Village of Averyville v. City of Peoria

• Decision Date: 07 June 1929
• Docket Number: No. 19263.,19263.
• Parties: VILLAGE OF AVERYVILLE v. CITY OF PEORIA et al.
• Court: Illinois Supreme Court

335 Ill. 106

166 N.E. 488

VILLAGE OF AVERYVILLE

v.CITY OF PEORIA et al.

No. 19263.

Supreme Court of Illinois.

April 20, 1929.

Rehearing Denied June 7, 1929.

Suit for injunction by the Village of Averyville against the City of Peoria and others. From a decree dismissing the bill, complainant appeals.

Affirmed.

Dunn, J., dissenting.Appeal from Circuit Court, Peoria County; John M. Niehaus, judge.

C. F. Mansfield, of Springfield (Thomas W. Hoopes, of Springfield, of counsel), for appellant.

Harry C. Heyl, Corporation Counsel, and Robert E. Kavanaugh, City Atty., both of Peoria, for appellees.

HEARD, J.

Appellant, the village of Averyville, filed its bill in the circuit court of Peoria county praying for an injunction restraining appellees, the city of Peoria and certain of its officials, from exercising or attempting to exercise jurisdiction and government over appellant, its property and affairs, and requiring appellees to restore to appellant property taken and carried away by appellees. Appellant's prayer for relief was based on the alleged invalidity of an order of the county court of Peoria county theretofore entered, declaring the village of Averyville annexed to the city of Peoria pursuant to elections held in the city and village. The bill alleged the invalidity of the elections and of each of the various steps taken for the calling of such elections in general terms, without in anywise specifying the grounds or reasons for such alleged invalidity. Appellees demurred to the bill, and, while the demurrer was pending, appellant moved for leave to file an amended bill, and lodged with the clerk of the court the proposed amended bill. This motion was not called up for hearing until this demurrer had been sustained and the bill decreed to be dismissed for want of equity, when the court denied the motion for leave to amend. Thereafter, and without moving to vacate the decree, appellant moved for leave to file an amended bill, which was the same as the first proposed amended bill, except that it was made returnable at the next term of court. This motion was denied, and appellant has appealed to this court.

A motion has been made by appellees to strike out certain portions of the record, including the amended bill lodged with the clerk of the circuit court and the proposed engrossed amended bill contained in the record. This motion was taken with the case. We have not passed upon this motion, but in this opinion have considered the case the same as if the motion had been denied.

It is to the best interests of law and order that a stable government be speedily established and maintained in Averyville, and to insure this end we have deemed it best to not consider any technical objections of appellees, but decide the case upon its merits.

[1] It is contended by appellant that the Annexation Act of 1889 (Smith's Stat. 1927, p. 408) and the subsequent amendments thereto, under which the annexation proceedings were had, are in violation of section 22 of article 4, section 13 of article 4, and article 3 of the Constitution. Article 3 divides the powers of the government into three distinct classes-legislative, executive, and judicial-and provides that the powers of one department shall not be exercised by another department. Official duties are exercised under these three heads. In the course of the administration of government, duties frequently arise which cannot be exclusively classed under any one of these three heads. This provision has been frequently construed, and, in many instances where duties similar to those here in question were imposed, the officer, though exercising judgment and discretion, was held not to be exercising judicial power. Hawthorn v. People, 109 Ill. 302, 50 Am. Rep. 610;Land Owners v. People, 113 Ill. 296;People v. Buskirk, 279 Ill. 203, 116 N. E. 683. By the act here in question, the county judge can only do the specific thing asked in the petition in the manner pointed out by law. While he may decide upon the sufficiency of the petition, he has no discretion as to what shall constitute a sufficient petition. The discretion imposed on him by this act is not a discretion to determine what the law is or shall be, but what shall be done in the matter of its execution. This is not a delegation of legislative or judicial power. Milstead v. Boone, 301 Ill. 213, 133 N. E. 679. Many other instances might be cited where duties not judicial have been imposed on the county judge and the act upheld. Sherman v. People, 210 Ill. 552, 71 N. E. 618;Kamp v. People, 141 Ill. 9, 30 N. E. 680, 33 Am. St. Rep. 270;People v. Evans, 247 Ill. 547, 93 N. E. 388;People v. Cowen, 283 Ill. 308, 119 N. E. 335. This act is not in conflict with article 3 of the Constitution.

[2][3] It is contended by appellant that the act violates section 13 of article 4 of the Constitution, in that the act, in substance, amends the Cities and Villages Act without inserting the title of the latter act and without inserting any section of said act, and that it contains matter not embraced in the title. The Constitution does not require the title of an act to be an index. The purpose of the provision of the Constitution is to prevent the joining in one act of unrelated subjects, and does not apply where all provisions are germane to the subject expressed in the title. The act for the annexation of villages is complete in itself, and such an act is not within the mischief designed to be remedied by this provision, and so cannot be held to be prohibited by it without violating its plain intent. People v. Wright, 70 Ill. 388;People v. Ankrum, 286 Ill. 319, 121 N. E. 579. The Constitution does not require that all the legal effects of an act, such as the repeal by implication of a former act, shall be stated in the title. Where the subject of the act itself is embodied in the title, all the legal consequences necessarily flowing from it will, for the purpose of the constitutionalrequirement, be regarded as embraced in the title also. McGurn v. Board of Education, 133 Ill. 122, 24 N. E. 529. It cannot be said that this clause of the Constitution embraces every enactment which in every degree, however remotely, may affect the prior law on a given subject, for to so hold would be to bring about a greater evil than the one sought to be obviated by this clause. School Directors v. School Directors, 135 Ill. 464, 28 N. E. 49. The act in question sets forth in full the section, subsequently amended, as amended. It is not necessary the section intended to be amended shall be incorporated or recited in the new enactment as it stood prior to the amendment proposed to be accomplished by the amendatory act. People v. Ankrum, supra; Hagler v. Small, 307 Ill. 460, 138 N. E. 849.

[4] The contention of appellant as to section 22 of article 4 of the Constitution is that the Annexation Act changes or amends the charters of cities and villages and grants exclusive privileges to certain cities. The act is not a local or special law, but is general, and applies to all cities and villages in the state so situated as to come within its provisions. A city or village is a creature of the Legislature, clothed only with such powers as are expressly or by necessary implication granted to it by the Legislature. It has no vested right in the powers granted in its charter. The state having delegated power to a city or village, may through legislative action modify such power or resume it and deprive the municipality of such power entirely. Kizer v. City of Mattoon, 332 Ill. 545, 164 N. E. 20. The Constitution does not prohibit the amendment of the charters of cities and villages by general law, but leaves the power of the General Assembly in that regard wholly unrestricted. McCormick v. People, 139 Ill. 499, 28 N. E. 1106. After a careful consideration of all the points raised by appellant in its argument, we are of the opinion that the Annexation Act of 1899 and its subsequent amendments, so far as they apply to the facts in this case are not in violation of the Constitution.

The legislative act under which the annexation elections were held provides: ‘That where a city, village or incorporated town adjoins another city, village or incorporated town in one or more portions of its boundaries, it may be annexed thereto, in the manner following, * * * a petitionshall be presented to the judge of the county court of the county wherein such city, village or incorporated town to which such annexation is sought is situated, asking that the question of annexation be submitted to the legal voters of the city, village or incorporated town sought to be annexed, and to the legal voters of the city, village or incorporated town to which it is sought to annex the same. Such petition shall be signed by not less than two hundred fifty (250) of the legal voters of the city, village or incorporated town sought to be annexed, unless the votes cast in said city, village, or incorporated town at the last preceding general election numbered less than five hundred (500), in which case the petition shall be signed by one-third of the legal voters of such city, village or incorporated town.’ Smith's Stat. 1927, § 1, p. 408.

It appears from the averments in the bill of complaint that on the 26th day of April, 1927, a petition signed by the requisite number of legal voters of the village of Averyville, which was addressed to Glen J. Cameron, judge of the county court, was presented to the judge, requesting elections to be held, respectively, in the village of Averyville and in the city of Peoria to submit the question of annexation to the legal voters of the respective municipalities. The Annexation Act referred to provides in section 1 that upon the presentation of such a petition the ‘county judge shall cause to be submitted the question of annexation to the voters of the city, village or incorporated town sought to be annexed, and to the voters of the city, village or...