190 N.E. 664 | Ill. | 1934
An information in quo warranto by appellants against the Old Portage Park District, appellee, charging unlawful annexation of territory, was dismissed and the writ quashed by the superior court of Cook county. The principal grounds for dismissal were that appellants had been guilty of laches in presenting their complaint and that great public inconvenience and damage would result if the relief sought were granted. Upon the court's refusal to enter a judgment of ouster this appeal was taken. *342
In the petition for leave to file the information it is alleged that appellee is a park district in Cook county created under "An act to provide for the organization of park districts," etc. (Park act of 1895; Smith's Stat. 1933, chap. 105, pars. 256 et seq.) Appellee is charged with unlawfully asserting jurisdiction over certain territory because of an annexation election held November 5, 1929, pursuant to an illegal petition filed in the county court of Cook county on October 11, 1929. This petition for annexation, while purporting to have been signed by one hundred twenty-two legal voters, is alleged to have been signed by less than one hundred legal voters residing within the territory sought to be annexed. On this point it is averred that the petition for annexation was signed twice by the same persons, that it was signed by persons who did not reside within the territory to be annexed, and that certain persons whose names appear upon the petition did not sign it or authorize anyone to sign for them. Other allegations of legal irregularities or insufficiencies are made by appellants which we deem it unnecessary to consider. Upon leave granted, the information was filed, containing the same allegations as the petition. Appellee demurred generally and also specifically attacked the information, averring that it showed upon its face that appellants had been guilty of laches in attacking the annexation. The demurrer was overruled and appellee pleaded matters in justification.
Preliminary to a consideration of the petition for annexation we must first settle a dispute between the parties as to who carries the burden of showing that the questioned signatures are legally insufficient. The case of People v. Sackett,
Another essential inquiry is whether, since the county judge found that the petition for annexation was signed by one hundred legal voters residing in the territory to be annexed, the sufficiency of the signatures can afterwards be questioned, inasmuch as the record imports verity. (Nicholson v. Loeff,
County courts, by virtue of statutes, are given jurisdiction to adjudicate certain special matters which without statutory authority they would have no power to decide. Discussing these powers derived from special statutes, this court in the case ofCobe v. Guyer,
In People v. Stumpf,
Inspection of photostatic copies of the signatures upon the petition shows that there are thirty-five groups of two signatures each, and that the two signatures in each group were signed by the same person. This double-signing, clearly shown by the record, is buttressed by the testimony of a handwriting expert. Appellee in its pleas has failed to justify the questioned signatures by showing that they were placed upon the petition by persons authorized to do so. Thirty-five of the seventy signatures composing the groups mentioned were not signed by the persons whose names appear on the petition, and these signatures are therefore a nullity. This is the rule where it is self-evident that two signatures to a petition for annexation were made by one person, either by the husband or by the wife. (People v. City of Springfield,
Subsequent to the election on November 5, 1929, and after the territory had been declared by the county judge to be a part of the park district, appellee, for park purposes, levied taxes upon the enlarged district for 1930, 1931, 1932 and 1933. Being without ready funds, appellee sold tax anticipation warrants to the extent authorized by law — against the taxes for 1929, $126,300; 1930, $159,000; 1931, $127,000; 1932, seventy-five per cent of the levy. Taxes were extended by the county clerk against the property in the enlarged district as follows: 1929, $282,556, and 1930, $281,000. Taxes were extended and collected in the enlarged district for park purposes as follows: 1929, $53,786 extended and $34,720 collected; 1930, $52,611 extended and $23,955 collected; 1931, $34,610 extended and $5072 collected up to April 1, 1933. Prior to the institution of this suit appellee issued and sold $110,000 of bonds. The expressed purpose of this bond issue was to use the proceeds thereof in "providing funds for the payment of land condemned or purchased, and for the building, mantaining and improving and protection of the same and for the payment of expenses incidental thereto." The bond proceeds, however, were devoted to the retirement of indebtedness of appellee incurred long before the annexation proceeding. Appellee has levied taxes, which cover the territory in question, for the purpose of paying the principal and interest due on the bond issue. The bonds and tax warrants are now outstanding and unpaid in large amounts. However, the county clerk did not put in collection the 1929 taxes against the enlarged district until in 1931 — a short time before this suit was started. The taxes for 1929 could not legally be spread over the enlarged district, as at that time the terriannexed *347
annexed was not part of the district. This action has no bearing in determining the questions of acquiescence and injury. The tax warrants authorized by appellee in January and February, 1930, payable out of 1929 taxes, in the amount of $126,300, could not constitute a charge upon the property annexed to the district, for the taxes of that year were not a lien upon such property. Subsequent sales of tax warrants were made after the suit was started. Therefore such sales are of no aid to the contention that there had been acquiescence and consequent injury. This act was done just prior to the present suit. The proceeds therefrom were diverted from their avowed purpose and used to discharge obligations of appellee incurred before the annexation election. The territory sought to be annexed derived no benefit from the bond issue. The park district, as originally constituted, derived whatever benefit may have ensued from incurring the obligations which the bond proceeds discharged. It may work some injury on the people of the original park district to retire the bond issue but will not work an injustice, as they have received what they will eventually pay for. The injury inflicted will be comparatively slight, as the territory sought to be annexed constituted only about thirteen per cent of the assessed value of the entire district. It cannot be said that the appellants acquiesced in the issuance and sale of the bonds, as the interval — slightly over a year — between those acts and the starting of this suit was too short. No laches can be imputed under such circumstances. People v. Keigwin,
The judgment of the superior court of Cook county is reversed and the cause is remanded to that court, with directions to re-instate the writ of quo warranto, to sustain the information and to enter a judgment of ouster in accordance with the views expressed in this opinion.
Reversed and remanded, with directions. *348