People ex rel. O'Malley v. Village of Ford Heights

• Decision Date: 07 April 1994
• Docket Number: No. 1-93-0970,No. 1575,D,1575,1-93-0970
• Citation: 199 Ill.Dec. 52,261 Ill.App.3d 571,633 N.E.2d 848
• Parties: , 199 Ill.Dec. 52 The PEOPLE of the State of Illinois, ex rel. Jack O'MALLEY, State's Attorney of Cook County, Illinois, Plaintiffs-Appellees, v. VILLAGE OF FORD HEIGHTS, Donald P. Clarke, Leslie E. Clarke, Vincent Cainkar, Cathy Cainkar, and Standard Bank and Trust Company of Hickory Hills as Trustee Under Trustefendants-Appellees (Alma Paarlberg, Petitioner-Appellant).
• Court: United States Appellate Court of Illinois

Page 848

633 N.E.2d 848

261 Ill.App.3d 571, 199 Ill.Dec. 52

The PEOPLE of the State of Illinois, ex rel. Jack O'MALLEY State's Attorney of Cook County, Illinois Plaintiffs-Appellees, v. VILLAGE OF FORD HEIGHTS, Donald P. Clarke, Leslie E. Clarke Vincent Cainkar, Cathy Cainkar, and Standard Bank and Trust Company of Hickory Hills as Trustee Under Trust No. 1575 Defendants-Appellees (Alma Paarlberg, Petitioner-Appellant).

No. 1-93-0970.

Appellate Court of Illinois, First District, Fourth Division.

April 7, 1994.

Rehearing Denied May 4, 1994.

Russell T. Paarlberg and John R. Russell of Van Der AA, Lanting & Paarlberg, Ltd., Chicago, for appellant.

Jack O'Malley, State's Atty., Karen A. Covy, Deputy State's Atty. (Patricia M. Moser & Jayman A. Avery III, of counsel), for plaintiffs-appellees.

Vincent Cainkar of Louis F. Cainkar, Ltd., Burbank, for defendants-appellees.

Presiding Justice CAHILL delivered the opinion of the court:

We are asked in this appeal to consider the issues properly before the trial court in a quo warranto action after a local government has annexed property without objection. Here a resident of the annexed territory, Alma Paarlberg, filed a petition to intervene in a quo warranto action brought by the State's Attorney on behalf of Cook County against the Village of Ford Heights. She filed a five-count complaint in quo warranto with the petition. Two of the counts in her complaint attacked the validity of an earlier court order that authorized the Village to proceed with the annexation, and three counts addressed issues raised by the State's Attorney in his quo warranto complaint. By the time the trial court heard the petition, the Village and the State's Attorney had reached an agreement to dismiss the quo warranto action. The trial court determined that two of Paarlberg's counts were barred by the earlier annexation proceeding and the three remaining counts were moot as a result of the terms of the settlement between the State's Attorney and the Village. The court denied the petition to intervene, and Paarlberg appealed. We affirm.

A group of landowners filed a petition in Cook County circuit court in 1991 to annex unincorporated territory to the Village of Ford Heights under the Illinois Municipal Code (Ill.Rev.Stat.1989, ch. 24, par. 7-1-1 et seq.). Section 7-1-2 of the Code allows a majority of landowners and a majority of electors who reside in a territory to file a petition in the circuit court for annexation to an adjacent municipality. Notice of the petition is published, and a date set for a hearing. If the court finds the petition complies with the requirements of the Code, it refers the question of annexation to the corporate authorities of the municipality. Ill.Rev.Stat.1989, ch. 24, par. 7-1-2.

The defendant landowners alleged in their petition that they were a majority of landowners and electors residing in the territory to be annexed. They attached a legal description of the territory as an exhibit. Alma Paarlberg, also a landowner in the territory, did not sign the petition. Notice of the annexation petition with a legal description of the territory was published in a Chicago daily newspaper. No objections were filed. On October 24, 1991, the court found that the petition conformed to article 7 of the Municipal Code and ordered the question submitted to the corporate authorities of the Village. On November 20, 1991, the corporate authorities adopted an ordinance annexing the territory. The landowners then entered into an annexation agreement with the Village. On December 4, 1991, the corporate authorities adopted another ordinance approving the annexation agreement.

On May 7, 1992, the Cook County State's Attorney filed a complaint in quo warranto challenging the annexation and a clause in the annexation agreement that purported to exempt the territory from the environmental ordinances of Cook County. The court allowed the landowners to intervene as defendants.

On September 10, 1992, Paarlberg filed a petition to intervene as a plaintiff. Meanwhile, the State's Attorney and the defendants were negotiating a settlement.

On September 23, 1992, the court entered an agreed order dismissing the case with prejudice after the State's Attorney, the Village, and intervening defendants stipulated to a change in the annexation agreement that restored the environmental regulatory power of Cook County. Paarlberg's petition remained pending.

On February 16, 1993, the court, after argument, denied Paarlberg's petition to intervene and found no just cause to delay enforcement or appeal of its order.

Paarlberg argues that the trial court abused its discretion when it denied her petition to intervene.

Paarlberg requested leave to intervene as of right under section 2-408 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-408). She alleged she owned property annexed by the Village of Ford Heights and had an interest in the cause of action.

Under section 2-408(e), "[a] person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he or she proposes to file." (Ill.Rev.Stat.1989, ch. 110, par. 2-408(e).) Paarlberg did this, characterizing her complaint, as had the State's Attorney, as one in quo warranto. Quo warranto, once a common law writ issued out of chancery on behalf of the king to prevent officials from exercising a power beyond the scope of their office, is now a statutory remedy (Ill.Rev.Stat.1991, ch. 110, par. 18-101), but the thrust of the action retains its common law purpose. Here the State's Attorney, on behalf of Cook County, questioned the power of the Village to exempt property it had annexed from county environmental regulations. He also raised two issues that attacked the underlying annexation petition, but these were abandoned in the settlement agreement. Paarlberg's complaint mirrored that of the State's Attorney, but she pressed the argument raised by the State's Attorney in the abandoned counts.

In count I Paarlberg alleged the legal description of the annexed territory was defective. In count II she alleged a majority of landowners did not sign the annexation petition. These counts did not address a power beyond the scope of the Village authority, but attacked the validity of the underlying order that enabled the Village to annex the territory. That order was entered on October 24, 1991, after the court ruled the annexation petition was valid. The order was final and appealable. Ill.Rev.Stat.1989, ch. 24, par. 7-1-4.

Although quo warranto is the proper action to challenge annexation of territory by a municipal corporation (Edgewood Park No. 2 Homeowners Association v. Countryside Sanitary District (1969), 42 Ill.2d 241, 246 N.E.2d 294; People ex rel. Hanrahan v. Village of Wheeling (1976), 42 Ill.App.3d 825, 1 Ill.Dec. 524, 356 N.E.2d 806), it is not the proper action to challenge findings made in an earlier action after a hearing on a petition for annexation. Counts I and II of Paarlberg's complaint would have been proper challenges to the validity of the annexation petition in the proceeding that led to the court's order of October 24, 1991. (See In re Petition to Annex to City...