City of Chicago v. Town Of Cicero

• Decision Date: 17 February 1904
• Citation: 210 Ill. 290,71 N.E. 356
• Parties: CITY OF CHICAGO v. TOWN OF CICERO.
• Court: Illinois Supreme Court

210 Ill. 290

71 N.E. 356

CITY OF CHICAGO

v.TOWN OF CICERO.

Supreme Court of Illinois.

Feb. 17, 1904.

Appeal from Circuit Court, Cook County; Frank Baker, Judge.

Petition for mandamus by the town of Cicero against the city of Chicago. From a judgment awarding the writ, defendant appeals. Affirmed.

Cartwright and Hand, JJ., dissenting.William D. Barge (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellant.

Ross C. Hall, Town Atty., and William H. Holly, for appellee.

Appellee, the town of Cicero, filed a petition in the circuit court of Cook county praying for a writ of mandamus, directed to the city of Chicago and to the authorities of that city, to compel them to furnish water at the boundary line between the said town and city from the waterworks of Chicago in sufficient quantities to supplyconsumers within said town at no greater price than is charged for like large quantities, through meters, to consumers in Chicago.

The petition sets out section 26 of the act entitled ‘An act to create sanitary districts, and to remove obstructions in the Des Plaines and Illinois rivers,’ which was approved May 29, 1889, and in force July 1, 1889, and then alleges that the city of Chicago is in a sanitary district formed under the provisions of said act, owns a system of waterworks, and supplies water from a lake, which is saved from sewage pollution by the ditch which has been constructed in said district; that petitioner is an incorporated town within said district, and borders on the city of Chicago; that it has not now, nor did it have at the time said district was created, any system of waterworks; that petitioner has applied to the corporate authorities of said city to furnish water at the boundary line between said town and city, as provided by said section 26, but that the city refused to comply with such request. The petition further alleges that since the formation of such district the town of Cicero has paid into the treasury of said sanitary district, in the form of taxes collected from citizens of the town, more than a million dollars. The answer of respondent admits all the allegations of the petition, except it denies that petitioner has paid into the treasury of said district any money in the form of taxes, and denies that the city of Chicago is within the sanitary district, and alleges that a very large portion of the city lies outside the boundary of the district. It avers that its waterworks is owned by it in its private capacity; that its waterworks system was built many years ago, and paid for by taxes levied on property situated within its limits, and is operated with money received from citizens of Chicago who are supplied with water; and avers that the refusal of the city to comply with the request of said town has not deprived the latter of any of its rights. To this answer petitioner replied that the object in creating said district was to turn the sewage from the district away from Lake Michigan, so that the entire district could have pure water from the lake; that prior to building the canal it was impossible for the city of Chicago to obtain pure water; that the Legislature has recently passed an act for the annexation of further territory to said sanitary district of Chicago; and that the town of Cicero will be further taxed for drainage purposes in said district.

A jury was waived by the parties, and the cause was heard before the court upon a stipulation of facts, which, in substance, is as follows: It is agreed that at the time said sanitary district was created a large portion of the city of Chicago lay outside of that district, but, if the act of 1903 in reference to this district is valid, then the whole of the city is within the limits of the district; that the city is not yet able to furnish water to all of its inhabitants south of Eighty-Seventh street, the original south line of the sanitary district; that the town of Cicero adjoins the city on the west; that prior to the formation of said sanitary district the city limits were extended further south than the south line of the sanitary district when it was organized; that the quality of water supplied by the waterworks of the city has been improved about 15 per cent. by turning the sewage from the lake into the drainage canal; that there is a water main from said waterworks running to the northeast corner of the town of Cicero, and that the pressure in such main ranges from 18 to 25 pounds to the square inch; that the town of Cicero has paid its proportion of taxes into said district, and that the ordinance of the city of Chicago fixing water rates provides that the charges for water per month shall be 10 cents per 1,000 gallons for the first 165,000 gallons; above 165,000 and up to 5,000,000 gallons, 8 cents per 1,000; above 5,000,000 and up to 10,000,000 gallons, 6 cents per 1,000; and for all in excess of 10,000,000 gallons, 4 cents per 1,000.

Defendant offered four propositions of law to be held, all of which the court refused, and rendered judgment awarding the writ of mandamus in conformity with the prayer of the petition. From that judgment the city of Chicago appeals to this court.

SCOTT, J. (after stating the facts).

Appellant questions the constitutionality of section 26 of the act to create sanitary districts, which is found at page 347 of Hurd's Revised Statutes of 1901, and section 1 of an act approved May 14, 1903, found at page 113 of the Session Laws of 1903. The sanitary district organized under the first-mentioned act included within its limits the more populous and the greater part of the city of Chicago, but did not include the whole thereof. Section 1, supra, enlarges the corporate limits of the sanitary district, and adds thereto those portions of the city of Chicago which were not included in the district as originally organized. This is said to be a violation of section 31 of article 4 of the Constitution of 1870, which reads as follows: ‘The General Assembly may pass laws permitting the owners of lands to construct drains, ditches and levees for agricultural, sanitary or mining purposes, across the lands of others, and provide for the organization of drainage districts and vest the corporate authorities thereof, with power to construct and maintain levees, drains and ditches, and to keep in repair all drains, ditches and levees heretofore constructed under the laws of this state, by special assessments upon the property benefited thereby.’

We are unable to give our assent to this proposition. The question is, had the Legislature the power to change the boundaries of this sanitary district? In our judgment, the section of the Constitution above set out has no bearing on the question. Prior to the adoption of the present Constitution the Legislature had the power to alter the boundaries of municipal corporations at will. The change of county boundaries in the earlier history of the state furnished an example of the frequent exercise of this power. People v. Wren, 4 Scam. 269; Bush v. Shipman, Id. 186; People v. Power, 25 Ill. 187;Coles v. Madison County, Breese, 154, 12 Am. Dec. 161. This court has had occasion to consider the operation of the Constitution of 1870 upon this power: ‘A municipal corporation is purely of legislative creation, for local government, in places where it is presumed the public welfare will be subserved thereby. Our Constitution contains no restriction as to the organization of cities, towns, and villages, or the changing and amending or repeal of their charters, and consequently no restriction in respect to uniting or dividing cities, towns, and villages, or annulling their charters, save only that it cannot be by local or special law, but must be by a general law; and it is familiar law that, in the absence of constitutional restriction, the Legislature may provide for the organizing, uniting, dividing, or annulling such corporations in such manner as it shall deem best to promote the public welfare. Morgan v. Beloit, 7 Wall. 613 ; Thornton v. Abbott, 61 Mo. 176; Colchester v. Seaber, 3 Burr. 1866; Mt. Pleasant v. Beckwith, 100 U. S. 514 .’ True v. Davis, 133 Ill. 522, 22 N. E. 410,6 L. R. A. 266. ‘The only prohibition against the formation of municipal corporations by local or special legislation is in section 22, art. 4, of the Constitution. ‘Sanitary districts,’ or ‘drainage districts for sanitary purposes,’ are not enumerated in that section. The municipal corporations expressly mentioned are only ‘cities, towns and villages,’ and the rule hereinbefore alluded to, that the expression of one is the exclusion of another, is applicable. Smith's Com. on Stat. & Const. Law, § 508; Prettyman v. Suprevisors of Tazewell County, 19 Ill. 406 . We held in Owners of Lands v. People, 113 Ill. 296, that a drainage district was not within the prohibition of this section, and, on principle, that must be conclusive here.' Wilson v. Board of Trustees, 133 Ill. 443, 27 N. E. 203. ‘All municipal corporations are subject to legislative control, and may be changed, modified, enlarged, restrained, or abolished to suit the exigencies of the case. Coles v. Madison County, Breese, 154 ;Bush v. Shipman, 4 Scam. 186; People ex rel. v. Wren, Id. 269; Holliday v. People, 5 Gilman, 214;People v. Brown, 83 Ill. 95. The only restriction on the power of the Legislature is that under the present Constitution no local or special law shall be passed, incorporating cities, towns, or villages or changing or amending their charters.’ People v. Binns, 192 Ill. 68, 61 N. E. 376. ‘Such corporations are subject to the legislative control, and may be changed, modified, enlarged, or destroyed by general law, to meet the legislative judgment of the public welfare. People v. Power, 25 Ill. 187;True v. Davis, 133 Ill. 522 [22 N. E. 410,6 L. R. A. 266];Town of Somonauk v. People, 178 Ill. 631 . It was within the legislative power and discretion at the time to enact such a charter as that...