Bailey v. Downers Grove Sanitary Dist.

• Decision Date: 05 April 1935
• Docket Number: No. 22751.,22751.
• Citation: 359 Ill. 601,195 N.E. 465
• Parties: PEOPLE ex rel. BAILEY v. DOWNERS GROVE SANITARY DIST.
• Court: Illinois Supreme Court

359 Ill. 601

195 N.E. 465

PEOPLE ex rel. BAILEY

v.DOWNERS GROVE SANITARY DIST.

No. 22751.

Supreme Court of Illinois.

Feb. 15, 1935.

Rehearing Denied April 5, 1935.

Mandamus by the People, on the relation of George W. Bailey, against the Downers Grove Sanitary District, to compel the district to repair and maintain certain storm-water sewers and drains. From a judgment awarding the writ, the District appeals.

Reversed.

Appeal from Circuit Court, Du Page County; F. W. Shepherd, judge.

Daniel S. Wentworth and Robert F. Dewey, both of Chicago, for appellant.

George P. Foster, of Chicago, and Herbert A. Grotefeld, of Downers Grove, for appellee.

STONE, Justice.

The circuit court of Du Page county, on appellee's petition therefor, awarded a writ of mandamus directing the appellant sanitary district to put in repair, take charge of, and maintain certain storm-water sewers and drains lying within, and constructed by the village of, Downers Grove. Appellant brings the cause here for review.

Appellant filed a demurrer to the petition for mandamus, which was overruled, and appellant was ruled to answer. It thereafter filed an answer to the petition, which was stricken. On default of further answer, the writ was awarded against it.

The petition for mandamus alleges that there exists in the village of Downers Grove, a system of storm-water drains which had been constructed and maintained by the village in accordance with the powers vested in it by statute. It is there set out that the territory lying within the boundaries of the village, as well as certain other territory adjacent thereto, lies within the boundary of the appellant sanitary district; that on August 30, 1926, the village trustees passed an ordinance transferring to the appellant district the maintenance and control of all such storm-water sewers then constructed or under construction or which might thereafter be constructed by the village within the limits thereof and within the present or future limits of the sanitary district; that the appellant district on September 15, 1926, by resolution and ordinance accepted and approved the ordinance of the village whereby it became and was the duty of the sanitary district to maintain and keep in repair such storm-water drainage system. It is averred that the district undertook to, and did, exercise such jurisdiction over the storm-water drains and continued so to do until January 24, 1930, at which time the storm-water drains and their openings and inlets at various points throughout the village became broken or stopped, and that on that date the sanitary district, by resolution, rescinded and repudiated the action of its board taken on the 18th day of August, 1926, and refused to further maintain or repair the storm-water drainage system in accordance with its agreement.

Appellant in its answer alleged that by the act under which it was created its powers are limited to the construction and maintenance of plants for the treatment of sewage and the maintenance of outlets and the construction and maintenance of a sanitary sewer system necessary for the accomplishment of the treatment and purification of such sewage, and that it was not empowered to construct or maintain a system of storm-water drains, but such was the duty of the village. The answer also avers that a portion of the village and storm-water drains extends beyond the boundaries of the sanitary district; that the ordinances and resolutions set out in the petition did not and could not confer power on the district over storm-water drains, and so appellant did not and could not become legally bound to maintain such drains, and its failure so to do was not a breach of legal duty, but to so attempt to exercise such jurisdiction is ultra vires, illegal, null, and void, and therefore its resolution repudiating the agreement theretofore entered into afforded no ground for issuance of writ of mandamus.

The present area of the district is approximately 3,880 acres, of which the portion of Downers Grove within the district comprises approximately 2,800 acres. The remainingportion, consisting of 325 acres, is in the village of Westmont and 755 acres of unincorporated territory. It appears from the answer that the total indebtedness of the district cannot exceed $175,000, and that the total revenue obtainable by taxation is approximately $23,340. It is also averred that the storm-water drain system within the village, which the village seeks to have the district maintain, is in no wise connected with, an adjunct to, or a necessary part of, the sewer system maintained by the district, and, if it were so connected, additional sewers and plants required would cost more than the district could pay. It is also in the answer pointed out that the outlets of storm-water sewers of the village of Downers Grove lead into different water courses and watersheds, that the village of Westmont has contructed and maintains storm-water drains separate and apart from the sanitary district sewer system, and that it has never relinquished control over them. It is also averred that the storm-water drains of the village of Downers Grove have been constructed by the village at higher levels than those of the district sewers; that connection of the storm-water drains with the sanitary sewer systems would cause flooding of the latter, forcing sewage into the basements and homes connected with the sanitary sewer system, and would cause an excess flow to the plant, which would interfere with the proper treatment of the sewage; that to so combine those systems would require a new and larger main sewer costing approximately $2,000,000 and the erection of a larger plant at a cost of approximately $1,000,000, which is entirely unnecessary, as storm water does not require sewage treatment. It is also averred in the answer that the daily flow in the sanitary sewers is sufficient to prevent the stranding of solids therein, and any connection of the storm-water system therewith is wholly unnecessary.

Other averments are made going to the point that the appellant sanitary district has no authority or jurisdiction over the storm-water drainage system, and it is averred that, if the court were to hold that under the Sanitary District Act it had power to maintain a storm-water drainage system, the act offends against section 13 of article 4 of the Constitution, which prohibits the inclusion in an act of the General Assembly of a subject not expressed in the title. The motion to strike this answer was based on the ground that it raised the same legal defense as raised by the demurrer.

It is argued here that the court erred in issuing the writ of mandamus; that...