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County of Fulton v. Prairie Plan Project

OPINION FILED DECEMBER 31, 1979.

THE COUNTY OF FULTON, PLAINTIFF-APPELLANT,

v.

THE PRAIRIE PLAN PROJECT, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Fulton County; the Hon. RICHARD C. RIPPLE, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 8, 1980.

The question presented by this interlocutory appeal is the propriety of an order of the Circuit Court of Fulton County changing venue of this cause to Cook County, Illinois.

In 1970, the Fulton County Board enacted an ordinance to regulate transporting, storage, use, and disposal of sewage sludge within the County of Fulton. The ordinance provides for inspections and tests and requires persons who engage in the transportation, storage, use, and disposal of sewage sludge to obtain a permit upon payment of a fee. The Metropolitan Sanitary District of Greater Chicago has acquired 15,528 acres of farm land in Fulton County where it operates its Prairie Plan Project. This experimental project employs 200 people and recycles municipal sewage to rebuild land previously depleted by strip mining. The Metropolitan Sanitary District obtained permits as required under the ordinance for the years 1974, 1975, 1976, and 1977, but in 1978 the District did not apply for a permit although operations continued at the Prairie Plan site. Apparently the District sought to test the validity of the Fulton County ordinance.

As a consequence the County of Fulton filed a declaratory judgment action in the Circuit Court of Fulton County, naming as defendant "The Prairie Plan Project, a Division of the Metropolitan Sanitary District of Greater Chicago, a corporation." Plaintiff county sought to have its ordinance declared valid and to have defendant enjoined from operating without a permit. It should be noted that "The Prairie Plan Project" is not a legal entity and is not a division of the Metropolitan Sanitary District of Greater Chicago, but is merely the term used to describe the Chicago District's operations in Fulton County. Defendant has proceeded both in the trial court and in this court as if the suit had named the defendant District correctly.

Defendant responded to the complaint with a motion to transfer venue to the Circuit Court of Cook County. After hearing arguments, the trial court granted defendant's motion and filed a well-reasoned opinion explaining the decision. Plaintiff then perfected this interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308). The trial court has identified the following issue for review:

"What county is the proper venue under the provisions of § 601, ch. 34 and § 7(1) of Chap. 110 of the 1977 Illinois Revised Statutes when the plaintiff is a county and the defendant is a municipal corporation doing business and having an office in said plaintiff county, but with its principal office located in a different county."

The general statutory provision governing venue is contained in section 5 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 5):

"Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him and not solely for the purpose of fixing venue in that county, or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose."

• 1 This general rule must give way to the more particular provision controlling actions against governmental corporations contained in section 7(1) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 7(1); Harrell v. Board of Trustees (1977), 48 Ill. App.3d 319, 362 N.E.2d 441; People ex rel. Village of Northbrook v. City of Highland Park (1976), 35 Ill. App.3d 435, 342 N.E.2d 196.) The relevant portion of section 7(1) states:

"Actions must be brought against a public, municipal, governmental or quasi-municipal corporation in the county in which its principal office is located." Ill. Rev. Stat. 1977, ch. 110, par. 7(1).

Clouding the picture in the instant case is section 31 of the Counties Act (Ill. Rev. Stat. 1977, ch. 34, par. 601), which provides in part as follows:

"Any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant in such action resides."

Both parties agree that the word "may" in section 601 was construed to mean "shall" by the supreme court in County of Schuyler v. County of Mercer (1847), 9 Ill. 20, and, therefore, that a county is required to ...


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