dissenting:
I do not agree to the conclusion reached by the majority of the court in this case. The power to change the boundaries of cities and villages is legislative and not judicial, (City of Galesburg v. Hawkinson, 75 Ill. 152,) and if the legislature has vested in municipalities any of its power to change or refuse to change such boundaries for reasons of policy or convenience, the courts have no power to coerce their judgment in the exercise of such power. On the contrary, if the legislature has merely prescribed the conditions upon which the owners may have their lands disconnected from the territory of the village or city, and has conferred on the municipal authorities the mere power to decide whether or not such conditions have been complied with, then it is clear that when such conditions have been complied with they must, under the statute, pass the ordinance necessary to disconnect such territory, and if they refuse, the courts have power to compel them to obey the law. It is not necessary to consider the contention of appellants that where the record shows a clear abuse of such discretionary power to the injury of the petitioning property owner, mandamus will lie to correct such abuse, for the reason that no such .abuse is shown by the record before us. Appellants’ demurrer admits all the facts well pleaded in the answer, which, with the petition, presents only the question of discretionary legislative power in the president and trustees of the village to pass or to refuse to pass the ordinance in question.
The legislature had the power to change the boundaries of this village, but could not do so by special or local law. It would therefore be reasonable to suppose that it would delegate to such municipalities the power to change their own boundaries upon certain prescribed conditions, rather than to confer on certain property owners such power, in effect, by complying with such conditions on their part. True, unless conferred by the statute the village has no power to disconnect territory, and we must look to the statute as the charter of its entire authority. The language is: “The city council of such city or trustees of such village may, by ordinance to be passed by a majority of. the members elected to such city council or board of village trustees, disconnect the territory described in such petition from such city or village.” The words I have italicized are not contained in the statute for the annexation of territory. Counsel for appellants contend that this language is mandatory; that “may” as used means “must,” and that having complied with the conditions prescribed by the statute, appellants had the lawful right to have their lands disconnected from the village territory, and that the trustees had no discretion, but were bound to pass the ordinance and circumscribe the boundaries of the village accordingly. I cannot agree to this construction of the statute. To contract its boundaries would affect the interests and perhaps the welfare of the village and its inhabitants, and it can hardly be supposed the legislature would deny to it, or to them, at least equal power with the petitioners to circumscribe the village boundaries. Legislative discretion is implied in the language of the statute. Its .meaning" is, that the city council or board of trustees shall act upon the petition, and if a majority of all the members elected shall vote for the ordinance disconnecting such territory, it shall be disconnected as provided in the statute. If no discretion is vested in the trustees, why require that the ordinance be passed by a majority of all the members elected? It is clearly implied that the legislature intended to protect the interests of the village and its inhabitants by requiring the affirmative vote of a majority of all of the trustees which the people had elected to represent them, before contracting the limits of its territorial jurisdiction.
If the construction contended for should be adopted, then in cities and villages where highways or streets over territory sought to be disconnected have been opened and improved and sidewalks constructed thereon, sewer, water and gas pipes laid, the municipal authorities would have no discretion, but would be compelled to surrender all jurisdiction over such part of its territory upon the petition of a majority of those owning the land, and showing the payment of all taxes and assessments, and that such land had not been laid out into city or village lots or blocks; and this process of disintegration could be repeated at the pleasure of every owner of such lands not laid off intd lots and blocks within the city or village. Such a view of the law seems to me unsound, although, as insisted upon by counsel, it may be a hardship upon appellants to have many hundred acres of mere farming" lands embraced within the corporate limits of this village and taxed to support its government. The pleadings show, however, that this village,, with a territory not exceeding two square miles, including the lands of appellants, and containing the required number of inhabitants, was, in pursuance of a vote of the legal voters therein, duly incorporated in 1897 under the statute, and that at the November term of the circuit court following, appellants filed their petition for mandamus in this case. It may well have been that the inhabitants would not have voted to incorporate with less territory than was included. Appellants had the right to defeat at the polls the proposition to organize the village embracing their lands, if they could do so, but if they were unsuccessful in their efforts it ought not to be held, unless clearly authorized by the statute, that they now have the power to sever their lands from the territory of the village of their own free will and against the consent of the trustees of the village. This view of the meaning of the first clause of the statute seems to have been that of the legislature, as shown by the language of the emergency clause, wherein it is stated that there was no valid law in force enabling cities and villages to decrease their corporate limits.
Both parties cite Whittaker v. Village of Venice, 150 Ill. 195, referred to in the opinion of the court, as sustaining their respective sides of the controversy. While there are some expressions in the opinion in that case concerning section 1 of the act of 1872, (1 Starr & Cur. 515,) for the annexation of territory when petitioned for by three-fourths of the legal voters and of the owners of the land to be annexed, which, if applied to the statute here involved, would lend support to the view that the trustees had no discretion in the.matter, still the question in that case was whether or not certiorari would lie, and the decision is not in conflict with the views I have expressed. The conditions for the annexation and those for the disconnection of territory are materially different, and there is a difference in other respects in the language of the two statutes. It cannot, therefore, be said that, as a matter of course, the same construction must be given to the two statutes.
I am satisfied that the statute here involved was properly construed by the circuit and Appellate Courts, and that the judgment denying the writ was correct and that it ought to be affirmed.