APPEAL from the Circuit Court of Lake County; the Hon. SIDNEY
H. BLOCK, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
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 warrantor 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. Petitioners filed the action on their own relation under section 2 of "An Act in relation to practice and procedure in cases of quo warrantor," 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 opposisition 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.
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 of 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.)
"b. Does the failure of the chief executive officer of the purported Village of Kildeer to file a certified copy of the record of the County Court proceedings relative to the proceedings to incorporate the Village of Kildeer with the Lake County Recorder of Deeds within the time set forth in Section 4-5 of Chapter 24 of the Illinois Revised Statutes for 1957 invalidate the incorporation of the Village of Kildeer?"
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; Banner Tailoring Co. v. Industrial Com. 354 Ill. 513, 517; 83 C.J.S., Stipulations, sec. 22, p. 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: "The returns of the election shall be made to and canvassed by the judge of the county court and any two justices of the peace whom he shall call to his assistance. The result of the election shall be entered upon the records of the county court. If a majority of the votes cast at the election favor incorporation as a village under the general law the inhabitants of the territory described in the petition are incorporated as a village under this Act with the name stated in the petition." (Ill. Rev. Stat. 1957, chap. 24, par. 3-6.) Under the language of the statute, a village ...