People ex rel. Johnson v. City of Waukegan

• Decision Date: 06 February 1976
• Docket Number: No. 74--293,74--293
• Parties: PEOPLE of the State of Illinois ex rel. Clifford JOHNSON and Paul Samburg, Plaintiffs-Appellants, v. CITY OF WAUKEGAN, a Municipal Corporation, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 480

342 N.E.2d 480

35 Ill.App.3d 713

PEOPLE of the State of Illinois ex rel. Clifford JOHNSON and

Paul Samburg, Plaintiffs-Appellants, v. CITY OF WAUKEGAN, a Municipal Corporation, et al.,

Defendants-Appellees.

No. 74--293.

Appellate Court of Illinois, Second District, Second Division.

Feb. 6, 1976.

Howard R. Slater, Paul E. Slater, Chicago, for plaintiffs-appellants.

John F. Grady, Waukegan, for Chicago Title & Trust Co.

John E. Schultz, Waukegan, for City of Waukegan.

Jack Hoogasian, State's Atty., Waukegan, amicus curiae.

Sidley & Austin, Chicago, for Telegraph-120 Corp.; Lakehurst Properties, Inc.; Carson Intern., Inc.; Carson, Pirie Scott & Co.; Wieboldt Stores, Inc.

Snyder, Clarke, Dalziel, Holmquist & Johnson, Waukegan, for First Nat. Bank of Chicago.

Jenner & Block, Chicago, for Corporate Property Investors; Teachers Ins. & Annuity Assoc. of America.

Pedersen & Houpt, Chicago, for LaSalle Nat. Bank; Chicago Title & Trust Co.; Lakehurst Development Co.

Donald M. Lonchar, Jr., Lonchar & Nordigian, Waukegan, for Norinco of Ill., Inc., an Ill. corp DIXON, Justice:

The petitioners in September 1973 filed a petition in the Circuit Court of Lake County seeking leave of court to file a Petition in Quo Warranto in order to challenge the right of the City of Waukegan to exercise jurisdiction over land involved in the annexation of certain territory containing the Lakehurst Shopping Center. Respondents moved to dismiss on the grounds that any action was barred by limitations and laches and that petitioners lacked standing. The trial court denied leave to file and petitioners appeal.

On August 4, 1969, the City of Waukegan passed on Ordinance, by virtue of which it purported to annex certain lands lying west of the City limits. The annexation was divided into seven parcels of land each of which is fully described in the ordinance. The second parcel of land described had previously been claimed under a 1961 Ordinance by the City of Park Ciyt. On Sept. 19, 1968, Park City passed an Ordinance which purported to disconnect this parcel of land.

The land described in Parcel 2 of Waukegan's annexation (and Park City's disconnection) includes a portion of the land underlying U.S. Highway Route 41; specifically, that portion of Route 41 lying south of Belvidere Road to the center line of 14th Street. This piece of land was the subject of an annexation by the City of North Chicago on January 20, 1958. The North Chicago annexation was attacked by the State's Attorney of Lake County in a Quo Warranto proceeding. That case was dismissed for want of prosecution on January 31, 1961, before any asserted claim by either Park City of Waukegan to the land herein in question.

Chronologically re-stated:

Jan. 20, 1958 North Chicago annexes stretch of U.S. 41,

Jan. 31, 1961 Quo Warranto dismissed,

Oct. 9, 1961 Park City annexes same,

Sept. 19, 1968 Park City disconnects,

Aug. 4, 1969 Waukegan annexes same.

None of the other six parcels of land which Waukegan purported to annex on August 4, 1969 are contiguous to Waukegan unless the annexation of the relevant portion of U.S. Route 41 is valid. If that annexation is not valid, then parcels 1, 3, 4, 5, 6 and 7 lack contiguity with Waukegan and cannot be annexed by Waukegan.

The Petitioners herein are residents of Lake Bluff and Libertyville, landowners and taxpayers of Lake County but not of any of the municipalities involved. On August 20, 1973 they requested Attorney General Scott and State's Attorney Hoogasian to attack the Waukegan annexation by a Quo Warranto proceeding. Both refused. The Petitioners thereafter filed their Petition for leave of Court to file a Petition in Quo Warranto in order to challenge the annexation by Waukegan.

The Petitioners alleged that the annexation by Waukegan was invalid in multiple respects and that Waukegan was, therefore, unlawfully asserting jurisdiction over the land involved. Specifically, they alleged invalidity on the grounds that:

1. Parcel 2 of the annexation was within the municipality of North Chicago and, therefore, could not be annexed by either Park City or Waukegan due to Illinois Revised Statutes, 1961, as amended, Chapter 24, sec. 7--1--1.

2. In any event Park City did not properly annex the land in that the requirements of Illinois Revised Statutes, Chapter 24, sec. 7--1--2 were not met. There was no showing whatsoever that Park City had obtained the consent of the governing authority of the Department of Public Works and Buildings with regard to a highway annexation.

3. Even if Park City did properly annex the land, it did not properly disconnect it in that owners of land and electors of the territory never petitioned for disconnection nor formally evidenced their desire to be disconnected from Park City as is required by Illinois Revised Statutes, Chapter 24, sec. 7--1--24.

4. Even if Park City did properly annex and disconnect the land, the annexation by Waukegan was defective in that it did not adhere to the applicable Illinois Statutes in the following respects:

a) That the land involved in the annexation of Parcel 2 was in excess of ten (10) acres and was owned by the 1st National Bank of Chicago as Trustee (the state has a perpetual easement of highway purposes) the consent of which was never obtained rendering the annexation violative of Illinois Revised Statutes, 1969, Chapter 24, sec. 7--1--2.

b) That the annexation was not requested by the Petition of residents and landowners of Parcel 2 nor was it consented to by a vote of the electors residing in Parcel 2, thereby violating Illinois Revised Statutes, 1961, as amended 1965, Chapter 24, sec. 7--1--2.

c) That in any event, Waukegan could not annex that which was already part of the City of North Chicago, pursuant to Illinois Revised Statutes, 1961, as amended, Chapter 24, sec. 7--1--1.

5. That for all of the foregoing reasons Parcel 2 was never properly annexed to Waukegan and that the annexation of Parcels 1, 3, 4, 5, 6 and 7 are, therefore, without contiguity with Waukegan, and as a result, Illinois Revised Statutes, 1961, as amended, Chapter 24, sec. 7--1--1 voids the Waukegan annexation.

Finally, Petitioners alleged that Waukegan is currently collecting Municipal Retailer's Occupation taxes from enterprises located within the territories which Waukegan purports to have annexed. If these enterprises are deemed not to be within Waukegan, then these taxes would be paid to the County of Lake. This additional tax revenue would either lower the real estate taxes which the Petitioners would pay or in the alternative make it possible for the County to render better and more services to them while keeping their taxes at the same level.

The prize (i.e., Sales Tax receipts) is about $800,000.00 a year.

The statute of limitations with reference to contesting annexations, as set forth in the Cities and Villages Act (Ill.Rev.Stat.1973, ch. 24, par. 7--1--46) states:

'Neither the People of the State of Illinois nor any person, firm or corporation, public or private, nor any association of persons shall commence an action contesting either directly or indirectly the annexation of any territory to a municipality unless initiated within one year after the date such annexation becomes final or within one year of the effective date of this amendatory Act of 1965 whichever date occurs latest. This amendatory Act of 1965 shall apply to annexations made prior to the effective date of the Act as well as those made on or after the effective date. Where a limitation of a shorter period is prescribed by statute such shorter limitation applies and the limitation set forth in this section shall not apply to any annexation where the judge, body or officer annexing the territory did not at the time of such annexation have jurisdiction of the subject matter.

Plaintiffs argue that the one year limitations contained in the above act does not apply to this case, because the City of Waukegan lacked jurisdiction to annex the territory in question. They base their argument upon the proviso in the statute that: 'the limitation set forth in this section shall not apply where the judge, body or officer annexing the territory did not at the time of the annexation have jurisdiction of the subject matter.'

The Court in People ex rel Des Plaines v. Village of Mt. Prospect, 29 Ill.App.3d 807, 331 N.E.2d 373, 378, construing the statute stated, '* * * we are of the opinion that the legislature intended that an annexation ordinance should be voidable within one year of the date it becomes final. Should an annexing municipality be challenged in quo warranto within the one year period, it would have the affirmative burden of proving that all the elements of its annexation were proper, unless the absent element contained a minor directory matter which is not required for a valid annexation. * * * If the annexation ordinance should be attacked in quo warranto after the one year period elapses, the only matter which could be raised would be that the ordinance was void ab initio for want of subject matter jurisdiction.'

In the instant case if the City of North Chicago has no territorial jurisdiction of the portion of U.S....