Appeal from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Reversed and remanded.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 16, 1970.
On April 2, 1969, the Circuit Court of Winnebago County entered a judgment of ouster against defendant as prayed for in a quo warrantor action filed by relator, which is herein appealed. The complaint in quo warrantor was to oust defendant city from exercising governmental control over the territory annexed to the City of Rockford which is within relator's fire protection district. The annexation ordinance was passed and approved on November 28, 1967, allegedly pursuant to chapter 24, sections 7-1-8 and 7-1-10 of Ill Rev Stats 1967. Quo warrantor proceedings were instituted on November 7, 1968, which was 21 days prior to the running of the Statute of Limitations. (Ill Rev Stats 1967, c 24, § 7-1-46.)
The defendant filed an answer admitting the annexation, stating that the said annexation was pursuant to statutory authority, alleging that the plaintiff had an adequate remedy at law and that quo warrantor was not its exclusive remedy, a statement that the annexation was voluntary and, therefore, quo warrantor would not lie, and an allegation that the plaintiff was barred from bringing this action by the provisions of chapter 85, sections 8-102 and 8-103 of Ill Rev Stats 1967. Included in these affirmative defenses was the defense of laches, and an allegation that the territory was not contiguous to the City of Rockford, and that the granting of the relief prayed for in the complaint would not result in great inconvenience and public detriment.
On hearing, relator introduced evidence showing that all owners of record, prior to the adoption of the annexation ordinance, did not sign the original petition for annexation as required by the statute. (Ill Rev Stats 1967, c 24, § 7-1-8) which states, in part, that the annexation petition should be "a written petition signed by the owners of record of all such land within such territory." This hearing was held on January 15, 1969, proofs closed, and the case continued for oral argument on February 21, 1969. Meanwhile, on February 10, 1969, the defendant secured from the three owners omitted from the original petition, their petitions for annexation dated February 10, 1969, and by motion asked to introduce these petitions into the record. This motion was allowed over objection on February 13, 1969, and defendant amended its pleadings pursuant to chapter 110, section 46(1) (Ill Rev Stats 1967).
The trial court, on April 2, 1969, entered the judgment of ouster and stated therein: "(a) That the City of Rockford did not comply with Chapter 24, Section 7-1-8 in that the original petitions for the annexation dated November 15, 1967, upon which the annexation ordinance of November 28, 1967 was predicated, failed to include all owners of record of the territory annexed and that therefore said purported annexation is null and void; (b) That the territory so annexed was not contiguous to the City of Rockford within the contemplation of the law when such annexation was adopted and that therefore said annexation is null and void." This appeal by defendant city followed.
The issues, as presented in the pleadings, including the affirmative defenses, and the evidence, are whether or not (1) compliance with the annexation statutes is judged by the facts existing as of the date of the annexation ordinance or the date of hearing on the complaint in quo warrantor challenging such ordinance, (2) defects in an annexation ordinance are procedural so that the ordinance is not void or are the defects jurisdictional so that they would render the ordinance void and subject to collateral attack, (3) relator is barred from maintaining this quo warrantor action by laches, (4) the territory annexed is contiguous to the city as required by statute.
We first consider the question of whether or not compliance with the annexation statute is determined by the facts existing as of the date of the annexation ordinance, or when there is a hearing on the complaint in quo warrantor, as of the time the trial court is called upon to render a final judgment in the quo warrantor action.
The burden is on the defendant to prove that all the circumstances required by section 7-1-8 were present at the time the annexation ordinance was passed. In re Annexation of Territory to City of Springfield, 85 Ill. App.2d 191, 228 N.E.2d 755; People ex rel. Rogers v. City of Park Ridge, 86 Ill. App.2d 82, 230 N.E.2d 289; People ex rel. Jordan County v. Forest View, 21 Ill.2d 384, 172 N.E.2d 780.
In re Annexation of Territory to City of Springfield, supra, the court said at p 194:
"The territory sought to be annexed was not, at the time of the filing of the petition, contiguous to the annexing municipality. The intervening annexation of the territory between the municipality and the territory here involved is inoperative to satisfy the jurisdictional requirement of contiguity. Our inquiry must relate to ascertaining whether or not it was contiguous on February 9, 1966, for jurisdiction depends on the facts existing at the time of the commencement of the action."
In People ex rel. Rogers v. City of Park Ridge, supra, it was held that the signers of a petition for annexation of territory to the city under the applicable statutory provisions did not have the statutory right to subsequently withdraw their names from the petition, since a withdrawal petition does not appear in any of the appropriate statutory methods of annexation.
In People ex rel. Jordan County v. Forest View, supra, p 389, the Supreme Court concluded that the trial court erred in holding that only persons registered under the Election Code were eligible to sign the annexation petition, and in response to the contention that quo warrantor proceedings could not be used to review the determination of the county court in annexation proceedings stated at pp 389 and 390:
"Defendant's contention that this quo warrantor proceeding cannot be used to review the determination of the county court in the annexation proceeding is beside the point. Plaintiffs do not purport to review the determination of the county court. Rather, their claim is that the county court lacked jurisdiction to make any determination, because the failure of the petition to comply with the statutory requirements rendered it insufficient to confer jurisdiction upon the county court. The statutory requirements of the ...