Taylor v. Krupp, 34703

• Decision Date: 21 May 1958
• Docket Number: No. 34703,34703
• Citation: 150 N.E.2d 581,14 Ill.2d 36
• Parties: W. James TAYLOR et al., Appellants, v. Russel P. KRUPP et al., Appellees.
• Court: Illinois Supreme Court

Page 581

150 N.E.2d 581

14 Ill.2d 36

W. James TAYLOR et al., Appellants, v. Russel P. KRUPP et al., Appellees.

No. 34703.

Supreme Court of Illinois.

May 21, 1958.

Lindauer, Lindauer, Pessin & Nieman, Belleville, for appellants.

Dan McGlynn, East St. Louis, and Otis E. Guymon, Belleville, for appellees.

DAILY, Justice.

This appeal stems from a proceeding in the county court of St. Clair County for the annexation of certain unincorporated territory to the village of Swansea. The petition for annexation was initiated by electors residing in and persons owning property in the unincorporated territory as provided in section 7-2 of the Revised Cities and Villages Act. Ill.Rev.Stat.1955, chap. 24, par. 7-2. On May 22, 1955, after hearing various objections, the court determined the validity of the petition and submitted the question of annexation to the corporate authorities of the annexing municipality for final action. See Ill.Rev.Stat.1955, chap. 24, par. 7-4. Thereafter, on June 3, 1955, the corporate authorities approved and passed an ordinance annexing the territory to the village. On the same day, W. James Taylor and his wife, who had been objectors and who are the appellants in this court, filed a motion to vacate the order of May 22, 1955, alleging noncompliance with the annexation statute in various respects. Such motion was denied on July 19, 1955, and it is from the latter order that this appeal has been perfected.

Appellants have directed their appeal to this court on the theory that a franchise is involved. We have held that the mere detachment or annexation of territory does not put in issue the legal existence or the exercise of franchise privileges (Community Unit School Dist. v. County Board of School Trustees, 6 Ill.2d 320, 128 N.E.2d 898; People ex rel. Groff v. Board of Education, 383 Ill. 166, 48 N.E.2d 954), however, it is appellants' contention that there is involved the elective franchise, or right to vote, of the electors residing in the unincorporated territory. While it is true this court has held that the right to vote in an election constitutes a franchise sufficient to give us jurisdiction on direct appeal (See Progressive Party v. Flynn, 400 Ill. 102, 79 N.E.2d 516; Sodo v. United States, 406 Ill. 484, 94 N.E.2d 325), we do not find that such a franchise is involved in the record now before us either procedurally, or as a matter of substance.

The record reveals that the issue of an elective franchise was not raised in the original proceeding for annexation, nor was such an issue determinated in the order of May 22, 1955, which found the annexation petition to be valid. Similarly, such an issue was neither raised nor determined under appellants' motion to vacate the order of May 22. It was, rather, injected into the record in a manner suggesting a design and afterthought to provide some basis for a direct appeal to this court, a practice condemned in Layton v. Layton, 4 Ill.2d 241, 122 N.E.2d 531; Continental Paper Grading Co. v. Howard T. Fisher & Associates, Inc., 1 Ill.2d 37, 115 N.E.2d 291; and Jenisek v. Riggs, 381 Ill. 290, 44 N.E.2d 902. On June 14, 1955, and again on August 20, 1955, Fred J. Schindler, Roland Siebert and their spouses, who had been objectors to the petition for annexation, filed pleadings in the county court titled 'Petition' wherein they prayed the court to determine the validity of the final action taken by the annexing municipality (i. e., the adoption of an ordinance and referendum within the municipality), and, in the event such final action was held valid, to cause the question of annexation to be submitted to the electors of the unincorporated territory at a special election. From the briefs filed in this court it appears that such petitions were based on a construction that section 7-6.1 of the Revised Cities and Villages Act (Ill.Rev.Stat.1955, chap. 24, par. 7-6.1), requires the question of annexation to be submitted to a referendum in the unincorporated territory. Both petitions were denied by orders entered July 19, 1955, and September 4, 1955, the former order being entirely separate and apart from the order denying appellants' (the Taylors') motion to vacate. No appeal has been taken by the Schindlers or the Sieberts from either...