APPEAL from the Circuit Court of Cook County; the Hon. HARRY
G. COMERFORD, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Three petitions were filed by North Maine Fire Protection District (the District) against the Village of Niles (the Village) to prevent the automatic disconnection of three parcels of property annexed by the Village. The District argued that the automatic disconnection of these parcels would impair the ability of the District to provide adequate fire protection and in two cases that the disconnection would cause the territory remaining in the District to be noncontinguous in contravention of section 20 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1969, ch. 127 1/2, par. 38.3) which states:
"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 as of the January first after such territory is annexed to the city, village or incorporated town, or in case any such territory has been so annexed prior to the effective date of this amendatory Act of 1965, as of January 1, 1966. Such disconnection by operation of law does not occur if, within 60 days after such annexation or after the effective date of this amendatory Act of 1965, whichever is later, 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. When such a petition is filed, the court shall set it for hearing, and further proceedings shall be held, as provided in Section 15 of this Act. At such hearing, the district has the burden of proving the truth of the allegations in its petition."
After hearing the evidence of the District the court dismissed the petitions on the Village's motion and after argument denied the District's motion to vacate the dismissals. The District appeals contending that the court erred in excluding the opinion evidence of a District trustee on the question of impairment; that the decision of the trial court is against the manifest weight of the evidence; and that the question of contiguity was properly before the court.
The North Maine Fire Protection District was chartered in 1952 to provide fire protection for residents and property in an unincorporated area of Maine Township, Cook County, Illinois covering approximately 6 1/2 square miles. Until December 1969 when the District's own fire department went into service, fire protection was provided under contracts with the neighboring City of Des Plaines and Village of Niles.
On April 28, 1970, the Village adopted ordinances 1970-11 and 1970-12 which annexed two parcels of land, which for the sake of brevity, will be referred to as parcel "A" and parcel "B" respectively. On May 26, 1970, the Village adopted ordinance 1970-20 which annexed parcel "C". Within the 60 days prescribed by statute the District filed petitions to prevent the automatic disconnections of these parcels. In 1969, parcel "A" had a total assessed valuation of $496,317; parcel "B", $1,444,986; parcel "C", $1,498,355. The total valuation was $3,439,658. The resulting tax levy on the three parcels at the tax rate of $3 per thousand would be $10,319. The total tax levy on all property within the District including the three parcels in question would be $161,563. The District estimated a deficit of approximately $18,000 if the three parcels remained in the District and a deficit of approximately $28,000 if that property were disconnected.
The District first argues that the trial court erred in excluding the opinion evidence of Henry A. Coopmans, president of the board of trustees of the District. Coopmans was called as a witness by the District. He testified that he had lived in the District and had been a trustee since 1952. From 1952 to 1969, fire protection was provided by DesPlaines under a contract with the District. In 1966 after DesPlaines notified the District that they wished to terminate the contractual arrangement, the board of trustees called for public referenda for a $500,000 bond issue and to increase the District's tax levying power from $1.25 per thousand dollars of assessed valuation to $2.50 per thousand. The District then purchased a site and built and equipped a fire station.
It was stipulated that the assessed valuation for the District for 1969 was $53,854,503, including the valuation of the property described in the three petitions.
Coopmans testified further that the tax levy was raised to $3 per thousand which was the 1970 rate.
• 1 At the end of his direct testimony this colloquy took place:
"Q. Now, Mr. Coopmans, based upon your experience as president and member of the Board of Trustees of the Fire District, and your knowledge of the cost of operating the District, do you have an opinion concerning whether the loss of assessed valuation in the territory set forth in these three petitions would impair the ability of the District to render fully adequate fire protection services to the territory remaining in the District?
MR. TROY: Objection. This is the ultimate fact for Your Honor to determine. It is the province of the Court to determine that fact. That is the issue of the case, and it is not the opinion of the president of the Board to make this determination, but rather the Court.
THE COURT: Objection sustained."
The District argues that the trial court erred in excluding the opinion evidence of Coopmans. The Village points out that the question of impairment of the District's ability to render fully adequate fire protection was the ultimate issue in the case. The objection was founded on the fact that section 20 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1969, ch. 127 1/2, par. 38.3), under which these cases were brought, requires an ultimate decision by the trial court as to whether or not the disconnection of property will result in such impairment. The Village maintains that the court correctly sustained the objection since testimony on the ultimate issue invades the province of the trier of fact. (Hughes v. Wabash R.R. Co. (1950), 342 Ill. App. 159, 95 N.E.2d 735.) However, it is clear that since the trier of fact is not required to accept the opinion of the expert, such evidence does not usurp the province of the trier of fact. (Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill.2d 118, 273 N.E.2d 809.) In a similar case, In re ...