Mills v. Village of Milan

• Decision Date: 08 March 1966
• Docket Number: Gen. No. 65-60
• Citation: 214 N.E.2d 915,68 Ill.App.2d 63
• Parties: Thomas J. MILLS, W. K. Rollf, Logan Mills, Tommy Philliber and Jack Blair, Plaintiffs-Appellants, v. VILLAGE OF MILAN, a Municipal Corporation, and National Disposal Service of Illinois, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 915

214 N.E.2d 915

68 Ill.App.2d 63

Thomas J. MILLS, W. K. Rollf, Logan Mills, Tommy Philliber and Jack Blair, Plaintiffs-Appellants, v. VILLAGE OF MILAN, a Municipal Corporation, and National Disposal Service of Illinois, Inc., Defendants-Appellees.

Gen. No. 65-60.

Appellate Court of Illinois, Third District.

March 8, 1966.

Stewart R. Winstein, Rock Island, for appellants.

Stuart R. Lefstein, Robert J. Noe, Rock Island, for appellees.

ALLOY, Justice.

This cause is before us on an appeal from an order of the Trial Court granting the motions to dismiss made by the Village of Milan and National Disposal Service of Illinois, Inc., defendants, pursuant to Sections 48 and 45 of the Civil Practice Act (1963 Illinois Revised Statutes, Chapter 110, Sections 48 and 45). The Trial Court certified that no reason exists for delay in appealing this cause. We are solely concerned with the pleadings involved since the action was disposed of on the pleadings alone.

Plaintiffs Thomas J. Mills, W. K. Rollf, Logan Mills, Tommy Philliber and Jack Blair filed a complaint for injunction and other relief alleging that the dumping of garbage and other refuse would be a statutory nuisance within the provisions of Chapter 100 1/2, Section 27 of Illinois Revised Statutes and also a common law nuisance and prayed that defendants be enjoined and restrained from dumping garbage or other offensive matter within the corporate limits of the defendant Village of Milan. It was further requested that the Court declare the dumping to constitute a nuisance and to abate it. In conjunction with the motions to dismiss which were filed by the Village of Milan and the National Disposal Service of Illinois, there was filed the affidavit of the attorney for the Village of Milan to the effect that a contract for joint disposal of garbage, refuse and ashes had been entered into on May 18, 1965, and a copy of said contract is attached to the motions. There was also attached to the motions, copies of the ordinances of the City of Moline, Illinois, and the Village of Milan.

On appeal in this Court, plaintiffs contend that the Trial Court erred in granting the motions to dismiss and in dismissing the complaint, on the basis that the documents attached to and supporting the motions do not show an agreement for disposal of garbage, refuse or ashes or other offensive substance between the Village of Milan and the City of Moline within the provisions of Chapter 100 1/2, Section 27, or Chapter 24, Sec. 11-19-1 (1963 Illinois Revised Statutes) and following, and that the complaint sets forth facts sufficient to allege a nuisance. Under the terms of Section 27 (Chapter 100 1/2, 1963 Illinois Revised Statutes) referred to, which prohibits any person from dumping garbage within the limits of a village such as Milan, the Section expressly provides for two exceptions: (a) a municipality within the corporate limits in which the garbage or other offensive substance shall have originated may dump the garbage within the municipal limits, and (b) the municipality which has contracted with another municipality within which the garbage has originated for the joint collection and disposal of garbage may dispose of the garbage within the village. It is further noted that under 1963 Illinois Revised Statutes, Chapter 24, Sec. 11-19-1, relating to corporate powers and functions of municipalities, it is provided that any city may make contracts with any other city relating either to the collection or final disposition of garbage, refuse and ashes. Under Section 11-19-6 of the same chapter, it is provided that any municipality may exercise the powers, individually or jointly, and cooperatively with any municipality, if not in conflict with Sections 11-19-7 through 11-19-10. Under Section 11-19-7(f), it is further provided that a contract between municipalities may contain such provisions as shall be deemed necessary to effectuate a workable system of collection and disposal or 'solely of collection' or 'solely of disposal' of garbage, refuse and ashes.

It is apparent from a reading of the Sections referred to that they authorize joint action for collection or for disposal or for both as to garbage. Obviously, the Village of Milan can clearly and lawfully dump the garbage collected within its corporate limits. The contract entered into between Milan and Moline is also one which is clearly within the provisions of the statute (1963 Illinois Revised Statutes, Chapter 100 1/2, Section 27). Such statute provides expressly that garbage and other refuse as to which a municipality has contracted with another municipality 'within which garbage has originated, for the joint collection and disposal of garbage' is excepted from the provisions of the act. Plaintiffs on appeal in this Court contend that the contract between Milan and Moline, (since separate contracts in each case with the municipality under consideration do provide for collection of the Milan garbage, etc. and dumping in the land-fill location and collection of the Moline garbage, etc. and dumping in the Milan land-fill location), does not fall within the second statutory exception referred to because the contracts do not call for joint collection and disposal of garbage by the two municipalities.

Prior to 1957, Section 27 of Chapter 100 1/2 herein referred to, did not contain the exceptions referred to and there was no provision in the Cities and Villages Act expressly empowering...