Metropolitan Sanitary Dist. of Greater Chicago v. City of Des Plaines

• Decision Date: 29 March 1976
• Docket Number: No. 47993,47993
• Citation: 63 Ill.2d 256,347 N.E.2d 716
• Parties: The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Appellant, v. The CITY OF DES PLAINES, Appellee.
• Court: Illinois Supreme Court

Page 716

347 N.E.2d 716

63 Ill.2d 256

The METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Appellant, v.The CITY OF DES PLAINES, Appellee.

No. 47993.

Supreme Court of Illinois.

March 29, 1976.

Rehearing Denied May 27, 1976.

Allen S. Lavin, Chicago (Vincent P. Flood, James B. Murray, and Charles W. Boyd, Chicago, of counsel), for appellant.

DiLeonardi & O'Brien Ltd., Des Plaines (Robert S. Minetz, Chicago, of counsel), for appellee.

UNDERWOOD, Justice:

In a consolidated law and chancery action in the circuit court of Cook County, the City of Des Plaines, a home rule municipality, sought to enjoin the Metropolitan Sanitary District of Greater Chicago from constructing a sewage treatment plant within the City unless the District obtained a city permit and complied with a city health ordinance.The District moved to dismiss that action.The circuit court denied the motion on November 3, 1975, and the District pursued an interlocutory appeal under Rule 308(58 Ill.2d R. 308).We allowed the District's motion to transfer the appeal to this court under Rule 302(b)(58 Ill.2d R. 302(b).)

This is the third time the controversy between these parties, dating back to 1966, hs been before this court.In that year, the District purchased a tract of land within the City on which it proposed to construct a regional sewage treatment plaint.In resolving an earlier dispute this court held in 1971 that the District's exercise of its power of eminent domain was not subject to the City's zoning ordinance.(48 Ill.2d 11, 268 N.E.2d 428.)Following the effective date of the 1970Constitution on July 1, 1971, the City filed another complaint against the District containing substantially the same allegations as the earlier complaint, but additionally alleging a changed relationship between the parties by virtue of the City's new status as a home rule municipality, with broader powers than it had previously possessed.(Ill.Const.1970, art. VII, sec. 6(a).)This court held in 1974, however, that the earlier decision was Res judicata, 59 Ill.2d 29, 319 N.E.2d 9.

In June, 1974, the City enacted the home rule health ordinance involved in this appeal.The ordinance required that permits be obtained from the City before any 'sewage works' could be constructed or operated within the City if the sewage works was capable of causing or contributing to the emission of airborne odors or bacteria in violation of standards set forth in the ordinance.The District had already secured a permit from the Illinois Environmental Protection Agency(EPA) for the construction, operation and maintenance of its sewage treatment plant.(Ill.Rev.Stat. 1973, ch. 111 1/2, pars. 1013(a)(ii)--(iv), 1039), and therefore refused to apply for a city permit, contending that compliance with State permit requirements was sufficient.On February 28, 1975, the District filed a complaint in the circuit court of Cook County seeking declaratory relief against the ordinance.The City's complaint was filed September 15, and the two cases were consolidated.In denying the District's motion to dismiss, the circuit court ruled that the District was obliged to comply with reasonable provisions of the health ordinance which were not inconsistent with conditions imposed by the EPA.

The District asserts that environmental regulation of sewage treatment plants is a matter of statewide concern and does not pertain to the government and affairs of a home rule unit within the meaning of section 6(a) of article VII; or, in the alternative, has been wholly preempted by the State under the Environmental Protection Act(Ill.Rev.Stat.1973, ch. 111 1/2, pars. 1012(c), 1012(f), 1013(a)(ii)--(iv), 1039).

We need consider only the question whether the environmental regulation of a regional sewage treatment plant, serving a large area embracing numerous home rule municipalities, pertains to the government and affairs of the City of Des Plaines within the meaning of section 6(a) of article VII.That section provides:

'(a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.

(m) Powers and functions of home rule units shall be construed liberally.'

In Ampersand, Inc. v. Finley(1975), 61 Ill.2d 537, 538 N.E.2d 15, this court examined in some detail the history and effect of this constitutional limitation.The opinion noted that the home rule grant was purposely left broad and imprecise, and that the ultimate construction of the qualifying phrase 'pertaining to its government and affairs' was a matter for the courts.In the words of the late Professor David C. Baum, counsel to the constitutional convention's Local Government Committee, 'the question is not whether the 'pertaining to . . .' language should limit the home rule grant, but rather how extensive the limitation should be.'(Baum, A Tentative Survey of Illinois Home Rule (Part i): Powers and Limitations, 1972 U.Ill.L.F. 137, 153.)In Ampersand, and the court invalidated a home rule county ordinance that directed the clerk of the circuit court of Cook County to collect a $2 initial filing fee in civil cases to support a county law library.We held that the administration of justice under the judicial article of the Illinois Constitution is a State concern and does not pertain to local government and affairs.In Cummings v. Daley(1974), 58 Ill.2d 1, 317 N.E.2d 22, andPaper Supply Co. v. City of Chicago(1974), 57 Ill.2d 553, 317 N.E.2d 3, this court similarly invalidated two home rule city ordinances that attempted to determine the method of judicial review of decisions of its administrative agencies.In Bridgman v. Korzen(1972), 54 Ill.2d 74, 295 N.E.2d 9, a home rule county ordinance provided for the payment of real estate taxes in four installments instead of two, as required by statute.The court invalidated the ordinance, noting that the county's tax ollecting function 'does not pertain to its government and affairs to any greater extent than to the government and affairs of the other taxing bodies for whose benefit its acts.'(54 Ill.2d 74, 78, 295 N.E.2d 9, 11.)In Mulligan v. Dunne(1975), 61 Ill.2d 544, 338 N.E.2d 6, we upheld a home rule county liquor tax ordinance against the challenge that it did not pertain to local...