APPEAL from the Circuit Court of Lake County; the Hon. BERNARD
M. DECKER, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
On August 31, 1957, a petition to incorporate a village to be known as the village of Vernon Hills, in Lake County, Illinois, was filed with the county clerk of that county. The county judge found that the petition met the requirements of the statute and called an election for September 24, 1957. Prior to the election, 64 persons, not residents of the area, sought to intervene in the cause. Their intervention was refused and an appeal was taken to the Appellate Court, and on motion the election was stayed pending the appeal. The appeal was dismissed and petition for leave to appeal was denied by this court.
An election on the issue of incorporation of the area was then called and held on July 15, 1958, resulting in a vote favoring incorporation. On August 5, 1958, pursuant to the order of the county court, the defendants herein were elected as officers of the village, and thereafter qualified and acted as such officers.
On November 26, 1958, the State's Attorney of Lake County filed a complaint in quo warrantor, alleging that the defendants purport to hold and execute, unlawfully, the pretended offices and corporate name of president, board of trustees and village clerk of the pretended village of Vernon Hills, and without lawful grant or charter to be a body politic and corporate by the name of "Village of Vernon Hills," and to exercise the powers granted by the Revised Cities and Villages Act. The complaint prayed that the defendants be required to show by what warrant and authority they assume to hold, use and execute said offices and assume such corporate name, and, upon failure to so justify, that they be ousted.
Defendants answered and pleaded justification by virtue of the petition, election of incorporation, and their election as officers pursuant to the orders of the county court of Lake County.
Plaintiff sought to add additional defendants, but the motion was denied. On hearing the defendants presented testimony of the qualifications of the electors who signed the petition and proved the various documents and orders of the courts relative to the incorporation of the village and the election of the defendants.
It additionally appeared from the evidence that the area known as "Vernon Hills" was in great part subdivided by L. and H. Builders, Inc., and it built several of the homes. Many of the homes were occupied by employees, subcontractors and relatives of the personnel of L. and H. Builders, Inc. and their associates. The petition for incorporation was circulated for signing and subscribed to by Mathew Teolis, a director and agent of L. & H. Builders, Inc. The petition was filed by Frank M. Opeka, the attorney for L. & H. Builders, Inc.
After hearing, an order was entered by the circuit court of Lake County finding that the village was legally created and existing, that the defendants were lawfully elected as officers of the village, and that the plaintiff take nothing by the suit. From this order the plaintiff appeals to this court, a franchise being involved.
Plaintiff asserts, and defendants agree that the burden was upon the defendants to show by what warrant and authority they hold, use and exercise their various respective offices, and assume the corporate name of "Village of Vernon Hills." (People ex rel. Phelps v. Kerstein, 413 Ill. 333.) Plaintiff contends the defendants failed to meet this burden, while defendants claim that they have done so. A plea of justification to an action in quo warrantor must allege the existence and performance of all of the conditions precedent to the defendants' right to exercise the privilege of office. (Greening ex rel. Rowe v. Barnes, 355 Ill. 99.) In establishing a municipal corporation the county court derives its jurisdiction from the statute alone. No presumption arises to support its action in any particular. The conditions of the statute authorizing the creation of the municipal corporation must be complied with in the manner prescribed by statute, else the court is without jurisdiction, and the defendants are not justified in holding their offices. (People ex rel. Goldsbery v. Zoller, 337 Ill. 362.) All the facts establishing a valid title to the office must be shown, including the meeting of the conditions precedent to the holding of the office. People ex rel. Phelps v. Kerstein, 413 Ill. 333.
Section 3-5 of the Revised Cities and Villages Act in 1957 provided: "Whenever any area of contiguous territory, not exceeding two square miles, and not already included within the corporate limits of any municipality, and no part of which territory lies within one mile of the boundary line of any existing municipality unless the corporate authorities of such existing municipality consent to such incorporation, and has residing thereon at least 100 inhabitants living in immobile dwellings, it may be incorporated as a village as follows: Thirty-five electors residing within the area may file with the county clerk of the county in which such area is situated a petition addressed to the judge of the county court. The petition shall set forth (1) a definite description of the lands intended to be embraced in the proposed village, (2) the number of inhabitants residing therein, (3) the name of the proposed village, and (4) a prayer that a question be submitted to the electors residing within the limits of the proposed village whether they will incorporate as a village under this Act." Ill. Rev. Stat. 1957, chap. 24, par. 3-5.
Section 3-6 of the same act provides that upon the filing of such a petition with the county clerk, the county judge shall fix the time and place of the election, appoint judges to hold the election, and give notice thereof by publication at least once in a newspaper published or circulated in the area, not more than 30 days nor less than 15 days before such election. It is further provided by section 3-7 that upon approval of the incorporation pursuant to the election, the county judge shall (1) call an election to elect village officers, (2) fix the time and place thereof, and (3) otherwise perform, as nearly as he can, the requirements for the election of officers of a newly organized city. Section 2-6 provides that upon incorporation of a city, the election of officers shall be held within 60 days from the date the village voted to incorporate and proper notice shall be given.
The evidence offered by defendants shows that the village of Vernon Hills was not more than two square miles in area, that it was a compact area, no part of which was within one mile of another municipality; that on August 31, 1957, there were over one hundred inhabitants of the area living in immobile dwellings; and on August 31, 1957, a petition for incorporation of the said village was filed with the county clerk of Lake County, signed by at least 38 persons who claim to have resided in the area 30 days, in the county 90 days, and in the State at least one year. The testimony offered by defendants shows them to be qualified, registered voters of the area. The petition correctly described the land embraced in the proposed village, set forth that 117 persons inhabited the area, proposed the name of "Village of Vernon Hills" and prayed that the question of incorporation be submitted at an election.
Plaintiff asserts that the petition for incorporation of the area as a village was not properly filed inasmuch as the statute requires that "Thirty-five electors residing within the area may file" the petition with the county clerk, and the evidence shows that it was in fact filed by Frank M. Opeka, an attorney who was paid by L. & H. Builders, Inc. The evidence offered by defendants indicates that at least 35 persons signed the petition, ...