APPEAL from the Circuit Court of Boone County; the Hon. ARTHUR
V. ESSINGTON, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT.
The circuit court of Boone County entered an order dissolving the village of Rainbow Gardens under the terms of section 7-49.1 of the Revised Cities and Villages Act, and the village has directly appealed to this court on the ground that the statute is unconstitutional.
From the record it appears that on December 11, 1957, the Board of Supervisors of Boone County filed a petition in the circuit court of Boone County alleging in substance that, inasmuch as the population of the village of Rainbow Gardens was not determined by the Bureau of the Census under the last preceding decennial census, a special census was taken by the Federal Bureau of the Census on July 19, 1957, at the request of petitioners, as provided in section 7-49.1 of the Revised Cities and Villages Act (Ill. Rev. Stat. 1957, chap. 24, par. 7-49.1); that this census showed the village of Rainbow Gardens to have 46 inhabitants; and that since the foregoing statute provides for dissolution of municipalities with less than 50 inhabitants according to the last regular or special Federal census, the village of Rainbow Gardens should therefore be dissolved.
The village, hereinafter referred to as respondent, filed a motion to dismiss the petition, challenging the constitutionality of section 7-49.1 on the grounds that it violates the guarantees for due process of law in the Illinois and Federal constitutions; that it infringes the doctrine of separation of powers set forth in article III of the Illinois constitution, insofar as it makes the Federal census conclusive evidence of an issue of fact; that it constitutes an unreasonable classification in violation of section 22 of article IV of the Illinois constitution; and that it conflicts with section 8 of title 13 of the U.S. Code, and the supremacy clause of the Federal constitution. In support thereof, respondent filed the affidavit of John Gibbons, a village trustee, that the village had on July 19, 1957, and has continuously had, more than 50 inhabitants.
A counteraffidavit was filed by petitioner by its counsel stating that the population of the village of Rainbow Gardens on July 19, 1957, as shown by the special Federal census, was less than 50 inhabitants, and was 46 inhabitants.
On the basis of the foregoing pleadings and evidence the court denied respondent's motion to dismiss, and entered judgment ordering that the village be dissolved.
In determining the propriety of the decision, and resolving the constitutional questions, it is necessary first to set forth in haec verba the terms of the controverted section of the Revised Cities and Villages Act:
"Upon application by the county board of any county to the circuit court, and after a hearing upon such notice as may be directed by such court, any municipality which has less than 50 inhabitants according to the last preceding Federal census may be ordered by the court to dissolve. After service of such order upon the corporate authorities of the municipality acting at that time they shall proceed to close up the business affairs of the municipality as expeditiously as possible and in the same manner as is provided by Sections 7-47, 7-48 and 7-49 in the case of voluntary dissolution. The court may enforce compliance with its order by proceedings for contempt. If ever there is in existence any municipality in which the Bureau of the Census did not determine the population when the last preceding decennial census was taken, the county board of the county in which such municipality is located may, at county expense, arrange with the Bureau of the Census to take a special census in such municipality."
With reference to respondent's contention that insofar as this statute makes the Federal census conclusive evidence of the population of a municipality it deprives the municipality of the constitutional guarantees of due process of law, it is evident that under the doctrine of legislative supremacy over municipal corporations, repeatedly reaffirmed by this court, municipal corporations cannot properly assert the protection of the due-process clause against action of the State government. People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600; People ex rel. Dixon v. School District, 2 Ill.2d 454.
The doctrine of legislative supremacy is expounded by the court in the Gutknecht case at p. 621: "Over the years, the doctrine of legislative supremacy over the territorial limits, the property and the funds of municipal corporations has been frequently applied. [Citations] In People ex rel. Taylor v. Camargo Community Consolidated School Dist., 313 Ill. 321, the court, speaking of `public municipal corporations,' said, p. 324: `The character of the functions of such municipal corporations, the extent and duration of their powers and the territory in which they shall be exercised rest entirely in the legislative discretion. The governmental powers which they may exercise and the property which they may hold and use for governmental purposes are equally within the power of the legislature. * * * The State may, with or without the consent of the inhabitants or against their protest, and with or without notice or hearing, take their property without compensation and vest it in other agencies or hold it itself, expand or contract the territorial area, divide it, unite the whole or part of it with another municipality, apportion the common property and the common burdens in accordance with the legislative will, and it may abolish the municipality altogether. The property of such corporations is public property in the hands of State agents for certain purposes and is subject to the will of the legislature. It has been held so in many cases.' Our decisions in People v. Deatherage, 401 Ill. 25; Kocsis v. Chicago Park District, 362 Ill. 24, and Town of Cicero v. City of Chicago, 182 Ill. 301, to cite only a few of many, rest upon this principle."
More recently this court has reiterated the doctrine in People ex rel. Dixon v. School Dist., 2 Ill.2d 454, with reference to a school district, and has stated at p. 466, "A school district has no such property right of which it may be deprived in violation of section 2 of article II of the State constitution." Nor does a municipal corporation have any "privileges and immunities" under the Federal constitution which it may invoke against the State, as its creator. Williams v. Mayor of Baltimore, 289 U.S. 36, 77 L.ed. 1015.
With reference to respondent's further contention that the provision of the controverted statute making the Federal census conclusive of the factual issue of population invades the province of the judiciary in violation of the doctrine of the separation of powers set forth in article III of the Illinois constitution, it is apparent that this precise argument has neither been considered nor adjudicated by the courts of this State. They have, however, commented upon the practice of determining the population of municipal corporations according to the Federal census, and we shall note the tenor of such comments for whatever light they may cast upon this constitutional question.
The courts have stated that judicial notice will be taken of the Federal census in determining the population of municipalities to ascertain whether they are subject to statutes governing municipalities of a designated population. (Chicago and Alton Railroad Co., v. Baldridge, 177 Ill. 229; People ex rel. Christensen v. Board of Education, 393 Ill. 345). Moreover, if such statutes do not prescribe by what method population is to be determined, it has been held that the proper basis is the official Federal census, as provided in section 1-9 of the Revised Cities and Villages Act. People ex rel. Nicholson v. Hinsdale, 281 Ill. App. 394.
This section of the act, (Ill. Rev. Stat. 1957, chap. 24, par. 1-9) comparable to the controverted statute herein, in that it makes the official census conclusive evidence of population, provides: "Whenever in this Act any provision thereof is based upon the number of inhabitants, the number of inhabitants of the municipality shall be determined by reference to the latest census taken by authority of the United States or this State, or of that municipality. * * * And the several courts in this state shall take judicial ...