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Connelly v. County of Clark

DECEMBER 6, 1973.

DOYLE CONNELLY, PLAINTIFF-APPELLANT,

v.

COUNTY OF CLARK, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Clark County; the Hon. FRANK J. MEYER, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 1, 1974.

Plaintiff appeals from a summary judgment entered in the trial court seeking injunctive and declaratory relief against the operation by Clark County of a gravel pit. The trial court found that the County may operate a gravel pit for its own use, and that its use of motor fuel tax funds for such a purpose was statutorily authorized. It also found that the County was authorized to sell gravel from the pit to other governmental units.

The facts are not contested. In 1966, Clark County, Illinois, purchased land and commenced operation of a gravel pit for the benefit of the county highway department in the construction and maintenance of county roads and for sale to other units of local government within the county based on a computed price per unit. There is no requirement that all governmental units purchase gravel from the county pit, and, in fact, many units purchase from other pits. The county uses its own employees and machinery to operate the pit, and the entire cost of the operation is paid for by the county out of a special gravel account of the county highway fund. The purchasing units, including the county, pay for the gravel out of any funds available for highway maintenance, including state motor fuel tax funds. These payments are then allocated to the gravel accounts. Every year since the beginning of the operation the county has requested and received permission from the Department of Public Works and Buildings of the State of Illinois, the supervising agency for the use of state motor fuel tax funds, to furnish gravel from the pit to the various county units of local government. The county has also apparently received permission to purchase gravel for its own roads out of fuel tax funds allocated to it.

On appeal plaintiff raises two basic issues: (1) Whether the county has the statutory authority to sell gravel in excess of its own needs to other governmental units within the county and (2) Whether the county has the statutory authority to operate a gravel pit through the use of state motor fuel tax funds.

• 1 Both parties agree that the county has the statutory authority to operate a gravel pit to provide for the maintenance of county highways. Although the exact source of this power is never clearly stated, we assume such authority is to be derived from the language in Ill. Rev. Stat. 1971, ch. 121, sec. 5-601 which states that "For the purpose of improving, maintaining, repairing, constructing and reconstructing the county highways to be maintained, repaired and constructed by the county * * * and for the payment of lands, quarries, pits or other deposits of road material required by the county for such purpose * * * the county board shall have the power to levy an annual tax * * *." If the county has the power to tax in order to finance a gravel pit operation, the basic power then of the county to operate the pit is a necessary concomitant.

Section 5-601 clearly gives the county the right to tax to establish a gravel pit for the maintenance of county roads. The statute, however, refers only to county roads and is silent as to township roads, road district roads, municipal roads, and state roads. These roads, although physically within the county, are outside the operating control of the county and selling excess gravel for the maintenance of these roads in competition with private gravel pit owners is outside the purview of 5-601.

• 2-4 It is a well established rule that the powers of the multifarious units of local government in our State, including counties, are not to be enlarged by liberally construing the statutory grant, but, quite to the contrary, are to be strictly construed against the governmental entity. (Arms v. City of Chicago, 314 Ill. 316, 145 N.E. 407 (1924).) A county is a mere creature of the State and can exercise only the powers expressly delegated by the legislature or those that arise by necessary implication from expressly granted powers. (Heidenreich v. Ronske, 26 Ill.2d 360, 187 N.E.2d 261 (1962).) This necessarily implied power has been interpreted to mean that which is essential to the accomplishment of the statute's declared object and purpose — not simply convenient, but indispensable. (Merrill v. City of Wheaton, 379 Ill. 504, 41 N.E.2d 508 (1942).) However, the implied power need not be absolutely indispensable, and it is sufficient if it is reasonably necessary to effectuate a power expressly granted. (Klever Shampay Karpet Kleaners v. City of Chicago, 323 Ill. 368, 154 N.E. 131 (1926); Houston v. Village of Maywood, 11 Ill. App.2d 433, 138 N.E.2d 37 (1956).) It cannot, however, be said that the authority to sell to other governmental units is necessarily incident to or is reasonably necessary to effectuate its express power of establishing a gravel pit to maintain county roads, and the fact that it is convenient for the county to do so is insufficient. The sale of gravel by the county to other governmental units is then invalid and outside the statutory grant of authority. To hold otherwise would represent a drastic deviation from traditional methods of interpreting grants of power to local governmental units in our State.

We do not mean to imply that the county has no authority to sell gravel from its legally owned pit to other governmental units on a prorated cost basis when such units enter into a joint or cooperative agreement or venture. Ill. Rev. Stat. 1971, ch. 121, sec. 1-102 provides that "it is further declared that highway transportation system development requires the cooperation of State, county, township, and municipal highway agencies and coordination of their activities on a continuous and partnership basis and the legislature intends such cooperative relationships to accomplish this purpose." (Emphasis added.) Furthermore, the intergovernmental cooperation intended by section 1-102 is further encouraged by the adoption of section 10 of Art. VII of the 1970 Illinois Constitution. Section 10(a) of that article provides in relevant part:

"Section 10. Intergovernmental Cooperation

(a) Units of local government and school districts may contract or otherwise associate among themselves, with the State, with other states and their units of local government and school districts, and with the United States to obtain or share services and to exercise, combine or transfer any power or function, in any manner not prohibited by law or by ordinance."

The constitutional-convention committee-of-the-whole debates on that section appear in Volume IV, pp. 3421-3431 of the Record of Proceedings, Sixth Illinois Constitutional Convention. At page 3421 of those debates Mr. Stahl stated that this section "permits smaller units of local government, by combining to perform specific services or functions, to develop economies of scale with resultant cast [sic] reductions." Mr. Wenum states on page 3423 that:

"What is anticipated here is not so much that there would be a specific transfer of any funds to another entity as such, but that there would be a joint venture which would be on a — probably the most rational way would be on a per capita basis — a joint funding and administration of some operation to the advantage of both of the operating units, but without necessarily a physical or paper transfer of monies from one treasury to the treasury of the other unit, but simply an apportioning of the costs of this cooperative venture."

The report of the local government committee on section 10 (then referred to as section 11) indicates a similar intent. On pages 173 and 174 of that report it is stated:

"The purpose of this proposed new section is to provide maximum flexibility to units of local government in working out solutions to common problems in concert with other units of government at all levels, `in any manner not prohibited by general law.' Paragraph 11.1 will permit multi-unit endeavors in all areas of local concern. In addition, contractual relationships such as the sale of water to seventy-two suburbs by the City of Chicago, or the so called Lakewood Plan in Los Angeles County, California, will be constitutionally permitted instead of being dependent upon statutes * * * To this end, participating units will be allowed * * * to share in the operating and other costs of intergovernmental activities."

On page 175 it is stated that "Intergovernmental cooperation is the voluntary participation of units of local government in joint undertakings * * * Intergovernmental cooperation generally takes one of three basic forms in which: * * * (2) two or more local governments perform a function jointly or operate a facility on a joint basis." (Emphasis added.) Furthermore, the official text and explanation in Volume VII, p. 2730 of the Record of Proceedings, Sixth Illinois Constitutional Convention states that section 10 "* * * permits governments at all levels to cooperate in working out common problems. Thus, one local government can contract with another government * * * to share services and divide the cost equitably."

• 5 Thus Dillon's Rule of strictly construing legislative grants of authority to local governmental units has been abrogated by section 10 of Article VII of the 1970 Constitution when local governments voluntarily cooperate to share services on a partnership or joint venture basis. Nevertheless, we find no such joint venture here. The townships are under no contractual obligation to purchase any gravel from Clark County. They have not combined with the county to perform or share specific services or functions. There is no joint funding and administration of the gravel pit operation. There is no agreement for the joint operation of the facility. There is no apportioning of the costs of any cooperative venture. Isolated purchases, from time to time, cannot be said to fall within the purview of section 10, Article VII of the 1970 Constitution or chapter 121, section 1-102.

Plaintiffs also argue that the county may not expend state motor fuel tax funds for the operation of a gravel pit. We do not agree. Ill. Rev. Stat. 1971, ch. 121, sec. 5-701.3 provides that "Any county board with the approval of the Department [of Public Works and Buildings] may also use motor fuel tax money allotted to it for the maintenance of any county highway * * *." Sec. 5-601 established that the operation of a gravel pit is a proper county function for the maintenance of its roads. It also appears that the Department had given its specific approval to the use of such funds for a gravel pit operation since its inception. Therefore, the use of state motor fuel tax funds in operating the gravel pit is within the statutory authority granted by 5-701.3.

The trial court's finding that the county may operate a gravel pit for its own use, and that its use of motor fuel tax funds for such a purpose ...


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