People ex rel. Magnuson v. Kramer

• Decision Date: 20 January 1961
• Docket Number: No. 35923,35923
• Citation: 21 Ill.2d 392,172 N.E.2d 757
• Parties: PEOPLE ex rel. Annette J. MAGNUSON, Appellant, v. Fred W. KRAMER et al., Appellees,
• Court: Illinois Supreme Court

Page 757

172 N.E.2d 757

21 Ill.2d 392

PEOPLE ex rel. Annette J. MAGNUSON, Appellant, v. Fred W. KRAMER et al., Appellees,

No. 35923.

Supreme Court of Illinois.

Jan. 20, 1961.

As Modified on Denial of Rehearing March 27, 1961.

McClory, Bairstow, Anderson & Lonchar, Waukegan (Robert McClory, and David K. Anderson, Waukegan, of counsel) for appellant.

Thomas A. Mattews, Byron S. Matthews, and King, Robin, Gale & Pillinger, Chicago (Willard L. King, and J. William Braithwaite, Chicago, of counsel), for appellees.

HOUSE, Justice.

Plaintiff was granted leave to file an action in quo warranto in the superior court of Cook County against the officers of the newly organized village of South Barrington questioning the officers' authority to act and challenging the legality of the incorporation and the existence of the village. Upon defendant's motion the trial court vacated the order granting plaintiff leave to file the action, and dismissed her complaint. The appeal is directed to this court because a franchise is involved.

The incorporation proceeding was brought under the provisions of section 3-5 of the Revised Cities and Villages Act (Ill.Rev.Stat.1957, chap. 24, par. 3-5) which provides:

'Whenever any area of contiguous territory, not exceeding two square miles, and not already included within the corporate limits of any municipality, and no part of which territory lies within one mile of the boundary line of any existing municipality unless the corporate authorities of such existing municipality consent to such incorporation, and has residing thereon at least 100 inhabitants living in immobile dwellings, it may be incorporated as a village as follows:

'Thirty-five electors residing within the area may file with the county clerk of the county in which such area is situated a petition addressed to the judge of the county court.

'The petition shall set forth (1) a definite description of the lands intended to be embraced in the proposed village, (2) the number of inhabitants residing therein, (3) the name of the proposed village, and (4) a prayer that a question be submitted to the electors residing within the limits of the proposed village whether they will incorporate as a village under this Act.'

The petition for incorporation was addressed to the county judge of Cook County and was signed by 48 electors. It contained a description of the territory, a statement that more than 100 inhabitants resided therein, the name of the proposed village, and a prayer that the question of incorporation be submitted to the electors. The petition conformed in all respects with the requirements of the third paragraph of section 3-5 except that it did not recite the exact number of inhabitants. There is no merit in the suggestion in the reply brief that the exact number must be given. The recital that more than 100 lived in the territory sufficiently complies with the statute.

Plaintiff contends that the petition was insufficient to give jurisdiction to the county court of Cook County, in that it should have included the factual requirements of the section; i. e. an allegation that at least 100 of the inhabitants live in immobile dwellings, and a statement negating the existence of other municipalities within one mile, or alleging their consent.

An examination of section 3-5 leads to the conclusion that the first paragraph sets forth factual requirements, but all that is required to sustain the jurisdiction of the court to entertain the petition are the statements which the statute specifically requires. Hook v. Wright...