Western Nat. Bank of Cicero v. Village of Kildeer
| Citation | 19 Ill.2d 342,167 N.E.2d 169 |
| Decision Date | 18 May 1960 |
| Docket Number | No. 35469,35469 |
| Parties | WESTERN NATIONAL BANK OF CICERO, Trustee, et al., Appellants, v. VILLAGE OF KILDEER et al., Appellees. |
| Court | Supreme Court of Illinois |
Allan R. Bloch, Chicago, and McClory, Bairstow & Anderson, Waukegan (Robert McClory and David K. Anderson, Waukegan, of counsel), for appellants.
Murray R. Conzelman, Waukegan, and Theodore W. Huszagh, Chicago, for appellees.
This is an appeal from a judgment of the circuit court of Lake County denying leave to appellants, herein referred to as petitioners, to file a complaint in quo warranto by which they sought to test the validity of the incorporation of the defendant Village of Kildeer and the authority of the individual defendants to hold the village offices to which they had been elected. Petitions filed the action on their own relation under section 2 of 'An Act in relation to practice and procedure in cases of quo warranto,' after both the Attorney General and the State's Attorney of the county had refused to bring the action. Ill.Rev.Stat.1957, chap. 112, par. 10.
After defendants had filed a verified motion in opposition to the filing of the petition and leave to amend the petition had been granted, the case was submitted to the trial court for decision as an agreed case upon the pleadings and a stipulation of the facts and issues. We have jurisdiction on direct appeal since a franchise is involved. People ex rel. White v. Underwood, 1 Ill.2d 620, 116 N.E.2d 354.
The stipulation established that petitioners are citizens, property owners, residents and taxpayers of the affected area; that 66 electors residing within the area filed the petition to incorporate as a village with the county court of Lake County on February 24, 1958, at which time 153 persons resided within the boundaries of the proposed village; and that the total area contained within such boundaries does not exceed 55,766,800 square feet or two square miles, which extends over an area of 2.15 miles long and 1.85 miles wide.
A special election on the question of incorporation was held on March 22, 1958, under the supervision of the county judge and the official canvass showed 57 votes for incorporation, 2 votes against and 3 defective ballots. The court then entered an order that the result of the election be spread upon the records of the court and decreed that the territory described in the petition be incorporated as a village under the general law to be known as the Village of Kildeer.
The village officers were elected at an election called by the court for that purpose on April 19, 1958, and after a canvass of the vote, the court entered an order declaring the president, village clerk and six trustees duly elected to their respective offices. A certified copy of the county court's order of incorporation was filed with the county recorder approximately six months after its entry.
The legal issues tendered for decision by the trial court were stipulated by the parties as follows:
'a. Is the area purported to have been incorporated as the Village Kildeer in the aforementioned County Court proceeding 'an area of contiguous territory, not exceeding two square miles' within the meaning of Section 3-5 of the Revised Cities and Villages act as amended? (Ill.Rev.Statutes 1957, Chapter 24, Paragraph 3-5.)
These issues were decided by the trial court and constitute the only questions presented on this appeal. Where the parties by stipulation prescribe the issues on which the case is to be tried this amounts to a binding waiver or elimination of all issues not included in the stipulation. Shell Oil Co. v. Industrial Com., 407 Ill. 186, 198, 94 N.E.2d 888; Banner Tailoring Co. v. industrial Com., 354 Ill. 513, 517, 188 N.E. 548; 83 C.J.S. Stipulations § 22, pp. 46-48.
We shall first consider whether failure of the chief executive officer of the incorporated village to file with the county recorder a certified copy of the record of the county court proceedings relative to incorporation within the time prescribed by statute invalidated the incorporation of the village. The applicable statute provides that such officer of the village incorporated under this act, within three months after incorporation, shall file with the recorder of deeds a certified copy of the record of the county court proceedings to incorporate the alleged village; that the recorder of deeds shall record this certified copy and then transmit it to the Secretary of State; and that if it appears from the recitals in the documents that the act has been duly complied with, the Secretary shall file the documents and issue a certificate of approval and shall make and keep a register of the cities and villages incorporated under this act. Ill.Rev.Stat.1957, chap. 24, par. 4-5.
It is admitted that the chief executive officer of the purported village did not file the certified copy of the county court proceedings with the recorder within the three months prescribed by the above section of the act and it is stipulated that the procedure followed in the county court, including the canvass and order of incorporation, were in conformity with the applicable statutes.
Section 3-6 of the Revised Cities and Villages Act provides: (Ill.Rev.Stat.1957, chap. 24, par. 3-6.) Under the language of the statute, a village comes into legal existence at the time the results of the election are canvassed and the county court officially declares the result to be in favor of incorporation.
We likewise reached this conclusion under the statute providind for the incorporation of cities and villages as it existed in 1905. In Dowie v. Chicago, Waukegan and North Shore Railway Co., 214 Ill. 49, at page 55, 73 N.E. 354, at page 356, we stated: 'The statute expressly fixes the time when the incorporation is effected, and that is the time when the vote is canvassed and determined to be for the incorporation or organization under the general law, * * *.' The pertinent provisions of the statute involved in the decision in Dowie were substantially the same as those quoted above from section 3-6 of the present law. Therefore, we conclude that the village in question became a legal entity when the county court declared its existence based upon an official canvass of the votes cast in the special election on the question of incorporation.
Petitioners contend that the failure to file a certified copy of these proceedings with the recorder within the prescribed time invalidated the incorporation. It must be remembered, however, that the creation and control of municipal corporations is a legislative function. People ex rel. Honefenger v. Burris, 408 Ill. 68, 95 N.E.2d 882; People ex rel. Russell v. Graham, 301 Ill. 446, 134 N.E. 57. In the absence of constitutional restrictions, the legislature may provide for organizing, uniting, dividing or annulling of such corporations in such manner as it shall deem best to promote the public welfare. People ex rel. Dougherty v. City of Rock Island, 271 Ill. 412, 419, 420, 111 N.E. 291. Likewise, when a municipal corporation has been created, it may be dissolved or cease to exist only by will of the legislature or pursuant to legislative enactment. People ex rel. Petty v. Thomas, 361 Ill. 448, 455, 198 N.E. 363; People ex rel. Gauen v. Neibruegge, 244 Ill. 82, 86, 91 N.E. 115.
Where a municipal corporation has been created as the result of a favorable vote at an incorporation election it remains in existence until its dissolution pursuant to express statutory provisions. If a statute merely provides that certain acts shall be performed within a designated time but does not declare their performance essential to the validity of the election, the law will be deemed mandatory if it affects the merits of the election and directory if it does not. People ex rel. Bodecker v. Community Unit School Dist., 409 Ill. 526, 534, 535, 100 N.E.2d 573; People ex rel. Petty v. Thomas, 361 Ill. 448, 455, 198 N.E. 363; People ex rel. Quisenberry v. Ellis, 253 Ill. 369, 377, 97 N.E. 697.
The above authorities are determinative of the question presented here. The failure of the proper village official to file within the prescribed time a certified copy of the record of the county court proceedings cannot have the effect of dissolving the municipal corporation in question which came into existence by virtue of the favorable vote of the electors. There is nothing in the statute itself which expressly or impliedly indicates that a failure to comply with its provisions shall have that effect. Non-compliance with its terms and conditions could not possibly affect the merits of the election and the provisions of the section are directory only and not mandatory.
The pertinent provisions of section 3-5 of the Revised Cities and Villages Act (Ill.Rev.Stat.1957, chap. 24, par. 3-5), are 'Whenever any area of contiguous territory, not exceeding two square miles, * * * has residing thereon at least 100 inhabitants living in immobile dwellings, it may be incorporated as a village * *...
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