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02/10/87 the County of Cook, v. Chicago Magnet Wire

February 10, 1987





504 N.E.2d 904, 152 Ill. App. 3d 726, 105 Ill. Dec. 619 1987.IL.150

Appeal from the Circuit Court of Cook County; the Hon. Rene Goier, Judge, presiding.

Rehearing Denied March 10, 1987.


JUSTICE BILANDIC delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.


Plaintiff, County of Cook, is a body politic and corporate. (Ill. Rev. Stat. 1985, ch. 34, par. 301.) It enacted the Cook County Environmental Control Ordinance which provides that "[t]he emission of noxious, odorous or toxic matter in such manner or quantity as to be detrimental or endanger the public health, comfort or welfare, is prohibited." (Cook County, Ill. Ordinances, ch. 16, sec. 8.1 (1980).) Defendant, Chicago Magnet Wire Corporation, operates a wire-coating plant in Cook County. From February 18, 1983, to June 28, 1983, defendant received nine citations for violation of the ordinance. On August 23, 1985, the trial court granted defendant's motion to dismiss the citations on the grounds that the county ordinance was unconstitutionally vague and that plaintiff was guilty of laches because of its delay in prosecution after the action was brought. The trial court did not rule on defendant's additional ground that the county was precluded from adopting its ordinance by the State legislature's enactment of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 1001 et seq.). I

There is no dispute that the citations were issued by plaintiff concurrent with the alleged violation of the ordinance by defendant. The sole basis for dismissal on the ground of laches deals with the alleged delay between the filing of the charges and the Disposition of the case.

The general rule is that the statute of limitations or laches may not be asserted against the State or its county or municipal subdivisions in actions involving public rights. (City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill. 2d 457, 451 N.E.2d 874.) Where a governmental body is engaged in a matter of the exercise of its governmental functions, the defense of laches is not favored and should only be invoked in extraordinary circumstances. (Haeflinger v. City of Wood Dale (1984), 129 Ill. App. 3d 674, 677, 472 N.E.2d 1228.) There is no showing of extraordinary circumstances in this case which would justify the trial court's departure from the general rule. Hickey v. Illinois Central R.R. Co. (1966), 35 Ill. 2d 427, 220 N.E.2d 415, cert. denied (1967), 386 U.S. 934, 17 L. Ed. 2d 806, 87 S. Ct. 957.

The record does not reveal any prejudice to defendant brought about by the delay. Defendant either sought or agreed to the delays. If anything, the delay seems to have benefited defendant because it continued to operate its business in the usual manner. Accordingly, the dismissal of plaintiff's action on the basis of laches is erroneous. II

The trial court dismissed plaintiff's action on the basis that the county ordinance was "unconstitutionally vague." Ordinances are presumptively valid, and the burden of establishing invalidity rests upon the party asserting that invalidity. (Mulligan v. Dunne (1975), 61 Ill. 2d 544, 338 N.E.2d 6, cert. denied (1976), 425 U.S. 916, 47 L. Ed. 2d 768, 96 S. Ct. 1518.) Defendant, in a facial challenge or where no fundamental rights are affected, is required to demonstrate that the ordinance is vague in all of its applications. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 71 L. Ed. 2d 362, 102 S. Ct. 1186.

To meet its burden, defendant asserts that the ordinance is unduly vague because it contains no articulable objective standard by which to Judge whether the ordinance was violated. Defendant also argues that insofar as the ordinance seeks to codify a public nuisance, it is insufficient because it does not contain standards to be considered in determining whether a public nuisance exists.

Plaintiff replies that the terms of the ordinance, including "toxic," "noxious," "odorous," and "public health, comfort and welfare," all have a commonly understood meaning or are defined in the ordinance. Odors are defined as "that quantity of an emission of any kind, whether it be solid, liquid or gaseous that renders it perceptible to the sense of smell." (Cook County, Ill. Ordinances, ch. 16, sec. 3.2 (1980).) Noxious odors are defined as "any odors which are unwholesome, offensive, harmful, or injurious to the public health, its comfort or its welfare." (Cook County, Ill. Ordinances, ch. 16, sec. 3.2 (1980).) Plaintiff also refers to common definitions of the terms "toxic," which means "poisonous." (Black's Law Dictionary 1337 (5th ed. 1979).) Furthermore, because an ordinance must be considered in its entirety (S. Bloom, Inc. v. Korshak (1972), 52 Ill. 2d 56, 284 N.E.2d 257), it must be stressed that these terms are limited by the phrases "in such a manner and quantity" and "public health, comfort or welfare." These terms have long been acceptable standards in this State. County of Du Page v. Henderson (1949), 402 Ill. 179, 83 N.E.2d 720.

In the context of the vagueness doctrine, two principles prevail. "First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he can act accordingly. . . . Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards to those who apply them." Grayned v. City of Rockford (1972), 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99.) However, mathematical certainty can never be expected from an enactment and it need only convey sufficient definite warning as to the proscribed conduct when measured by common understanding and practice. (Grayned v. City of Rockford (1972), 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294.) In construing the present ordinance, then, it is axiomatic that impossible standards of specificity are not required and its words and terms will be given ...

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