APPEAL from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding.
MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
The relator, the City of Des Plaines filed a complaint in quo warrantor to challenge an annexation ordinance of the Village of Mt. Prospect on the grounds that the subject property had already been annexed by Des Plaines. The legal owner of the property, Chicago Title and Trust Company, as trustee, intervened. The circuit court of Cook County held the Des Plaines annexation ordinance null and void for noncompliance with section 7-1-1 of the Illinois Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 7-1-1), and that the property in question was properly annexed by Mt. Prospect. The City of Des Plaines appeals from the judgment order, raising two issues for our consideration: (1) whether section 7-1-1 automatically extends an annexing municipality's boundaries to the far side of adjoining highways by operation of law, and (2) whether the statute of limitations for challenging an annexation ordinance bars Mt. Prospect's defense.
The facts, as set forth in the pleadings, are uncontested and set forth in chronological order. On April 15, 1968, the City of Des Plaines passed and approved an ordinance by which it purported to annex unincorporated territory located at the southwest corner of the intersection of Dempster Street and Elmhurst Road, in Cook County, Illinois, pursuant to the voluntary written petition of the record owners of the land, as a municipality is authorized to do under section 7-1-8 of the Illinois Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 7-1-8.) Two weeks later, on April 30, 1968, the ordinance and map of the annexed territory were recorded with the Cook County Recorder of Deeds, as prescribed by the statute. About 10 months later, on March 4, 1969, the Village of Mt. Prospect passed and approved an ordinance by which it purported to annex parts of the same territory which had been included in the Des Plaines ordinance. On April 3, 1969, almost a month after the passage of Mt. Prospect's annexation ordinance, Des Plaines applied to the circuit court of Cook County for leave to file a complaint in quo warrantor against Mt. Prospect for the defendant municipal corporation "to show by what warrant it exercises governmental powers and functions in and over" the territory in question. The court granted the application; the complaint was filed and the summons was issued that same day. The summons was served upon Mt. Prospect shortly thereafter. Seven days after the filing of the complaint, on April 10, Mt. Prospect recorded its ordinance and map with the Cook County recorder of deeds. On April 30, 1969, 1 year elapsed since the Des Plaines ordinance became final, 1 year being the statute of limitations for challenging annexations. (Ill. Rev. Stat. 1969, ch. 24, par. 7-1-46.) One week later, on May 7, 1969, Mt. Prospect filed its answer to the complaint, in which it attacked the Des Plaines annexation ordinance as being invalid, inter alia, for failure to comply with the requirements of section 7-1-1 of the Code. (Ill. Rev. Stat. 1967, ch. 24, par. 7-1-1.) The legal owner of the territory, Chicago Title and Trust Company, as trustee, subsequently intervened in the action.
Arguments were heard in the cause by the circuit court of Cook County, which found:
"That Section 7-1-1 of Chapter 24 of the Illinois Revised Statutes then in full force and effect required that, in the case of every annexation ordinance, the new boundary shall extend to the far side of any adjacent highway and shall include all of every highway within the area annexed. That ordinance A-17-68 of the City of Des Plaines failed to include said highways as aforesaid and said ordinance is therefore null and void and of no effect * * *."
Furthermore, the court found that since the Des Plaines ordinance was null and void, it was not a bar to the passage of the Mt. Prospect ordinance, which was "in all respects valid and lawful." The territory in question was declared to be within the corporate limits of the Village of Mt. Prospect, and the City of Des Plaines appeals.
• 1 We begin by noting that the Des Plaines complaint in quo warrantor was filed before Mt. Prospect recorded its annexation ordinance. The complaint alleged that Mt. Prospect was exercising its governmental powers in and over the territory in question. An action in quo warrantor may be brought against any municipal corporation which "exercises powers not conferred by law." (Ill. Rev. Stat. 1967, ch. 112, par. 9; People ex rel. Gage v. Village of Wilmette (1940), 375 Ill. 420.) Matters which occur after the filing of a petition for leave to file a complaint in quo warrantor cannot be considered by the court. (People ex rel. Smith v. Wisch (1952), 345 Ill. App. 609.) The issue of whether or not Mt. Prospect actually exercised its governmental powers in and over the territory in question was not considered by the trial court and need not be considered here. In the absence of objection, we feel the complaint stated a good cause of action in quo warrantor. Cf. Ziebell v. Village of Posen (1930), 257 Ill. App. 32.
The first of relator-appellant's contentions to be considered is whether the statute of limitations for challenging an annexation bars Mt. Prospect's defense that the Des Plaines ordinance is void. The statute involved (Ill. Rev. Stat. 1967, ch. 24, par. 7-1-46) provides:
"Neither the People of the State of Illinois nor any person, firm or corporation, public or private, nor any association of persons shall commence an action contesting either directly or indirectly the annexation of any territory to a municipality unless initiated within one year after the date such annexation becomes final or within one year of the effective date of this amendatory Act of 1965 whichever date occurs latest. This amendatory Act of 1965 shall apply to annexations made prior to the effective date of the Act as well as those made on or after the effective date. Where a limitation of a shorter period is prescribed by statute such shorter limitation applies and the limitation set forth in this section shall not apply to any annexation where the jury, body or officer annexing the territory did not at the time of such annexation have jurisdiction of the subject matter."
Des Plaines' complaint in quo warrant was filed on April 3, 1969, 27 days before April 30, which was the 1-year anniversary of the date the Des Plaines annexation became final. The Des Plaines annexation was attacked for the first time by Mt. Prospect's answer, which was filed on May 7, 1969, 1 week after the 1-year period ran. Relator Des Plaines argues on appeal that the trial court erred by not concluding that Mt. Prospect's attack was barred by the statute of limitations. Mt. Prospect's position is that the ab initio invalidity of Des Plaines' ordinance brings the case within the exception in section 7-1-46 for annexations wherein the annexing body did not have jurisdiction over the subject matter. We disagree with relator for reasons other than those presented by the defendant.
• 2 We perceive the issue to be whether an attack upon an annexation raised by an answer to a quo warrantor complaint may still be asserted where the attack upon the annexation becomes barred by the statute of limitations at a time after the filing of the complaint. The resolution of this issue depends upon how Mt. Prospect's attack is viewed. If the attack is characterized as a matter of pure defense, the law to be applied is that matters of pure defense are never barred by a statute of limitations. (Heck v. Rodgers (7th Cir. 1972), 457 F.2d 303.) If, on the other hand, the attack is characterized as being in the nature of a counterclaim, there is a question as to whether the matter raised in the answer to the complaint in quo warrantor is barred by the statute of limitations.
• 3 Quo warrantor is a legal action whereby the legality of an exercise of powers by a municipal corporation may be placed in issue. At common law, only the defendant's rights could be considered; the relator's title could not be adjudicated. (65 Am.Jur.2d Quo Warrantor, § 115, at 312 (1972).) Under such an action, it would not have been possible for Des Plaines' annexation to have been declared null and void because the court would have had subject matter jurisdiction only over the question of the legality of Mt. Prospect's annexation. Mt. Prospect's attack would have been in the nature of a matter in pure defense, only to defendant itself. In Illinois, the common-law action of quo warrantor has been modified by the legislature in this regard to the end that "[t]he Court shall determine and adjudge the rights of all parties to the proceeding." (Ill. Rev. Stat. 1967, ch. 112, par. 14.) Under the statute, the trial court herein also had subject matter jurisdiction over the question of whether Des Plaines' annexation was proper. Unlike a matter in pure defense, which may be used only as a shield but not as a sword to counterattack, Mt. Prospect's answer bears a striking resemblance ...