Consolidated appeals from the County Court of Lake county; the
Hon. MINARD E. HULSE, Judge, presiding. Order affirmed.
This case was tried by the County Court of Lake County, Illinois, on a petition filed by certain named petitioners, hereinafter called appellees, requesting disconnection of certain territory from the Village of Indian Creek pursuant to the provisions of Section 7-39a, Chapter 24, Ill. Rev. Stat., 1957. The County Court entered an order that the territory be disconnected from the Village, and from this order the Village of Indian Creek, a municipal corporation, hereinafter referred to as appellant, takes this appeal.
Prior to the filing on July 31, 1958, of the petition for disconnection, a special election had been held on July 15, 1958, pursuant to an order of the County Court of Lake County to vote on the proposition of incorporating as the "Village of Indian Creek" certain described territory. Following the election the County Court on July 16, 1958, canvassed the results of the special election and entered an order finding that the majority of the votes cast on said proposition were in favor of incorporating and ordered the area and the inhabitants thereof incorporated under the name of Indian Creek. The court on this same date entered an order calling an election to be held on August 1, 1958, to elect village officers and on August 2, 1958, an order was entered by the County Judge canvassing the results of the election held to elect village officers and declaring certain persons duly elected officers of the village.
Appellant and appellees concur in stating to this court that no facts are in dispute and that the basic issues presented are purely questions of law involving an interpretation of the language used in Section 7-39a of the Cities and Villages Act (Chap. 24, Ill. Rev. Stat., 1957).
The first and second paragraphs of the above quoted section of the statute provides as follows:
"Within one year of the organization of any municipality under the provisions of Articles 2 and 3, of this Act, any territory which has been included therein may be disconnected from such municipality if the territory sought to be disconnected is (1) upon the border, but within the boundary of the municipality, (2) contains 20 or more acres, (3) if disconnected will not result in the isolation of any part of the municipality from the remainder of the municipality, and (4) if disconnected will not be a territory wholly bounded by one or more municipalities or wholly bounded by one or more municipalities and a river or lake, in the following manner:
A Written petition directed to the county judge of the county in which the territory proposed to be disconnected is located and if such territory is located in more than one county then to the county judge of the county in which the greater part of such territory may be located, which petition shall be signed by a majority of the electors, if any, residing within the territory and also signed by a majority of the owners of record of land in such territory, and also representing a majority of the area of land in such territory, shall be filed with the clerk of the county court within one year of the organization of any municipality under the provisions of Articles 2 and 3 of this Act. The petition shall set forth the description of the territory to be detached from such municipality, shall allege the pertinent facts in support of the disconnection of such territory and shall pray the county judge to detach the territory from the municipality." (Emphasis Added.)
The third paragraph of this section provides that notice of the filing of said petition shall also be mailed to the presiding officer of the municipality from which the territory is sought to be disconnected. The fourth paragraph provides, in part, that if the County Judge shall find that all the allegations of the petition are true he shall grant the prayer of the petition and shall enter an order disconnecting the territory from the municipality. It is then provided that a certified copy of such order of disconnection shall be filed with the clerk of the municipality from which such territory shall be detached.
The appellant contends that the village was not organized until August 2, 1958, being the date that the County Court entered its order declaring certain persons duly elected as village officers and argues that the petition for disconnection, which was filed on July 31, 1958, was filed before the village was organized contrary to the provision of the second paragraph of Section 7-39a, supra. The appellees contend that the village was organized on July 16, 1958, being the date that the County Court entered its order declaring the village duly incorporated and that the petition for disconnection, which was filed on July 31, 1958, was not prematurely filed.
The question to be resolved in this case is concerned with the meaning of the words, "organization of any municipality under the provisions of Articles 2 and 3 of this Act" as set forth in the first paragraph of Section 7-39a, supra. Stated in its simplest terms, the question is was the Village of Indian Creek organized on July 16, 1958, being the date that the County Court entered its order canvassing the results of the special election which had been held to vote upon the proposition of incorporating as "The Village of Indian Creek" certain described territory and declaring the village incorporated, or was it organized on August 2, 1958, being the date that the County Court canvassed the results of the election, which had been held to elect village officers, and entered its order declaring certain persons officially elected as village officers.
The question of when a municipality becomes organized within the meaning of Section 7-39a of the Cities and Villages Act, supra, is a question of first impression in this state. The parties hereto have not cited to this court any Illinois cases directly deciding this issue and our own independent research has failed to reveal any. However, there are three recent Illinois Supreme Court cases which indirectly and by dictum guide us in our determination of this issue. These cases are Bergis v. Village of Sunnyside, 13 Ill.2d 50, 147 N.E.2d 333, Anderson v. City of Rolling Meadows, 10 Ill.2d 54, 139 N.E.2d 199, and Western Nat. Bank of Cicero v. Village of Kildeer, 19 Ill.2d 342, 167 N.E.2d 169.
In Bergis v. Village of Sunnyside, supra, the Illinois Supreme Court decided that the statute providing for disconnection of land from a newly organized municipality was not unconstitutional. The court was not required to decide when a municipality is organized but stated at page 51 of 13 Ill.2d, and page 334 of 147 N.E.2d, the following:
"The Village of Sunnyside was organized by an election held on May 12, 1956. On January 7, 1957, this petition was filed. The statute provides the action must be brought within one year of the organization of the municipality . . ." (Emphasis Added.)
In Anderson v. City of Rolling Meadows, supra, the court held that although a city was incorporated prior to the enactment of the disconnection statute, the statute was applicable to the city. Our Supreme Court, again, was not called upon to make a determination as to the date when a municipality ...