People of Kane County v. Midway Landfill, Inc.

• Decision Date: 27 November 1974
• Docket Number: No. 73--371,73--371
• Citation: 321 N.E.2d 91,23 Ill.App.3d 1080
• Parties: PEOPLE OF the COUNTY OF KANE, Plaintiff-Appellant, v. MIDWAY LANDFILL, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 91

321 N.E.2d 91

23 Ill.App.3d 1080

PEOPLE OF the COUNTY OF KANE, Plaintiff-Appellant, v. MIDWAY LANDFILL, INC., Defendant-Appellee.

No. 73--371.

Appellate Court of Illinois, Second District.

Nov. 27, 1974.

Gerry L. Dondanville, State's Atty., Geneva, Clarence Wittenstrom, Jr., Asst. State's Atty., Elgin, for plaintiff-appellant.

Robert F. Casey, Geneva, for defendant-appellee.

SEIDENFELD, Justice.

Midway Landfill, Inc., as the operator of a landfill site in Kane County, was charged in six informations with various violations of the Kane County Sanitary Landfill Control Ordinance. The defendant filed a motion to quash all of the counts in each information contending that the ordinance, in imposing upon the county the primary and nondelegable duty to refrain from the alleged violations, made the county equally responsible for any of the defendant's violations. And by charging only the defendant with the violations, the informations deprived the defendant of due process. In addition, the defendant alleged in the motion to quash that the ordinance provided for a hearing before the Zoning Board of Appeals of Kane County to determine whether any violation had taken place as a precondition to the enforcement of the fine and imprisonment sanctions set forth in the ordinance.

The trial judge granted the motion to quash based upon his finding that the provision in the ordinance for criminal sanctions which included either a possible fine of $200 and imprisonment in the county jail for more than 6 months or both was invalid.

The People appeal, contending that the county had authority to fine and imprison a violator of its ordinance as an alternative to seeking a revocation of a violator's operating privilege before the Zoning Board of Appeals. But in the event the provision for a jail sentence is held invalid, they argue that the jail portion is severable from the balance of the penalty section and does not affect the validity of the fine provision.

Section 2 of the Garbage Disposal Act empowers counties to enact ordinances to regulate the method by which to dispose of garbage in sanitary landfills (Ill.Rev.Stat.1973, ch. 34, par. 5402); and Section 6 of that same act provides counties with the authority to suspend the license of any person who violates those ordinances. (Ill.Rev.Stat.1973, ch. 34, par. 5406.) Section 6 states:

'Penalties for violations. Any person who violates any ordinance, rule, or regulation adopted pursuant to this Act commits a petty offense and may be punished by a suspension of any license held.'

The county ordinance before us in the first 4 paragraphs of Article XI details the method by which the license of a sanitary landfill operator may be revoked for ordinance violations, and Section 6 clearly establishes its validity. There is, however, a challenge to the final paragraph of Article XI of the ordinance which provides in part:

'Any person, firm, company or corporation who violates, disobeys, omits, neglects or refuses to comply with, or who resists the enforcement of any of the provisions of this ordinance, shall be subject to a fine of not more than 200 dollars for each offense, or to the imprisonment in the county jail for a period of not more than six months, or both, in the discretion of the court. Each day that a violation continues to exist constitutes a separate offense.'

We conclude from our examination of the enabling statutes that counties have neither expressly nor impliedly been empowered to punish violators by imprisonment. The State argues that the similarity of the development of the comparable sections in the Cities and Villages Act (Ill.Rev.Stat.1973, ch. 24, pars. 1--2--1, 1--2--9) which evolved to give cities and villages authority to imprison ordinance violators implies that a similar power was intended to be given to county governments. There is authority for construing statutes which relate to the same subject matter in Pari materia so as to infer that provisions omitted from one were intended to be in the other. (People ex rel. v. Kankakee School Dist. (1971), 48 Ill.2d 419, 422, 270 N.E.2d 36.) But the separate act governing cities and villages does not necessarily have the same purposes or objectives as to be in Pari materia with acts relating to county governments. (See 73 Am.Jur.2d, sec. 187.) Cities and villages have been expressly given the power to make ordinance misdemeanors punishable by imprisonment. (Ill.Rev.Stat.1973, ch. 24, par. 1--2--1.1) The absence of a like provision in the separate act governing counties is evidence of a different legislative intention respecting the county's authority.

Our conclusion does not necessarily affect the validity of the entire paragraph, however. The invalidity of one penalty provision will only render the remaining penalties invalid if their execution is dependent upon the invalid portion. (Cheetah Enterprises, Inc. v. County of Lake (1974), Ill.App., 317 N.E.2d 129; City of Rockford v. Grayned (1970), 46 Ill.2d 492, 495--496 263 N.E.2d 866.) In this case the provision for imprisonment which we have found void is separable from the portion of the ordinance providing for a fine.

The phrase 'petty offense' is also contained in section 6 of the Garbage Disposal Act (Ill.Rev.Stat.1973, ch. 34, par. 5406). It is clear from the committee comments (S.H.A. ch....