People ex rel. Vill. of Hinsdale v. Bd. of Sup'rs of Du Page Cnty.

• Citation: 33 N.E.2d 761,309 Ill.App. 609
• Decision Date: 12 April 1941
• Docket Number: Gen. No. 9577.
• Parties: PEOPLE EX REL. VILLAGE OF HINSDALE v. BOARD OF SUP'RS OF DU PAGE COUNTY ET AL.
• Court: United States Appellate Court of Illinois

309 Ill.App. 609

33 N.E.2d 761

PEOPLE EX REL. VILLAGE OF HINSDALE

v.BOARD OF SUP'RS OF DU PAGE COUNTY ET AL.

Gen. No. 9577.

Appellate Court of Illinois, Second District.

April 12, 1941.

Appeal from Circuit Court, Du Page County; Wm. J. Fulton, Judge.

Proceeding by the People of the State of Illinois, on the relation of the Village of Hinsdale, for a writ of mandamus to compel the Board of Supervisors of Du Page County, Ill., to consider and act upon a resolution of the Village of Hinsdale requesting that portion of the territory of the village be organized into a town. From a judgment of dismissal, the relator appeals.

Affirmed.

Malcolm Mecartney, of Chicago, for appellant.

Bunge & Bunge, of Downers Grove, Russell W. Keeney, of Wheaton, Joel Baker, of Glen Ellyn, Wm. E. Hooper, of Downers Grove, and Thos. H. Price, of Elmhurst, for appellees.

DOVE, Justice.

The Village of Hinsdale filed its petition in the circuit court of Du Page County for a writ of mandamus seeking to compel the board of supervisors of that county to consider and act upon a resolution of the Village of Hinsdale requesting the county board to provide that the portion of the territory of the village located in Du Page County be organized into a town under the provisions of the Township Act of May 23, 1877, as amended. Ill.Rev.Stat.1939, Chap. 139, par. 127 et seq. On motion of the county board and the town of Downers Grove, in which the territory is situated, the petition and the cause were dismissed. This appeal is from the judgment of dismissal.

Prior to the year 1917 the village was located wholly in Downers Grove township. In that year certain territory in Lyons township in Cook County was annexed to and remains a part of the village. The territory of the village in Du Page County has a population in excess of seven thousand, and constitutes approximately five-sixths of the village area. That part of the village in Cook County has a population of less than five hundred inhabitants.

Upon presentation of the request of the village, the county board passed a resolution reciting that whereas the village is situated partly in Du Page County, and partly in Cook County, and “Whereas, it appears to the county board that it has no legal authority to consider said request or to organize as a township said territory embraced within the village of Hinsdale in said Du Page County; Be it resolved by the county board of Du Page County that said request of the village of Hinsdale as contained in said resolution be not considered by this board and that no action be taken thereon, for the reason that this board has no legal authority to consider such request or to organize a town pursuant thereto.”

Appellant's claims are predicated upon section 1 of the act mentioned, the invoked portion of which provides: “That the county board, in any county under township organization, may provide that the territory embraced within any city in such county shall be organized as a town; provided, such territory shall have a population of not less than three thousand; and provided, the city council in such city shall, by resolution, request such action by the county board.” The word “city” as used in the statute includes an incorporated village. People v. Grover, 258 Ill. 124, 101 N.E. 216, Ann.Cas.1914B, 212.

Appellant concedes that under this section the entire territory of the village located in both counties could not be organized as a single town, but contends that the section means that village territory with the required population lying in one county may be so organized, even though other territory of the village lies within another county; and that otherwise the statute would be unconstitutional as special legislation. Appellees claim the section contemplates that only an entire city or village may be so organized, which is impossible where the village lies in two counties, and that the statute does not offend the constitutional provision mentioned. It is a fundamental rule of statutory construction that in determining the meaning of a particular section or part of a statute and the intent of the General Assembly, the whole of the act and all acts in pari materia are to be taken into consideration. People ex rel. English v. Atchison, Topeka & Santa Fe Railway Co., 370 Ill. 420, 19 N.E.2d 170;People v. Clampitt, 362 Ill. 534, 200 N.E. 332.

Section 20 of the original act of 1874 for the organization of the territory of a city into a township provided: “When, in any county under township organization, there is any territory co-extensive with the limits of a city situated therein, and which is not included within any organized town, such territory shall constitute a town by the name of such city, and all the provisions of this act shall apply to the town so constituted, the same as if it had been organized in the manner provided in this act in the case of the organization of new towns.” Smith-Hurd Stats. c. 139, § 19.

In 1877 the General Assembly enacted the statute here in controversy. Section 1 is quoted above. Section 2 of the act provides: “The territory of any city now organized, within the limits of any county under township organization, and not situated within any town, shall be deemed to be a town.” This is in effect, the same as the original act of 1874. The obvious distinction between section 1 and section 2 of the act of 1877 is that section 2 applies to only such cities as are not situated within any town, while section 1 applies to cities within an organized town.

In People v. Brayton, 94 Ill. 341, it was held that section 1 was intended to supply a supposed omission in the statute, and the court said in the course of the opinion: “Section 1 of the act of 1877 authorizes the county board to organize a town from territory composed of a city when the city has a population of not less than 3000 inhabitants. * * * In other words, where a town organized under the township organization law contained within its limits a city with a population of not less than three thousand inhabitants, the county board was authorized to establish a town out of the territory embraced within the city.”

[5] The Brayton case, supra, was followed in People v. Hazelwood, 116 Ill. 319, 6 N.E. 480, wherein the language used in the Brayton case was repeated, and the court held that the only instance in which the words employed in section 1 can have their full meaning is where the limits of the city and the township are co-extensive. That this is the logical and true construction of the meaning of section 1 and the legislative intent is further evidenced by the terms of a third proviso to the...