Kamp v. People ex rel. Selby , 141 Ill. 9 ( 1892 )

Mr. Justice Scholfield

delivered the opinion of the Court:

The first question presented in argument is, whether it is competent, in a proceeding by quo loarranio to determine the validity of a claimed incorporation of a village under the general law, to receive parol evidence tending to prove that there was not a population of three hundred inhabitants residing on the territory sought to be incorporated, at and before the time the petitiomto become incorporated was presented to the county judge. The court below admitted such evidence upon the trial, and its judgment was given upon a finding by the jury, in consequence of the admission of parol evidence that there was not that amount of population residing on the described territory at the time mentioned.

It is provided in section 5, article 11, chapter 24, of the Revised Statutes of 1874, entitled “cities, villages and towns,” (page 242,) that “whenever any area of contiguous territory, not exceeding two square miles, shall have resident thereon a population of at least three hundred inhabitants, * * * the same may become incorporated as a village, under this act, in the manner following: Any thirty legal voters resident within the limits of such proposed village may petition the county judge of the county in which they reside, to cause the-question to be submitted to the legal voters of such proposed village whether they will organize as a village under this act.” It is further provided in the next section, (section 6,) that “upon filing such petition in the office of the county clerk, it shall be the duty of such judge to perform the same duties in reference to fixing the time and place of such election, giving notice, appointing judges thereof, as is above required to be performed by the president and trustees in towns already incorporated.” And it is provided in section Y, that “if a majority of the votes cast at such election is for village organization under the general law, such proposed village, with the boundaries and name mentioned in the petition, shall from thenceforth be deemed an organized village under this "act, and the county judge shall thereupon call and fix the time and place of an election to elect village officers.”

These are the only provisions of the statute relating to the question. It will be seen that the calling of the election to determine whether the territory shall be organized, the holding of that election, the declaring its result, and the declaring of the organization of the village pursuant to the result of the election, all presuppose that there is at least a population of three hundred inhabitants residing on the territory to be organized, that the county judge is not required to find what the fact is in "that respect, that no tribunal or mode of ascertaining what the fact is, in that respect, is provided by statute, and that the statute does not make the petition conclusive . evidence of the truth of the facts therein alleged. It is therefore impossible that anybody can be concluded by the recitals of the petition on this question.

The duties imposed upon the county judge are upon the individual selected and designated by his incumbency of office, and they are purely ministerial. (Owners of Land v. The People ex rel. 113 Ill. 296; The People ex rel. v. Nelson, 133 id. 565.) It is of the essence of a judgment, conclusive as to any given question, that there shall be both jurisdiction and an actual decision of the question. But here no tribunal decides—petitioners merely recite—what was the number of inhabitants. The People v. McGowan, 77 Ill. 646, Schroeder v. Merchants' Ins. Co. 104 id. 71, and Kelly v. The People, 115 id. 589, cited by counsel for appellants, are therefore wholly unlike the present case, for in each of those cases a judgment of a court upon the particular question was under consideration.

It was incumbent on appellants, here, to justify, and in doing so it was necessary to state particularly the organization of the village, and this could not be done without stating the existence of the jurisdictional fact,—the residence of the requisite number of inhabitants upon the territory to be organized, which gave the right to file the petition for organization. The People were not bound to show anything. (Clark v. The People, 15 Ill. 217; Carrico et al. v. The People ex rel. 123 id. 203.) The failure of appellants to set up the fact of the residence of the requisite number of inhabitants can upon no principle excuse them, in this proceeding, from proving that fact, for without such proof they do not justify.

The next question is, whether the People are estopped by the recitals in the petition, because of the petition having been read in evidence by the State’s attorney in making out his case in chief. It was unnecessary for the State’s attorney to introduce this evidence, and it should properly have come from the other side. But it is manifest that his intention in introducing it was merely to identify the records, for the pur-, pose of calling the attention of the witnesses to them, in their examination, on the contested fact. It was not introduced to prove the number of inhabitants, but as a basis for contradicting its recitals in that respect. We think the People were not estopped by its recitals.

A point was urged in argument, that great injury will result from now allowing this suit to be prosecuted, by reason of many important acts having been done, in good faith, upon the validity of the organization. It is a sufficient answer to this, that no Statute of Limitations, and no facts constituting laches on the part of the People in prosecuting the suit, are set up in the answer. We can not presume the existence of such laches as should bar the prosecution of the suit without allegation or proof.

The only remaining question is one of fact; does the evi-. dence sustain the finding of the jury as to the number of inhabitants residing on the territory sought to be organized, at the time the petition for that purpose was presented ? We are unable to say that it does not. In our opinion there is .ample evidence, if believed by the jury, to sustain their finding, and we can not say that in believing it they must have been influenced by partiality or prejudice.

The judgment is affirmed.

Judgment affirmed.