APPEAL from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 20, 1954.
This is a direct appeal from a decree of the superior court of Cook County dismissing, for want of equity, a suit to enjoin the villages of Westchester and Broadview from selling water to La Grange Park and to enjoin the village of Westchester from constructing a water tower or standpipe for storage of water and from issuing revenue bonds to pay the cost thereof.
Inasmuch as the constitutionality of a State statute is in issue and the trial court has also certified that the validity of a municipal ordinance is involved and that the public interest requires the appeal to be taken directly to this court, the appeal properly comes here.
The village of Westchester, with approximately a population of 8300 and an area of 2115 acres, lies 13 miles west and to the south of the Loop district of Chicago, Illinois. The village of Broadview, with a population of 7000 and an area of some 960 acres, adjoins Westchester on the east. The village of La Grange Park, with a population of about 8700 and an area of approximately 1630 acres, adjoins Westchester on the south.
Each of said villages lie within the Chicago Sanitary District, wherein the city of Chicago owns a system of waterworks and procures water from Lake Michigan.
On August 15, 1927, the city of Chicago entered into a contract with the villages of Westchester and Broadview jointly for a 25-year period wherein Chicago agreed to furnish water to said villages jointly in a quantity not to exceed 500,000 gallons per day, to be taken between the hours of 10 P.M. and 6 A.M.
In November thereafter, the villages of Westchester and Broadview entered into a contract with each other for their joint water supply and joint operation of a waterworks wherein Westchester was to obtain the right-of-way and to construct a 16-inch main from the Chicago connection to First Avenue and Roosevelt Road in Broadview, and Broadview was to have perpetual easement therein. Broadview was to construct a 16-inch main from that point to the western limits of Broadview and Westchester was to have a permanent easement therein. The village of Westchester was also to obtain a site in Broadview and to construct thereon a 500,000 gallon underground concrete reservoir, and Broadview was to have the right to use the land not needed for the use of the waterworks for park purposes. Westchester was also to construct a 100,000-gallon elevated tank, Broadview to lease the site to the water commission at $10 a year. The contract also provided for the waterworks system to be operated by a joint commission, which was to have exclusive jurisdiction of the 16-inch main from the Chicago city limits to the waterworks, and each village was to pay said commission for water used by it.
Each village also installed and paid for its own water supply system, consisting of feeder mains, fire hydrants, necessary connections, etc., within its own corporate limits.
Such water system was completed and ready for use by 1928 at a total cost to Westchester of an amount in excess of $860,000, all of which was financed and paid for by special assessments against various lots and parcels of land in the respective villages pursuant to the statute concerning local improvements.
This water system also serves Hines and Vaughn Hospitals, which were originally part of Broadview but later disconnected. These hospitals have their own 700,000-gallon underground water reservoir and 185,000 gallons of elevated storage. Since they are not directly involved in the issues here in question, further details concerning their water supply and arrangements need not be elaborated.
In 1935 the village of La Grange Park requested to be supplied with water from the Westchester water system. On October 17, 1935, the villages of La Grange Park, Westchester, and Broadview entered into a contract whereby Westchester and Broadview permitted La Grange Park to connect to the water system of Westchester and to draw not to exceed 100,000,000 gallons of water per year nor to exceed 350,000 gallons of water per day to supply consumers in the village of La Grange Park, said contract to be effective until August 15, 1952, and to be subject to all the terms of the contract between the city of Chicago and Westchester and Broadview. By said contract, La Grange Park was to make and maintain all of its own connections with the water system, was to pay the joint water commission $900, was not to pump water from the system without the written permission of the water commission, was to pay the villages of Westchester and Broadview for the water taken at specified rates, and in the event the supply should become insufficient, La Grange Park was to bear its prorata deficiency.
Thereafter, on March 2, 1936, the contract between the city of Chicago and the villages of Westchester and Broadview jointly was amended, whereby the city of Chicago, at the joint request of the villages, agreed to furnish an additional 500,000 gallons of water per day for the purpose of furnishing a water supply to La Grange Park through the mains of Westchester and Broadview, the only other material change in the contract being that said water was to be taken through 24 hours of the day at an even rate of flow but on the same terms.
By 1950, the population and demand for water in the three villages had increased to such an extent that their water supply systems were becoming inadequate. Westchester caused its engineers to make a study and survey of the water shortage problem and on August 31, 1950, the engineers rendered a report which found, among other things, that the water problem in Westchester was due ...