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City of West Frankfort v. Fullop

OPINION FILED SEPTEMBER 23, 1955.

THE CITY OF WEST FRANKFORT, APPELLANT,

v.

HENRY FULLOP ET AL., D/B/A THE EASTERN PETROLEUM COMPANY, APPELLEES.



APPEAL from the Circuit Court of Franklin County; the Hon. CASWELL J. CREBS, Judge, presiding.

MR. CHIEF JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT: Rehearing denied November 21, 1955.

The plaintiff, City of West Frankfort, which operates a municipal water system supplied from Lake West Frankfort, owned by the city and located some eight miles east of the city limits, enacted an ordinance declaring a certain area around the lake a drainage area, reciting a prohibition of oil and gas well operations there as necessary to protect the public water supply, and prohibiting both drilling and operating of oil and gas wells in the area. The defendants, Henry and Paul Fullop, doing business as the Eastern Petroleum Company, have oil and gas holdings within the designated drainage area.

The city filed suit in the circuit court of Franklin County to enjoin the defendants from drilling or operating oil and gas wells within the area, alleging a threatened pollution of the water supply in violation of the ordinance. After a temporary injunction, a hearing was held; and at the close of the plaintiff's evidence, the trial court found that the ordinance was unconstitutional and that the plaintiff had failed to prove the allegations of the complaint. The court ordered the complaint dismissed, the temporary injunction dissolved, and costs to stand against the plaintiff. From this order, the plaintiff appeals. Pending appeal, application to continue the temporary injunction and for supersedeas was denied. The trial court certified that the validity of a municipal ordinance is involved and that the public interest requires direct appeal.

The issues raised by the pleadings and on this appeal may be summarized as follows:

First, did the city have statutory authority to enact the ordinance? In this regard, did any statutory authority exist, and if so, what is its nature and extent?

Second, is the ordinance, as an exercise of said authority, valid as against the constitutional provisions that "No person shall be deprived of * * * property, without due process of law" (Ill. Const., art. II, sec. 2,) and that "Private property shall not be taken or damaged for public use without just compensation" (Art. II, sec. 13.)? This involves a question of whether the ordinance, both on its face and as applied to the facts here, is a reasonable exercise of the police power.

Third, did the trial court err in allowing a motion to dismiss the complaint for injunction? To answer this, it must be decided if injunctive relief was proper on the allegations of the complaint and the evidence adduced in support thereof by the plaintiff.

First, did the city have statutory authority to enact the ordinance? Under section 75-3 of the Revised Cities and Villages Act, the city had express statutory power "to prevent or punish any pollution or injury" to its public water supply "ten miles beyond its corporate limits." (Ill. Rev. Stat., 1953, chap. 24, par. 75-3.) By section 74-2 thereof, it had such express authority five miles beyond, or "so far as the waterworks may extend." That these jurisdictional grants by the legislature appear in eminent domain waterworks statutes does not limit the exercise of jurisdiction to cases in which the city is condemning; for there would be no need for such power as to property condemned and owned by the city. Regulatory jurisdiction is required only over property of others, and this is implicit in these statutory grants.

While cities do not have jurisdiction outside their boundaries "in the absence of * * * power conferred" (Dean Milk Co. v. City of Elgin, 405 Ill. 204), it is "competent for the legislature, of course, to confer such power" (McQuillin, Municipal Corporations, sec. 15.30), and when granted, it is effective extraterritorially. Chicago Packing and Provision Co. v. City of Chicago, 88 Ill. 221.

With express statutory authority to enact anti-pollution ordinances, effective outside the city limits in the area considered here, it is not necessary to consider the authority to prevent nuisances or to enact general police power ordinances. It is evident from the wording of the ordinance that it was meant to be enacted pursuant to such express statutory grants of power. The ordinance first describes land (all of which is located within ten miles of the city's corporate limits and constitutes the watershed of the city lake) that is said to include streams or sources of water for the supply of the impounding reservoirs and waterworks system of the city. It then recites that in order to protect the water supply it is necessary to prohibit drilling of oil and gas wells in said area and that it is "deemed expedient and necessary to take immediate action to prohibit drilling and operations for oil and gas wells within the immediate drainage area of said water supply in order to prevent pollution of said above described water source." Accordingly, the ordinance prohibits the drilling, operating or causing to be operated of any oil or gas well in the area. And the evidence discloses by undisputed maps, that both of the defendants' well sites are less than eight miles from the city and within the designated drainage area.

Second, is the ordinance valid as against constitutional objections?

The police power resides in the State, is asserted by the legislature, and embraces all matters reasonably related to the public health and safety, (People v. City of Chicago, 413 Ill. 83,) including the power to protect a public water supply against pollution. (Harvey Realty Co. v. Borough of Wallingford, 111 Conn. 352; cf. Freeport Water Co. v. City of Freeport, 186 Ill. 179, affd. 180 U.S. 587.) It may be delegated to cities regarding public water matters, (Spalding v. City of Granite City, 415 Ill. 274,) and regarding oil well operations affecting the public interest. Adkins v. City of West Frankfort, 51 F. Supp. 532.

Instances of such city regulation protecting a public water supply have been held to include the prohibition of boating or fishing, (Dunham v. City of New Britain, 55 Conn. 378, 11 A. 354,) the prohibition of seaplane operations, (City of Shreveport v. Conrad, 212 La. 737, 33 So.2d 503,) the driving out of trespassing cattle on watershed lands, (Phillips v. City of Golden, 91 Colo. 331, 14 P.2d 1013,) and the addition of fluorides. Krause v. City of Cleveland, (Ohio. Comm. Pl.) 116 N.E.2d 779.

Individual uses of property are subject to the public health and safety requirements of police power action, (Trust Company of Chicago v. City of Chicago, 408 Ill. 91,) including individual uses for oil operations. (Adkins v. City of West Frankfort, 51 F. Supp. 532.) While the latter case actually held void a bond requirement imposing ...


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