Appeal from the Circuit Court of Cook County; the Hon. ABRAHAM
W. BRUSSELL, Judge, presiding. Judgment adverse to certain
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 1, 1966.
Plaintiffs instituted a mandamus proceeding in the Circuit Court of Cook County against the defendant Mission Brook Sanitary District and the President and members of the Board of Trustees thereof, seeking a writ to direct said President to approve plaintiffs' plans for connection of proposed sanitary sewers to the existing facilities of the Sanitary District. The plaintiffs joined as defendants therein the Village of Northbrook and its President and Village Clerk seeking a writ to direct said President and Village Clerk to approve plaintiffs' proposed plat of subdivision.
The Sanitary District refused to permit connection to its sewer system unless plaintiffs also connected to its water distribution system in compliance with its ordinances. The Village refused to approve the plat of subdivision because the Sanitary District approval for sewer facilities had not been given, and maintained that water connection must be to the Village in compliance with Village ordinances.
A judgment was entered finding that the Village of Northbrook and the Mission Brook Sanitary District have coequal jurisdiction to supply water to the plaintiffs' real estate and that plaintiffs have the right to select which water distribution system will service such real estate and to connect said water supply system with the water distribution system of the Village of Northbrook. It is from this judgment that an appeal was prosecuted by the Mission Brook Sanitary District.
The contentions of the defendant appellant, Sanitary District, are: (1) The property in question has been within the territorial boundaries of the Sanitary District since its inception and is subject to its jurisdiction on both sewer and water matters; (2) the Sanitary District cannot be ousted of its jurisdiction by a village imposing conditions under its purported plat approval authority which impede the application of such jurisdiction; (3) it is patently erroneous to declare as a rule of law the proposition that the individual property owner is vested with the power to decree which of two municipalities has the authority and responsibility over water in a given area.
The Mission Brook Sanitary District was established on August 11, 1959, by order of the then County Court of Cook County, Illinois. Included within its boundaries was the property involved in this case. The plaintiff, Ralph Markus, had contracted to purchase the property in April, 1963, for the purpose of subdividing the same and building single family dwellings thereon. Prior to that time the Sanitary District had held a referendum election to authorize the acquisition of a water distribution system then serving Northbrook West, and an area contiguous to the subject property. After a successful election the Sanitary District passed an authorizing ordinance, agreed to purchase the system for $59,000, and issued water revenue bonds in the amount of $65,000 to finance this acquisition. In the latter part of 1963 the plaintiff submitted a tentative plat of subdivision of the subject property to the Village of Northbrook. Plaintiff was advised by the Village that such approval would be given only if the land were first annexed to the Village, if the plaintiff agreed to pay to another real-estate developer a share of the cost of such developer in extending oversize water mains into the area east of the subject property, and if he agreed to obtain water service from the Village. The annexation was completed and payment was made to the other developer. It was further provided that to obtain Village approval of the plat the engineering plans had to first be approved by the Sanitary District. This latter approval was denied because plaintiff failed to agree to obtain water service from the Sanitary District. At the time approval was sought neither municipality was operating a water distribution system within the subject property.
Defendant Sanitary District first contends that it has exclusive jurisdiction of the property within its boundaries on both sewer and water matters by legislative grant as found in:
"An Act to create sanitary districts and to provide for the annexation of additional territory to any such district and to authorize sanitary districts to acquire by purchase or construction and upon acquisition to maintain and operate a waterworks or drainage system and to improve and extend the same and issue general obligation bonds, revenue bonds, or special assessment bonds to pay the cost thereof which revenue bonds shall be payable solely from the revenues of such waterworks or drainage system and to provide for a method of dissolution of such sanitary districts." (Ill Rev Stats 1963, c 42, par 412, et seq.)
Section 32b of that Act (Ill Rev Stats 1963, c 42, par 443b) provides:
"Any sanitary district created hereunder, after being authorized by an affirmative vote of the legal voters of the district at an election to be held as is hereinafter provided, may acquire, purchase, or construct waterworks, and thereafter operate, improve and extend such waterworks as defined herein, and pay the cost of such purchase, construction, improvement or extension by the issuance and sale of general obligation bonds, revenue bonds, or special assessment bonds of the district, which revenue bonds shall be payable solely from the revenue to be derived from the operation of the waterworks."
Nowhere does the above provision grant exclusive jurisdiction to the district involved. Neither does it provide that no other system of waterworks may be established within the territorial limits of the district. This section is further clarified by section 37 of the same Act.
"Whenever any territory contained within a sanitary district created under this Act is annexed to any municipality, the sanitary district shall remain responsible for providing sewers and collecting and disposing of sewage in such territory annexed to the municipality and, if the sanitary district is operating a water supply system in such territory at the time of such annexation, the sanitary district shall remain responsible for supplying water in such territory. The municipality to which any territory contained within a sanitary district is annexed shall not, because of such annexation, become responsible for any obligations, or part thereof, of any sanitary district in which such territory is also contained. The fact that territory in a sanitary district is annexed to a municipality shall not affect any obligations, contracts or duties existing between the sanitary district and the municipality at the time of such annexation." (Ill Rev Stats 1963, c 42, par 447.1.) (Emphasis supplied.)
This section imposes a clear duty on the trustees to continue operation of a sewage system within the whole territory, but imposes this same duty with regard to water service only within areas then being served. If jurisdiction or right to provide water service were nonetheless exclusive in the sanitary district, any area not then being served could be deprived of any waterworks system by failure of the district trustees to undertake the operation of a system therein. If, in fact, a rule of exclusive jurisdiction ...