The City of Galesburg v. Hawkinson

• Decision Date: 30 September 1874
• Citation: 75 Ill. 152,1874 WL 9208
• Parties: THE CITY OF GALESBURGv.OLOF HAWKINSON et al.
• Court: Illinois Supreme Court

75 Ill. 152

1874 WL 9208 (Ill.)

THE CITY OF GALESBURG

v.OLOF HAWKINSON et al.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

This was a petition by Olof Hawkinson and others, filed in the circuit court, to have their lands within the corporate limits of the city of Galesburg, disconnected therefrom by a decree of court. The city and several citizens having an interest in the matter appeared, and resisted the relief sought. The court below decreed according to the prayer of the petition, and the defendant below appealed.

Messrs. MILLER & FROST, for the appellants.

Messrs. WILLIAMS, MCKENZIE & CALKINS, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The eighth section of “An act to provide for annexing and excluding territory to and from cities, towns and villages, and to unite cities, towns and villages,” approved April 10, 1872, and in force July 1, 1872, (2d Gross, 64) provides that whenever a majority of the legal voters of any territory within any city, town or village, and being upon the border and within the boundary thereof, shall petition the circuit court of the county in which such city, town or village is situated, praying to be disconnected therefrom, such petition shall be filed with the clerk of the court, at least ten days before the first day of the term at which it is proposed to be heard, and like proceedings shall be had as is required by secs. 4, 5 and 6 of the act for the annexation of territory to such city, town or village, provided that the provisions of this section shall only apply to lands not laid out into city or town lots or blocks.

Section 4 prescribes how a petition to enlarge the boundaries of any city, town or village shall be presented to the circuit court, what notice shall be given, etc., and secs. 5 and 6 are as follows:

“§ 5. The legal voters, resident upon the territory thus proposed to be annexed, or any of them, or any owner of land therein, or any voter of such city, village or town, may appear at such hearing and show cause why such annexation should not be made; and the court, or a jury impanneled for that purpose (no member of the jury so impanneled shall be a resident of the corporation or territory to be annexed, nor of the town or towns in which said corporation or territory may be situated) shall hear all competent evidence that may be offered by either party; and the court may continue the hearing, from time to time, for any cause, and make all proper orders in regard to the hearing, giving of notices, and other disposition of the case.”

“§ 6. If, upon the hearing, the court or the jury shall find that such territory ought to be annexed to such city, village or town, and can be so done without injustice to the inhabitants or persons interested, the court shall so order. If the court or the jury shall find against the petitioner, the petition shall be dismissed at the costs of the petitioner, and no subsequent petition shall be presented for the annexation of any of the territory embraced in such petition, within one year from the time of entering such order, provided that new trials may be granted, as in other jury cases.”

The petition of appellees sets forth that the petitioners reside in, and are a majority of the legal voters of the territory described in the petition, situate within and upon the border and within the boundary of the city of Galesburg, containing 520 acres, &c.; that a portion of the petitioners therein named claim to own and do possess and control part of the territory described in the petition, and desire to be and are made petitioners, and that no part of the land therein described is now, or ever has been laid out in town or city lots or blocks. The prayer is, that the territory in the petition described may be disconnected from the city of Galesburg.

Answer and replication were filed, and the cause was submitted to a jury, who returned a verdict as follows: “We, the jury, find for the petitioners.” Motion for new trial was made by defendants, which the court overruled and proceeded to render a decree on the verdict, disconnecting the property described in the decree from the city of Galesburg, and changing and reducing its corporate limits to that extent.

It is set up by the answer, and conceded in argument by appellees, that the city of Galesburg has an outstanding bonded indebtedness, bearing interest, to the amount of $90,000, contracted while the property disconnected from the city by this decree was within its corporate limits. Inasmuch as all taxable property within the limits of such corporation must, under our constitution, be taxed, on the basis of uniformity as to persons and property, for the payment of municipal indebtedness, it is plain that the withdrawal of any real estate from the jurisdiction of such taxation, where a given sum is to be raised, to that extent increases the burden of taxation on the property remaining within the corporate limits. Considering that all corporate indebtedness is presumably incurred for the equal benefit of every part of the municipality, this is, in itself, an injustice to the remaining tax payers, unless the act of disconnecting the property is attended with some corresponding benefit to the municipality.

If we were to give effect to the statute, its language could not be disregarded. Being in derogation of the common law,...