Punke v. Village of Elliott

• Decision Date: 10 December 1936
• Docket Number: No. 23823.,23823.
• Citation: 5 N.E.2d 389,364 Ill. 604
• Parties: PUNKE v. VILLAGE OF ELLIOTT.
• Court: Illinois Supreme Court

364 Ill. 604

5 N.E.2d 389

PUNKE

v.VILLAGE OF ELLIOTT.

No. 23823.

Supreme Court of Illinois.

Dec. 10, 1936.

Suit by Frederick A. Punke against the Village of Elliott, wherein Loyal H. Dickerman was permitted to become a party defendant. From a judgment in favor of the plaintiff, the Village of Elliott appeals.

Affirmed.Appeal from Circuit Court, Ford County; Clyde H. Thompson, judge.

Claude M. Swanson, of Paxton, for appellant.

Lindley, Pacey & Johnson, of Paxton, for appellee.

HERRICK, Chief Justice.

Frederick A. Punke filed his petition in the circuit court of Ford county to disconnect from the Village of Elliott a tract of land containing substantially 100 acres. Loyal H. Dickerman, the owner of a tract of 16.66 acres on the boundary of the village and a taxpayer in, but not a resident of, the village, was by leave of the court permitted to become a party defendant. He and the village filed their separate motions to strike the petition. The motions were in the nature of demurrers. Each was overruled. The defendants abided. The court entered an order disconnecting the petitioner's lands. From that order the village, alone, has appealed to this court.

The petition was filed under the requirements of the act of 1935. Laws 1935, p. 300 (Smith-Hurd Ill.Stats. c. 24, § 385d et seq.). The provisions of that act pertinent here are:

‘Section 1. Lands that May be Disconnected.-The owner or owners of any area of land consisting of one or more tracts, lying within the corporate limits of any city, town or village, may have the same disconnected from such city, town or village under the provisions of this act if such area of land

‘(1) Contains twenty (20) or more acres;

‘(2) Is not subdivided into city lots and blocks;

‘(3) Is located on the border or boundary of the city, town or village; provided, however, that such disconnection shall not result in the isolation of any part of the said city, town or village from the remainder of such city, town or village.

Ԥ 2. Procedure.-The owner or owners of any such area of land who desire such disconnection shall file a petition in the County or Circuit Court of the county where the land, or the greater part thereof, is situated, and in such petition shall allege facts in support of such disconnection. The particular city, town or village shall be made defendant, and it, or any taxpayer resident in such municipality, may appear and defend against such petition. If the court finds that the allegations of said petition are true and that such area of land is entitled to disconnection under the provisions of Section 1 of this Act, it shall order said land disconnected from such city, town or village.

‘§ 3. Disconnected Land Not Exempt from Taxation.-The disconnection of any such area of land shall not exempt it from taxation for the purpose of paying any bonded indebtedness contracted prior to the filing of such petition by the corporate authorities of the city, town or village, but such land shall be assessed and taxed for this purpose until such indebtedness is completelypaid, the same as though not disconnected.’

The village urges that the law is invalid because it violates article 3, section 2 of article 2, section 14 of article 2, section 22 of article 4, section 23 of article 4, and section 1 of article 9, of our State Constitution, and the due process clause of the Federal Constitution (amendment 14).

The appellee presents the issue that no provision is made by the act for a review by this court of the order of the circuit court in the proceeding authorized by the statute and that this court has no jurisdiction of the cause. It was not necessary that the General Assembly prescribe a method of review of a proceeding where the validity of a statute is challenged, as is the situation here. Section 11 of article 6 of our Constitution provides for a review by this court in all cases where the validity of a statute is involved.

In passing upon the constitutionality of the act, we must recognize certain fundamentals applicable to such construction. The legal presumption is that a statute is valid, and, if capable of two constructions, the one which favors the constitutionality of the law rather than its unconstitutionality is the interpretation to be adopted. Michaels v. Hill, 328 Ill. 11, 159 N.E. 278; Cooley's Const.Lim. (6th Ed.) pp. 216, 218. One who challenges the constitutionality of a statute has the burden of showing clearly wherein it is in conflict with the constitutional provisions. Fenske Bros. v. Upholsterers' Union, 358 Ill. 239, 251, 193 N.E. 112, 97 A.L.R. 1318;Reif v. Barrett, 355 Ill. 104, 120, 188 N.E. 889, 896.

A city or village is a creature of the statute. It exists for such public purposes as may be granted it by the state as a subordinate branch of the state government. It is always subject to the legislative will. Board of Sup'rs of Sangamon County v. City of Springfield, 63 Ill. 66;People v. Camargo School District, 313 Ill. 321, 145 N.E. 154;City of Geneseo v. Illinois Northern Utilities Co., 363 Ill. 89, 1 N.E.(2d) 392.

Article 3 of the State Constitution divides the forces of government into three departments: The legislative, executive, and judicial. The power to incorporate a municipality necessarily carries with it the authority to determine and alter its boundaries, and such decision is a legislative and not a judicial function. North v. Board of Education, 313 Ill. 422, 145 N.E. 158;City of Galesburg v. Hawkinson, 75 Ill. 152. By the act under consideration the circuit court is required to determine whether the facts set forth in the petition and shown by the evidence bring the petitioner's property within the statute. The court has no discretion in adjudicating what constitutes a sufficient petition or whether the petitioner's land shall be disconnected. The statute speaks the law; the court determines only its execution. This does not constitute a delegation of either legislative or judicial power. Village of Averyville v. City of Peoria, 335 Ill. 106, 110, 166 N.E. 488. The act does not impinge article 3 of the Constitution.

The due process clauses of our State and Federal Constitutions follow next in sequence in the assignment of errors. It is urged by appellant that the taxes of owners of property within the municipality for village governmental purposes will be increased by the release of the petitioner's property from the village, and that the act permits a resident taxpayer to become a party defendant while it refuses that privilege to a nonresident taxpayer of the village. The practical effect of the disconnection of the petitioner's premises if the village continues its expenditures upon the same financial scale that it has in the past will be to increase taxes on the taxable property remaining within the village, but no taxpayer has any vested right in the village as a municipal corporation or any guaranty that its boundaries will remain unchanged or that it may not lose its corporate life. People v. Cowen, 283 Ill. 308, 314, 119 N.E. 335. Those hazards are incident to the ownership of property within a city or village. In the proceeding authorized by the statute the village stands as the representative of all the property owners owning taxable property within its corporate boundaries. A resident taxpayer may become a party. The act does not forbid a nonresident taxpayer from becoming a party defendant. Such was the exact situation when the trial court permitted Dickerman to become a party and defend against the petition. We said in Reif v. Barrett, supra: ‘Due process of law does not necessarily imply court proceedings. There is no vested right in any form of proceeding or remedy. It is necessary in order to constitute ‘due process of law’ within the provisions of our State and Federal Constitutions that orderly proceedings according to established rules which do not violate fundamental rights shall be observed, yet a general law administered in its legal course according to the form of procedure suitable and proper to the nature of the case, conformable to the fundamental rules of right and affecting all persons alike, is due process of law. Italia America Shipping Corp. v. Nelson, 323 Ill. 427, 154 N.E. 198;Wilmot v. City of Chicago, 328 Ill. 552, 160 N.E. 206, 62 A.L.R. 394.' Tested by this rule, the statute does not deny due process, nor does it discriminate against resident and nonresident taxpayers. It does not impair any obligation of contract. The rights of bondholders of the village...