Appeal from the Circuit Court of McLean County; the Hon.
WILLIAM C. RADLIFF, Judge, presiding. Reversed.
Rehearing denied December 11, 1962.
This is a quo warrantor proceeding brought on the relation of certain owners of real estate, residents and taxpayers of Community Unit School District No. 5 of McLean and Woodford Counties, Illinois, to test the validity of the annexation to the City of Bloomington and to School District No. 87, McLean County, of property owned by the General Electric Company.
The Circuit Court of McLean County heard the matter on the pleadings and a written stipulation of facts and entered judgment for the plaintiffs, holding that they had the requisite interest to maintain the action and that at the time of the adoption of the annexation ordinance the premises therein described were not contiguous to the City of Bloomington and as a result such ordinance was void.
Sec 10, Chap 112, Ill Rev Stats 1959, provides that a quo warrantor proceeding may be brought in the name of the people "by any citizen having an interest in the question on his own relation . . ." defendants contend on this appeal that plaintiffs, as private citizens fail to qualify as having the necessary interest to maintain such an action on their own relation because their interest in the question is one of possible increase in their taxes due to loss of the assessed valuation of the General Electric property and is shared in common with all other residents of School District No. 5.
Plaintiffs are owners of real estate within district No. 5. The ordinance in question was adopted June 29, 1959, on which date the Board of Education of said district received bids for a new school building bond issue requiring $1,920,980.16 for complete payment. These bonds were sold and became a lien on August 4, 1959. On that date the assessed valuation of the General Electric property was $3,081,780 or 3.69 per cent of the total assessed valuation of $83,460,440 for all property in district No. 5. It follows that annexation of the General Electric property to district No. 7 would result in imposing liability for 3.69 per cent of the building bond issue upon plaintiffs and the other taxpayers of said district No. 5. It is apparent from the foregoing facts that annexation of the General Electric tract would result in the imposition on plaintiffs and other taxpayers of district No. 5 of liability for an amount equal to the share of the tax burden previously borne by General Electric. Prior to the decision in People ex rel. McCarthy v. Firek, 5 Ill.2d 317, 125 N.E.2d 637, the Illinois Courts had held that the interest of a taxpayer was not sufficient to maintain a quo warrantor proceeding. Rowan v. City of Shawneetown, 378 Ill. 289, 38 N.E.2d 2; Adair v. Williams, 407 Ill. 309, 95 N.E.2d 345. In the Firek case the Supreme Court overruled these two prior decisions and held that a taxpayer residing in a sanitary district has sufficient interest to maintain a quo warrantor proceeding against the trustees of said district. In so holding, the Court said:
"Moreover, the interest of a citizen in the taxes to be collected from him is obviously distinct, for many purposes, from a general public interest in the enforcement of the law. It is a personal and substantial interest, and it does not become the less so because other citizens have a similar interest. The decision in the Rowan case can thus be explained only on the assumption that the statute requires a citizen's interest to be unique, or at least uncommon. In view of the number of different local governmental units which may exist under our laws it cannot be assumed that public law officers will undertake to litigate every instance of allegedly invalid organization, annexation, disconnection and dissolution."
Defendants seek to avoid the effect of the Firek case by pointing out that in that case the plaintiffs were being unlawfully taxed by a sanitary district that had been previously dissolved, and that in the instant case the plaintiffs are residents and taxpayers of a school district in which they are being lawfully taxed. As a result, it is argued the interest of the plaintiffs is not personal to them but is common to the general public and any injury or damage to plaintiffs' rights of which they complain is to the general public. We think defendants in thus arguing overlook the fact that the court said in the Firek case that the interest of a citizen in the taxes to be collected from him "is a personal and substantial interest, and it does not become the less so because other citizens have a similar interest." Furthermore, it may be properly observed that all members of the general public do not pay school taxes. Those upon whom such taxes fall certainly do have a personal interest in the amount they are to pay.
We do not think the trial court erred in holding that the plaintiffs have the requisite personal interest to maintain a quo warrantor proceeding.
The remaining question to be decided is whether the General Electric tract was contiguous to the City of Bloomington at the time the annexation ordinance was adopted.
Sec 7, Div 1 of Art 7, Chap 24, Ill Rev Stats, 1959, provides that "Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article." There is no contention here that the annexation procedure followed did not conform to the statutory requirements. The General Electric tract which is designated as Tract 5 on the Plat accompanying the stipulation of facts, consists of 66 acres of land and lies East of and abuts upon the right of way of U.S. Route 66 (FA 5) which has been designated a freeway. The term freeway as defined in Art 2, Sec 2-212 of Ill Highway Code, Chap 121, Ill Rev Stats, 1959, is "A highway or street especially designed for through traffic, and to, from, or over which owners of or persons having an interest in abutting land or other persons have no right or easement or only a limited right or easement of access, crossing, light, air, or view by reason of the fact that such property abuts upon such highway or street or for any other reason." Also shown on the plat are 3 tracts of land on the west side of and abutting upon the freeway and which are designated as Tracts 1, 2 and 3. Tract 3 is directly opposite to Tract 5, Tract 2 adjoins Tract 3 on the south and Tract 1 adjoins Tract 2. Tracts 1, 2 and 3 were previously annexed by the City and the validity of such annexation is not challenged in this proceeding. The freeway right of way is marked Tract 4 on the Plat. Defendants concede that the City has never annexed the land within the right of way of U.S. Route 66. It thus appears that the strip of land constituting the right of way of the freeway is a common boundary between the City and Tract 5.
Defendants in contending that when it was annexed, Tract 5 was contiguous to the City within the meaning of the annexation statute rely primarily upon Spaulding School Dist. No. 58 v. Waukegan, 18 Ill.2d 526, 165 N.E.2d 283 and In re Petition for Annexation of Lots to Flossmoor v. Mutual Nat. Bank, 23 Ill. App.2d 440, 163 N.E.2d 215. In the Flossmoor case the petition sought the annexation of lands contiguous to the Village of Flossmoor. One of the objections raised was that the territory sought to be annexed was not contiguous to Flossmoor because the west half of Kedzie Avenue was not in the territory and, therefore, it was a "corridor" which rendered the territory noncontiguous. The trial court approved the petition. On appeal the objectors relied upon Wild v. People ex rel. Stephens, 227 Ill. 556, 81 N.E. 707; and People ex rel. Benjamin S. Adamowski v. Village of Streamwood, 15 Ill.2d 595, 155 N.E.2d 635. In its opinion the Appellate Court points out that when the Court in the Wild case said, "`The two last mentioned strips are not contiguous' because `no vehicle, and in fact, no person could pass from one strip to another without passing over or upon lands not within the village.' But that language referred to two `long narrow strips' whose purpose practically was to separate inhabitants and territory . . ." The court also observed that the decision in the Streamwood case rested on the view that the "purported annexation" of "a maze of roadways" was unreasonable and that the end sought in both Wild and Streamwood cases would be adverse to the fundamental theory that the territory of a city or village should not consist of separate or segregated areas. The court then expressed its conclusion in this language:
"In the Wild case the court thought that the statute should be construed liberally but that the word `contiguous' must not be `entirely disregarded.' And in the Streamwood case the court said that `contiguous' as used in Sec 7-8 `must mean . . . in the sense of adjacent to and parallel to the existing municipal limits. . . .' This court, in a zoning case, decided on authority of Webster that `adjacent' meant `lying near, close or contiguous'; that `adjacent' and `adjoining' were equivalents; and that one structure was `adjacent to' another, though separated by an alley. Schwartz v. Congregational Powolei Zeduck, 8 Ill. App.2d 438.
"We think the word `contiguous' should receive a uniform liberal construction throughout the Annexation Statute, having in mind the purpose of annexation, and consequently, we are of the opinion that the territory sought to be annexed is contiguous within the meaning of the act. The east side of the territory is `adjacent to and parallel to' Flossmoor, and Kedzie Avenue is the common boundary between Flossmoor and the territory. `Contiguity exists where boundary lines are co-terminous.' Rafferty v. City of Covina, 133 ...