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Andrews v. County of Madison

OPINION FILED OCTOBER 20, 1977.

EDNA RUTH ANDREWS ET AL., PLAINTIFFS-APPELLANTS,

v.

THE COUNTY OF MADISON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. E. HAROLD WINELAND, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought an action in the circuit court of Madison County to enjoin any and all acts of defendant Madison County in furtherance of its ordinance creating a special service area and providing for the financing of services to be rendered therein. This action was sought by the plaintiffs in their individual capacities and as representatives of a class comprised of all owners of real estate of record within the boundaries of the special service area. The court entered a detailed order denying plaintiffs' prayer for an injunction and thereafter denied plaintiffs' post-trial motion. Plaintiffs appeal to this court.

The controversy in this case involves the plan of Madison County to construct a sanitary sewerage system in an irregularly shaped but contiguous area within the county which incorporates portions of Nameoki, Chouteau and Venice townships. In the broadest sense, this plan is objectionable to plaintiffs because the county attempts to accomplish it by creation of a special service area and the issuance of bonds to be retired by additional ad valorem taxes on properties within the specified area pursuant to "An Act to provide the manner of levying or imposing taxes for the provision of special services to areas within the boundaries of home rule units and non-home rule municipalities and counties" (hereinafter, Special Services Act) (Ill. Rev. Stat. 1975, ch. 120, par. 1301 et seq.)

The plaintiffs contend in this appeal: (1) Madison County, as a non-home-rule county, has no power to construct and maintain a sanitary sewerage system under article VII, section 7(6) of the Illinois Constitution of 1970 and its enabling legislation (Ill. Rev. Stat. 1975, ch. 120, par. 1301 et seq.); (2) the county could construct such a system pursuant to "An Act in relation to * * * sewage * * * in certain counties" (Ill. Rev. Stat. 1975, ch. 34, par. 3101 et seq.), but that the methods of financing are limited to those therein authorized; (3) taxes levied under the Special Services Act are in the nature of special assessments and therefore impermissible in this instance because of the lack of benefit accruing to certain properties in the area from the proposed sewer project; (4) the Special Services Act is unconstitutional in certain respects; and (5) the notice requirement of the Act was not satisfied by the county in this case.

On September 10, 1974, the Madison County Board by unanimous vote passed a resolution to establish a sewage system as authorized by "An Act in relation to * * * sewage * * * in certain counties" (Ill. Rev. Stat. 1973, ch. 34, par. 3101 et seq.). The resolution provided for financing in accordance with that act. (Ill. Rev. Stat. 1973, ch. 34, pars. 3117, 3121.) On April 21, 1976, the Board passed a resolution amending the resolution of September 10, 1974, to allow financing under the taxing scheme authorized by article VII of section 7(6) of the 1970 Illinois Constitution as elaborated in section 7 of the Special Services Act (Ill. Rev. Stat. 1975, ch. 120, par. 1307). At this same time, the Board also adopted an ordinance proposing the establishment of Special Service Area Number 1 for the purpose of providing a sanitary sewerage system therein.

The ordinance provided for a public hearing to be held on May 22, 1976, concerning the establishment of the area and the financing of the project and directed that notice be given, all in accordance with the requirements of the Act. (See Ill. Rev. Stat. 1975, ch. 120, pars. 1305-1307.) The ordinance further set out the form of the notice to be mailed and published which included all the information directed to be included in the notice under section 7 of the Act (Ill. Rev. Stat. 1975, ch. 120, par. 1307(1)-(4)). In addition, information was included concerning how the project could be blocked by petition as provided by the statute. (See Ill. Rev. Stat. 1975, ch. 120, par. 1309.) The proposed area was, as already described, irregularly shaped but contiguous, and included portions of three townships.

On May 6, 1976, the proposed notice was published in the Granite City Press-Record, a newspaper of general circulation in Madison County. Also on May 6, identical notices, plus an attached map of the area, were mailed by the office of the county clerk of Madison County. The cost of the mailing at 13 cents per notice was $514.41, indicating the dispersement of 3957 notices.

The statute directs that the mail notices be "addressed to the person or persons in whose name the general taxes for the last preceding year were paid on each lot, block, tract or parcel of land lying within the special service area" and further provides that "[i]n the event taxes for the last preceding year were not paid, the notice shall be sent to the person last listed on the tax rolls prior to that year as the owner of said property." Ill. Rev. Stat. 1975, ch. 120, par. 1305.

Evelyn Bowles, county clerk, and Jo Ann Karl, an employee of the clerk's office, testified concerning the mailing of the notices. Their testimony revealed that heavy reliance was placed on the work of the attorney who represented the Board on this project in determining who should receive notices.

The attorney supplied the clerk's office with preaddressed envelopes directed to owners who had paid taxes on properties within the service area for the preceding year. These names were verified from the tax collector's books and others were added as appeared necessary. When the tax books indicated that a financial institution had paid the taxes on a particular property, an effort was made to determine who the owner was from previous tax records or records in the maps and plats department. If the owner was ascertained the notice was sent to him in care of the mortgagee institution. Ms. Karl testified that in many instances, notices had to be mailed to such an institution without any such cross-reference to the mortgagor. On redirect examination, Ms. Karl testified that many notices were sent out with more than one owner of record's name on the envelope. If several owners were listed as having the same address, for example, a husband and wife, only one notice was sent but the envelope would bear all of the names.

On May 22, 1976, the public hearing was held as planned. Many people expressed their support of the sewerage project. Likewise, many people expressed their objection to the project. The most frequent objection heard was to additional taxes levied against property in order to retire the $5,000,000 of general obligation bonds which would be issued to meet the county's share of the costs of constructing the sewerage system. After hearing all oral remarks and receiving all tendered written objections, the Board voted to proceed with the project and the hearing was adjourned.

The County Board on June 14, 1976, adopted an ordinance establishing Madison County Special Services Area Number 1 and providing for the financing of the sewerage project as already described. The ordinance was declared to be fully effective as of June 22, 1976, providing a sufficient petition of objection pursuant to section 9 of the Act (Ill. Rev. Stat. 1975, ch. 120, par. 1309) was not filed prior to such date.

Section 9 of the Special Services Act provided that:

"If a petition signed by at least 51% of the electors residing within the special service area and by at least 51% of the owners of record of the land included within the boundaries of the special service area is filed with the * * * county clerk, * * * within 30 days following the final adjournment of the public hearing objecting to the creation of the special service district, * * * [or] the levy or imposition of a tax or the issuance of bonds for the provision of special services to the area, * * * no such district may be created, * * * or no such bonds may be issued." (Ill. Rev. Stat. 1975, ch. 120, par. 1309.)

Within 30 days of the adjournment of the public hearing, petitions of electors and owners of record were filed in opposition to this project. The Board found them insufficient to block the project based on information supplied by the county clerk. This information was contained in a certificate of the clerk (Exhibit F to defendant's answer) which indicated that there were 7060 registered voters in the area, 1548 of which signed the electors' petition, and 6920 owners of record, 1710 of which signed the petition of owners.

At trial the clerk testified that she determined the number and names of electors or registered voters in the area from the voter's list. She utilized the precinct binders when the boundary of the area cut through a precinct. She further related that she arrived at the number and names of owners of record by a procedure which involved the maps and plats department of the county. The clerk took a map of the service area to the department. In turn, it was compared against the tax maps and a list of all parcels of land and their owners was compiled. The names on the elector and owner petitions were then compared with these lists. After duplicate and invalid signatures were discounted, the figures appearing on the certificate were derived. Subsequent to the Board's finding the petitions to be insufficient, the plaintiffs brought this suit.

At the trial plaintiffs endeavored to bring out evidence which reflected poorly on the benefit to those in the area to be derived from the sewerage project. On cross-examination of Edward Juneau, the engineer for the project, the witness conceded that Special Service Area 1 includes rather large tracts of unoccupied and unimproved farm land. Evidence was adduced that there are two areas in the district which presently are serviced by lagoon type sewage systems. One of these lagoons services numerous apartment buildings owned by plaintiff George Dyckman. Mr. Dyckman's testimony showed that he received ...


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