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Peo. Ex Rel. Dupage County v. Smith





APPEAL from the Circuit Court of Du Page County; the Hon. MEL ABRAHAMSON, Judge, presiding.


This appeal, which tests the validity of "An Act in relation to water supply, drainage, sewage, pollution and flood control in certain counties," (Laws of 1959, p. 1882,) grows out of a mandamus action filed in the circuit court of Du Page County wherein the county of Du Page (herein referred to as plaintiff) and certain of its officials, sought to compel defendant, the county treasurer, to approve and execute a trust agreement, revenue bonds and revenue coupons, all as provided in a county ordinance adopted under the authority of the act in question. The court below ordered a writ of mandamus to issue, and this direct appeal, involving the constitutionality of the statute, has been prosecuted by defendant.

Section 1 of the act provides that it shall apply to any county which is contiguous to another county having 1,000,000 or more inhabitants after appropriate action by the county board accepting the provisions of the act. (Ill. Rev. Stat. 1959, chap. 34, par. 3101.) Section 6 provides that in order to effect protection, reclamation or irrigation of the land and other property in the county "and to accomplish all other purposes of the county," the board is authorized to construct and maintain, among other things, sewers, holding basins, pumping stations, siphons and "any other works and improvement deemed necessary to construct, preserve, operate or maintain" a department of public works in such county. (See: pars. 3102, 3106.) Thereafter, section 11 states that the county board shall have the authority to control and regulate the disposal of sewage, refuse and other putrescible, infectious and otherwise objectionable wastes from any premises in the county and may adopt suitable ordinances to such end, (par. 3111,) while section 12 authorizes counties to construct, alter, maintain and extend sewers. (Par. 3112.)

Under the terms of section 17 of the act, and in order to pay the cost of sewage facilities, the county board is authorized to issue and sell revenue bonds payable solely from income and revenue derived from the operation of the sewage facilities, and it is directed that the ordinance authorizing the bond issue shall specify the manner and terms for payment of the bonds, and set forth the covenants and undertakings of the county in connection with the issuance thereof. (Par. 3117.) Section 19, which has particular significance in this case, states that any ordinance authorizing the issuance of revenue bonds may provide, in the discretion of the board, that the bonds be secured by a trust agreement or depositary agreement by and between the county board and a corporate trustee, containing provisions for directing and supervising the rights and remedies of the bondholders, but that no such trust deed or agreement shall be a lien on the sewage facilities or waterworks property as the case may be. (Par. 3119.) In addition, section 20 provides that the income from a sewage facility shall be sufficient for and shall be used to pay the principal and interest on the bonds, (par. 3120) and section 21 directs that the rates for the use and service of the sewage facility be such as to pay principal and interest, costs of operation and maintenance, and to provide a reasonable depreciation fund. (Par. 3121.)

On November 10, 1960, under authority of the act, the plaintiff adopted an ordinance authorizing the construction of a sewage disposal system, to consist of sewers, sewage lift stations and pumps, and a sewage treatment or disposal plant. The ordinance provided for the issuance of sewage bonds totaling $1,000,000 to pay the cost of the facility and that such bonds would be payable solely from the revenue of the sewer system. Further, it set forth the form of the bonds and coupons to be issued, stated that the county treasurer had requested the county board to designate a corporate trustee with whom a trust agreement could be entered into for securing the payment of the bonds, that interest and principal on the bonds would be payable at the Continental Illinois National Bank and Trust Company of Chicago, and that, after the bonds were issued, the county treasurer would cause the revenues collected from the sewage system to be set aside and deposited with the corporate trustee.

By other terms of the ordinance, the county covenanted and agreed with the bondholders that rates would be charged for the sewage service as long as any bonds or coupons were outstanding and unpaid, and that the county would require that connection be made to the county system wherever sewerage service is available.

Following the adoption of the ordinance, the county board selected Continental as the corporate trustee and submitted a form of trust agreement to defendant-treasurer for his signature and approval. This he refused to do, and likewise declined to execute the bonds and coupons as required by the ordinance, based upon objections which are embodied in the contentions to this court. This proceeding for a writ of mandamus followed.

Defendant first contends that the provisions of the act limiting its application to counties contiguous to another county having 1,000,000 population renders the act a local or special law in violation of section 22, article IV of the Illinois constitution. More specifically, defendant points out that the act can apply only to the five counties contiguous to Cook County, and argues that the classification made on the basis of population is wholly artificial since the problems to which the legislation refers are no different in the five counties than they are in the remaining counties of the State. On this basis he asserts that the artificial distinction was made solely for the purpose of creating a special class, thus rendering the act offensive to the constitutional provision in question.

The proscriptions of section 22 of article IV against "local or special" laws do not mean that an act shall have effect upon every individual in every locality, and a law may be general notwithstanding that it may operate only in a single place where conditions necessary to its operation exist. (Alexander v. City of Chicago, 14 Ill.2d 261; Du Bois v. Gibbons, 2 Ill.2d 392.) A law is general not because it embraces all of the governed, but because it may, from its terms, embrace all who occupy a like position to those included. (People ex rel. Adamowski v. Public Building Com. of Chicago, 11 Ill.2d 125; People v. Chicago Transit Authority, 392 Ill. 77.) If there is a reasonable basis for differentiating between the class to which the law is applicable and the class to which it is not, the General Assembly may constitutionally classify persons and objects for the purpose of legislative regulation or control, and may pass laws applicable only to such persons or objects. (Hunt v. County of Cook, 398 Ill. 412.) In this regard, it is well settled that an act is not local or special merely because of a legislative classification based upon population, (Alexander v. City of Chicago, 14 Ill.2d 261,) or territorial differences, (People ex rel. Adamowski v. Public Building Com. of Chicage, 11 Ill.2d 125.) Such classifications will be sustained where founded upon a rational difference of situation or condition existing in the objects upon which it rests, and where there is a reasonable basis for the classification in view of the objects and purposes to be accomplished. Du Bois v. Gibbons, 2 Ill.2d 392; Gaca v. City of Chicago, 411 Ill. 146.

Manifestly, in the instant case, the act under attack is directed to the vital object and purpose of protecting health and property and we believe, as the court did in Stapleton v. Pinckney, 293 N.Y. 330, 57 N.E.2d 38, that "proximity to great centres of population," may present a reasonable basis for classification, particularly where matters of health are concerned. A rational and substantial difference with respect to sewage and pollution control, and the need therefor, clearly exists between rapidly growing counties contiguous to a large and heavily populated metropolitan area on the one hand and counties with a relatively stable population on the other. We may take judicial notice that the population of Cook County is considerably more than 5,000,000 inhabitants, and we know, both from common knowledge and from litigation which has reached us, that nonurban areas in the counties contiguous to Cook County have in recent years experienced an extremely rapid increase in residential and industrial growth. Indeed, the tendency of the time has been for urban dwellers and urban business to go to the edges of large urban areas, where land is less crowded and more attractive, rather than to rebuild deteriorated properties within existing population centers. It goes without saying that the more densely nonurban areas become populated, the greater will be the problems of sewage and pollution and the need for their control. It is our opinion that the circumstances which show a pronounced over-flowing of Cook County's population and industry into the adjoining counties presents a unique population and territorial combination giving rise to sewage and pollution problems of unusual magnitude and urgency. Accordingly, we conclude there is a reasonable basis for the classification provided in the present act, and that it bears a reasonable and proper relation to the objects and purposes of the act. Consequently, section 22 of article IV is not contravened.

It may be that the so-called "population explosion" of the last decade has caused the same problems of sewage and pollution to exist in a lesser degree in other counties of the State. However, the legislature is not bound to pass one law meeting every exigency, but may consider degrees of evil, and if a law hits the evil where it is most felt, it is not to be overthrown merely because there are other circumstances to which it might have been applied. People ex rel. Adamowski v. Public Building Com. of Chicago, 11 Ill.2d 125; Gill v. Boston Store, 337 Ill. 70.

The ordinance enacted by the plaintiff provides for the construction of a sewage treatment plant and it is defendant's next contention that plaintiff is without authority to do so, inasmuch as section 6 of the act, which enumerates certain facilities that may be built, does not expressly authorize or include a sewage treatment plant.

While it is true a municipal corporation has only such powers as are conferred upon it by the General Assembly, (Village of Kincaid v. Vecchi, 332 Ill. 586,) it is at the same time a commonplace principle of statutory construction that the legislative grant of power carries with it the right to use all means and instrumentalities necessary to the beneficial exercise of the expressly conferred powers. (Strub v. Village of Deerfield, 19 Ill.2d 401; Illinois Power Co. v. City of Jacksonville, 18 Ill.2d 618.) The act in the present case concerns itself with sewage and pollution control and it is the express direction of section 11 that the county board "shall have the authority to control and regulate the disposal of sewage," etc. (emphasis supplied) from any premises within the borders of the county. Again, in section 6, it is provided that the county shall have the power to construct certain facilities, including sewers, holding basins and ...

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