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Peo. Ex Rel. Marre v. Countryside Sanitary Dist.

MAY 5, 1972.

THE PEOPLE EX REL. EUGENE MARRE ET AL., PLAINTIFFS-APPELLANTS,

v.

COUNTRYSIDE SANITARY DISTRICT, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 17, 1972.

This is a quo warrantor proceeding in which the trial court found that certain annexation actions of defendant were valid and resulted in the inclusion of property of the relators (hereinafter "plaintiffs") within the jurisdiction of defendant. Plaintiffs, more than 60 in number, have appealed from that order.

A rough sketch of the area, which was admitted in evidence, will make it easier to understand the positions taken by the respective parties.

Defendant, Countryside Sanitary District, and the neighboring La Grange Highlands Sanitary District were each incorporated at about the same time in 1958. Brainard Avenue, a north-south roadway, was the common boundary between the two districts except that the east half of Brainard Avenue, for a width of 50 feet and a length of 1,580 feet, was not included within the boundary lines of either sanitary district. Abutting this excluded portion of Brainard Avenue on the east is a 30-acre tract of land or subdivision known as Edgewood Park Unit No. 2. Within this area are approximately 90 homes, including plaintiffs', built on fully improved lots which had been serviced by sanitary sewers prior to the organization of defendant sanitary district. Edgewood Park Unit No. 2 subdivision was originally included within the boundary line plans for defendant sanitary district, but it was excluded by order of the County Court of Cook County prior to the referendum which created said district. As a result, neither the east half of Brainard Avenue adjoining the Edgewood Park subdivision, nor the subdivision itself, was included in the defendant district.

On December 2, 1963, the Trustees of defendant sanitary district passed an ordinance which annexed the 50' x 1580' strip of Brainard Avenue in question, relying upon the Sanitary District Act of 1936, Ill. Rev. Stat. 1961, ch. 42, par. 443a.2, which reads:

"Territory dedicated or used for highway purposes — Annexation

Any sanitary district may annex any territory contiguous to it even though the annexed territory is dedicated or used for street or highway purposes if no part of the annexed territory is within any other sanitary district * * *."

On the same day, the Trustees of defendant sanitary district passed a second ordinance which annexed the Edgewood Park subdivision, on the assumption that by virtue of the street strip annexation, the subdivision had become completely surrounded by the defendant district. For this second annexation, the ordinance relied on Ill. Rev. Stat. 1961, ch. 42, par. 443a.3, which reads:

"Unincorporated territory of 60 acres or less and wholly bounded by district — Annexation

Whenever any unincorporated territory, containing 60 acres or less, is wholly bounded by any sanitary district organized by this Act, that territory may be annexed by that sanitary district by the passage of an ordinance to that effect by the board of trustees of the sanitary district, describing the territory to be annexed * * *."

Plaintiffs had no actual knowledge of these ordinances until the summer of 1964, when defendant attempted to collect from plaintiffs a sanitary sewer service charge.

On October 2, 1964, some of these plaintiffs filed a suit for declaratory judgment in the Circuit Court. On appeal from a holding that both annexations were valid, this court reversed the judgment and dismissed the proceeding on the ground that the sole remedy for testing the validity of an annexation proceeding was in Quo Warrantor. (Edgewood Pk. # 2 H. Ass'n v. Countryside S.D., 96 Ill. App.2d 161, 237 N.E.2d 838.) The Supreme Court affirmed on March 27, 1969, at 42 Ill.2d 241, 246 N.E.2d 294.

On September 10, 1969, plaintiffs filed their Petition for Leave to File a Complaint in Quo Warrantor in the Circuit Court of Cook County, the Illinois Attorney General and the Cook County State's Attorney having refused to initiate the suit. The trial court entered an order finding that both annexations were ...


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