City of Waukegan v. Environmental Protection Agency, Pollution Control Bd.

• Citation: 11 Ill.App.3d 189,296 N.E.2d 102
• Decision Date: 02 May 1973
• Docket Number: No. 72--4,72--4
• Parties: , 5 ERC 1391, 3 Envtl. L. Rep. 20,788 CITY OF WAUKEGAN, a municipal corporation of Illinois, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, POLLUTION CONTROL BOARD, and Eugene H. Winkler, Respondents.
• Court: United States Appellate Court of Illinois

Page 102

296 N.E.2d 102

11 Ill.App.3d 189, 5 ERC 1391, 3

Envtl. L. Rep. 20,788

CITY OF WAUKEGAN, a municipal corporation of Illinois, et

al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, POLLUTION CONTROL BOARD, and Eugene H. Winkler, Respondents.

No. 72--4.

Appellate Court of Illinois, Second District.

May 2, 1973.

Conzelman, Schultz, O'Meara & Snarski, Murray R. Conzelman, Hall, Meyer, Fisher, Holmberg, Snook & May, John R. Sloan, Waukegan, for respondents.

Wm. J. Scott, Atty. Gen., Lee A. Campbell, Asst. Atty. Gen., Chicago, for petitioners.

GUILD, Presiding Justice.

This is an appeal from the action and order of the Illinois Pollution Control Board in assessing a fine of $1,000 against the City of Waukegan, and an additional fine of $250 each against T-K Disposal Inc., an Illinois Corporation, and Tewes Co., Inc., an Illinois Corporation.

In June of 1971 the City of Waukegan conducted its annual spring clean-up in conjunction with the aforementioned disposal or scavenger firms. The city alleged it had applied for a permit by letter to the Environmental Protection Agency but that no answer was received. In June, for a period of seven days, refuse, not including garbage, was deposited on the site provided by the city. It was then covered over with dirt. The Environmental Protection Agency then brought this action before the Illinois Pollution Control Board charging the city with operating a refuse disposal site without obtaining a permit, open dumping, creating a water hazard, failing to provide daily cover, and other offenses incidental thereto.

The sole question presented in this appeal, and raised by petitioners in the hearing before the Board, is whether or not an administrative agency has the authority constitutionally to levy fines under the authority of the Illinois Environmental Protection Act, Ill.Rev.Stat. (1971), Ch. 111 1/2, Secs. 1033(b), 1042, and 1044.

At the outset, this court is familiar with the case recently decided by the Third District Appellate Court entitled Ford V. Environmental Protection Agency, and the Pollution Control Board of the State of Illinois (1973), 9 Ill.App.3d 711, 292 N.E.2d 540. We do not agree with that opinion.

We are fully cognizant of the fact that if a case may be decided without determination of the constitutionality of the act involved, that it should be determined on a basis other than the constitutional question. The presumption is, of course, that the legislation is constitutional. (Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 110 N.E.2d 234.) But as the court stated in Wabash R. Co. v. Order of Railway Conductors (1949), 402 Ill. 548, 84 N.E.2d 406 at 408, in discussing the review of orders of the Commerce Commission:

'* * * The purpose of a judicial review of an order of the commission is to keep it within its jurisdiction, so as to not violate any rights guaranteed by the constitution.' 402 Ill. at 551, 84 N.E.2d at 408.

Administrative agencies are creatures of the legislature of rather recent vintage. The emergence of administrative agencies, as a necessary adjunct to the judicial branch of our government in our increasingly complex society, has not been without problems as to the limitation of the authority granted to them. As early as 1867, we find one of the first cases in this regard entitled Willis v. Legris, 45 Ill. 289. In that case the City of Kankakee had enacted an ordinance providing for a penalty to be imposed to prevent horses, mules, goats, sheep or swine, from running at large in the city. Animals found at large were impounded and offered for sale. The owner offered to redeem them on the sale day, but the city marshall refused to deliver the animals unless the owner also paid the penalty provided by ordinance. The owner refused and sued in replevin. The Supreme Court, in holding that such an ordinance was unconstitutional, stated at page 292:

'* * * Every citizen has a right to a judicial investigation when charged with an offense.'

In People ex rel. Martin v. Mallary (1902), 195 Ill. 582, 63 N.E. 508, the Board of Managers of the State Reformatory transferred prisoners to the penitentiary under the Reformatory Act. The constitutionality of this Act was directly challenged and as the court stated, the question was whether or not an executive or administrative board had the authority under the legislation in question to transfer said prisoners. The court held that the attempt by the Board of Managers to designate the place of confinement was an usurpation of the judicial power of the court.

In Cleveland, C.C. & St. L.R. Co. v. People ex rel. Barter (1904),212 Ill. 638, 72 N.E. 725, the Supreme Court held that a statute authorizing the tax assessor and county clerk to collect a specific amount as a tax against landowners for failure to clean impediments from streams was nothing more or less than a penalty or fine which could be inflicted only by the judicial power after trial according to law. The court said at page 641, 72 N.E. at page 727:

'* * * To hold otherwise would be to permit the assessor to levy a penalty and deprive the offender of his property without due process of law . . . It is no answer to say that the property owner can object to the tax in the county court, and there have these questions judicially determined, for the reason that if the assessor has the power to impose the penalty, and the county clerk has the power to extend the taxes, there is nothing left for the county court but to overrule the objection, as the question of violation has been previously determined by these officers.'

Since the advent of administrative agencies, we find a lessening of the strict separation of powers of the three branches of our government. Certain 'quasi judicial' functions have been delegated to administrative agencies. The problem encountered is the line of demarcation between those functions granted administrative agencies that are in fact 'quasi judicial' and those functions that are judicial. We do not believe that actual judicial authority can be granted to administrative agencies under the guise of being 'quasi judicial' or 'ministerial.'

We turn then to cases of comparatively recent date. In Harrison v. Civil Service Commission of the City of Chicago et al. (1953), 1 Ill.2d 137, 146, 147, 115 N.E.2d 521, 526 the court stated:

'It is readily apparent that section 11 par. 274 of the Administrative Review Act does not contemplate any such broad powers of review, for it is specifically provided in this provision that the findings and conclusions of the administrative agency on questions of fact shall be held to be Prima facie true and correct. The court is not authorized to weigh the evidence, nor to make its own independent determination of the facts, as under the statute involved in the Schoeberlein case. On the contrary, the type of judicial review authorized under the Administrative Review Act, whereby the court must regard the findings of the agency as Prima facie correct and is permitted to set them aside only if they are contrary to the manifest weight of the evidence, has traditionally been regarded as a judicial function, comparable to the issue at law as to whether there is competent evidence to support a judgment of a lower court. (Citation)'

Considering the limitations of the judiciary, the rationale of West End Savings & Loan Association v. Smith, Auditor of Public Accounts et al. (1959), 16 Ill.2d 523, 525, 526, 158 N.E.2d 608, is that the courts have the power and the duty to determine if administrative findings and orders have support in the evidence, but conversely the courts cannot be invested with power to determine and decide matters of an executive or legislative character. At page 525, 158 N.E.2d at page 609 the court stated:

'It is a familiar principle of constitutional law that none of the three departments of our government may exercise powers properly belonging to either of the other two. Pursuant to this commandment we have repeatedly held that where authority has been conferred upon administrative agencies to perform functions of an executive nature, provisions for trial de novo in courts of law violate the separation-of-powers principle. (Citations)'

In 1938 the Supreme Court, in Department of Finance v. Cohen, 369 Ill. 510, 17 N.E.2d 327, considered the imposition of a penalty by a ministerial body. The legislature had provided that the Department of Finance could compute a deficiency assessment under the Retailer's Occupational Tax Act. The court, in holding that the computation by the Department of the deficiency was not an exercise of judicial power within the meaning of the Constitution, stated in substance, that the agent, in figuring the deficiency, was performing a ministerial act which required merely a mathematical calculation or computation from data upon which all minds must ordinarily reach the same result. As the court stated:

'The statute sets forth with great detail the matters which must go into the monthly return, and lays down a guide which, when followed, leaves nothing open for arbitrary discretion.' 369 Ill. 516, 17 N.E.2d 329.

It is thus obvious that no judicial discretionary determination of a fine or penalty was considered in that case. The ruling in Cohen was cited with approval by the Supreme Court in Department of Finance v. Gandolfi et al. (1940), 375 Ill. 237, 30 N.E.2d 737. In Gandolfi, the Department of Finance computed the amount due under the retailer's occupation tax against the defendant to be $1035 as the tax, and $258.75 as penalties. In Gandolfi, after stating the substance of the ruling in Cohen, the Supreme Court held that no constitutional judicial power was delegated to the Department of Finance, but that the collection of the statutory tax and statutory penalty requiring merely mathematical calculation was incidental to the duty of administering the law and did not constitute the exercise of judicial power.

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