APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
520 N.E.2d 1205, 166 Ill. App. 3d 943, 117 Ill. Dec. 854 1988.IL.336
Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
On June 10, 1985, Leland Grove adopted a resolution expressing its intent to annex a certain tract of land and authorizing publication of this intent. On June 12, 1985, legal notice of Leland Grove's contemplated annexation appeared in the State Journal-Register, as required by section 7-1-13 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-13).
Leland Grove subsequently passed annexation ordinances covering the subject territory on June 22, 1985, and also on June 24, 1985. These ordinances, together with the other required documentation, were recorded on June 24, 1985, in the office of the recorder of deeds in Sangamon County at 8:02 a.m. and 8:04 a.m.
Leland Grove asserts that it has provided municipal services to the territory since June 22, 1985, to the present time. Springfield has never challenged the annexation of the territory in question by Leland Grove, and the time for such a challenge has expired. Ill. Rev. Stat. 1985, ch. 24, par. 7-1-46.
On June 21 or June 24, 1985, Dr. John J. Donovan, the principal owner of the subject property, filed a petition requesting the city of Springfield to annex the property in question. The date of this filing is in serious dispute. On November 4, 1985, Leland Grove filed a quo warranto action challenging Springfield's attempted annexations. A quo warranto proceeding is a challenge of the defendant's right to exercise jurisdiction over territory or to hold public office. In a quo warranto proceeding, the burden is on the defendant to justify the exercise of jurisdiction. (People ex rel. Skonberg v. Paxton (1965), 64 Ill. App. 2d 294, 211 N.E.2d 591; People ex rel. Karns v. City of Caseyville (1968), 99 Ill. App. 2d 60, 241 N.E.2d 23.) Leland Grove filed motions for partial summary judgment in connection with Springfield's June 24, 1985, and June 25, 1985, annexation attempts. The trial court granted summary judgment on these motions and Springfield has not appealed from these orders. Leland Grove subsequently filed a motion for summary judgment in connection with Springfield's third attempted annexation, which occurred on July 30, 1985. The trial court, on August 11, 1986, granted Leland Grove summary judgment and awarded it costs. Springfield appealed from this order and Leland Grove has cross-appealed from that portion of the order which failed to award it attorney fees and failed to impose fines against Springfield.
On appeal, Springfield contends that they were the first party to "initiate" annexation proceedings. It is well settled that two annexation proceedings involving the same territory cannot legally be pending at the same time, and between annexation proceedings, priority is afforded to the proceeding "initiated" first in time. The initial inquiry in the instant case is what act or acts constitute "initiation" of an annexation proceeding. Regarding Springfield's attempted annexation pursuant to section 7-1-8 of the Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-8), the filing of the petition by Donovan "initiated" the annexation proceeding. (See City of East St. Louis v. Touchette (1958), 14 Ill. 2d 243, 150 N.E.2d 178; Village of Oak Lawn v. Village of Bridgeview (1968), 92 Ill. App. 2d 284, 236 N.E.2d 293.) Conflicting evidence appears in the record concerning the question of whether the Donovan petition was filed on June 21 or June 24, 1985. Regarding Leland Grove's attempted annexation pursuant to section 7-1-13 of the Code (Ill. Rev. Stat. 1985, ch. 24, par. 7-1-13), no statutory provision or case law specifically addresses the issue of what act initiates the annexation proceeding. At least four logical possibilities exist:
(1) Passage of the ordinance or resolution authorizing publication of the municipality's intention to annex certain property;
(3) Passage of the ordinance of annexation; or
(4) Filing of the ordinance of annexation.
On appeal, Springfield argues that passage of the annexation ordinance by Leland Grove, which occurred on June 22 and June 24, 1985, initiated Leland Grove's annexation proceedings. Springfield relies upon In re Annexation to City of Prospect Heights (1982), 107 Ill. App. 3d 1045, 438 N.E.2d 574, in support of this argument. In Prospect Heights, the municipality commenced annexation proceedings, pursuant to section 7-1-2 of the Code (Ill. Rev. Stat. 1979, ch. 24, par. 7-1-2), by passing an ordinance expressing its desire to annex certain property on January 21, 1980. This provision contains the procedure for judicially supervised annexation. Prospect Heights filed the ordinance in the circuit court on February 6, 1980. Arlington Heights filed the ordinance in the circuit court on February 6, 1980. Arlington Heights contended that the ordinance was invalid because a petition pursuant to section 7-1-8 of the Code (Ill. Rev. Stat. 1979, ch. 24, par. 7-1-8) was pending at the time the ordinance was adopted. The trial court noted that the prior petition was dismissed on the morning of February 6, 1980, the same day the ordinance was filed but before the actual filing took place. The court reasoned that a section 7-1-2 proceeding is not 'initiated' until the ordinance is filed, and concluded that since the prior petition was dismissed before the subsequent ordinance was filed, the subsequent ordinance annexing the territory was valid. The court stated:
"Arlington Heights correctly asserts that no annexation proceeding may be initiated legally where an annexation petition is pending with regard to the same territory. (City of Countryside v. Village of La Grange (1962), 24 Ill. 2d 163, 180 N.E.2d 488; City of East St. Louis v. Touchette (1958), 14 Ill. 2d 243, 150 N.E.2d 178.) An annexation proceeding commenced pursuant to section 7 -- 1 -- 2, by the adoption of an ordinance expressing a desire to annex, is not considered to be "initiated" for purposes of this rule, however, until the ordinance is filed in the circuit court. (Village of La Grange; ...