Pear v. City of East St. Louis

• Decision Date: 22 June 1916
• Docket Number: No. 10677.,10677.
• Citation: 113 N.E. 60,273 Ill. 501
• Parties: PEAR v. CITY OF EAST ST. LOUIS et al.
• Court: Illinois Supreme Court

273 Ill. 501

113 N.E. 60

PEAR

v.CITY OF EAST ST. LOUIS et al.

No. 10677.

Supreme Court of Illinois.

June 22, 1916.

Error to City Court of East St. Louis; R. H. Flannigen, Judge.

Bill by John R. Pear against the City of East St. Louis and others. Decree dismissing the bill, and complainant sues out a writ of error. Decree affirmed.Silas Cook, of East St. Louis, and William K. Koerner, of St. Louis, Mo., for plaintiff in error.

Barthel, Farmer & Klingel, of Belleville, for defendants in error.

FARMER, J.

The bill in this case was filed by plaintiff in error (hereafter referred to as complainant) to have a certain ordinance of the City of East St. Louis, known as Ordinance No. 1972, declared void on the ground that it had never been legally passed by the city council, and to enjoin the appropriating or paying of any money, by city warrant or otherwise, under the provisions of said ordinance, to defendant in error the City Water Company of East St. Louis and Granite City, its successors or assigns. The ordinance alleged to be void, consisting of six sections, is set out in the bill, and authorizes the City Water Company of East St. Louis and Granite City to maintain and operate its waterworks system as now constructed in the city of East St. Louis or as may hereafter be enlarged or extended; to lay and remove, repair and maintain, water pipes, mains, fire hydrants, fixtures, and appurtenances in the present and future streets, alleys, and public places in the city of East St. Louis, and to supply water in said city for domestic, public, manufacturing, and other purposes. The license was for a period of 30 years, and fixed the charges authorized to be made by the water company for its service in furnishing water, and other details not necessary to be set out in this opinion. The ordinance provided for its acceptance in writing by the water company being filed with the city clerk and the payment by said company to the city of the sum of $75,000 within 20 days from the passage and approval of the ordinance. The ordinance purports to have been passed July 6, 1914, and within 20 days it was accepted in writing by the water company, and the payment of $75,000 made by it to the city.

The bill in this case was filed in the city court of East St. Louis February 6, 1915. It was filed by complainant as an owner of real and personal property in the city of East St. Louis nad as a taxpayer upon said property in said city. The city of East St. Louis, the mayor, other city officers and the aldermen of said city, and the City Water Company of East St. Louis and Granite City were made defendants to the bill. It was not alleged that the ordinance was oppressive or unreasonable or that the city was without power to pass it, but that it was not legally passed. The allegations of the bill upon this question in substance are that on January 5, 1914, the ordinance was presented to the city council and referred to the water committee. It was not again brought before the council until July 6, 1914, at a regular meeting of the council, when the water committed reported recommending its passage at that meeting, and it was adopted by a vote of 12 for and 3 against. The bill alleges that when the report of the water committee was read Aldermen Gavin ahd Haggerty requestedthat any further action upon the report be deferred until the next regular meeting of the council. Their request for postponement was not granted, and the ordinance was put upon its passage and passed, as before stated. The minutes of the clerk of the meeting of July 6, 1914, were read at the council meeting held July 13th and approved. They did not show the objection of the two aldermen to further action upon the report of the water committee at the meeting held July 6, 1914. On the 20th of July the city clerk addressed a communication to the mayor and council, stating the minutes of July 6th were incorrect in omitting to state that Aldermen Gavin and Haggerty requested the postponement of final action on the report of the water committee until the next regular meeting of the council. The communication stated said aldermen did object to final action at the July 6th meeting, and requested that such action be deferred until the next regular meeting. The consent of the council was asked for the correction of the minutes. No correction was made, however, until December 7th, when a resolution was adopted directing the correction of the minutes to show the request of two aldermen at the meeting held July 6th that no action be taken upon the report of the water committee and the ordinance until the next regular meeting.

It is the theory of the bill that the ordinance was never legally passed and is void. This contention is based upon section 15 of article 3, c. 24, Hurd's Statutes of 1913, which reads as follows:

‘Any report of a committee of the council shall be deferred, for final action thereon, to the next regular meeting of the same after the report is made, upon the request of any two aldermen present.’

The City Water Company of East St. Louis and Granite City was the only defendant answering the bill. The answer set out the passage of the ordinance and averred that it was legally passed. The answer further averred that the water company filed its acceptance of the ordinance on July 10, 1914, that it paid to the city of East St. Louis $75,000, which was retained by the city, and which has been expended and disbursed for various municipal purposes, and that it has since been, and now is, operating its plant in...