate an intent by the Village to comply with the statutory notice requirement.

It appears to be the position of the Village that since there was advance public notice; that since certain officials of the Fire Department were notified in advance of the action of the Trustees of the Village; that since the Trustees of the Fire Protection District and the Public Library District were finally notified in the manner prescribed in the Statute so far as writing and mailing was concerned, but not so far as time was concerned; and since no complaint was made that anyone was seriously prejudiced; there really was substantial compliance within the protective intent of the statute. The Village urges, therefore, that the decision of the Circuit Court be reversed, with directions that the Village's answer and amendments be reinstated and the State's complaint for quo warranto be dismissed.

The statute involved specifically states in pertinent part:

'Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article.

When any land proposed to be annexed is part of any Fire Protection District or of any Public Library District, the Trustees of each District Shall be notified In writing by certified or registered mail Before any court hearing or Other action is taken for annexation. Such notice Shall be served 10 days in Advance. An affidavit that service of notice has been had as provided by this Section Must be filed with the clerk of the court in which such annexation proceedings are pending or will be instituted or, when no court proceedings are involved, with the recorder of deeds for the county where such land is situated. No annexation of such land is effective Unless service is had and the affidavit filed As provided in this Section.' * * * (Emphasis supplied) Ill.Rev.Stat. (1969) Chap. 24, Sec. 7--1--1

It is clear that service was not had as provided in the statute. The Village contends the language is not mandatory, but is intended merely to guide the manner in which corporate authorities of an annexing municipality may proceed in order to protect the rights of Fire Protection and Public Library Districts affected by the annexation. The Village further contends that the manner prescribed need not be followed if rights are otherwise protected and no harm proven.

Prior to 1965 the...