APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED E. WOODWARD, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The Winfield Fire Protection District (WFPD) appeals from an order disconnecting territories. (Ill. Rev. Stat. 1973, ch. 127 1/2, par. 38.3). The construction and validity of the statute are in issue.
The statute provides, as material:
"Any territory within a fire protection district that is or has been annexed to a city, village or incorporated town that provides fire protection for property within such city, village or incorporated town is, by operation of law, disconnected from the fire protection district * * *. Such disconnection by operation of law does not occur if, within 60 days after such annexation * * *, the fire protection district files with the appropriate court a petition alleging that such disconnection will cause the territory remaining in the district to be noncontiguous or that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate fire protection service to the territory remaining with the district. * * *"
In July of 1965, following legislative adoption of section 20 of the Fire Protection District Act (Ill. Rev. Stat. 1973, ch. 127 1/2, par. 38.3), the WFPD filed a petition objecting to the automatic disconnection of certain territory then within the city limits of Wheaton. The petition included allegations that the disconnection would result in noncontiguity of certain geographical areas and would impair the financial status of the district together with its ability to render full and adequate fire protection service to the remaining territory.
On March 3, 1967, an order was entered by the trial court without a hearing stating that the automatic disconnection provisions of section 20 (Ill. Rev. Stat. 1973, ch. 127 1/2, par. 38.3) were not applicable to any territory within the WFPD as it existed as of that date. *fn1 The City of Wheaton filed a timely motion to vacate the March 3 decree, charging that there was no notice of the hearing and that therefore the court lacked jurisdiction to enter the order. In an answer to defendant's motion the WFPD admitted that the order was entered without notice and without the City having been given the opportunity to be heard. No hearing was conducted on the motion to vacate.
Between 1968 and 1972 the City of Wheaton annexed additional portions of the WFPD. The WFPD, however, only filed petitions objecting to the automatic disconnection of some of the annexed areas. In July of 1973, a hearing on the petitions was conducted as a result of which the trial court ordered that the previous March 3, 1967, order be vacated, that the territories annexed by the City of Wheaton be disconnected from the WFPD and that the City of Wheaton assume the duty of fire protection for all such territories. The order included the findings that petitions to prevent disconnection were to be heard in one consolidated case as of the date of the hearing, that the evidence presented was to be based upon existing valuation and rates rather than those as of the date of filing the petitions, that "non-contiguity" was waived as a defense by the failure of the fire protection district to file petitions on every annexation, and that the district had failed to show impairment of its ability to render fully adequate protection to the remainder of the district.
The WFPD contends that each of the findings are erroneous and led the trial court to the wrong conclusion.
The district contends that the questions of status, contiguity and ability to serve should have been determined as of the date of the filing of the various petitions rather than as of the date of the hearing upon all of the petitions. It first argues that certain of the annexations to the City of Wheaton resulted in noncontiguity at the time the petitions to prevent disconnection were filed, but that this was remedied by subsequent annexations thus eliminating the issue of contiguity at the date of the hearing on some of the parcels involved. We concluded, however, that the trial court correctly determined that the date of the hearing was the controlling date under the statute.
• 1 In stating the allegations which must be contained in a petition filed by a fire protection district to prevent automatic disconnection of a part of its territory when such territory is within an annexation to a municipality, the statute itself uses words of futurity ("will cause the territory remaining," "will impair the ability of the district"). In the absence of statutory definitions indicating a different legislative intent, we must presume that the words have their ordinary and popularly understood meaning. (People v. Dednam (1973), 55 Ill.2d 565, 568.) As commonly used, the word "will" is defined as an auxiliary word to express futurity (Webster's New Twentieth Century Dictionary (2d ed. 1965).) In Wood Dale Public Library District v. Village of Itasca (1974), 22 Ill. App.3d 922, 928, this court held that similar statutory provisions affecting library districts (Ill. Rev. Stat. 1969, ch. 81, par. 1002-9.1) required that the issues of noncontiguity and impairment of values be determined "as soon as disconnection occurs." *fn2
On analysis, the statute clearly contemplates that questions of contiguity and impairment must be based upon facts as they exist at the time of the hearing and final disposition. Upon passage of the time specified in the statute disconnection is automatic. The automatic disconnection does not occur, however, if a petition is filed within 60 days of the annexation to the City. In that event a judicial hearing is indicated at the conclusion of which the court either orders the disconnection or rules in favor of the objecting fire protection district. Since a hearing is contemplated in order to determine whether disconnection should take place and since disconnection does not occur until it is in fact ordered by the court, the facts at the time of the hearing and final disposition must control the court's decision. This interpretation is in accord with the usual holdings in other disconnection proceedings where it has been concluded that the determination of whether certain territory may be deemed disconnected from a city must be based on the state of facts existing at the time of the hearing rather than at the time the petition to disconnect was filed. La Salle National Bank v. Village of Willowbrook (1963), 40 Ill. App.2d 359, 362; In re Petition of Cox (1961), 32 Ill. App.2d 142 (abstract opinion); In re Petition of Hillcrest Center, Inc. (1962), 36 Ill. App.2d 19 (Abstract opinion).
The underlying rationale for these decisions become evident when annexation proceedings are compared to disconnection proceedings. In annexation proceedings the municipality must ascertain whether the facts presented in a particular annexation petition show compliance with statutory prerequisites before it may exercise its annexing power. Since it is jurisdictional with the passage of the annexation ordinance that contiguity be present, the sufficiency of the petition must be determined at the time of the passage of the ordinance rather than at a subsequent time. People ex rel. Cherry Valley Fire Protection District v. City of Rockford (1970), 120 Ill. App.2d 275, 279-282; In re Annexation to City of Springfield (1967), 85 Ill. App.2d 191, 194.
WFPD argues further that the objecting petitions should have been heard separately and considered individually. It reasons that collective consideration of the petitions allows the court to determine boundaries rather than the legislature. And, it argues that the collective hearing allowed the municipality to eliminate the issue of contiguity. It also argues that the collective hearing changed the entire question of valuation to an assessed valuation many years later thus affecting the right of the district to plan its levy. It appears obvious, however, that the latter contention cannot be urged to have adversely affected the district in view of the rapid rise in valuations in the period intervening between the petitions and the hearing dates.
• 2 The district was not prevented from seeking hearings on disconnections as they came up or even attacking the various annexations to the City of Wheaton in appropriate proceedings. However, the district's burden to notice up their petitions for a court hearing if desired could not be avoided by it. While the statute establishes a prescribed time within which the court is to set a hearing date, this requirement is merely directory rather than mandatory, and the failure of the judge to enter an order fixing a hearing date within the time prescribed does not affect the validity of the proceedings which ultimately follow. (Cf. In re Annexation to the City of Darien (1973), 16 Ill. App.3d 140, 145.) In view of our holding that the ...