APPEAL from the Circuit Court of Cook County; the Hon. CHARLES
R. BARRETT, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
On November 30, 1970, the plaintiffs, seven taxpayers, brought an action to enforce Illinois Revised Statutes, 1969, ch. 42, par. 326a. The complaint alleged that this statute makes it unlawful for any person to dump more than 3,650,000 gallons of waste water in the sewers of The Metropolitan Sanitary District of Greater Chicago (hereinafter the "Sanitary District") without meeting reasonable terms and conditions, including compensating the Sanitary District for the treatment of the excess waste water.
Plaintiffs sought to enjoin the Sanitary District, Corn Products (CPC International, Inc.) and Proctor and Gamble from dumping and treating waste in excess of 3,650,000 gallons per year unless and until the Sanitary District received compensation for treating such excess dumpage.
Subsequent to the filing of the complaint, the Sanitary District adopted a Surcharge Ordinance requiring payment for treatment of excess waste under certain specified circumstances. (Industrial Waste Surcharge Ordinance of The Metropolitan Sanitary District of Greater Chicago, adopted by The Board of Trustees on December 10, 1970; effective December 31, 1970.)
All parties to this appeal now concede that in view of the adoption of the Surcharge Ordinance the injunctive aspect of this appeal has been rendered moot and is not before this court.
In their complaint, plaintiffs also sought, on behalf of the Sanitary District, to recover from defendants Corn Products (CPC International, Inc.) and Proctor and Gamble (hereinafter "defendants") the Sanitary District's costs in treating the excess waste of defendants for five years (1965-1970).
Plaintiffs alleged that since the Sanitary District refused to assert this claim, plaintiffs were suing derivatively and as taxpayers seeking to restore to the general funds of the Sanitary District those monies expended by the Sanitary District in its treatment of defendants' excess waste.
Plaintiffs contend that defendants have been unjustly enriched through their alleged unlawful acts of dumping excess waste water into the Sanitary District's sewer system all to the detriment of plaintiffs and other taxpayers, in that the cost of treating defendants' unlawful dumpage has resulted in less funds to expend on the Sanitary District's legitimate needs and a greater tax burden on the taxpayer, including plaintiffs, residing in the District.
Defendants filed motions to dismiss the complaint which were granted by the circuit court. Plaintiffs appeal.
Plaintiffs predicate their claim for compensation entirely upon Illinois Revised Statutes, 1969, ch. 42, par. 362a, which provides:
"(a) It shall be unlawful, except as herein provided, for any person, firm, association or corporation in possession of or controlling and operating any industrial or manufacturing plant to discharge into the sewers or works of the Sanitary District or into any sewer connected therewith, any waste matter of any nature whatever resulting from or the residue of any industrial or manufacturing operation or process carried on in such plant, where the mixture of such waste matter, sewage and water discharged by such industrial or manufacturing plant into such sewers or works equals in any twelve-month period an aggregate volume of three million, six hundred fifty thousand (3,650,000) gallons * * *.
(b) The Sanitary District, in addition to the other powers vested in it, is hereby empowered in the interest of public health and safety, to permit the discharge into the sewers and works of the Sanitary District and into sewers connecting therewith from any industrial or manufacturing plant, a mixture of waste matter, sewage and water as described in paragraph (a) hereof, in excess of an aggregate volume of three million, six hundred fifty thousand (3,650,000) gallons in any twelve-month period, upon reasonable terms and conditions, including a requirement for the payment of compensation to the Sanitary District for the conveying, pumping, treatment and disposal of such excess.
(c) The Sanitary District is hereby empowered to pass all necessary ordinances to carry into effect the powers herein conferred, provided, however, that in fixing the amount of compensation, if any to be paid to the Sanitary District by applicants for permits to discharge a volume of said mixture of waste matter, sewage and water in excess of three million six hundred fifty thousand (3,650,000) gallons in any twelve-month period or in arriving at a determination of any other terms and conditions upon which such permits are to be issued, due and proper deductions shall be allowed for the amount of human sewage contained in such excess." (Emphasis supplied.)
It is undisputed that, at the time defendants allegedly discharged excess waste water, no Sanitary District ordinance under ch. 42, par. 326a was in effect. In fact, no such ordinance was passed by the Sanitary District during the entire period from 1935, when the statute was enacted, until December 1970. It is also undisputed that the Sanitary District permitted discharge of waste water by defendants in excess of 3,650,000 gallons annually not only during the five-year period to which this action applies, but for ...