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Peo. Ex Rel. County of Du Page v. Lowe

OPINION FILED JANUARY 19, 1967.

THE PEOPLE EX REL. THE COUNTY OF DU PAGE, APPELLEE,

v.

JOHN B. LOWE ET AL., APPELLANTS.



APPEAL from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County; the Hon. THOMAS O'MALLEY, Judge, presiding.

MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

This quo warrantor proceeding was initiated by the State's Attorney of Du Page County challenging the validity of the incorporation of the village of Weston and the authority of its elected officials to hold office. The circuit court of Du Page County found that the village had been lawfully incorporated and that the defendant officers legally held office. On appeal by the People to the Appellate Court, Second District, the judgment was reversed and the cause remanded with directions to enter an order of ouster. (People ex rel. Du Page County v. Lowe, 67 Ill. App.2d 369.) We granted leave to appeal.

The sole issue in this case is the validity of an order of the county court of Du Page County directing a referendum to be held on the question of whether to incorporate the village of Weston. The People contend that the county court's order was void since it lacked an express finding that the area under consideration was "a village in fact". They contend further that since the court had no authority to order the election, the subsequent incorporation of the village was likewise a nullity. In order to resolve this question it is necessary to examine the relevant provisions of the Illinois Municipal Code as amended. Ill. Rev. Stat. 1963, chap. 24, par. 1-1-1 et seq.

Section 2-3-5 of the act describes the type of area which may be incorporated as a village and sets forth the procedure to be followed to initiate the process of incorporation. The statute provides in pertinent part that "Whenever any area of contiguous territory, not exceeding 2 square miles, and not already included within the corporate limits of any municipality and has residing thereon at least 400 inhabitants living in dwellings other than those designed to be mobile, 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 land 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 Code."

The parties agree that the petition filed in this case on March 19, 1963, complied with the requirements of section 2-3-5.

Section 2-3-6 sets forth what shall occur after the filing of such a petition. The statute provides that "Upon the filing of such a petition with the county clerk, the county judge shall hear testimony and rule that the area under consideration is or is not a village in fact. The ruling of the judge shall be entered upon the records of the county court. If the judge rules that the area does not constitute a village in fact, the petition to incorporate the area as a village is denied and no subsequent petition concerning village incorporation of any of the land described in the earlier petition may be filed within one year. If the judge rules that the area does constitute a village in fact, such judge shall perform the same duties with reference to fixing the time and place of such election, appointing judges of election thereof, and giving notice, as are required to be performed by the corporate authorities in Section 2-3-1." The section then goes on to describe the form of the ballot and the method of handling the returns of the election. The section concludes with the provision that "If the 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 Code with the name stated in the petition." Ill. Rev. Stat. 1963, chap. 24, par. 2-3-6.

In the case at bar, the county court conducted a hearing upon the filing of the petition and heard evidence as to the area to be incorporated, including its location, its physical attributes, and the number of inhabitants therein. The court then made the following findings:

"1. That the area of territory described in said petition constitutes an area of contiguous territory located wholly within less than two square miles, and that no part of such area of contiguous territory is already included within the corporate limits of any existing municipality heretofore organized under and pursuant to the statutes of the General Assembly of the State of Illinois, and that no part of such area of contiguous territory lies within one mile of the boundary line of any existing municipality heretofore organized under and pursuant to the statutes of the General Assembly of the State of Illinois.

"2. That the area of contiguous territory described in said petition above referred to has residing thereon at least 400 inhabitants living in dwellings other than those designed to be mobile as of the date of the filing of said petition with the county clerk of Du Page County, Illinois.

"3. That the said petition above referred to is properly addressed to the judge of the county court, Du Page County, Illinois, and is signed by the genuine signatures of more than thirty-five (35), namely thirty-eight (38) electors who do reside within the area of contiguous territory referred to and described in said petition, and that none of the signers to said petition has withdrawn his signature from said petition.

"4. That no election to organize a village under and pursuant to the laws of the General Assembly of the State of Illinois has been held within any part of the territory described in the petition above referred to within one year preceding the date of the filing of said petition with the county clerk of Du Page County, Illinois.

"5. That the said petition above referred to sets forth a definite description of the lands intended to be embraced in the proposed village; that said petition sets forth the number of inhabitants residing within the area of contiguous territory described in said petition, exceeding four hundred inhabitants living in dwellings other than those designed to be mobile; that said petition sets forth the name of the proposed village, which shall be `Weston' and said petition contains a prayer that the question be submitted to the electors residing within the limits of the proposed village whether they will incorporate as a village under the provisions of the Act of the General Assembly of the State of Illinois, entitled `The Illinois Municipal Code. 1961, May 29, Laws 1961' and also known as Chapter 24, Sections 2-3-5 and 2-3-6 of the Illinois Revised Statutes, as amended, and that all the allegations contained in said petition are true and said petition is in proper form and said petition in all respects complies with the applicable provisions of Article 2-3-5 and 2-3-6 of the Act of the General Assembly of the ...


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