Appeal from the Circuit Court of Sangamon County; the Hon.
Simon L. Friedman, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 5, 1984.
The principal question in this case is whether a sewer commission, formed by ordinances of three villages in the manner described in division 136 of article 11 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, par. 11-136-1 et seq.), has the power to enact an ordinance requiring property owners within each municipality to attach all sewage disposal systems to the drains of the commission. The parties agree that the commission could have acquired power to do so only by (1) grant from each of the villages pursuant to section 10(a) of article VII of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, sec. 10(a)), or (2) the power conferred upon sewer commissions by division 136 of article 11 of the Code. We hold that (1) such power was conferred by division 136, and (2) the ordinance was valid.
This case began August 11, 1983, when plaintiff, Buffalo, Dawson, Mechanicsburg Sewer Commission (Commission) filed a 42-count complaint in the circuit court of Sangamon County against various defendant property owners in the village of Dawson. It alleged (1) the formation of the Commission in 1971 to construct and operate a joint sewer system for the villages of Buffalo, Dawson, and Mechanicsburg, (2) the purported enactment by the Commission of an ordinance requiring all property owners in the district to connect all sewage disposal systems to those of the commission, and (3) the refusal of the defendant property owners to do so. The complaint sought fines to punish the defendants and mandatory injunctions to require them to connect.
Certain of the defendants filed a motion to dismiss contending, among other reasons, that the Commission had no power to require the connections to its system. On February 9, 1984, the circuit court allowed the motion, dismissed the challenged counts, and entered a finding, pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)), making the order appealable. Plaintiff then appealed, contending that the trial court had improperly dismissed the counts, finding the ordinance requiring connection was void. We agree with plaintiff and reverse and remand for further proceedings.
The record before the trial court when ruling on the motion to dismiss showed that the Commission was formed by separate ordinances, all in the same form, enacted by the villages of Buffalo, Dawson, and Mechanicsburg on March 11, 1971. By ordinances, the villages authorized the creation of the Commission and elected "to operate jointly a common sewer for disposal of waste, water, and sewage" pursuant to "chapter 24, section 11-135-1 [sic] et seq., Ill. Rev. Stat. (Ill. Bar Ed.) 1969." Division 135 of article 11 of the Illinois Municipal Code, to which reference was there made, concerns the joint operation of water supplies and waterworks. Division 136 thereof concerns "Joint Acquisition and Operation of Water and Sewage Systems" and provides for the formation of a commission such as that here. The parties do not dispute that the latter reference was the one intended and have proceeded upon that basis.
Section 8 of article VII of the Illinois Constitution of 1970 provides in part that "[t]ownships, school districts, special districts and units, designated by law as units of local government, which exercise limited governmental powers or powers in respect to limited governmental subjects shall have only powers granted by law." (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 8.) The parties agree that commissions organized under division 136 of article 11 of the Code come within the purview of section 8 above. This constitutional provision continues in force for the described entities a doctrine known as "Dillon's Rule," which previously applied to all subdivisions of State government. The substance of that rule is that such entities have no inherent powers, but only those powers either expressly granted by the legislature or necessarily incident thereto. Chicago Real Estate Board v. City of Chicago (1967), 36 Ill.2d 530, 224 N.E.2d 793.
Section 10(a) of article VII of the Illinois Constitution of 1970 created an exception to "Dillon's Rule" which is applicable to comformed under division 136. Section 10(a) states in part:
"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." (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 10(a).)
Thus, a commission organized under division 136 can have not only the powers set forth by the legislature, but also any power of the municipalities which formed the district if those powers were transferred to it by the joint action of the municipalities. See Village of Sherman v. Village of Williamsville (1982), 106 Ill. App.3d 174, 435 N.E.2d 548.
Although the meaning of section 1-1-5 of the Illinois Municipal Code is somewhat uncertain, it appears to provide some support for the existence of power in the Commission to exercise some of the powers possessed by the villages. Section 1-1-5 has, at all times relevant here, stated:
"The corporate authorities of each municipality may exercise jointly, with one or more other municipal corporations or governmental subdivisions or districts, all of the powers set forth in this Code unless expressly provided otherwise. In this section `municipal corporations or governmental subdivisions or districts' includes, but is not limited to, municipalities, townships, counties, school districts, park districts, sanitary districts, and fire protection districts." (Emphasis added.) Ill. Rev. Stat. 1969, ch. 24, par. 1-1-5.
The Commission contends that the foregoing constitutional and statutory provisions were conduits by which it acquired authority to enact the ordinance requiring connection. The defendants agree that the villages themselves had power to require those within their respective boundaries to connect. (City of Nokomis v. Sullivan (1958), 14 Ill.2d 417, 153 N.E.2d 48; Village of Riverwoods v. Untermyer (1977), 54 Ill. App.3d 816, 369 N.E.2d 1385.) The record indicates that Buffalo and Mechanicsburg had enacted such ordinances, but Dawson had not done so. However, the difficulty with the Commission's position is that one can find no indication that any of the villages ever took any action (1) to transfer its power to order connection to the Commission, or (2) to act jointly to require connection.
The villages' ordinances of March 11, 1971, authorized the creation of the Commission pursuant to the provisions of the Municipal Code, but said nothing about the transfer of any specific power. Thus, the only powers which could be conferred on the Commission by those enactments were the statutory powers set forth in division 136. Subsequently, each village passed an ordinance authorizing the Commission to use village-owned property, including its streets and rights of way, "as necessary to construct, operate and maintain" the system. Both of the above ordinances were enacted before July 1, 1971, the stated generally effective date for the Illinois Constitution of 1970. No other ordinances that might have transferred powers to the Commission or indicated an intention of the village to act jointly to require ...