APPEAL from the Circuit Court of Kane County; the Hon. CHARLES
G. SEIDEL, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a decree of the circuit court of Kane County ordering the trustees of the Aurora Sanitary District to abate an existing nuisance caused by the discharge of untreated or inadequately treated sewage into the Fox River. The appeal is directed to this court because of defendant's attack on the constitutionality of a statute.
The Aurora Sanitary District, organized about 1927 under the Sanitary District Act of 1917 (Ill. Rev. Stat. 1957, chap. 42, par. 299 et seq.), originally consisted of an area of 10 square miles with a population of approximately 40,000, including mainly the residents of the city of Aurora. A disposal plant of the primary and secondary settling tank type, and a collection system designed for the combined collection of surface water and sewage waste, were installed in 1928 capable of serving a population equivalent of 50,000. With the exception of a large interceptor line which was installed to serve the southeast quadrant of the District, the sewer system and disposal plant remain as originally installed in 1928. The system and plant were financed by a Federal grant in aid and the issuance of bonds. All bonds were retired by 1948, leaving the District free of any bonded indebtedness.
The District was expanded by annexations to include the villages of Montgomery and North Aurora, and was thereby increased to 34 square miles with a population approaching 75,000. By virtue of the growth of population, the age of the system, the infiltration of foreign water commingled with the effluent from septic tanks through the leaky joints into the collection system, the carrying of surface waters in the same lines with sewage wastes and like factors, there was an increased flow of sewage wastes and water through the collection system and disposal plant far beyond their capacity. The system has two by-passes around the disposal plant. The excess waste and water, at times amounting to millions of gallons per day, are discharged directly into the Fox River at two separate overflow points resulting in the pollution of the water of the stream. The foregoing facts are not controverted.
Notwithstanding the limited capacity of the system and the increased demands thereon, the Sanitary District has not added to nor improved the system to accommodate the demands of the increased population. However, recognizing the need for expansion and renovation, the board of trustees caused a referendum election to be conducted in December, 1957, on the question of issuing bonds to defray the expense of improving the sewage disposal facilities, but the proposal was defeated.
Numerous residential dwellings are not permitted to connect onto the sewer system and are compelled to make use of septic tanks for sewage disposal. Plaintiff has invested approximately $500,000 in developing a residential subdivision of 435 acres in the northwest quadrant of the District, consisting of 1,195 residential dwelling sites, one shopping center and three churches. Ninety-five percent of the subdivision does not have access to sanitary sewer lines. Plaintiff estimated that his subdivision would produce approximately 5,000,000 gallons of sewage waste daily. He made appropriate application for sewer connections for his subdivision but was refused by the board of trustees on the grounds, among others, that the sewer system was already operating beyond its capacity, and that increased sewage waste would violate existing rules of public health. Plaintiff then filed this action in chancery in the circuit court of Kane County. The complaint alleges that the failure of the Sanitary District to provide an adequate sewer system resulted in the pollution of Fox River and constituted an existing nuisance which should be abated. He charges that refusal to furnish him with sanitary sewer facilities denied him due process and equal protection of the laws. The complaint prays for an order requiring the defendant to establish necessary facilities to properly treat the raw sewage of all persons within the district, to abate the alleged nuisance by establishing improvements in the collection system and disposal plant, and requests that the court retain jurisdiction to insure compliance with its orders.
Defendant's answer to the complaint is in the nature of a confession and avoidance, admitting, substantially, the facts related above. It asserts that the District is levying the maximum taxes permitted by statute, and to accomplish the improvements necessary to provide the additional service would require the expenditure of funds far in excess of the District's ability to pay and beyond the statutory limits of taxation. The answer further asserts that the circuit court is not a "court of competent jurisdiction" within the meaning of the second paragraph of section 9 of the Sanitary District Act of 1917, that section 9 as amended now violates section 2 of article II, article III, sections 1, 13 and 22 of article IV, and sections 9 and 10 of article IX of the Illinois constitution.
The evidence established that the cost of improvements and additions to the collection system and disposal plant would be approximately $2,000,000, and that the assessed valuation of the District was sufficient to service a bond issue for this amount and amortize such issue over a twenty-year period.
The issues presented by this record are legal, since there is no substantial dispute of fact. The court entered a decree in favor of the plaintiff finding that discharge of sewage into the Fox River constituted a nuisance which should be abated. The decree ordered the trustees of the District to forthwith abate the nuisance caused by the discharge of untreated or inadequately treated raw sewage into the Fox River, ordered the trustees to construct the proposed projects necessary to abate this nuisance and to employ competent engineers to plan and draw up specifications to that end. It is from this decree that the defendant has appealed.
Defendant contends that the second paragraph of section 9 of the Sanitary District Act of 1917 (Ill. Rev. Stat. 1957, chap. 42, par. 308) violates the judiciary article of our State constitution in that it fails to precisely define the court having jurisdiction to enter the abatement order specified therein, that the circuit court of Kane County did not have jurisdiction of this cause and its order is, therefore, a nullity. Defendant's contention is based on two premises: (a) that the jurisdiction of a court cannot be uncertain and (b) that jurisdiction over pollution is now exclusively in the Sanitary Water Board.
The first paragraph of section 9 remains as originally enacted and empowers a district to borrow money for corporate purposes and to issue bonds therefor, provided the question is submitted to and approved by a referendum election of the voters in the District. The second paragraph of section 9 originally added in 1953, as amended in 1957, reads as follows: "Provided that the corporation may borrow money for corporate purposes, and may issue bonds therefor, without holding an election or referendum upon the question, if the corporation or the board of trustees thereof has been directed by an order issued by a court of competent jurisdiction or by an administrative agency of the State of Illinois having jurisdiction to issue such order, to abate its discharge of untreated or inadequately treated sewage, and such borrowing is deemed necessary by the board of trustees of the Sanitary District to make possible compliance with such order." Defendant argues that this paragraph is ambiguous and uncertain in that the phrase "court of competent jurisdiction" does not define the court having the power to issue the order and that there is the likelihood that the proceedings under this paragraph could be construed to be a special statutory proceeding which could have been assigned to either the circuit or the county courts.
The legal action contemplated by section 9 leaves no doubt that "a court of competent jurisdiction" referred to the circuit court. The constitution grants jurisdiction of all causes in law and equity to the circuit courts and they cannot be deprived of this power by the legislature. (Stephens v. Chicago, Burlington and Quincy Railroad Co. 303 Ill. 49; Peoples Gas Light and Coke Co. v. Slattery, 373 Ill. 31.) The abatement of a public nuisance at the suit of an individual to whom or to whose property it causes or will cause a special or particular injury was a recognized exercise of jurisdiction at the time of the adoption of our present constitution. (Green v. Oakes, 17 Ill. 249.) The pollution of a river by the discharge of raw or inadequately treated sewage therein constitutes such a nuisance as may be abated by the order of a circuit court. (Barrington Hills Club v. Village of Barrington, 357 Ill. 11.) We conclude that the second paragraph of section 9 is not rendered indefinite and uncertain by the use of the phrase "court of competent jurisdiction."
The views expressed above leave little to be said for defendant's contention that jurisdiction over pollution of streams rests exclusively in the Sanitary Water Board by virtue of the 1951 Sanitary Water Board Act. (Ill. Rev. Stat. 1957, chap. 19, par. 145.1 to 145.18.) It is argued that the act of 1951 may be interpreted to mean that control of pollution rests exclusively with the Sanitary Water Board. Section 1 of such act (Ill. Rev. Stat. 1957, chap. 19, par. 145.1) declares that polluted waters constitute a menace to public health and welfare and that it is the public policy of this State to maintain reasonable standards for the purity of water, to provide that no waste be discharged into any water without first being treated to prevent pollution, to provide for the prevention, abatement and control of new or existing water pollution, and to co-operate with other agencies of the State and Federal government to carry out these objectives. Section 6 sets forth the authority, powers and duties of the Sanitary Water Board. It grants to the board the power, among others, to determine if pollution exists, to adopt reasonable rules with respect to hearings, ...