Appeal from the Appellate Court for the Second District.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 31, 1974.
In October, 1971, the Illinois Environmental Protection Agency filed a complaint with the Pollution Control Board (hereafter, the Board) against the City of Waukegan, Zion State Bank and Trust Company, T-K City Disposal, Inc., and Tewes Co., Inc., charging various violations of the Environmental Protection Act, including a charge of having operated a refuse disposal site without obtaining a permit from the Environmental Protection Agency (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1021(e)). After a hearing, the Board imposed a fine of $1000 against the City of Waukegan, and fines of $250 against the T-K Disposal, Inc., and Tewes Co., Inc. The charges against the Zion State Bank and Trust Company were dismissed by the Board.
The Board's order was appealed by the City of Waukegan, T-K City Disposal, Inc., and Tewes Co., Inc., to the Appellate Court for the Second District under provisions of the Environmental Protection Act and the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 111 1/2, par. 1041; ch. 110, par. 264 et seq.). That court, holding that the grant of authority to the Board to impose a discretionary fine was an unlawful delegation of judicial power, reversed and set aside the Board's order. (11 Ill. App.3d 189.) We granted leave to appeal.
But one question is before us: Was the authority given the Board to impose monetary penalties under the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111 1/2, pars. 1033(b), 1042) a delegation of judicial power in violation of the separation-of-powers provision of the Constitution of Illinois or in violation of the Constitution of the United States?
The challenged section of the Act confers authority on the Board to impose a penalty of not to exceed $10,000 for a violation of the Act, or of a Board regulation or order, and to impose an additional penalty not to exceed $1,000 for each day of continuing violation.
Whether the grant of authority was valid has been considered in three other appellate districts. The court for the Fifth District held that the constitutional separation of powers had been violated (Southern Illinois Asphalt Co. v. Environmental Protection Agency, 15 Ill. App.3d 66), and in the First and Third Districts the delegation of power was held to be valid (Ford v. Environmental Protection Agency, 9 Ill. App.3d 711; Incinerator, Inc. v. Illinois Pollution Control Board, 15 Ill. App.3d 514).
It is not disputed that there is before us only the question of the imposition of civil penalties. There is no contention that the penalties concerned here were designed to be or are considered criminal sanctions. See 1 K. Davis, Administrative Law Treatise sec. 2.13 (1958).
Section 1 of article II of the Constitution of Illinois of 1970 provides:
"The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another."
The provision is essentially the same as that of our 1870 Constitution. The only change is in simplified language. There was no intent to change the existing law. The report of the Committee on Local Government on the Proposed Separation of Powers Article of the 1970 Constitutional Convention states in part:
"The Committee did not intend to effect a change in the common law which has developed from the present language [i.e., of 1870 Constitution]." (6 Record of Proceedings, Sixth Illinois Constitutional Convention 566.)
The following comment also indicates that, consistent with decisions under the 1870 Constitution, no inflexible separation of powers was being considered:
"The point was made during Committee deliberations that the present language may be construed as being inconsistent with a constitutionally created commission, agency or office (such as Ombudsman) having powers similar to one or more of the three principal governmental departments. The Committee is of the view that neither the present language nor the proposed language is inconsistent with such a hybrid commission, agency or office." 6 Proceedings 566-567.
One of the earliest (1839) and one of the enduring commentaries in Illinois on the separation of powers appears in Field v. People ex rel. McClernand, 3 Ill. (2 Scam.) 79, 83-84. It was said:
"The first and second sections of the first article of the
Constitution divide the powers of Government into three departments, the legislative, executive, and judicial, and declare that neither of these departments shall exercise any of the powers properly belonging to either of the others, except as expressly permitted. This is a declaration of a fundamental principle; and, although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connection or dependence, the one upon the other; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in which this maxim was understood by the authors of our government, and those of the general and State governments is evidenced by the constitution of all. In every one, there is a theoretical or practical recognition of this maxim, and ...