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In Re Carol Stream Fire Protection Dist.

OPINION FILED APRIL 1, 1977.

IN RE CAROL STREAM FIRE PROTECTION DISTRICT. — (LUCY M. WHITTAKER ET AL., PETITIONERS-APPELLANTS,

v.

KENNETH DE JONG, OBJECTOR-APPELLEE.)



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

The appellants, who are two signers of a petition requesting annexation of territory to the Carol Stream Fire Protection District, and the Carol Stream Fire Protection District (hereinafter FPD), appeal from an order declaring the results of an election which denied annexation of certain territory to the district. The principal issue is whether various parcels of land included in the petition for annexation, which are contiguous to the district boundaries but in some instances physically separated from each other, may be considered as one territory to be annexed upon the total majority vote of qualified voters in all of the lands described. This appears to be a question of first impression in Illinois and involves the interpretation of sections 1 and 3 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1973, ch. 127 1/2, pars. 21, 23).

Section 3 provides that proceedings for the annexation of "additional contiguous territory" to a fire protection district may be initiated by the filing of a petition in the circuit court signed by one percent or more of the legal voters residing in the territory to be annexed. The petition shall request the court to submit to the legal voters of the proposed additional territory the question whether the territory shall become part of a particular fire protection district and assume a proportionate share of the district's bonded indebtedness. Section 3 also provides that the hearing on the petition and the election "shall be carried out in the manner described in section 1," which governs the organization of fire protection districts, "as nearly as may be." Section 1 provides, as material, for the establishment of separate voting precincts for voters residing in unincorporated areas and voters residing in a city, village, or incorporated town.

The petition, filed on February 20, 1975, contained the signatures of more than one percent of the legal voters residing within the territory described and sought to be annexed. In the petition the "territory" was "generally described as that land which is not now presently annexed to the Carol Stream Fire Protection District lying south of North Avenue, north of Geneva Road, east of Gary Avenue and west of Bloomingdale Road, and a parcel of property lying south of North Avenue just east of its intersection with St. Charles Road * * *." The particular legal descriptions were appended to the petition. All of the property described in the petition was contiguous to the FPD. A substantial portion of the area bounded by North Avenue, Geneva Road, Gary Avenue, and Bloomingdale Road was already part of the FPD. From the record, it appears that the proposed annexation of the various parcels described in the petition was designed to regularize the boundaries of the district and to eliminate certain unannexed "islands" completely surrounded by FPD land. Some of the land described was within Milton Township; some, within Wayne Township. Within Milton Township, some of the land was within the corporate limits of the Village of Carol Stream; some, outside the village. Several of the incorporated parcels were contiguous to unincorporated parcels.

The hearing on the petition proceeded without objection, and the trial judge ordered the question of the annexation of the subject property submitted to the voters in the territory to be annexed at a general election to be held on April 26, 1975. The order established three election precincts in the subject territory. Precinct 1 included all of the residents of the parcels within the village limits of Carol Stream. Precinct 2 included all of the residents within the unincorporated territory of Du Page County lying within Milton Township. Precinct 3 included all of the residents within unincorporated Du Page County lying within Wayne Township. When the court convened to canvass the returns on April 29, 1975, the objector, a resident of Precinct 2, entered his appearance.

Canvassing the votes of the election, the court entered an order which declared the results of the election:

Precinct No. 1: For 54 Votes Against 0 Votes Precinct No. 2: For 58 Votes Against 79 Votes Precinct No. 3: For 0 Votes Against 0 Votes

The court then ordered the land contained within Precincts 1 and 3 annexed to the FPD. It held, however, over petitioners' objection that Precinct 2 would not be annexed since a majority of the voters in that precinct had voted against annexation. No cross-appeal has been filed as to the annexation of Precincts 1 and 3.

In this appeal the petitioners first argue that the outcome of an election to annex land to a fire protection district is to be determined by the total majority of votes in all of the election precincts of the territory in which the election is held. They reason that several pieces of land all contiguous to a fire protection district need not be contiguous to each other to form a "territory." They also argue in this connection that, particularly where it is impossible to determine whether the voters in the separate parcels were for or against annexation, the majority vote in the totality of the described areas must govern. The objector contends, however, that the "territory" described in the statute means a single body of land, not any number of parcels wholly disconnected from each other; and that the area contained within Precinct 2 may not be annexed contrary to the will of its inhabitants.

• 1 The rule has been often stated that in construing a statute we must ascertain and give effect to the legislative intent as expressed in the statute and as determined from the reason for the enactment and the meaning of the words used in the context of the statute. In re Roberts Park Fire Protection District, 61 Ill.2d 429, 437-38 (1975).

Section 1 (Ill. Rev. Stat. 1973, ch. 127 1/2, par. 21) establishes certain qualifications for the creation of fire protection districts:

"(1) an area of contiguous territory in a county, or in more than one but in not more than 5 counties; (2) so situated that the destruction by fire of the buildings and other property therein is hazardous to the lives and property of the public; (3) so situated that the acquisition, establishment, maintenance and operation of a fire station or stations, facilities, vehicles, apparatus and equipment for the prevention and control of fire therein will conduce to the promotion and protection of the health, safety, welfare and convenience of the public; (4) so situated that it does not divide any city, village or incorporated town, but, in the case of a city, village or incorporated town situated partly within and partly without one or more existing fire protection districts, such territory shall not be considered as dividing the city, village or incorporated town if it includes all of the city, village or incorporated town situated outside of any existing fire protection district; (5) so situated that such territory contains no territory included in any other fire protection district, * * *."

Section 3 (Ill. Rev. Stat. 1973, ch. 127 1/2, par. 23) provides for annexation of territory to the district, and states in pertinent part:

"Additional contiguous territory having the qualifications set forth in Section 1 may be added to any fire protection district as provided for ...


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