People ex rel. Montgomery v. Lierman

• Decision Date: 23 March 1953
• Docket Number: No. 32557,32557
• Citation: 112 N.E.2d 149,415 Ill. 32
• Parties: PEOPLE ex rel. MONTGOMERY et al. v. LIERMAN.
• Court: Illinois Supreme Court

Page 149

112 N.E.2d 149

415 Ill. 32

PEOPLE ex rel. MONTGOMERY et al. v. LIERMAN.

No. 32557.

Supreme Court of Illinois.

March 23, 1953.

Rehearing Denied May 18, 1953.

Donald D. Richmond, Champaign, and W. Lee Summers, Urbana, for appellants.

John J. Bresee, State's Atty., W. C. Noel, Gene D. Weisiger, John H. Finfrock, and Oris Barth, Urbana (Henry I. Green, Chancy L. Finfrock, Winkelmann & Winkelmann, J. M. Mitchem, W. A. Nichols, Glen A. Chapman and Olin L. Browder, Urbana, and Roy R. Cline, Champaign, of counsel), for appellee.

HERSHEY, Justice.

This is an appeal from the judgment of the circuit court of Champaign County denying appellants' petition for a writ of mandamus directed to the county judge of that county, commanding him to call an election in the cities of Champaign and Urbana to vote on the proposition of merging those two cities. The validity of article 6 of the Revised Cities and Villages Act relating to the union of contiguous municipalities, Ill.Rev.Stat.1951, chap. 24, par. 6-1 et seq., being in issue, the appeal is taken directly to this court.

On December 27, 1951, there was presented to appellee, Eugene P. Lierman, county judge of Champaign County, a petition, signed by more than 250 electors of the city of Champaign and by more than 250 electors of the city of Urbana, both of said cities being located in the county of Champaign, requesting him to call a special election pursuant to chapter 24 of the Illinois Revised Statutes. The question to be submitted to the voters of said cities at the proposed election was: 'Shall the City of Urbana and the City of Champaign be united into a single municipality under the name of Champaign-Urbana, with the Aldermanic form of municipal government?' Appellee set the petition for hearing. Objections to the petition were filed by the city attorney of Urbana and others. Hearing was had and the matter taken under advisement. Thereafter appellee issued a written decision refusing to call the election because of his opinion that article 6 of the Revised Cities and Villages Act was unconstitutional.

On March 18, 1952, appellants filed in the circuit court of Champaign County a verified petition for a writ of mandamus, directed to appellee, as county judge of said county, commanding him without delay to call a special election as requested in said petition, and to submit to the electors of the cities of Champaign and Urbana the question of uniting these two cities into one municipality. Appellee filed an unverified answer signed by himself and fifteen attorneys. Attached to the answer, as 'Exhibit A,' was a copy of the opinion which he rendered as county judge, declaring that sections 1, 6, 7, 9, 22, 25, and 27 of article 6 of the Revised Cities and Villages Act are probably unconstitutional. He filed another unverified answer, signed by himself and by the State's Attorney of Champaign County, in which he said the appellants were not entitled to the writ of mandamus or to any other relief. Appellants moved to strike these answers because they were not verified. Thereupon appellee filed a countermotion requesting that verification of his answers be excused. Appellants then filed their reply. Upon a hearing before the court without a jury, the petition for writ of mandamus was denied.

The reasons given by the trial judge for his decision were (1) that the cities of Champaign and Urbana are not contiguous, within the meaning of the law, and (2) that the act is vague, indefinite and uncertain, and therefore unconstitutional. Among the points upon which the court based its determination of unconstitutionality, and/or which are urged by appellee on review are (1) that the act is indefinite and uncertain in meaning and application; (2) there is no provision for the creation of wards in the united cities; (3) the act fails to provide for a primary election; (4) the taxing powers of the community would be disrupted by the merger; (5) the act attempts to amend various other statutes and acts of the legislature; and (6) it provides for unlawful classification.

The contention that the two cities are not contiguous seems to be based upon our decision in the case of Village of Morgan Park v. City of Chicago, 255 Ill. 190, 99 N.E. 388. The map introduced in evidence shows that the cities of Champaign and Urbana are divided by a line running due north and south. The boundaries are contiguous throughout except near the south end, where, at the north boundary line of Mt. Hope Cemetery, the Urbana corporation line turns east and the Champaign corporation line turns west. The Urbana corporation line follows the north boundary line of Mt. Hope Cemetery and the east boundary line thereof to the southeast corner of the cemetery. The corporation line then turns west, and runs along the south boundary line of the cemetery to a point directly south of where it turned east on the north boundary line of the cemetery. The Champaign corporation line comes around the cemetery the other way, and the corporation lines meet again on the south boundary line of the cemetery, and from that point the common boundary line between the two cities extends south to the south boundary line of those cities, where the Champaign boundary line extends west and the Urbana boundary line extends east. Within the area enclosed with Mt. Hope Cemetery and at the westerly end thereof is another cemetery, called Roselawn Cemetery, and immediately north of Roselawn Cemetery, and within the enclosed area, are some horse barns belonging to University of Illinois, the grounds of which are immediately adjacent on the north. The record does not show the reason for excluding this small tract of land, which is about 870 feet from north to south and about 2200 feet from east to west, but the situation is not comparable to what it was in the Morgan Park case. In that case the annexation enclosed some 200 acres of unincorporated land called 'no man's land.' The annexation was denied because, the court states, 'A city could not be organized as the city of Chicago would be with the village of Morgan Park annexed to it, having unorganized or unincorporated territory within its boundaries and entirely surrounded by it.' There the boundary lines of the village and the city were not the same for a distance of one and three-quarters miles. The court furtehr stated that a city could not be organized that way and it was not intended by the General Assembly taht the same result should be accomplished by a change of boundaries, constituting to that extent an amendment of its charter. Here only about 40 acres are enclosed by the boundaries of the two cities which are not common for only a distance of about 870 feet. It cannot be said that the cities of Champaign and Urbana are not contiguous because each city looped its boundary lines in an opposite direction around this cemetery tract, where nobody lives, or is likely to live, and no enterprise is carried on, and the small tract occupied by horse barns belongs to the University of Illinois, where their boundaries are contiguous throughout the remainder of their length, both north and south of this small tract. In giving effect to the word 'contiguous' no strained, strict or unusual definition should be applied, but practical and common sense should prevail by adopting the sense best harmonizing with the context and promoting the apparent policy and objects of the legislature in the light of the general purposes of the act. People ex rel. Singer v. Illinois Central Railroad Co., 373 Ill. 523, 26 N.E.2d 840. The court's holding that the cities of Champaign and Urbana are not contiguous is obviously a strained, unnatural construction, wholly out of harmony with the facts as they exist in this situation. Error is manifest in such determination.

Appellants further contend that the merger provisions of the act are unconstitutional. The cities of Champaign and Urbana are creatures of the legislature with no vested rights as such. Legislation enabling the electors of those cities to unite or to change their boundaries is not per se unconstitutional. In holding valid the annexation of the city of Lake View to the city of Chicago we said, 'Our constitution contains no restriction as to the organization of cities, towns, and villages or the changing and amending or repeal of their charters, and consequently no restriction in respect to uniting or dividing (cities, towns and villages) or annulling (their charters), save only that it cannot be by local or special law, but must be by a general law; and it is familiar law that, in the absence of constitutional restriction, the legislature may provide for the organizing, uniting, dividing, or annulling such corporations, in such manner as it shall deem best to promote the public welfare.' True v. Davis, 133 Ill. 522, 22 N.E. 410, 6 L.R.A. 266.

Much is said by respondent about the merger provisions of the act being incomplete, vague and uncertain, but we do not think these objections are well founded. Article 6 of the Revised Cities and Villages Act is entitled 'Union of Contiguous Municipalities.' Section 6-1 provides that any two or more incorporated contiguous municipalities situated in a single county may be united into one incorporated city by a compliance with sections 7-13 and 7-14, save that the petition shall be signed by electors of each of the municipalities, shall state the name by which the united municipality is to be known, and shall state the form of municipal government under which it is to operate. Paragraph (2) of section 6-1 gives the form of the ballot, and the form of the ballot set forth in the petition filed in the county court of Champaign County in the instant case complies with the statutory form. Section 7-13 provides that the petition shall be presented to the county judge, that the county judge shall thereupon submit the question to the electors of both municipalities, either at a regular municipal...