Whittaker v. Village of Venice

Mr. Justice Magruder delivered the opinion of the Court: This is a petition by certain owners of land, included in territory claimed to have been annexed to the Village of Venice in Madison County, under “An Act to provide for annexing and excluding territory to and from cities, towns and villages,” etc., approved April 10,1872, (1 Starr & Cur. Ann. Stat. page 515), for a writ of certiorari, directed to said Village and the president and board of trustees thereof, and the village clerk, and the recorder of the county, commanding them to certify and bring into court a transcript-of the records, documents and files relating to said annexation for the inspection of the court; and praying that said record and proceedings may be quashed and set aside, etc. The return sets forth a copy of the petition for annexation as presented to the president and board of trustees of the village; proceedings of the board, showing that an order was entered wherein, after finding that it was made to appear to the satisfaction of the board that the facts alleged in the petition were true, it was ordered that the prayer of the petition be granted, and that an ordinance for the annexation of said territory, drawn and presented to the board, be adopted, and a copy thereof, with a plat of the territory annexed, be recorded in the recorder’s office of said county; also a copy of said ordinance, and certified copies thereof and of said plat from the records of said county; also certain proceedings in relation to a plat of West Madison Addition to said Village and the approval thereof by said board; also certain proceedings, consisting of petition, certificate of county clerk, order for disconnection, ordinance for disconnection, adoption of said ordinance and order for the record thereof, in relation to the disannexing of a part of the territory so annexed. The Circuit Court rendered judgment, quashing the writ and for costs against the petitioners, to which exception was taken, and from which the present appeal is prosecuted. First, a motion is made .to dismiss for want of jurisdiction. The object of the common law writ of certiorari is to bring up the record of a proceeding from an inferior to a superior tribunal. When the return is made, the superior tribunal tries the case, not upon the allegations contained in the petition for the writ, nor upon any issue of fact, but by the record alone, and upon the inspection thereof, as such record is returned in obedience to the writ. It is the duty of the court to determine whether the inferior court had jurisdiction, and whether it exceeded its jurisdiction, or otherwise proceeded in violation of law. (Comrs. v. Supervisors of Carthage, 27 Ill. 140). Here, the return sets out the proceedings taken under and in pursuance of the act of the legislature above referred to, and that act is the sole authority for the annexation of the territory in question by the board of trustees of the village. This being so, the petitioners submitted, among others, the following proposition to be held as law by the court upon the hearing of the cause: “First — That the act, under which the proceedings set out in the return to the writ herein issued were had, towit: Sec. 1 of ‘An Act to provide for annexing and excluding territory to and from cities, towns and villages, and to unite cities, towns and villages,’ approved April 10, 1872, is unconstitutional, null and void, because of being an attempt to delegate legislative powers and functions to private individuals.” This proposition the court refused to hold as law. In view of the issue presented by the return to the writ, and in view of the nature of the proposition of law thus asked and refused, w'e think that the validity of 4he statute above mentioned is a question, which is legitimately presented by the record, and that, therefore, this court has jurisdiction. It follows that the motion to dismiss must be overruled. Second, the act of an inferior tribunal, which can be reviewed on certiorari by a superior tribunal, must be judicial or quasi-judicial in its character. (Comrs. v. Griffin, 134 Ill. 330.) The acts of officers of municipal corporations must be plainly judicial in character, in order to justify an interference with them by certiorari. (Wood on Certiorari, pages 148-149; In the matter of Mount Morris Square, etc. 2 Hill, 14.) The act to be reviewed by the writ must not be legislative or ministerial. (Comrs. v. Griffin, supra.) Whether the boundaries of a city or village should be enlarged or contracted is not a question of law' or fact for judicial determination, but purely a question of policy to be determined by. the legislative department. (The City of Galesburg v. Hawkinson, 75 Ill. 152; Covington v. E. St. Louis, 78 id. 548.) The annexation of territory to a municipal corporation, and the extension of its boundaries to include the same, are matters which are subject to legislative control, in the absence of constitutional restriction. (1 Dill. on Mun. Corp. sec. 126, 2d ed.) Section 1 of the act of 1872 provides, that, on petition in writing signed by not less than three-fourths of the legal voters, and by the owners of not less than three-fourths (in value) of the property in any territory, contiguous to any city or incorporated village or town, and not embraced within its limits, the city council or board of trustees of said city, village or town, (as the case may be), may, by ordinance, annex such territory to such city, village or town, upon filing a copy of such ordinance, with an accurate map of the territory annexed, (duly certified by the mayor of the city, or president of the board of trustees of the village or town) in the office of the recorder of deeds in the county where the annexed territory is situated, and having the same recorded therein. In this statute, the legislature has named the conditions, upon which territory may be annexed to a village. These conditions are, that a petition in writing for the annexation must be signed by three-fourths of the legal voters; that it must be signed by three-fourths (in value) of the owners, etc,; that the territory to be annexed must be contiguous to the village, and not embraced within its limits. When these facts exist, the board of trustees may accomplish the annexation, by passing an ordinance therefor and recording the same, together with a map of the territory, in the recorder’s office; but the board is not authorized to determine, by the exercise of its own judgment or discretion, whether it is wise or unwise, or whether it is good or bad policy, to make the annexation. The legislature could have clothed the board with such discretionary power, but it has not seen fit to do so. On tbe contrary, having complete control over the subject, the legislature has determined in advance, that the existence of the facts stated settles the question of the advisability of the annexation. The only function of the board is to see to it that the territory is located as the statute prescribes, and that the petition is signed as the statute directs. It is quite manifest, that the action of the board of trustees of a village under section 1 is not.such judicial action, as will authorize a review of the proceeding by certiorari. No provision is made for a hearing by the voters and owners who do not sign the petition; and, hence, the board is not invested by the legislature with the power to pass upon their property rights, or to make any decision in relation thereto. (Comrs. v. Griffin, supra). It is authorized to find the facts, that the territory is contiguous to the village, and that the petition is signed by the proper number of voters and owners. But its decision upon these preliminary questions of fact cannot be reviewed on certiorari. It is no part of the office of a w7rit of certiorari to an inferior tribunal to bring before the court, from which the writ issued, the evidence in the tribunal below, nor can the court receive testimony to show what that evidence was. Upon the return of the record, the court has no power to form and try an issue of fact in regard to the jurisdiction, nor to review the testimony heard below, nor to inquire into the correctness of the decision on that testimony. The trial is confined to the record, and extrinsic evidence is inadmissible. (C. & R. I. R. R. Co. v. Whipple, 22 Ill. 105; Rue v. City of Chicago, 66 id. 256). We are inclined to think that there was no error in quashing the writ, because, in the first place, the action of the trustees in passing the ordinance of annexation was legislative in its character, and because, in the second place, the determination of the board as to the existence of the preliminary conditions required to precede the ordinance, involved a decision upon mere questions of fact. The judgment of the Circuit Court is accordingly affirmed. Judgment affirmed.