People ex rel. City of Champaign v. County of Champaign , 286 Ill. 363 ( 1918 )

Mr. Justice Farmer

delivered the opinion of the court:

This is an appeal by the county of Champaign from a judgment of the circuit court of said county awarding a peremptory writ of mandamus against appellant. The People, at the relation of certain individuals, filed a petition for a writ of mandamus commanding the board of supervisors of the county of Champaign to meet in regular or special session at a time to be designated, to do and perform all acts necessary for the organization of the territory embraced in the city of Champaign into a separate town, to be known and designated as “Town of the City of Champaign.” The petition alleged the city of Champaign had a population of not less than 15,000 and that its territory is composed of portions of two townships; that the city council, by resolution duly adopted November 21, 1916, requested the board of supervisors of said county to organize the territory of the city into a separate town under the name of “Town of the City of Champaign,” which resolution is set out in full in the petition. The resolution was not finally acted upon by the board of supervisors until in June, 1917, when the board refused to comply with the resolution and its request.

The authority for the resolution and claim of right to the mandamus is section 1 of the act of 1877 as amended in 1903, (Hurd’s Stat. 1917, p. 2928,) which reads as follows : “That the county board, in any county under township organization, may provide that the territory embraced within any city in such county shall be organized as a town; provided, such territory shall have a population of not less than 3000; and provided the city council in such city shall, by resolution, request such action by the county board; and provided further, that whenever the territory of any city of a population of not less than 15,000 shall be composed of portions of two or more townships, and shall by its council request, by resolution, the county board to organize it into a separate township, as aforesaid, and shall designate the name thereof, it shall be the duty of the county board to comply with such request and provide for such organization of said city into a new township under the name designated in such resolution of said city council.”

Appellant demurred to the petition, setting up as special ground that the statute is unconstitutional, and some other special causes of demurrer. The circuit court overruled the demurrer, and, appellant not answering further, rendered judgment awarding the peremptory writ, from which judgment this appeal is prosecuted by the county of Champaign.

The constitutional objections raised are that the statute creates an unreasonable and arbitrary classification; that it is, if construed to be mandatory on the board of supervisors, an incomplete piece of legislation, depending for its enforcement on the will of the city, and, as construed, amounts to a delegation of legislative power to the city council. It is also urged that the circuit court erred in construing the statute to be mandatory on the board of supervisors; that the proviso under which the city acted was repealed by an act of June 28, 1913; and it is said the city is a park district, and the circuit court erred in ignoring that situation in awarding the writ.

We do not deem it necessary to discuss at length the constitutional objections raised, as the validity of the act was fully discussed and the act sustained in People v. Grover, 258 Ill. 124. In that case the city of Bloomington, having a population of more than 15,000 and composed of parts of two townships, had been organized under the act referred to, as the town of the city of Bloomington. The organization was attacked on the ground the statute was unconstitutional. The only difference between that case and this is that in the Bloomington case the board of supervisors, without compulsion, granted the request of the city council, while here they refused to grant it and it is sought to compel them to do so. Whether the proviso added to section 1 in 1903, which is the provision here involved, is mandatory on the board of supervisors, leaving that body the exercise of no option or discretion, was incidentally involved in the Bloomington case, in which it was argued that if it was mandatory the proviso was unconstitutional, and in the same connection it was argued that the first part of .the section, applying to cities of a population of 3000 or more, left it. optional with the board of supervisors whether they would grant the request of the city council. Upon those questions the court said: “In this connection it may be noted that plaintiff in error insists that the proviso is unconstitutional because the county board has no option in granting the resolution if presented in proper form, while the first part of the section says that the county board ‘may provide,’ leáving it optional with the board whether they shall allow the petition or not. Without passing on the question as to whether the first part of the section and proviso should be thus differently construed even if the proviso be construed as not giving the county board an option, that would not make it unconstitutional.” The proviso is mandatory, and when the city council had complied with the requirements of the statute the board of supervisors were required to grant its request. The statute is not subject to the objection that it is incomplete or is a delegation of legislative power. Sheldon v. Hoyne, 261 Ill. 222; Block v. City of Chicago, 239 id. 251.

It is also contended the proviso of 1903 is repealed by necessary implication by paragraph 26 of chapter 139 of Hurd’s Statutes, as amended in 1913. The history of the two acts shows it was not the intention of the legislature that one should be superseded by the other, and we would not be justified in holding the act of 1913 repealed the former act unless the two acts were so repugnant as to be irreconcilable. In our opinion the two acts do not conflict. They were intended to apply to entirely different situations and territory, and effect may be given to both acts for the purposes for which they were enacted.

It is also 'claimed that the town of Champaign is a park district organized under the act of 1911, (Hurd’s Stat. 1917, p. 2145,) and that under the provisions of paragraph 47 of chapter 105 of Hurd’s Statutes the town of the city of Champaign could not have been formed without submitting the question to be voted upon to the legal voters of the town. There is nothing in the record to indicate that there is any such park district. Appellant, contends this court should take judicial notice that there is such a park district, and relies on Village of Catlin v. Tilton, 281 Ill. 601. What was there said was that the statute requires courts to take judicial notice of the organization of cities and villages under the general law. In that case there had been an election on the question whether the village should be dissolved, and the recorded result of the election offered in evidence showed 145 votes for and 79 against dissolution. This court said the county court and this court would take judicial notice that the village was organized under the general law, and that after the election to determine whether it should be dissolved it continued to act and exercise corporate powers as a municipality, and was so acting by virtue of a change in organization under the act providing for a commission form of government. That decision does not support appellant’s contention. Courts are bound to recognize the law authorizing an election by a town to establish a park district, but they cannot take judicial notice that such an election has been ordered and held or of its result. (15 R. C. L. 1108; Gay v. City of Eugene, (Ore.) 18 Ann. Cas. 188.) Without considering whether, if it were properly shown by the record that the town of Champaign had organized a park district, that fact would have been an obstruction to the proceeding had for the organization of the town of the city of Champaign, it is not so shown by the record and we are not warranted in taking judicial notice of it.

The judgment of the circuit court is affirmed.

Judgment affirmed.