The opinion
Dissenting Opinion
EBERSPACHER, J. All three of plaintiff’s challenges go to the power of the court to enter the order creating the Prairie Du Rocher Fire Protection District.
As is true in the case of the creation of any municipal corporation, the constitutional power to create the district lay in the General Assembly, and that power has been delegated to the court, which derived its jurisdiction from the statute alone. The court had no inherent powers, and no presumption arises to support its action in any particular. The conditions of the statute authorizing the creation of the fire protection district must have been complied with in the manner prescribed by statute, else the court was without jurisdiction. People ex rel. Moran v. Teolis, 20 Ill2d 95, 169 NE2d 232 ; People ex rel. Goldsbery v. Zoller, 337 Ill 362, 169 NE 228 ; People ex rel. County of DuPage v. Lowe, et al., 67 Ill App2d 369, 214 NE2d 593 .
Likewise, unless the petition to organize the district met the statutory requirements, both as to containing “a definite description of the boundaries” and as to including only territory which met all the qualifications of the statute, it was defective. The petition was jurisdictional, and when it was defective, the resulting district was not legally organized. People ex rel. Cadwell v. McDonald, 208 Ill 638, 70 NE 646 ; People ex rel. Goldsbery v. Zoller, supra.
The case of People ex rel. Armstrong v. Huggins, 407 Ill 157, 94 NE2d 863 , only held that the Fire Protection District Act was constitutional; it did not pass on the adequacy of the description of boundaries of any district, nor did it hold that any requirements of the Act could be overlooked so long as the proposed territory was contiguous and not included in any other fire district; and neither did it hold that the formation of a district within the spirit, object, and meaning of the Act was sufficient, without statutory compliance.
Compliance within the spirit, object and meaning of the Act, is not enough, when the statute has not been complied with. A plea of justification in an action of quo warranto must allege the existence and performance of all of the conditions precedent to the defendant’s right to exercise the privilege of office. People ex rel. County of DuPage v. Lowe, et al., supra; Greening ex rel. Rowe v. Barnes, 355 Ill 99, 188 NE 805 .
Here plaintiffs by their reply contended that a part of the territory included in the original petition and order organizing the district was in Missouri and introduced into evidence a series of exhibits consisting of records of the General Land Office, plats and surveys, showing a part of the territory to be in Missouri. The burden of justification was on the defendants and there is nothing in the record to show that Turkey Island was in Illinois, even if we choose to disregard the stipulation that it was in Missouri.
In People v. Knapp, 28 Ill2d 239, 190 NE2d 774 , a strip six or seven feet in width and approximately 250 feet long violated the statutory requirement because when territory was disconnected from Joliet this strip was inadvertently not included, and our Supreme Court held the statute was to be given a common-sense construction, and held the overlap to be de minimus and not to be considered. To me there is a substantial difference between such a sliver and a tract of some 20 acres over which neither the General Assembly nor the court could conceivably have any jurisdiction, and the very fact that the order could have no effect on the island points up to the jurisdictional defect in the petition.
Despite the fact that the statute deals with practical matters and must be given a practical, common-sense construction, there is some point that the error is so manifest, or of such a nature, that it cannot be said that the General Assembly intended the court to have power to act on a defective petition. When the petition and order includes territory that so obviously fails to meet the statutory requirement, and over which neither the General Assembly nor the court has any constitutional or inherent power to act, it would seem that such point had been reached.
The General Assembly prescribed that in addition to notice by publication, notice should be given by mailing to the President of the Village Board. Here along with the delegation of power the General Assembly set out what was due process. They felt that since villages also had power to control fires under the Cities and Villages Act that Villages and Cities should be given special notice. Giving of the statutorily prescribed notice was essential to the court’s jurisdiction, and the President of the Village Board had no power, by any Act or means whatever, to waive the statutory requirement. The fact that he and members of the Village Board were active in the formation makes no difference, because they were only acting personally, because a Village has no statutory authority to form a fire district, even though it may furnish fire protection, see Lafferty v. Feicke, 252 Ill 414, 96 NE 1052 , and the attempt to circumvent it in Brown v. Jones, 254 Ill 521, 98 NE 962 . The principles enunciated in those two cases are not peculiar to school districts, they are common to all cases involving a delegation of legislative authority. As in McCarthy v. City of Chicago, 312 Ill App 268, 38 NE2d 519 , the giving of the notice was essential and could not be waived by its officers, acting either officially or individually. In Tennessee Drain. Dist. v. Maye, 258 Ill 296, 101 NE 580 , no property owners filed objection in the court below, the district organization was fatally defective as to all property owners not waiving the defect in the court below; here the Village could not and did not waive the defect. In a quo warranto proceeding a plea of justification by defendants must show the proceedings by which the district was organized and this can be done only by the record. The jurisdiction of the court could only be shown by its record and that record is the only lawful evidence of the action taken, and cannot be contradicted, added to or supplemented by parol. People ex rel. King v. North Fork Outlet Drain. Dist., 331 Ill 68, 162 NE 184 . As a result, the testimony of the Village President and the Village Attorney was not competent, in the face of the objections made by plaintiff.
The Fitton case, 338 Ill 67, 107 NE 1 , I do not consider applicable on this point, because the rule is different as to municipal corporations (in this case the Village). Nothing it or its officers did could effect the jurisdiction given the court by the General Assembly, and notice of the officers in their individual capacity is not notice to the village required by the statute. In the Fit-ton case, the court held that annexing her land, which was included in the petition but left out of the order because to include it in the order would have deprived the court of jurisdiction since they had no jurisdiction of her person, “vitiated the entire proceedings.” Here the Village was not subsequently brought in, and nothing occurred to vitiate the proceedings.
I consider the case of People ex rel. Goldsbery v. Zoller, supra, squarely in point. In cases of this kind, it is not because the people did not get notice; it is because the statute, which delegated the authority of the court to act, has not been complied with, therefore the court had no authority. In the Zoller case that nine notices posted inside the district and the tenth just outside, did not give actual notice was not contended, but “the notice requirement of the statute had not been met, and therefore no proper notice had been given to anyone in the district.” The notice required by the statute was the process by which the court acquired jurisdiction, not only of person and territory, but the power to act in reference to the creation of a fire district.
I would, therefore, reverse the judgment.