People v. Heizer
| Decision Date | 13 May 1966 |
| Docket Number | Gen. No. 65--29 |
| Citation | 218 N.E.2d 11,71 Ill.App.2d 6 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Donald HEIZER, Vernon Braun, and Lloyd Brown, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Howard Clotfelter, Chester, Sprague, Bock & Norton, Belleville, Conn & Clendenin, Sprata, for appellant.
Atchison & Koeneman, Chester, for appellees.
This is an appeal from an order of the Circuit Court of Randolph County, Illinois, rendering judgment against the plaintiff on its complaint in quo warranto, alleging that the defendants were usurping the office of trustees of a purported public fire protection district known as the Prairie Du Rocher Fire Protection District.
Plaintiff alleges that the district has no legal existence and the defendants justify their trusteeships by denying the plaintiff's claims and asserting the valid organization of the district.
The Illinois Legislature provided for the organization of such fire districts in Chapter 127 1/2, Section 21, of the Illinois Revised Statutes. The statute is as follows:
'Whenever any territory is (1) an area of contiguous territory in a county, or in more than one but in not more than 5 counties; (2) so situated that the destruction by fire of the buildings and other property therein is hazardous to the lives and property of the public; (3) so situated that the acquisition, establishment, maintenance and operation of a fire station or stations, facilities, vehicles apparatus and equipment for the prevention and control of fire therein will conduce to the promotion and protection of the health, safety, welfare and convenience of the public; (4) so situated that it does not divide any city, village or incorporated town; (5) so situated that such territory contains no territory included in any other fire district, the same may be incorporated as a fire protection district. Such districts may be incorporated under this Act in the manner following:
Fifty or more of the legal voters resident within the limits of such proposed district, or a majority thereof if less than 100, may petition the county court of the county which contains all or the largest portion of the proposed district to cause the question to be submitted to the legal voters of such proposed district, whether such proposed territory shall be organized as a fire protection district under this Act; such petition shall be addressed to said county court and shall contain a definite description of the boundaries of the territory to be embraced in the proposed district, and the name of such proposed district and shall allege facts in support of such organization and incorporation.
Upon filing any such petition in the office of the county clerk of the county in which such petition is made, it shall be the duty of the county court to fix a time and place for a hearing upon the subject of the petition.
Notice shall be given by the county court to whom the petition is addressed, or by the county clerk or sheriff of the county in which such petition is made at the order and direction of the county court, of the time and place of the hearing upon the subject of the petition at least 20 days prior thereto by one publication thereof in one or more daily or weekly papers published within the proposed fire protection district (or if no daily or weekly newspaper is published within such proposed fire protection district, then either by one publication thereof in any newspaper of general circulation within said territory or by posting at least 10 copies of such notice in such district at least 20 days before such hearing in conspicuous places as far separated from each other as consistently possible), and by mailing a copy of such notice to the mayor or president of the board of trustees of all cities, villages and incorporated towns within such proposed fire protection district'.
A petition was filed, a hearing held, and an election conducted. The plaintiff challenges the organization on several points.
The description of the district is first challenged as inadequate in that the proposed boundaries failed to completely enclose the lands of the proposed district. The description reads:
'Thence Southerly along the west bank of the Kaskaskia River to the point where the Kaskaskia intersects the Mississippi River; thence Northwesterly along the low water mark of the east bank of the Mississippi River to the point of beginning.'
Plaintiff introduced evidence that between the west bank of the Kaskaskia and the low water mark of the Mississippi there was a 75 to 100 yard gap in the boundaries. Several persons familiar with this area testified that the west bank of the Kaskaskia and the low water mark of the Mississippi's east bank do not interest. The bank is distinguished from the low water mark or the water's edge; a bank is a ridge of land or acclivity which borders the water course. Marion L. Wills, a qualified surveyor, testified on behalf of the defendant that he would be able to survey the area and locate all its boundaries by interpreting the description as a whole.
Where the area to be incorporated and the boundary lines enclosing it are readily ascertainable by a reading of the whole description, the petition is sufficient to confer jurisdiction upon the county court even though the boundary lines described in the petition are erroneous because they fail to enclose the area sought to be incorporated. Descriptions of municipal boundaries are not construed with the same strictness as are those contained in deeds and contracts, and if the description in a petition to incorporate fairly apprises the public of the property involved, it will be considered sufficient. The law is well settled that boundaries give way to intention when the intention can be known. People ex rel. Barrett v. Anderson, 398 Ill. 480, 76 N.E.2d 773; People ex rel. Magnuson v. Kramer, 21 Ill.2d 392, 172 N.E.2d 757; People ex rel. Village of Worth v. Ihde, 23 Ill.2d 63, 177 N.E.2d 313 and People v. Knapp, 28 Ill.2d 239, 190 N.E.2d 774.
Therefore, assuming that the present boundary description is erroneous because it does not completely enclose the proposed district, plaintiff could still not prevail as a reading of the whole description would fairly apprise the public of the property involved. If there were a gap, it would be a sand bar of variable width. It is obvious that it was intended that the district was to be bounded by the Kaskaskia and Mississippi Rivers at the disputed location. Since it may readily be seen what lands were intended to be comprised within the boundaries of the proposed district and since the area in which the corporation has power is clear, the description of the Prairie Du Rocher Fire District is adequate.
The words, 'shall contain a definite description of the boundaries of the territory to be embraced in the proposed district', must be read in context with the legislative purpose of the Act which is 'for the prevention and control of fire therein.' Therefore, since the territory of the proposed district is contiguous, since it does not contain territory previously included in another fire district, and since the boundaries are so located as to effectuate the objective of the Act, namely the prevention and control of fires therein, it is a 'definite description of the boundaries' within the meaning of the statute. People ex rel. Armstrong v. Huggins, 407 Ill. 157, 94 N.E.2d 863.
The plaintiff's second challenge to the district's legal existence is that the description of the district includes land situated in the State of Missouri, to wit: land commonly known as Turkey Island. Defendants admit this allegation by stipulation but deny that this has any effect on the legal existence of the district. 1
Appellants urge that the petition in this class of case is jurisdictional; and, when it contains lands not properly includable, it is fatally defective. People ex rel. Cadwell v. McDonald, 208 Ill. 638, 70 N.E. 646. In this case a petition was defective because it failed to meet the statutory requirement that the petition include all lands to be benefited by the new ditch. The principal and key failing, therefore, was not an inclusion of lands not properly includable, but an exclusion of lands which specifically could not be excluded.
In People ex rel. Goldsbery v. Zoller, 337 Ill. 362, 169 N.E. 228, the court decided that the petition was defective because it included lands not properly includable After it had found the petition defective for want of proper notice. The court in deciding what it did not have to, relied upon Soldier Creek Drainage and Sanitary District v. Illinois Central Railroad Co., 323 Ill. 350, 154 N.E. 153, which is also cited in People ex rel. Fitton v. Ehler. 338 Ill. 67, 170 N.E. 1. An examination of Soldier Creek Drainage and Sanitary District v. Illinois Central Railroad Co., supra, shows that here also the court decided that a petition which included land not properly includable was defective after deciding it was already defective for other reasons. This case, in deciding what it need not have, relied upon People ex rel. Smerdon v. Crews, 245 Ill. 318, 92 N.E. 245 and People ex rel. Bancroft v. Lease, 248 Ill. 187, 93 N.E. 783. These final concluding cases are both ultimately founded on the principle that there cannot be two municipal corporations in the same area with the same purpose. See McQuillin, Municipal Corporation, Section 7.09, p. 269. This ultimate reason does not seem sufficient to decree the petition defective, when there is no overlap of similar municipal powers resulting from an erroneous inclusion of Missouri land. The lands are not properly includable for different reasons. As appellants point out, this order could not possibly affect Missouri land, whereas it could affect Illinois land and would have, were it not for a jurisdictional statutory...
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