Opinion
No. 71-52 Judgment affirmed.
January 3, 1972.
APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.
John W. Nielson, of Rockford, for appellant.
Philip G. Reinhard, State's Attorney, of Rockford, (H. Emmett Folgate, of counsel,) for appellee.
The City of Rockford, defendant in a quo warranto proceedings, appeals from a judgment of ouster.
This is the second time that this case is before us. On November 28, 1967, defendant passed and approved an annexation ordinance which annexed a certain subdivision within the plaintiff's Fire Protection District. A complaint in quo warranto, filed by the State's Attorney on behalf of the plaintiff, sought to oust the defendant from exercising control over the annexed territory. On April 2, 1969, the trial judge entered a judgment of ouster which was appealed to this court. ( People v. City of Rockford (1970), 120 Ill. App.3d 275.) We there held that defendant failed to comply with the annexation statute (Ill. Rev. Stat. 1967, ch. 24, par. 7-1-8) and found the annexed territory not contiguous to defendant's boundaries. However, the judgment was reversed and the cause remanded for a ruling by the trial judge on the question of whether the plaintiff was barred from relief upon the theory of laches.
Upon remand, no new evidence was offered. Upon review of the record, the trial judge found no great public inconvenience and detriment which would bar the plaintiff from prosecuting the quo warranto action on the basis of laches. The judgment of ouster was entered and the defendant now appeals alleging the judge's finding to be against the manifest weight of the evidence.
• 1, 2 The law is clear that the doctrine of laches may be a bar to a quo warranto action.
" Laches will not ordinarily bar an action in quo warranto brought on behalf of the people. But if, as a result of inexcusable delay and public acquiescence, a judgment of ouster would result in great public inconvenience and detriment, the public interest requires that laches be applied in bar of the proceeding." [Citations omitted] People v. Junior college Dist. (1969), 42 Ill.2d 136, 139.
In the case at bar there was an eleven month delay between the passing of the annexation ordinance and the quo warranto complaint. A complaint brought within the one year statute of limitations (Ill. Rev. Stat. 1967, ch. 24, par. 7-1-46) does not foreclose consideration of the defense of laches. ( People ex rel. Coojar Realty v. Burr Ridge (1967), 81 Ill. App.2d 203, 208.) We must consider whether, during the eleven month delay, "certain conditions had developed whereby great inconvenience and public detriment would result from a judgment of ouster." Peo. ex rel. Jordan Co. v. Forest View (1961), 21 Ill.2d 384, 390.
The defendant cites several decisions in which public inconvenience has been found and the doctrine of laches applied, alleging that the facts of the case at bar bring it within the scope of these cited decisions. In Peo. ex rel. Lindsey v. Board of Educ. (1954), 3 Ill.2d 159, 167 the Supreme Court affirmed the trial court's application of laches. Lindsey was a quo warranto proceeding challenging the authority of a school district. The Court concluded that there would be public detriment because, during the five year delay, all of the included common school districts ceased to exist; the buildings had been disposed of; 636 elementary students would would be without school facilities or funds to provide while, additionally, 230 high school students would be without transportation or funds to pay their tuition.
In People v. Junior College Dist., supra, at 138, 139, the Court again applied laches and barred a challenge to the incorporation of a junior college district holding that great public inconvenience would have resulted from an ouster because, during the two year delay the school board had levied and collected taxes and used the monies to establish a junior college; land had been leased and contracts had been entered into for the purchase of buildings and facilities; a faculty and administrative personnel had been employed; over 1500 students had been enrolled and were attending classes; a $5.9 million bond issue had been approved; and condemnation proceedings for a permanent campus were under way.
In People v. Village of Hinsdale (1969), 111 Ill. App.2d 368, an annexation was challenged. This court reversed the judgment of ouster since there had been a forty year delay in which the Village had exercised, with the acquiescence of the public, complete municipal jurisdiction and authority in the disputed area.
In People v. City of Rockford (1970), 122 Ill. App.2d 272, an annexation by the defendant was challenged. This court affirmed a judgment based upon the doctrine of laches holding that unquestionable public inconvenience and detriment would result. There it was uncontradicted that the Board of Education, owner of a substantial portion of the annexed territory, had, on the assumption that the territory was party of the City of Rockford, expended considerable funds to acquire and develop their site within that territory.
The defendant alleges that the following facts bring the instant case within the scope of the above discussed decisions: 1) the defendant accepted the roads in the annexed territory and had fee title to them; 2) thirty-seven out of fifty-four lots in the annexed subdivision have been sold; 3) twenty-seven building permits have been issued by defendant; 4) defendant's building code and zoning ordinances have been complied with in the subdivision; 5) defendant is currently providing water services to the annexed territory; 6) the subdivider has installed water mains at a cost of $34,000; 7) the subdivider has installed certain streets, curbs and storm drains at a cost of $56,000; and 8) defendant is supplying police and fire protection and has installed four fire hydrants in the annexed area.
• 3 These facts do not indicate, as a matter of law, that an ouster would result in great public inconvenience and detriment or that the trial judge's finding was against the manifest weight of the evidence. In the case at bar, we are not presented with a situation wherein the facts, in and of themselves, show obviously that public detriment will result from any ouster, (see, Lindsey, supra, p. 167); nor is there direct testimony or evidence in the record that public detriment will occur; nor does the defendant aid us by specifying how public detriment will result. Defendant has merely excerpted bare facts from the record and claims that public detriment will occur. Its failure to substantiate such claim, however, would call for this court to reach a determination of detriment or public inconvenience based solely upon speculation and conjecture. Thus, this case is distinguished from the cited cases wherein the facts establishing detriment were obvious and needed no further proof.
The defendant also contends that the plaintiff did not sufficiently reply to the affirmative defenses raised in the defendant's answer. This objection was not raised in the lower court. However, our examination of the record indicates that the plaintiff did in fact deny each affirmative defense.
We hold that the defendant did not sustain its burden of proving the affirmative defense of laches; consequently, the finding that ouster will not result in great public inconvenience and detriment is not against the manifest weight of the evidence. We therefore affirm the judgment of ouster.
Judgment affirmed.
GUILD and SEIDENFELD, JJ., concur.