Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Judgment reversed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment in a quo warrantor proceeding in which the trial court held invalid an ordinance of the defendant municipality undertaking to annex certain unincorporated territory pursuant to the provisions of section 7-1-13 of the Cities and Villages Act (Ill Rev Stats, c 24, § 7-1-13 (1961)). This statute authorizes annexation without the consent of any of the owners, provided such territory is sixty acres or less and is "wholly bounded by one or more municipalities. . . ."
The property in question consisted of two parcels, one held in trust by the relator and hereinafter referred to as relator's property, and the other a right-of-way belonging to the Chicago and Northwestern Railway. The parcels lie side by side and constitute a single unincorporated territory less than sixty acres in size, wholly encircled by the defendant municipality with one trivial exception later noted. The right-of-way lies between the municipality and one of four sides of the relator's property. The trial court held in substance that the statute in question did not empower municipalities to annex railroad rights-of-way and that hence relator's property was not wholly bounded by the defendant municipality as the statute required. Defendant argues that there is no statutory impediment to the annexation of railroad rights-of-way and that therefore the existence of the right-of-way between relator's property and the municipal boundaries did not operate as a bar to the annexation of both parcels pursuant to the provisions of the statute.
Whether railroad rights-of-way may be annexed appears to be a question of first impression in this State, and both parties note the dearth of statutory or case authority on this point. Plaintiff stresses that railroads are the subject of comprehensive regulation and supervision and that they are under the general jurisdiction of the Illinois Commerce Commission, with the exception that municipalities are authorized to determine maximum speeds within the municipal limits. Ill Rev Stats, c 114, §§ 1-188 (1963). Plaintiff argues that had the legislature intended or envisioned such annexation by municipalities, it would have spelled out more fully the powers a municipality would have to regulate railroads. Defendant counters that the absence of any special provision concerning annexation of railroad property indicates that this type of property should not be differentiated from any other for purposes of annexation.
In deciding whether railroad rights-of-way are exempt from the provisions regulating involuntary annexation, it is necessary to examine various sections of the Cities and Villages Act dealing with changes in the status of unincorporated territory. The general authority for annexation of contiguous land is found in section 7-1-1, which provides as follows:
"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."
The words "any territory" have a plain meaning, and in the absence of any statutory provision or public policy to the contrary, must be held to include land used as a railroad right-of-way.
Section 7-1-13, which governs the annexation in the instant case, likewise refers to "any unincorporated territory" again without setting aside any particular type of property for special treatment. The apparent intention of the legislature was that any territory otherwise meeting the requirements of the section may be annexed. Remaining subsections of chapter 24, section 7, subsection 1, also fail to make any allusion to railroad lands as distinguished from other types of property. Indeed, the only mention of railroad rights-of-way is in section 7-1-2, which in part outlines an alternative procedure for annexation. The statute says:
"[T]he corporate authorities of any such municipality may initiate the proceedings by enacting an ordinance expressing their desire to annex such described territory; provided, no tract of land in excess of 10 acres in area may be included in the ordinances of the municipality initiating the proceedings without the express consent of the owner thereof, unless the said tract (1) is subdivided into lots or blocks or (2) is bounded on at least 3 sides by lands subdivided into lots or blocks; a tract of land shall be deemed so bounded if it is actually separated from such subdivision only by the right-of-way of a railroad or other public utility or at a public highway."
Clearly, the exceptions pertinent to railroads, other public utilities and public highways were made with the realization that as to such lands, platting or subdivision could not be expected and that their presence would otherwise unduly limit the application of the provisions. The existence of a specific exception for railroad rights-of-way in section 7-1-2, coupled with the absence of such an exception in the other annexation provisions, where platting is not a requirement, makes it evident that it was not the intention of the legislature to exempt railroad rights-of-way in general from the annexation laws.
Further support for the position of the municipality, that railroad property should not be treated differently, is found in section 2-2-5 of the Cities and Villages Act, which provides:
"Whenever any area of contiguous territory, not exceeding 4 square miles, and not already included within the corporate limits of any municipality has residing thereon a population of not less than 2,500 persons . . . it may be incorporated as a city. . . ."
No exception is made for railroad property, and it thus appears that a railroad right-of-way, if within the boundaries of a newly incorporated city, ...