dissenting:
From the opinion of the majority it would appear that the problem presented by this case is an entirely new one, and that there are no applicable precedents in this court. That is not the situation. There are many such precedents, but they all look the other way. They can not be distinguished, and to disregard them will only breed confusion and unnecessary litigation.
The statute only authorizes a municipality to annex territory that is contiguous to it. (Ill. Rev. Stat. 1961, chap. 24, par. 7 — 1—1.) The Village of Hoffman Estates lies south of the toll road, and the territory that it seeks to anex lies north of the toll road. The territory that is contiguous to the village is the toll road right of way, which separates the village from the territory it seeks to annex. The toll road and the territory across it can not both be contiguous to the village. If the toll road was an ordinary street or highway it could be annexed under the provision of the statute which authorizes the annexation of contiguous territory that is dedicated or used for street or highway purposes. (Ill. Rev. Stat. 1961, chap. 24, par. 7 — 1—10.) But the toll road is not an ordinary highway, and the differences, which relate directly to the feasibility of furnishing adequate and comprehensive municipal services, have been recognized both by this court, which has held that the toll road is not a street or highway within the meaning of the statute, (People ex rel. Clark v. Village of Wheeling, 24 Ill.2d 267,) and by the General Assembly, which has prohibited the annexation of toll roads without the permission of the Toll Road Commission. (Ill. Rev. Stat. 1961, chap. 24, par. 7 — 1—2.) In this case the Toll Road Commission did not grant permission, but instead condemned these annexations and actively sought to prevent them.
Since the contiguous territory can not be annexed, the village sought to reach the territory it wanted by'way of the bridge that carries Barrington Road north beyond the limits of the Village of Hoffman Estates, and over the tollway right of way. That is the only connection with the territory sought to be annexed, and it is insufficient under the statute and the decisions of this court construing it. “The intent of the legislature, as expressed by the word ‘contiguous,’ is that the territory to be annexed must have a substantial common boundary.” (Spaulding School District No. 58 v. City of Waukegan, 18 Ill.2d 526, 529.) And in Western National Bank of Cicero v. Village of Kildeer, 19 Ill.2d 342, 352, we held that "* * * in-order to be considered contiguous within the meaning of the statute, the tracts of land in the territory must touch or adjoin one another in'-a reasonably-substantial physical sense.”
While a municipality may annex a highway that parallels its border, (Ill. Rev. Stat. 1961, chap. 24, par. 7 — 1—10,) the annexation of a highway projecting beyond the limits of the municipality will not support the annexation of territory that is contigugous to the highway so annexed. As this court held in People ex rel. Adamowski v. Village of Streamwood, 15 Ill.2d 595, at 601, “The law, as above quoted, provides for the annexation of territory, even if it is dedicated for street or highway purposes, if the territory is contiguous to the municipality and is not part of any other municipality. The word ‘contiguous,’ as used in that statute, must be defined in keeping with what was the obvious intention of the legislature, which was to make it permissible for a municipality to annex a roadway where, for example, a roadway separates a municipality from territory just the other side of the roadway, which the municipality needs for existing municipal purposes and for natural growth, even though no part of the roadway already lies within the municipality. Contiguous, for any reasonable interpretation of section 7 — 8 of the Revised Cities and Villages Act, must mean contiguous in the sense of adjacent to and parallel to the existing municipal limits * * And again in People ex rel. Village of Worth v. Ihde, 23 Ill.2d 63, at 69, we said: “* * * these properties were contiguous with Worth only by reason of its 1956 annexation of Southwest Highway for a distance of approximately one-half mile beyond the village boundaries, and the validity of their inclusion is entirely dependent upon the propriety of the highway annexation. We had occasion to recently consider a similar situation in People ex rel. Adamowski v. Village of Streamwood, 15 Ill.2d 595, wherein we held that such annexations of highways beyond the corporate limits did not satisfy the requirement of contiguity specified by the Revised Cities and Villages Act (Ill. Rev. Stat, chap. 24, par. 7 — 8.) Therefore, in accordance with that decision, we must now hold these highway and property annexations invalid and no bar to the subsequent incorporation.”
While the majority opinion totally disregards these pertinent authorities, it refers to the suggestion in 37 American Jurisprudence 645, (Municipal Corporations, sec. 27) that there are “certain instances where, because of physical obstructions such as navigable rivers or waterways, extended boundary contact between the municipality and the annexed area is impossible.” This reference is patently irrelevant. Moreover, in each of the two decisions that support the statement in American Jurisprudence, the municipality was authorized to annex, and had annexed, “the navigable river or waterway” Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891; McGraw v. Merryman, 133 Md. 247, 104 Atl. 540.
The opinion also relies upon two decisions of the appellate court, neither of which came on to be decided in this court. Neither of them involved a highway projecting beyond the limits of the annexing municipality, and both of them involved highways that paralleled the boundaries of the annexing municipality, which under the statute, could legally have been annexed. In the first of these cases, Village of Flossmoor v. Mutual National Bank of Chicago, 23 Ill. App. 2d 440, the village sought to annex territory that la)'- west of, and parallel to, Kedzie Avenue for a distance of approximately 2100 feet. The east half of Kedzie Avenue was within the village limits for the entire distance but the west half was not. The opinion of the appellate court sustaining the annexation does not contain a full description of the physical situation, and the impression could be derived from it that there was a gap of 50 feet (one half the width of Kedzie Avenue) between the village limits and the territory to be annexed for the full distance along Kedzie Avenue. That is not the situation, however, for the record in that case shows that the west half of Kedzie Avenue was annexed for a distance of 630 feet. In the course of its opinion the appellate court said, “* * * Kedzie Avenue is the common boundary between Floss-moor and the territory. ‘Contiguity exists where boundary lines are coterminous.’ Rafferty v. City of Covina, 133 Cal. App. 2d 745, 285 P.2d 94, 99 (1955); State ex rel. Pan American Production Co. v. Texas City, 157 Tex. 450, 303 S.W.2d 780, 784 (1957).” (23 Ill. App. 2d at 445.) Both the California and the Texas case involved a single boundary line, and neither case supports the proposition that there can be two distinct “common boundaries.”
The language used in the opinion in the Flossmoor case led, in my opinion, to positive error in the second decision of the appellate court cited in the majority opinion, People ex rel. Henderson v. City of Bloomington, 38 Ill. App. 2d 9. There the City of Bloomington sought to annex property which lay across the highway from the city boundaries. “[Ujnder the authority of the Flossmoor case” the appellate court decided that the tract sought to be annexed “must be held to be reasonably contiguous to the limits of Bloomington.” The difficulty with this conclusion, of course, is that the legislature has authorized only the annexation of “contiguous territory.” It is a fair assumption, I think, from the history of annexation legislation and litigation in this state, that if the General Assembly had intended to authorize the annexation of “reasonably contiguous” territory, it would have said so. Cf. In re Lancaster City Ordinance, 374 Pa. 546, 98 A.2d 34 (1953).
Mr. Justice Hershey joins in this dissent.