Docket No. 91715–Agenda 24–January 2002.

THE PEOPLE OF THE STATE OF ILLINOIS ex rel. N. DAVID GRAF et al., Appellees, v. THE VILLAGE OF LAKE BLUFF,  								Illinois, a Municipal Corporation, Appellant.

Opinion filed June 19, 2003.

	JUSTICE KILBRIDE delivered the opinion of the court:

	In this case, we decide whether a trial court’s finding that a

parcel of land is contiguous to the annexing municipality in a

proceeding initiated under section 7–1–2 of the Illinois Municipal

Code (Code) (65 ILCS 5/7–1–2 (West 2000)) is subject to a

collateral attack in a quo warranto action.

	 The circuit court of Lake County denied plaintiffs’ motion for

leave to file a complaint in quo warranto seeking to challenge the annexation of a parcel of land on the basis that it was not

contiguous to the annexing village. The appellate court reversed,

holding that the existence of contiguity was a jurisdictional

condition precedent to the filing of a court-controlled annexation

proceeding under section 7–1–2 of the Code and that contiguity

could be raised collaterally in a quo warranto proceeding. 321 Ill. App. 3d 897, 906. For the reasons that follow, we reverse the

judgment of the appellate court.

I. BACKGROUND

	On October 10, 1980, two owners of parcels of land in an 8.3-

acre tract, commonly referred to as “ the Triangle,” filed a petition

pursuant to section 7–1–2 of the Illinois Municipal Code (Ill. Rev.

Stat. 1979, ch. 24, par. 7–1–2 (now codified at 65 ILCS 5/7–1–2

(West 2000))), seeking to annex the Triangle to the Village of

Lake Bluff (Village). The petitioners alleged that they were a

majority of the land owners in the Triangle and that the Triangle

was contiguous to the Village. No objections were filed. After a

hearing, the court found that the petition conformed to section

7–1–4 of the Code (65 ILCS 5/7–1–4 (West 2000)) and ordered

that the question of annexation be submitted to the corporate

authorities of the Village.

	The annexation was completed by an ordinance adopted

November 24, 1980. As part of this process, the Village also

annexed a portion of railroad right-of-way 1,000 feet long and 100

feet wide abutting a portion of the Triangle and also abutting the

border of the Village. No appeal was ever taken from the court

order approving the annexation, nor did any party ever seek post-

judgment relief.

	In 1998, the Village annexed a different tract of land known

as “the Sanctuary,” again using the court procedures created by

sections 7–1–2, 7–1–3, 7–1–4 and 7–1–7 of the Code (65 ILCS

5/7–1–2, 7–1–3, 7–1–4, 7–1–7 (West 2000)). The Village initiated

the process by an ordinance adopted August 10, 1998, and filed

with the circuit court in accordance with section 7–1–2. On

September 2, 1998, the court conducted a hearing under section

7–1–4 and found: (1) the Sanctuary was contiguous to the Village;

(2) the ordinance was lawfully adopted and in compliance with the

requirements of section 7–1–2; and (3) there were no valid

objections to the annexation. The court then directed the issue to

be submitted to a referendum of the electors residing in the

Sanctuary, pursuant to section 7–1–7. The annexation was

approved by a majority of the electors and, under the terms of the

court’s order, the Sanctuary became a part of the Village. The

Sanctuary abutted a portion of the Triangle, but did not touch any

other boundary of the Village. No appeal was taken from the

judgment approving the Sanctuary annexation, nor did any party

request post-judgment relief in the trial court.

	On June 2, 1999, plaintiffs filed their motion for leave to file

a complaint in quo warranto to challenge the annexations. Plaintiffs alleged that contiguity in the Triangle annexation existed neither in

fact nor in law. Further, they claimed that the subsequent

Sanctuary annexation was invalid because it was dependent on the

Triangle’s defective annexation. Therefore, the Sanctuary

annexation also failed for want of contiguity and was void.

	The trial court denied plaintiffs’ motion, finding that it was an

impermissible collateral attack on the final orders entered in two

annexation proceedings. The court further found that none of the

plaintiffs had standing to assert a challenge to the annexations because their pleadings did not describe a special interest or private

right infringed by the annexations. Plaintiffs appealed.

	The appellate court affirmed the trial court’s order on the

standing of plaintiffs Graf, Price and Surkamer, who resided in the

Village. The court found that plaintiffs’ allegation, concerning

Village tax revenues being diverted to pay for government services

to the Sanctuary property, was speculative and insufficient. 321 Ill.

App. 3d at 901. Therefore, plaintiffs did not show the requisite

interest in the case to establish standing. 321 Ill. App. 3d at 901.

The court, however, partially reversed the trial court as to plaintiff

Gottschalk, a Sanctuary resident, finding that Gottschalk’s

averments were sufficient to confer standing. 321 Ill. App. 3d at

902.

	The appellate court further held that the existence of

contiguity is a jurisdictional condition precedent to annexation, and

its absence can be raised in a quo warranto action. 321 Ill. App. 3d at 906. The appellate court believed the provisions of section

7–1–46 of the Code (65 ILCS 5/7–1–46 (West 2000)), imposing

a one-year statute of limitations on annexation challenges, showed

the legislature’s intent that contiguity be a jurisdictional

prerequisite. We granted leave to appeal to the Village. See 177 Ill.

2d R. 315.

II. ANALYSIS

	Quo warranto is an extraordinary remedy. It was originally a writ of right for the crown against one who claimed or usurped any

office, franchise or liberty, to challenge the authority underlying

that assertion of the right. People ex rel. Hansen v. Phelan, 158 Ill. 2d 445, 448 (1994). Quo warranto proceedings are now codified (735 ILCS 5/18–101 et seq. (West 2000)) and may be brought by private parties under special circumstances. They may do so,

however, only by leave of court. 735 ILCS 5/18–102 (West 2000).

The decision to grant or deny a petition for leave to file a quo warranto action is a matter within the trial court’s sound discretion. Phelan, 158 Ill. 2d at 449. Where discretion has been vested in the trial court, only a clear abuse of discretion or an

application of impermissible legal criteria justifies reversal. Boatmen’s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314 (1993).

A. Standing

	We first address the Village’s argument that the appellate

court erred in holding that plaintiff Gottschalk had standing to

bring a quo warranto action. Gottschalk alleged that, as a result of the annexation, he must: (1) purchase vehicle stickers from the

Village; (2) pay Village property taxes; and (3) pay for garbage-

collection service regardless of whether he chooses to use it. The

appellate court held that these allegations are sufficient to assert

the kind of special interest necessary to maintain an action in quo warranto. 321 Ill. App. 3d at 902.

	The Village argues here that Gottschalk’s allegations do not

describe a substantial adverse impact and that any new costs are

outweighed by the benefits and services provided to residents of

the Village. We disagree.

	The Village cites no authority applying a balancing test of

adverse impact versus new benefits and services. Nonetheless, it

argues that a balancing test is consistent with the reasoning in

People ex rel. Durst v. Village of Germantown Hills, 51 Ill. App. 3d 969 (1977). There, a township asserted standing to challenge an

annexation because it would lose motor fuel tax revenues as a

result of the reduction in the total number of miles under its

jurisdiction. The court observed that although annexation results

in a township’s loss of road jurisdiction, it also eliminates its

responsibility for road maintenance. Durst, 51 Ill. App. 3d at 971.

	In the case before us, the only new benefit described in the

record is garbage collection, a service unwanted by Gottschalk.

Gottschalk’s payments for garbage service, mandatory vehicle

stickers, and Village property taxes significantly impact his private

interests and are not outweighed by any benefits or services

described in the Village’s pleading. Thus, Durst is inapplicable here. Moreover, we agree with the appellate court that the

increased financial burdens to Gottschalk resulting from the

assessment of Village property taxes and the requirement that he purchase vehicle stickers from the Village are substantial. 321 Ill.

App. 3d at 902.

	In holding that taxpayers could challenge in quo warranto the right of a drainage district to continue to levy taxes, this court

observed:

			“Moreover, the interest of a citizen in the taxes to be

collected from him is obviously distinct, for many

purposes, from a general public interest in the enforcement

of the law. It is a personal and substantial interest, and it

does not become the less so because other citizens have a

similar interest.” People ex rel. McCarthy v. Firek, 5 Ill. 2d 317, 324 (1955).

	Therefore, we believe that Gottschalk has sufficiently alleged

a special interest to confer standing to bring an action in quo warranto. The appellate court’s reasoning on that issue was correct and needs no further explication here.

B. The Contiguity Challenge

	 In denying plaintiffs’ motion for leave to file a quo warranto action in this case, the trial court construed section 7–1–2 of the Code and determined that the jurisdictional prerequisites to the

filing of a court-approved annexation proceeding were set out in

that section. Contiguity is not mentioned in that section and, thus,

is not a jurisdictional prerequisite. Section 7–1–4 of the Code

requires the trial court to find that contiguity exists between the

municipality and the parcel to be annexed. 65 ILCS 5/7–1–4 (West

2000). Since that issue is a question of fact that the court in the

annexation proceeding was empowered to decide, the trial court

denied plaintiffs’ motion, finding that a collateral attack on a final

order is not authorized under such circumstances.

	The appellate court reached a contrary conclusion, finding that

according to the plain language of section 7–1–4, the legislature

intended contiguity to be a jurisdictional prerequisite to an

annexation. 321 Ill. App. 3d at 904-06. In its analysis, the court did

not refer to section 7–1–2 of the Code, nor did it cite any case

where the use of quo warranto was approved as a means of challenging a court-ordered annexation due to a lack of contiguity. Since we must construe the subject statutes to determine whether

the trial court applied the correct legal criteria in the exercise of its

discretion, a question of law is presented, and our review is de novo. In re Estate of Andernovics, 197 Ill. 2d 500, 507 (2001).

	Gottschalk argues, and the appellate court held, that the

existence of contiguity is a jurisdictional condition precedent to

annexation because section 7–1–4 of the Code requires the trial

court to determine whether the petition or ordinance filed under

section 7–1–2 is valid or invalid. The use of those terms, the

appellate court reasoned, suggests that a petition not meeting the

requirements of section 7–1–4 is without any legal force or effect

and that an action based upon a petition that fails to meet those

statutory requirements is void ab initio. 321 Ill. App. 3d at 904.

	Section 7–1–4 requires the court to dismiss the petition or

ordinance if it finds that: (1) the annexation petition is not signed

by the requisite number of electors or property owners of record;

(2) the described property is not contiguous to the annexing

municipality; (3) the description is materially defective; or (4) the

petition or ordinance is otherwise invalid. 65 ILCS 5/7–1–4 (West

2000). The appellate court observed that the signature requirement

has been held to be a jurisdictional condition precedent and that the

contiguity requirement appears in the same sentence of the statute

as the signature requirement. Thus, nothing warrants interpreting

contiguity as a factual matter and signatures as a jurisdictional

matter. According to the appellate court, the inclusion of both

requirements in the same portion of the statute is a manifestation

of the legislature’s intention that both serve the same function. 321

Ill. App. 3d at 903-05, citing People ex rel. Jordan Co. v. Village of Forest View, 21 Ill. 2d 384, 390 (1961); People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420, 423 (1994).

	The Village argues that the conditions precedent to the

exercise of the court’s jurisdiction are established not in section

7–1–4 of the Code, but in section 7–1–2. That section provides as

follows:

			“(a) A written petition signed by a majority of the

owners of record of land in the territory and also by a

majority of the electors, if any, residing in the territory

shall be filed with the circuit court clerk of the county in which the territory is located, or the corporate authorities

of a municipality may initiate the proceeding by enacting

an ordinance expressing their desire to annex the described

territory. *** The petition or ordinance, as the case may

be, shall request the annexation of the territory to a

specified municipality and also shall request that the circuit

court of the specified county submit the question of the

annexation to the corporate authorities of the annexing

municipality or to the electors of the unincorporated

territory, as the case may be.” 65 ILCS 5/7–1–2(a) (West

2000).

	Section 7–1–2 does not require the petition to allege the

contiguity of the territory to be annexed to the municipality. The

Village argues that we must look to section 7–1–2, rather than

section 7–1–4, to determine the applicable conditions precedent

because the filing of the petition enables the court to exercise its

subject matter jurisdiction. Section 7–1–4, by its own terms,

describes the findings the court must make to determine whether

the petition is valid. Obviously, the court cannot make findings

unless it has jurisdiction. The Village contends that since a

sufficient petition, as prescribed by the legislature, was presented

to the court, it was empowered to determine the question of

contiguity.

	In the case before us, the petition to annex the Triangle

property alleged that it was signed by a majority of the owners of

record and alleged that it was contiguous to the Village. It was

supported by the petitioners’ verification under oath. Thus, it

conformed to the requirements of section 7–1–2 of the Code (65

ILCS 5/7–1–2 (West 2000)). The trial court subsequently found

that the petition also conformed to the requirements of section

7–1–4 and referred the question of annexation to Village

authorities as provided by statute. In making its finding, the court

implicitly determined that the Triangle territory was contiguous to

the Village. Any errors in the trial court’s final order could have

been directly appealed under section 7–1–4 (65 ILCS 5/7–1–4

(West 2000)).

	In August 1998, the Village enacted an ordinance to initiate

the annexation of the Sanctuary property. The ordinance contained a legal description of the property to be annexed and averments

that it was not within any other municipality and was contiguous

to the Village. It also requested that the court find the ordinance to

be valid and in conformity with the Code. The trial court entered

an agreed order resolving the issues raised by the objectors, finding

the territory contiguous to the Village and the ordinance lawfully

adopted and in conformity with the requirements of section 7–1–2

and directing that the question of annexation be submitted to a

referendum vote pursuant to section 7–1–7 of the Code. The

agreed order was not appealed. The trial court’s determination that

the Sanctuary property was contiguous to the Village could only

have been based on its contiguity to the previously annexed

Triangle property. Thus, the court in the 1998 proceeding relied on

the validity of the unchallenged 1980 court order.

	In challenging the prior trial court orders, plaintiffs’ quo warranto petition is an independent action, not filed in either of the annexation proceedings. Therefore, it is a collateral attack on the

two judgments that had previously found contiguity. City of Des Plaines v. Boeckenhauer, 383 Ill. 475, 480 (1943). Plaintiffs argue that a collateral attack is authorized under the holding in Jordan, 21 Ill. 2d 384. In that case, this court reviewed the finding that the

requisite number of eligible electors had signed an annexation

petition and reasoned:

		“Plaintiffs do not purport to review the determination of

the county court. Rather, their claim is that the county

court lacked jurisdiction to make any determination,

because the failure of the petition to comply with the

statutory requirements rendered it insufficient to confer

jurisdiction upon the county court. The statutory

requirements of the petition are jurisdictional, and the lack

of jurisdiction on the part of the county court can be

asserted in a quo warranto proceeding.” Jordan, 21 Ill. 2d at 389-90.

	In light of our holding in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002), Jordan has no continued viability. Jordan was decided in 1961, prior to the amendment of the judicial article to our state constitution (Ill.

Const. 1870, art. VI (1964), §9). Thus, its precedential value is limited to the constitutional context existing before the judicial

amendment radically changed the legislature’s role in determining

the jurisdiction of the circuit court. Belleville Toyota, 199 Ill. 2d at 337.

	Jordan suggests that the statutory requirements of an annexation petition are nonwaivable conditions precedent to the

exercise of the court’s jurisdiction. Jordan, 21 Ill 2d at 390. However, as we explained in construing the limitations period

contained in the Motor Vehicle Franchise Act (815 ILCS 710/14

(West 2000)):

		“The legislature may create new justiciable matters by

enacting legislation that creates rights and duties that have

no counterpart at common law or in equity. [Citation.]

Through the legislature’s adoption of the Act in 1979, the

legislature created a new justiciable matter. The

legislature’s creation of a new justiciable matter, however,

does not mean that the legislature thereby confers

jurisdiction on the circuit court. Article VI is clear that,

except in the area of administrative review, the jurisdiction of the circuit court flows from the

constitution. Ill. Const. 1970, art. VI, § 9. The General

Assembly, of course, has no power to enact legislation

that would contravene article VI. [Citation.]

			Some case law, however, suggests that the legislature,

in defining a justiciable matter, may impose ‘conditions

precedent’ to the court’s exercise of jurisdiction that

cannot be waived. [Citations.] We necessarily reject this

view because it is contrary to article VI. Characterizing

the requirements of a statutory cause of action as

nonwaivable conditions precedent to a court’s exercise of

jurisdiction is merely another way of saying that the circuit

court may only exercise that jurisdiction which the

legislature allows. We, reiterate, however, that the

jurisdiction of the circuit court is conferred by the

constitution, not the legislature. Only in the area of

administrative review is the court’s power to adjudicate

controlled by the legislature.” (Emphasis in original.) Belleville Toyota, 199 Ill. 2d at 335-36.

	The reasoning in Belleville Toyota applies with equal force to the case before us. There is no common law authority for a

municipality to initiate annexation procedures. It is well established

that the legislature alone has the authority to allow or require the

alteration of municipal boundaries. In re Petition to Annex Certain Territory to the Village of North Barrington, 144 Ill. 2d 353, 361 (1991). The legislature, therefore, created a justiciable controversy

when it enacted the court-ordered annexation statute. When the

trial court in this case was presented with a petition and an

annexation ordinance, it had jurisdiction to hear and determine the

matter because the court’s constitutionally granted original

jurisdiction extends to the general class of cases arising under the

statute. Belleville Toyota, 199 Ill. 2d at 340. As we said in that case:

		“Even if plaintiff’s complaint defectively stated its claim

under the Act, the circuit court would not have been

deprived of subject matter jurisdiction. Subject matter

jurisdiction does not depend upon the legal sufficiency of

the pleadings.” Belleville Toyota, 199 Ill. 2d at 340.

	Applying these principles to the matter before us, it is apparent

that the legislature has empowered the court to make findings and

orders in annexation cases if presented with a petition or ordinance

requesting judicial approval. Once a justiciable matter is properly

submitted, a court has the power to decide rightly or wrongly the

issues properly before it. As we observed in Steinbrecher v. Steinbrecher:

		“Yet, jurisdiction is not affected by an incorrect judgment:

‘jurisdiction or power to render a particular judgment does

not mean that the judgment rendered must be the one that

should have been rendered, for the power to decide carries

with it the power to decide wrong as well as to decide

right.’ [Citation.]” Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 532 (2001).

The form and content of an annexation petition or ordinance are

prescribed by section 7–1–2 of the Code. Plaintiffs do not contend

that either the petition in the Triangle annexation or the ordinance

in the Sanctuary annexation failed to conform to the requirements

of section 7–1–2. Nor do they contend that the court in either the Triangle or the Sanctuary annexation did not comply with the

procedural requirements of section 7–1–4 of the Code. Instead,

they argue that contiguity does not exist, either as a matter of fact

or law. That issue was, however, determined by two courts having

jurisdiction of the subject matter. Thus, if the Village were required

to establish its authority to annex the territories in question, it

could justifiably rely on the lawful orders of the circuit court

approving those procedures. See People ex rel. Town of Richwoods v. City of Peoria, 80 Ill. App. 2d 359, 366 (1967). Nonetheless, this rationale has not been consistently applied by our

appellate court.

	For instance, in Richwoods, petitioners challenged the annexation of territory to the City of Peoria on various grounds

alleged to be jurisdictional, including the absence of contiguity. In

answering the quo warranto petition, the City raised the defense of justification, asserting that its right to annex the territory in dispute

was derived from court orders in an annexation proceeding

initiated under section 7–1–2 of the Code. The trial court granted

summary judgment for the City, and on appeal, the court

considered the issue of whether the validity of the annexation was

open to attack in quo warranto. Richwoods, 80 Ill. App. 2d at 362. The Third District of the appellate court held that it was not and

observed:

		“To require the city in this proceeding to go behind the

adjudications in cause No. 64 Z 2103, and to prove again

here the issues it has already proved there, would require

us to ignore the express language of the statute [citation]

that adjudications made in proceedings such as those in 64

Z 2103 are to be final and appealable, and in effect would

allow, by a collateral proceeding, a de novo review of

another adjudication. We are satisfied that quo warranto

is not appropriate for that purpose ***.” Richwoods, 80 Ill. App. 2d at 366.

	 The First District of the appellate court reached a similar

conclusion in People ex rel. O’Malley v. Village of Ford Heights, 261 Ill. App. 3d 571, 574 (1994). That court sustained the

dismissal of two counts of an intervenor’s petition in quo warranto challenging a court-ordered annexation, holding that quo warranto was not the proper means of challenging findings made in an earlier

action. To allow the quo warranto petition to proceed would allow the improper de novo review of findings in a collateral proceeding. O’Malley, 261 Ill. App. 3d at 574. The court also rejected the intervenor’s argument that the condemnation order was void

because the legal description of the annexed property was

materially defective. The court held that the legislature had

empowered circuit courts to determine whether legal descriptions

are materially defective and therefore an order making that

determination was not void. Thus, the appropriate method to

challenge the ruling was a direct appeal or a motion to vacate

under section 2–1401 of the Code of Civil Procedure (735 ILCS

5/2–1401 (West 2000)). O’Malley, 261 Ill. App. 3d at 574-75.

	Conversely, the Second District of the appellate court rejected

the reasoning in Richwoods and O’Malley in Brzca, 268 Ill. App. 3d 420. That court reversed the trial court’s dismissal of a quo warranto petition challenging an annexation because the petition initiating the proceeding did not contain signatures of a majority of

property owners, as required by section 7–1–2 of the Code.

Relying on Jordan, the court held that a section 7–1–2 petition must meet certain statutory requirements in order for the court to

act and grant the requested relief. Affixation of the signatures of a

majority of landowners in the territory to be annexed is mandatory.

Therefore, the court reasoned that this deficiency is a jurisdictional

defect and may be raised at any time, even collaterally in a quo warranto proceeding. Brzica, 268 Ill. App. 3d at 425.

	For the reasons we have discussed, the holding in Brzca is in error. Jordan has no viability in the present constitutional context. Further, Richwoods and O’Malley are more pertinent to the facts in the case before us. Here, we are not presented with any claim

that the petition in the Triangle annexation lacked the requisite

signatures or that the Sanctuary ordinance was in any way

defective. Nor is there any claim of fraud or lack of notice.

Plaintiffs argue only that contiguity did not exist in fact or in law

when the Triangle was annexed. Nonetheless, the legislature

expressly authorized the trial court to make that determination in

a hearing under section 7–1–4 of the Code. The trial court clearly

made a contiguity finding. There is no basis, therefore, to allow another court to revisit that same issue in a quo warranto proceeding when the correctness of the original ruling could have been challenged by direct appeal or by a timely petition for post-

judgment relief.

	In reversing the trial court, the appellate court also considered

whether plaintiffs’ right to challenge the annexations is impacted

by the statute of limitations in section 7–1–46 of the Code (65

ILCS 5/7–1–46 (West 2000)). The appellate court concluded that

contiguity must be a jurisdictional prerequisite because it is

exempted from the one-year limitations statute in the Code. 321

Ill. App. 3d at 905. That section provides:

		“The limitation set forth in this section shall apply to any

annexation, even where the judge, body or officer

annexing the territory did not at the time of such

annexation have jurisdiction of the subject matter, and

irrespective of whether such annexation may otherwise be

defective or void, except that the limitation of this section

shall not apply to annexations of territory which was not

contiguous at the time of annexation and is not

contiguous at the time an action is brought to contest such

annexation.” 65 ILCS 5/7–1–46 (West 2000).

	The appellate court reasoned that since contiguity is treated in

the same portion of a statute that deals with jurisdictional matters

and since contiguity provides the only exception to the application

of the statute of limitations, the legislature considered the lack of

contiguity to be a “very basic defect.” 321 Ill. App. 3d at 905. This

may be true, but for the reasons we have discussed, the lack of

contiguity does not impact the subject matter jurisdiction of the

court. The trial court properly entered final judgments,

unchallenged on direct appeal or by petition for post-judgment

relief. The issues determined by those judgments may not be

relitigated in a collateral proceeding 20 years later.

	The Village has never contended that Gottschalk’s contiguity

challenge is time-barred. Instead, it argues that the challenge is

foreclosed by the preclusive effect of the affirmative contiguity

findings in two final judgments. We agree. Under these

circumstances, the remedy of quo warranto will not lie because the validity of the annexation process has already been given final judicial approval. Thus, the lack of a time-bar to that remedy is

irrelevant.

III. CONCLUSION

	Although plaintiff Gottschalk has sufficiently alleged the

special interest necessary to confer standing to bring an action in quo warranto, nevertheless we hold that the plain language of the statutory scheme allowing court-approved annexations does not

permit a collateral, quo warranto challenge to the final legal or factual determinations in such cases.

Appellate court judgment reversed;

circuit court judgment affirmed.

	JUSTICE RARICK took no part in the consideration or

decision of this case.

	JUSTICE FREEMAN, specially concurring:

	Although I agree with my colleagues that the judgment of the

appellate court must be reversed, I disagree strongly with portions

of the analysis used to achieve that result. The groundwork for

today’s analysis was laid by this court in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002) and Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001). As it did in Belleville, the court today insists that the 1970 Constitution changed the concept of jurisdiction in Illinois. While I agree that

the changes made to the judicial article in both 1964 and 1970

affected jurisdiction, I do not believe the changes lessened the legislature’s power to define the statutory causes of action that it

creates. I dissented in Belleville, 199 Ill. 2d at 365 (Freeman, J., dissenting, joined by McMorrow, J.), and in Steinbrecher, 197 Ill. 2d at 533 (Freeman, J., dissenting, joined by McMorrow and

Kilbride, JJ.), and the court’s reliance on those cases prevents me

from joining fully in today’s opinion.

	Contrary to the suggestion in both Belleville and Steinbrecher that this court had overlooked the changes to the judicial article

(see Belleville, 199 Ill. 2d at 335-36; Steinbrecher, 197 Ill. 2d at 529-30), this court has consistently recognized that “jurisdiction”

is conferred by our constitution. In re M.M., 156 Ill. 2d 53, 65 (1993). In my view, the court’s emphasis on the changes to the

judicial article is misplaced. Prior to the amendment, article VI read

as follows:

			“The circuit courts shall have original jurisdiction of all

causes in law and equity, and such appellate jurisdiction as

is or may be provided by law ***.” Ill. Const. 1870, art.

VI, §12.

To be sure, the Judicial Article of 1962, effective January 1, 1964,

changed the language of the article VI:

			“The circuit court shall have unlimited original

jurisdiction of all justiciable matters, and such powers of

review of administrative action as may be provided by

law.” Ill. Const. 1870, art. VI (1964), §9.

However, the word “unlimited” was eliminated from the article in

the Constitution of 1970, and it currently reads as follows:

			“Circuit courts shall have original jurisdiction of all

justiciable matters except when the Supreme Court has

original and exclusive jurisdiction relating to redistricting

of the General Assembly and to the ability of the Governor

to serve or resume office. Circuit courts shall have such

power to review administrative action as provided by

law.” Ill. Const. 1970, art. VI, § 9.

In my view, the biggest change resulting from the 1964 amendment

was the elimination of the distinction between courts of law and

equity, which means that our circuit courts have the power to hear

all justiciable matters, whether the causes of action arose from common law, in equity or by statute in derogation of the common

law. Notwithstanding the above, this court, beginning in

Steinbrecher and Belleville, used these changes in the constitutional language to narrowly curtail the power that our

legislature has to create and define statutory causes of action. For

example, in Belleville, the court addressed whether the time limitations contained in the Motor Vehicle Franchise Act

constituted an “ordinary” limitations period, i.e., an affirmative defense, as opposed to a condition precedent to suit. A majority of

the court concluded that the limitations period was not “a

jurisdictional prerequisite to suit.” Belleville, 199 Ill. 2d at 341. As a result, the failure to fulfill a statutory condition precedent has no

effect on the validity of any order rendered by the circuit court.

Belleville, 199 Ill. 2d at 340-41.

	The court’s conclusion with respect to the ability of the

legislature to create conditions precedent, however, is at odds with

the very authority relied upon by the court for its discussion of the

changes in the language of the judicial article. For example, in

Belleville, the court cited In re Estate of Mears, 110 Ill. App. 3d 1133 (1982), for the proposition that the 1970 Constitution

changed the way in which we are to view the term “jurisdiction.”

However, the court took an extremely broad view of the appellate

court’s holding in Mears and, in so doing, overlooked the key portions of its analysis which speak to the precise issue of the

legislature’s ability to define statutory causes of action. At issue in Mears was the last will and testament of Frances Mears. Mears, 110 Ill. App. 3d 1133. The principal beneficiary of Mears’ will was

Illinois Wesleyan University, which was to receive all of the residue

of the estate after several monetary legacies had been paid out.

Mears, 110 Ill. App. 3d 1133. Mears, a widow, died childless, and her heirs were 53 known nieces and nephews and various other

collateral descendants. Mears, 110 Ill. App. 3d at 1133-34. One of the heirs, within the time provided by law, petitioned to contest the

validity of the will. The petition named as respondents all the heirs

and legatees, but did not name the executor of the will. Mears, 110 Ill. App. 3d at 1134. The executor filed a special and limited

appearance for the purpose of contesting the jurisdiction of the

circuit court. Mears, 110 Ill. App. 3d at 1134. He successfully argued that the failure to name him as a party respondent was fatal

and that the time to file a proper petition had expired. Mears, 110 Ill. App. 3d at 1134. The appellate court reversed. After noting the

history of article VI of our constitution, the court stated that its

inquiry in light of the 1970 Constitution was “whether there exists

a justiciable controversy, and if so, are there any statutory conditions precedent to judicial intervention.” (Emphasis added.) Mears, 110 Ill. App. 3d at 1138. The court went on to hold that the “only condition precedent to the exercise of jurisdiction is that

it [the petition] be filed within the time limited by statute after the

admission of the will to probate. [Citation.] It is uncontroverted

that the petition was filed within the statutory period in the instant

case. The circuit court then had jurisdiction.” (Emphasis added.) Mears, 110 Ill. App. 3d at 1138.

	Although the court in Mears cited the changes wrought by the 1970 Constitution, it nevertheless continued to recognize the

power of the General Assembly to impose conditions to relief in

the statutory causes of actions it creates. Indeed, the court in

Mears acknowledged that even in light of the 1970 Constitution:

		“[T]he legislature may still impose substantive conditions precedent to the exercise of jurisdiction. While this may sometimes erroneously be called a lack of jurisdiction, it is

in reality an inability to exercise jurisdiction because the court cannot waive the condition.” (Emphases added.)

Mears, 110 Ill. App. 3d at 1138.

This view was also espoused in published legal commentary

following the judicial article amendment in 1964. See Mears, 110 Ill. App. 3d at 1137, citing H. Fins, Re-Examination of “Jurisdiction” in Light of New Illinois Judicial Article, 53 Ill. B.J. 8 (1964). Implicit in Mears is that had the petitioner filed his petition to contest after the time set by statute had expired, the circuit court would have been unable to exercise jurisdiction in the

matter notwithstanding the fact that the court had before it a

justiciable matter. Thus, the appellate court’s opinion stands for the

proposition that the failure to comply with a nonwaivable condition

precedent may result in the circuit court’s inability to exercise

jurisdiction. That proposition, however, is contrary to this court’s current stance as expressed today and in both Belleville and Steinbrecher.

	I continue to believe that the court’s position in this area, as

articulated in Belleville and Steinbrecher, is erroneous. When a court’s power to act in a particular manner is controlled by statute,

the defects that arise from the court’s acting beyond its power

cannot be waived. Mears, 110 Ill. App. 3d at 1137-38. Thus, in exercising jurisdiction over matters made justiciable by statute and

having no counterpart in common law or equity, courts must

proceed within the strictures of the statute. Stated differently, a

court may not exceed its statutory authority. In re M.M., 156 Ill. 2d 53, 64-66 (1993). Orders entered by a court without legal

authority have been viewed as void and can be subject to collateral

attack. See People ex rel. Ryan v. Roe, No. 93370 (October 3, 2002); People v. Arna, 168 Ill. 2d 107, 113 (1995).

	As I pointed out in my dissent in Steinbrecher, this court had, until then, recognized that a “ ‘judgment or decree may be void

where a court has exceeded its authority.’ ” Steinbrecher, 197 Ill. 2d at 549 (Freeman, J., dissenting, joined by McMorrow and

Kilbride, JJ.), quoting People v. Davis, 156 Ill. 2d 149, 156 (1993), citing Armstrong v. Obucino, 300 Ill. 140, 142-43 (1921). It appears to me that a majority of this court is uncomfortable with

the notion of leaving open to collateral attack judgments made by

a court acting beyond or in excess of its authority. Indeed, the

court said as much as in Belleville. After concluding that the limitations period was not a condition precedent, the court

observed:

			“Our conclusion, while firmly rooted in our constitution,

is also consistent with the trend of modern authority

favoring finality of judgments over alleged defects in

validity. See In re Marriage of Mitchell, 181 Ill. 2d 169, 175-77 (1998), citing Restatement (Second) of Judgments

§12 (1982); see also Fields, 288 Ill. App. 3d at 1060, citing Restatement (Second) of Judgments §12 (1982).

Labeling the requirements contained in statutory causes of

action `jurisdictional' would permit an unwarranted and

dangerous expansion of the situations where a final

judgment may be set aside on a collateral attack. [Citation.] Even if the statutory requirement is considered a nonwaivable condition, the same concern over the

finality of judgments arises. Once a statutory requirement

is deemed ‘nonwaivable,’ it is on equal footing with the

only other nonwaivable conditions that would cause a

judgment to be void, and thus subject to collateral

attack–a lack of subject matter jurisdiction, or a lack of

personal jurisdiction. [Citation.] As our appellate court has observed, ‘[b]ecause of the disastrous consequences

which follow when orders and judgments are allowed to

be collaterally attacked, orders should be characterized as

void only when no other alternative is possible.’ In re Marriage of Vernon, 253 Ill. App. 3d 783, 788 (1993); *** .” (Emphasis added.) Belleville, 199 Ill. 2d at 341

The emphasized language demonstrates that the court’s concern in

this area is primarily with preserving the finality of judgments.

However, as Mears demonstrates, nothing in our constitution prevents the legislature from imposing nonwaivable conditions

precedent to the statutory causes of action that it creates. This

proposition was also recognized in the special concurrence in In re M.M., relied upon by the court in Belleville. See Belleville, 199 Ill. 2d at 337, citing In re M.M., 156 Ill. 2d at 74 (Miller, C.J., concurring, joined by Bilandic, J.). Thus, the constitution does not

provide the basis for the change in law that the court has imposed.

	The fact that members of this court are concerned about the

finality of judgments is not objectionable, in and of itself–the excess

of authority approach has received criticism. See 1B Moore,

Federal Practice 648 n.41 (2d ed. 1948); H. Cox, The Void Order and the Duty to Obey, 16 U. Chi. L. Rev. 86, 90-92 (1948). As one court has put it, the application of the rule “necessarily

require[s] the drawing of distinctions between subject matter

jurisdiction, excess of jurisdiction, and mere error. These

distinctions have often proved difficult to draw.” Hartt v. Hartt, 121 R.I. 220, 226, 397 A.2d 518, 522 (1979). This court has

chosen to resolve this problem by holding that the changes in the

judicial article of our constitution narrowed the definition of

“jurisdiction.” However, as I have demonstrated, the changes to

the judicial article cited by the court do not support the view that orders made by a court in excess of its authority are shielded from

collateral review. The amendments did not speak to whether

jurisdiction includes the power of a court to act in excess of its

authority. The court errs in its reliance on those amendments in

support of its policy decision to uphold the finality of judgment. In

so doing, the court has created confusion – rejecting the

legislature’s ability to create conditions precedent in some cases

(see Belleville, 199 Ill. 2d at 341), but reaffirming the legislature’s prerogative of imposing limitations and conditions on the

availability of relief in statutory causes of action in other cases (see In re Marriage of Kates, 198 Ill. 2d 156 (2001)). See also Belleville, 199 Ill. 2d at 371 (Freeman, J., dissenting, joined by McMorrow, J.) (noting inconsistencies in this area).

	I am not unsympathetic to the concerns of finality cited by the

court. Nonetheless, I believe the better approach is to acknowledge

the problem, and attempt to balance what I consider to be the two

competing policy concerns that are in tension in this area, i.e., “insuring that judgments are rendered only by courts having the

power to do so (the policy of validity) and enforcing a termination

point for litigation after the opportunity for full and fair litigation

(the policy of finality).” K. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of

Judgments, 66 Cornell L. Rev. 534 (1981). In my view, the court’s solution to the problem is overly broad and fraught with

inconsistencies (see, e.g.,Steinbrecher 197 Ill. 2d at 547 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.) (noting

different application in the context of criminal proceedings)), and

it is these problems that I have detailed with the analysis that

prevent me from joining with my colleagues. I need not, for

purposes of this case, delve further into this matter because the

order at issue here is not void. As I will explain, contiguity is not

a “condition precedent” to annexation such as would implicate the

circuit court’s authority to act.

	The legislature alone has the authority to allow or require the

alteration of municipal boundaries by annexation or otherwise. In re Petition to Annex Certain Territory to the Village of North

Barrington, 144 Ill. 2d 353, 361 (1991). Section 7–1–1 of the Illinois Municipal Code allows for annexation as provided by statute. 65 ILCS 5/7–1–1 (West 2000). Section 7–1–2 sets forth

what a petitioner must do in order for the circuit court to exercise

its jurisdiction in this area. 65 ILCS 5/7–1–2 (West 2000). For

example, a written petition or an ordinance must be filed in the

circuit court requesting the annexation of the territory to the

specified municipality and requesting that the question of

annexation be submitted to the corporate authorities or electors as

the case may be. 65 ILCS 5/7–1–2(a) (West 2000). Section 7–1–2

also provides the time frame in which a hearing is to be held on the

petition and sets forth notice provisions. 65 ILCS 5/7–1–2 (West

2000). Thus, once the petition is filed, the court’s function is to

determine whether the petitioners have complied with the

procedures set forth by the legislature for annexation. In re Petition to Annex Certain Territory to the Village of North

Barrington, 144 Ill. 2d at 361. This court has held that a petition for annexation must strictly comply with statutory requirements. In re Petition to Annex Certain Territory to the Village of North

Barrington, 144 Ill. 2d at 361-62.

	After the petition has been filed, section 7–1–3 of the Code

allows for any interested person to file objections to it. 65 ILCS

5/7–1–3 (West 2000). The statute sets forth four different types of

objections, the first being that “the territory described in the

petition or ordinance, as the case may be, is not contiguous to the

annexing municipality.” 65 ILCS 5/7–1–3 (West 2000). Once

objections are filed, no further pleadings are permitted. The circuit

court then conducts a hearing on the petition and any objections.

65 ILCS 5/7–1–4 (West 2000). Section 7–1–4 states that the

decision of the court shall be final. If the court finds the petition is

valid, it enters an order describing the territory to be annexed,

finding the petition to conform to the Code, and directing the

question of annexation be submitted to the corporate authorities

for final action. If the court finds that the petition does not conform

with the Code or that the description of the property is materially

defective or that the described property is not contiguous, the

petition shall be dismissed. All orders may be appealed as in other

civil actions. 65 ILCS 5/7–1–4 (West 2000).

	Whether one parcel of land is contiguous to another is a

question of fact: “The determination as to the reasonableness of the contiguity must be determined from the facts of each case.” In re Petition to Annex Certain Territory to the Village of North

Barrington, 144 Ill. 2d at 366. A circuit court’s decision on contiguity will not be reversed unless it is contrary to the manifest

weight of the evidence. In re Petition to Annex Certain Territory to the Village of North Barrington, 144 Ill. 2d at 364. Thus, contiguity is not a condition precedent to an annexation action.

Rather, the filing of the petition, as set forth in section 7–1–2, sets

the justiciable matter before the court. Once the preconditions of

section 7–1–2 have been met, the circuit court has the ability to

exercise its jurisdiction in the matter. Stated differently, the court

has the power to adjudicate the petition. Contiguity is a factual

question which the legislature intended for a judge to resolve. If it

is proven, the court has no option but to enter an order setting the

annexation for final action by the municipality officials. If

contiguity is not proven, the court has no option but to deny the

annexation petition. See 65 ILCS 5/7–1–4 (West 2000).

	As the foregoing demonstrates, the absence of contiguity does

not limit the authority of the court to exercise jurisdiction in

annexation cases. Once a petitioner complies with the requirements

of section 7–1–2, the court has the authority to exercise

jurisdiction over the question and resolve the issue presented to it

by the petitioner. In this case, the petition was submitted in

compliance with section 7–1–2, thereby satisfying the conditions

precedent established by the General Assembly. The circuit court

correctly exercised its jurisdiction over the annexation in 1980. As

a result, plaintiffs’ collateral attack in this case was unauthorized,

and the circuit court correctly denied plaintiffs’ motion for leave to

file their complaint in quo warranto.

	JUSTICE FITZGERALD, also specially concurring:

	I agree with the majority opinion in its entirety–plaintiff’s

collateral challenge to the 1980 annexation based on an alleged

lack of contiguity is improper. I write separately only to respond

briefly to Justice Freeman’s special concurrence, in which he once

again voices his objection to this court’s decision in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002).

	In Belleville, we held, inter alia, that the 1964 amendment to the judicial article of the Illinois Constitution of 1870 (Ill. Const.

1870, art. VI (1964), §9) limited the legislature’s power to define the circuit court’s jurisdiction, expressly limiting such power to the

area of administrative review. Belleville, 199 Ill. 2d at 337. Justice Freeman filed a lengthy dissent in the Belleville case setting forth, inter alia, his disagreement with this court’s analysis of the jurisdiction issue. Belleville, 199 Ill. 2d at 365-77 (Freeman, J., dissenting, joined by McMorrow, J.). In his special concurrence in

the case at bar, Justice Freeman continues the jurisdiction debate,

challenging, for the first time, Belleville’s purported reliance on In re Estate of Mears, 110 Ill. App. 3d 1133 (1982). According to Justice Freeman, Mears is contrary to the holding in Belleville and actually “stands for the proposition that the failure to comply with

a nonwaivable condition precedent may result in the circuit court’s

inability to exercise jurisdiction.” Slip op. at ___ (Freeman, J.,

specially concurring).

	I am in complete accord that Mears stands for that proposition–which is why the Belleville opinion expressly rejected Mears and other cases like it. We stated:

			“Some case law, however, suggests that the legislature,

in defining a justiciable matter, may impose ‘conditions

precedent’ to the court’s exercise of jurisdiction that

cannot be waived. E.g., In re Marriage of Fields, 288 Ill. App. 3d 1053, 1057 (1997); People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420, 422-23 (1994); In re Estate of Mears, 110 Ill. App. 3d 1133, 1138 (1982). We necessarily reject this view because it is contrary to article VI.” (Emphasis added.) Belleville, 199 Ill. 2d at 335-36.

	We cited favorably to the Mears case only for its treatment of the historical development of the concept of jurisdiction and the

legislature’s role in defining it (Belleville, 199 Ill. 2d at 336), and for the limited proposition that a “revolution” was wrought by the

1964 amendment to the judicial article (Belleville, 199 Ill. 2d at 337). Mears, in fact, states, “A revolution was wrought, almost without a murmur, by the Judicial Article of 1962, effective

January 1964. *** Now for the first time in the history of the State

jurisdiction was out of the hands of the legislature except for

administrative review and instead of looking for a statutory fiat, the bench and bar were required to determine the nature of a ‘justiciable matter.’ ” Mears, 110 Ill. App. 3d at 1137. We did not, as Justice Freeman now posits, “overlook[ ] the key portions” of

the appellate court’s analysis. Slip op. at ____ (Freeman, J.,

specially concurring). We considered all the portions of the

appellate court’s analysis and rejected its conclusion about the

outcome of the “revolution.”

	Debate, disagreement, and discussion are necessary when

resolving important issues such as those involving a circuit court’s

subject matter jurisdiction. In the course of such debate we must

be mindful to read a case for what it says, not simply for what it

cites.

	JUSTICE FREEMAN, dissenting:

	I must respectfully dissent from the court’s opinion because I

believe the circuit court incorrectly denied plaintiff’s motion for

leave to file their complaint in quo warranto.

	In reaching its conclusion that the lack of contiguity does not

impact on the subject matter jurisdiction of the court (Sslip op. at

13), the court relies heavily on the analyses contained in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002), and Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001). I dissented in Belleville, 199 Ill. 2d at 365 (Freeman, J., dissenting, joined by McMorrow, J.), and in Steinbrecher, 197 Ill. 2d at 533 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.),

and am compelled to again register my disagreement with the

court’s position in this area.

	As it did in Belleville, the court today insists that the 1970 Cconstitution changed the concept of jurisdiction in Illinois. While

I agree that the changes made to the judicial article in both 1964

and 1970 affected jurisdiction, I do not believe the changes

lessened the legislature’s power to define the statutory causes of action that it creates. Contrary to the suggestion in both Belleville and Steinbrecher that this court has overlooked the changes made to the judicial article (see Belleville, 199 Ill. 2d at 335-36; Steinbrecher, 197 Ill. 2d at 529-30), this court has consistently recognized that the “jurisdiction” of our circuit courts is conferred

by our constitution. In re M.M., 156 Ill. 2d 53, 65 (1993). In my view, the court today, as it did in Belleville and Steinbrecher, has placed too much emphasis on the changes to the judicial article.

Prior to the amendment, article VI read as follows:

			“The circuit courts shall have original jurisdiction of all

causes in law and equity, and such appellate jurisdiction as

is or may be provided by law ***.” Ill. Const. 1870, art.

VI, §12.

To be sure, the Judicial Article of 1962, effective January 1, 1964,

changed the language of the article VI:

			“The circuit court shall have unlimited original

jurisdiction of all justiciable matters, and such powers of

review of administrative action as may be provided by

law.” Ill. Const. 1870, art. VI (1964), §9.

However, the word “unlimited” was eliminated from the article in

the Constitution of 1970, and it currently reads as follows:

			“Circuit courts shall have original jurisdiction of all

justiciable matters except when the Supreme Court has

original and exclusive jurisdiction relating to redistricting

of the General Assembly and to the ability of the Governor

to serve or resume office. Circuit courts shall have the

power to review administrative action as provided by

law.” Ill. Const. 1970, art. VI, §9.

In my view, the biggest change resulting from the 1964 amendment

was the elimination of the distinction between courts of law and

equity, which means that our circuit courts have the power to hear

all justiciable matters, whether the causes of action arose from

common law, in equity or by statute in derogation of the common

law. This change, however, did not alter the fact that a court

cannot act in excess of its authority. Nor did it change the way we

are to view statutory conditions precedent.

	In Belleville, this court identified three cases as being illustrative of the case law which recognized the view that “the

legislature, in defining a justiciable matter, may impose ‘conditions

precedent’ to the court’s exercise of jurisdiction that cannot be

waived.” Belleville, 199 Ill. 2d at 335 (citing In re Marriage of Fields, 288 Ill. App. 3d 1053 (1997), People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420 (1994), and In re Estate of Mears, 110 Ill. App. 3d 1133 (1982)). The court rejected the viewpoint espoused in those cases because “it is contrary to

article VI” of the 1970 constitution. Belleville, 199 Ill. 2d at 336. The court stated that “[c]haracterizing the requirements of a

statutory cause of action as nonwaivable conditions precedent to

a court’s exercise of jurisdiction is merely another way of saying

that the circuit court may only exercise that jurisdiction which the

legislature allows. We reiterate, however, that the jurisdiction of

the circuit court is conferred by the constitution, not the legislature.

Only in the area of administrative review is the court’s power to

adjudicate controlled by the legislature.” Belleville, 199 Ill. 2d at 336.

	Notwithstanding the rejection of cases like Mears, the court in Belleville nevertheless went on to cite Mears, among other authorities, as support for its proposition that the 1964

amendments to the judicial article “radically changed the

legislature’s role in determining the jurisdiction of the circuit

court.” Belleville, 199 Ill. 2d at 337, citing In re M.M., 156 Ill. 2d 53, 74 (1993) (Miller, C.J., concurring, joined by Bilandic, J.);

Mears, 110 Ill. App. 3d at 1137. Indeed, the court pointed to that portion of the Mears analysis that traced the development of jurisdiction from the 1818 constitution to the 1970 constitution.

The court concluded that “[i]n light of these changes, the

precedential value of case law which examines a court’s

jurisdiction under the pre-1964 judicial system is necessarily limited

to the constitutional context in which those cases arose.”

Belleville, 199 Ill. 2d at 337. The point made in Belleville, and reiterated today, is that the 1970 concept of jurisdiction changed

the way in which we are to regard statutory conditions precedent

and the consequences of a failure to comply with them.

	One of the problems, in my view, with the

Steinbrecher/Belleville analysis is that this court runs the risk of improperly legislating in the area of statutory causes of action. For

example, in Belleville, the court addressed whether the time limitations contained in the Motor Vehicle Franchise Act

constituted an “ordinary” limitations period, i.e., an affirmative defense, as opposed to a condition precedent to suit. A majority of

the court concluded that the limitations period was not “a

jurisdictional prerequisite to suit.” Belleville, 199 Ill. 2d at 342. Having so concluded, the court proceeded to construe the statute

as an ordinary statute of limitations that provides a technical

defense which may be waived. Belleville, 199 Ill. 2d at 344-45. As a result, the failure to fulfill a statutory condition precedent has no

effect on the validity of any order rendered by the circuit court.

Belleville, 199 Ill. 2d at 340-41. Such an analysis, which allows this court to transform an element of a plaintiff’s statutory cause of

action into an affirmative matter that must be pleaded and proved

by the defendant, raises, in my mind, serious questions regarding

the separation of powers.

	My research has found no legal authority that supports the

court’s view that the changes to the judicial article made in both

1964 and again in 1970 eliminated the legislature’s ability to

establish conditions precedent to statutory causes of action it

creates. Indeed, the authorities that do speak to the jurisdictional

“revolution” the court so strongly embraces do so while

acknowledging the continued ability of the legislature to establish

nonwaivable conditions precedent to statutory cases of action. An

example, of course, is Mears. As I have noted, the court in Belleville cited to Mears with approval for the proposition that the 1970 constitution changed the way in which we are to view the

term “jurisdiction.” However, the court rejected key portions of the

analysis in Mears whichthat spoke to the precise issue of the legislature’s ability to define statutory causes of action. A review of the case

illustrates this.

	At issue in Mears was the last will and testament of Frances Mears. Mears, 110 Ill. App. 3d at 1133. The principal beneficiary of Mears'’ will was Illinois Wesleyan University, which was to

receive all of the residue of the estate after several monetary legacies had been paid out. Mears, 110 Ill. App. 3d at 1133. Mears, a widow, died childless, and her heirs were 53 known

nieces and nephews and various other collateral descendants.

Mears, 110 Ill. App. 3d at 1133-34. One of the heirs, within the time provided by law, petitioned to contest the validity of the will.

The petition named as respondents all the heirs and legatees, but

did not name the executor of the will. Mears, 110 Ill. App. 3d at 1134. The executor filed a special and limited appearance for the

purpose of contesting the jurisdiction of the circuit court. Mears, 110 Ill. App. 3d at 1134. He successfully argued that the failure to

name him as a party respondent was fatal and that the time to file

a proper petition had expired. Mears, 110 Ill. App. 3d at 1134. The appellate court reversed. After noting the history of article VI of

our constitution, the court stated that its inquiry in light of the

1970 constitution was “whether there exists a justiciable

controversy, and if so, are there any statutory conditions precedent to judicial intervention.” (Emphasis added.) Mears, 110 Ill. App. 3d at 1138. The court went on to hold that the “only

condition precedent to the exercise of jurisdiction is that it [the

petition] be filed within the time limited by statute after the

admission of the will to probate. [Citation.] It is uncontroverted

that the petition was filed within the statutory period in the instant

case. The circuit court then had jurisdiction.” Mears, 110 Ill. App. 3d at 1138.

	Like this court today and in Belleville, the appellate court in Mears cited the changes wrought by the 1970 constitution in concluding that the concept of “jurisdiction” had changed over

time. However, the court in Mears, unlike this court, nevertheless continued to recognize the power of the General Assembly to

impose conditions to relief in the statutory causes of action it

creates. Indeed, the court in Mears acknowledged that even in light of the 1970 constitution:

		“[T]he legislature may still impose substantive conditions precedent to the exercise of jurisdiction. While this may sometimes erroneously be called a lack of jurisdiction, it is

in reality an inability to exercise jurisdiction because the court cannot waive the condition.” (Emphases added.)

Mears, 110 Ill. App. 3d at 1138.

Contrary to the view expressed in Belleville, it is clear to me that this statement in Mears was not “merely another way of saying that the circuit court may only exercise that jurisdiction which the

legislature allows.” Belleville, 199 Ill. 2d at 336. The court was expressing the view that notwithstanding the “revolutionized”

concept of jurisdiction, a court cannot act beyond its statutory

authority. A similar view was also espoused in published legal

commentary following the judicial article amendment in 1964. See

H. Fins, Re-Examination of “Jurisdiction” in Light of New Illinois Judicial Article, 53 Ill. B.J. 8 (1964). I also note that in the concurring opinion in M.M., to which the court in Belleville also cited for support of the effect of the changes to the judicial article,

the concurring justices cited, with approval, to the portion of

Mears whichthat  recognized the continued viability of statutory conditions precedent. In re M.M., 156 Ill. 2d at 75 (Miller, C.J., concurring, joined by Bilandic, J.).

	In light of the above, I do not agree that the conclusion

reached in Belleville was “firmly rooted in our constitution.” Belleville, 199 Ill. 2d at 341. As I review our case law in this regard in order to address the issues raised in present case, I can

find no authority for linking the changes to the judicial article with

the notion that statutory conditions precedent are somehow

incompatible with article VI. In fact, the authority that the court

points to as hailing the revolutionary constitutional changes to

jurisdiction is the same authority the court is willing to “reject” in

the context of statutory conditions precedent. The court’s use of

only selective portions of the very case law it relies on diminishes

the persuasiveness of its legal analysis.

	In addition, I am compelled to point out another matter that

deserves comment. The court today echoes Belleville’s rejection of applying pre-1964 case law to the question of a circuit court’s

jurisdiction. Slip op. at ___8-9. In Belleville, the court pointedly criticized the fact that “pre-1964 rules of law continue to be cited

by Illinois courts, without qualification, creating confusion and

imprecision in the case law” (Belleville, 199 Ill. 2d at 338) when addressing whether the circuit court had jurisdiction under the

1970 constitution. Nevertheless, this court commitsted the very

same infraction in Reichert v. Court of Claims, 203 Ill. 2d 2557, 261-62 (2003) No. 93319 (__________ ___, 2002) in which the court, citing to a 1908 case, hoelds that

the circuit court lacked jurisdiction over a certiorari petition. The court in Reichert makesde no attempt to harmonize its holding with the doctrine espoused in today’s opinion, Belleville, and Steinbrecher, nor ins Reichert in harmony with today'’s opinion. The court’s inability to apply the principles it announced in these cases in a consistent

fashion reinforces my belief that continued debate on the question

is necessary. It also convinces me that this court has not charted an

entirely clear course in this area of our jurisprudence. Therefore, I

continue to be of the view that when a court’s power to act in a

particular manner is controlled by statute, the defects that arise

from the court'’s acting beyond its power cannot be waived. Mears, 110 Ill. App. 3d at 1137-38. Thus, in exercising jurisdiction over

matters made justiciable by statute and having no counterpart in

common law or equity, courts must proceed within the strictures

of the statute. Stated differently, a court may not exceed its

statutory authority. In re M.M., 156 Ill. 2d 53, 64-66 (1993). We recently reaffirmed, in the criminal context, that orders entered by

a court without legal authority have been viewed as void and can

be subject to collateral attack. See People ex rel. Ryan v. Roe, No. 93370201 Ill. 2d 552 (October 3, 202002); People v. Arna, 168 Ill. 2d 107, 113 (1995). I can see no principled distinction between criminal cases and civil

cases in this matter.

	As I pointed out in my dissent in Steinbrecher, this court had, until then, recognized that a “ ‘judgment or decree may be void

where a court has exceeded its authority.’ ” Steinbrecher, 197 Ill. 2d at 549 (Freeman, J., dissenting, joined by McMorrow and

Kilbride, JJ.), quoting People v. Davis, 156 Ill. 2d 149, 156 (1993), citing Armstrong v. Obaucineo, 300 Ill. 140, 142-43 (1921). It appears to me that a majority of this court is uncomfortable with

the notion of leaving open to collateral attack judgments made by

a court acting beyond or in excess of its authority. Indeed, the

court said as much as in Belleville. After concluding that the limitations period was not a condition precedent, the court

observed:

			“Our conclusion, while firmly rooted in our constitution,

is also consistent with the trend of modern authority

favoring finality of judgments over alleged defects in validity. See In re Marriage of Mitchell, 181 Ill. 2d 169, 175-77 (1998), citing Restatement (Second) of Judgments

§12 (1982); see also Fields, 288 Ill. App. 3d at 1060, citing Restatement (Second) of Judgments §12 (1982).

Labeling the requirements contained in statutory causes of

action “` ‘jurisdictional”'’ would permit an unwarranted and

dangerous expansion of the situations where a final

judgment may be set aside on a collateral attack.

[Citation.] Even if the statutory requirement is considered a nonwaivable condition, the same concern over the

finality of judgments arises. Once a statutory requirement

is deemed ‘nonwaivable,’ it is on equal footing with the

only other nonwaivable conditions that would cause a

judgment to be void, and thus subject to collateral

attack–a lack of subject matter jurisdiction, or a lack of

personal jurisdiction. [Citation.] As our appellate court has observed, ‘[b]ecause of the disastrous consequences

which follow when orders and judgments are allowed to

be collaterally attacked, orders should be characterized as

void only when no other alternative is possible.’ In re Marriage of Vernon, 253 Ill. App. 3d 783, 788 (1993); *** .” (Emphasis added.) Belleville, 199 Ill. 2d at 341.

The emphasized language demonstrates that the court’s concern in

this area is primarily with preserving the finality of judgments.

However, as Mears demonstrates, nothing in our constitution prevents the legislature from imposing nonwaivable conditions

precedent to the statutory causes of action that it creates.

	The fact that members of this court are concerned about the

finality of judgments is not objectionable, in and of itself–the

excess-of-authority approach has received criticism. See 1B

Moore, Federal Practice 648 n.41 (2d ed. 1948); H. Cox, The Void Order and the Duty to Obey, 16 U. Chi. L. Rev. 86, 90-92 (1948). As one court has put it, the application of the rule

“necessarily require[s] the drawing of distinctions between subject

matter jurisdiction, excess of jurisdiction, and mere error. These

distinctions have often proved difficult to draw.” Hartt v. Hartt, 121 R.I. 220, ___226, 397 A.2d 518, 522 (1979). This court has

chosen to resolve this problem by holding that the changes in the judicial article of our constitution narrowed the definition of

“jurisdiction.” However, as I have demonstrated, the changes to

the judicial article cited by the court do not support the view that

orders made by a court in excess of its authority are shielded from

collateral review. The amendments did not speak to whether

jurisdiction includes the power of a court to act in excess of its

authority. The court errs in its reliance on those amendments in

support of its policy decision to uphold the finality of judgments.

In so doing, the court has created confusion–rejecting the

legislature’s ability to create conditions precedent in some cases

(see Belleville, 199 Ill. 2d at 341), but reaffirming the legislature’s prerogative of imposing limitations and conditions on the

availability of relief in statutory causes of action in other cases (see In re Marriage of Kates, 198 Ill. 2d 156 (2001)). See also Belleville, 199 Ill. 2d at 371 (Freeman, J., dissenting, joined by McMorrow, J.) (noting inconsistencies in this area).

	I am not unsympathetic to the concerns of finality cited by the

court. Nonetheless, I believe the better approach is to acknowledge

the problem, and attempt to balance what I consider to be the two

competing policy concerns that are in tension in this area, i.e., “insuring that judgments are rendered only by courts having the

power to do so (the policy of validity) and enforcing a termination

point for litigation after the opportunity for full and fair litigation

(the policy of finality).” K. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of

Judgments, 66 Cornell L. Rev. 534 (1981). In my view, the court’s solution to the problem is overly broad and fraught with

inconsistencies. See, e.g., Steinbrecher 197 Ill. 2d at 547 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.)

(noting different application in the context of criminal

proceedings). I need not, for purposes of this case, delve further

into this matter because (i) it does not matter whether contiguity

is classified as jurisdictional and (ii) the issue of finality with

respect to contiguity has been definitively addressed by our

legislature in the Municipal Code.

	Section 7–1–46 of the Code specifically addresses actions

contesting completed annexations. The statute provides that

			“Neither the People of the State of Illinois nor any

person, firm or corporation, public or private, nor any

association of persons shall commence an action

contesting either directly or indirectly the annexation of

any territory to a municipality unless initiated within one

year after the date such annexation becomes final ***. The

limitation set forth in this section shall apply to any

annexation, even where the judge, body or officer

annexing the territory did not at the time of such

annexation have jurisdiction of the subject matter, and

irrespective of whether such annexation may otherwise be

defective or void, except that the limitation of this Section shall not apply to annexations of territory which was not

contiguous at the time of annexation and is not

contiguous at the time an action is brought to contest

such annexation.” (Emphasis added.) 65 ILCS 5/7–1–46 (West 2000).

In my view, this section obviates the court’s concerns for finality

in this area. The plain language of the statute indicates that

contiguity, whether it be considered “jurisdictional” or not, is not

subject to a time bar. That is to say, the legislature has allowed an

unqualified right to attack a completed annexation on contiguity

grounds. I note that the court dismisses the statute as “irrelevant”

to the issue because defendant did not raise the time bar (slip op.

at ___14). I agree that defendant did not raise the issue of timeliness,

but the statute nevertheless contradicts the court’s view that

contiguity challenges cannot be made in quo warranto actions. The court states that

		“the legislature expressly authorized the trial court to

make that determination [contiguity] in a hearing under

section 7–1–4 of the Code. The trial court clearly made a

contiguity finding. There is no basis, therefore, to allow

another court to revisit that same issue in a quo warranto proceeding when the correctness of the original ruling

could have been challenged by direct appeal or by a timely

petition for post-judgment relief.” Slip op. at ___142-13.

This ruling overlooks the fact that the legislature has expressly

provided for such challenges in section 7–1–46. There is no question that quo warranto is the only proper means of challenging a completed annexation. In re Petition of the Village of Kildeer to Annex Certain Territory, 124 Ill. 2d 533 (1988). If, as the court holds, quo warranto will not lie to contest contiguity in an annexation process that has been given final judicial approval, then

by what legal means can a party raise the contiguity challenge left

available by the legislature in section 7–1–46?

	In my view, the court’s holding today does an end run around

section 7–1–46 and renders it meaningless. One of the fundamental

principles of statutory construction is to view all provisions of an

enactment as a whole. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493 (2000). A court is not at liberty to depart from the plain language of a statute by reading in exceptions,

limitations, or conditions that the legislature did not express. Lulay v. Lulay, 193 Ill. 2d 455 (2000). I remind my colleagues that annexations were not recognized at common law, and the

legislature alone has the authority to allow or require the alteration

of municipal boundaries by annexation or otherwise. In re Petition to Annex Certain Territory to the Village of North Barrington, 144 Ill. 2d 353, 361 (1991). Section 7–1–1 of the Municipal Code

allows for annexation as provided by statute. 65 ILCS 5/7–1–1

(West 2000). I note that annexations are governed strictly by

statute. The policy considerations that attend to whether an

annexation may be collaterally challenged on contiguity grounds

years after the fact have been answered by our General Assembly,

which has seen fit to allow such challenges to be made. That we,

as members of this court, may disagree is of no consequence. In

any event, the quo warranto remedy is subject to defenses such as laches or acquiescence (see People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420, 425-26 (1994); People ex rel. Freeport Fire Protection District v. City of Freeport, 58 Ill. App. 3d 314 (1978)), thereby alleviating some of the concerns whichthat

attend to allowing annexations to be challenged years after the fact.

	In light of the foregoing, I believe the circuit court erred in

denying plaintiffs’ leave to file their amended complaint.

	CHIEF JUSTICE McMORROW joins in this dissent.