People ex rel. Buffalo Utility Co. v. Village of Buffalo Grove

• Decision Date: 20 July 1967
• Docket Number: Gen. No. 51984
• Citation: 85 Ill.App.2d 382,229 N.E.2d 401
• Parties: The PEOPLE of the State of Illinois ex rel. BUFFALO UTILITY COMPANY, an Illinois corporation, Plaintiff-Appellant, v. VILLAGE OF BUFFALO GROVE, a Municipal corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 401

229 N.E.2d 401

85 Ill.App.2d 382

The PEOPLE of the State of Illinois ex rel. BUFFALO UTILITY

COMPANY, an Illinois corporation, Plaintiff-Appellant, v. VILLAGE OF BUFFALO GROVE, a Municipal corporation, Defendant-Appellee.

Gen. No. 51984.

Appellate Court of Illinois, First District, Fourth Division.

July 20, 1967.

Arvey, Hodes & Mantynband, Chicago, Louis M. Mantynband, Richard J. Troy, Chicago, of counsel, for plaintiff-appellant.

Richard G. Raysa, Chicago, Arthur C. Gehr, Robert E. Cronin, C. Richard Johnson of Isham, Lincoln & Beale, Chicago, for defendant-appellee.

ENGLISH, Presiding Justice.

Relator sought to bring a quo warranto proceeding, and appeals from the dismissal of its amended complaint for failure to show a sufficient interest to maintain the action. ¹

In 1957, relator was certified by the Illinois Commerce Commission to construct, operate and maintain public sewerage and water works in the Village of Buffalo Grove. In 1964, the village annexed certain property contiguous to its boundary (referred to as Glen Grove) which approximately doubled its area. Subsequent to the annexation of Glen Grove, the village passed an ordinance authorizing the acquisition and construction of a municipally owned combined waterworks and sewerage system for the Glen Grove area and authorizing the issuance and sale of waterworks and sewerage revenue bonds to pay for construction of the system. As housing projects began to be developed in Glen Grove, the village sold some of the bonds and began construction.

Relator then requested the Illinois Attorney General and the State's Attorneys of Cook and Lake Counties to institute a quo warranto proceeding challenging the authority of the village to construct the system and to issue the bonds. The requests were refused and plaintiff thereafter was granted leave of court to file its own complaint (subsequently amended) in which it alleged that the village ordinance was void. ² Relator had been providing water and sewer services only in that part of the village which lies outside of the new Glen Grove area, but in its complaint it alleged that this gave it a sufficient interest to bring the action because (1) it had installed oversized pipes in anticipation of serving any territory which might be annexed to the village, and the action of the defendant would render valueless such oversized facilities; and (2) there is a possibility that the proposed system will interfere with plaintiff's water and sewer system. Defendant moved to dismiss on the ground of the insufficiency of relator's interest. The motion was allowed, and this appeal followed, presenting that sole and narrow issue.

The general principle applicable to the interpretation of the right to bring an action under the quo warranto statute is set forth in People ex rel. J. H. Anderson Monument Co. v. Rosehill Cemetery Co., 3 Ill.2d 592, 595, 122 N.E.2d 283, 285, where the court stated:

We have had numerous occasions to construe the Quo Warranto Act of 1937 with respect to the right of private citizens to maintain actions thereunder. Our holdings have consistently been that the interest of an individual must be one that is personal to him and not common to the public. It must be of such a nature that the usurpation of a public grant, franchise or office has trespassed upon or injured his private * * * rights as differentiated from the injury to the general public. (Citing cases.)

Further, the particular interest alleged must be specifically pleaded. People ex rel. Koontz v. Emmerson, 313 Ill. 209, 214, 145 N.E. 106.

In support of its position, relator relies upon the Rosehill case, just cited, and upon People ex rel. Chas. G. Blake v. Oak Wood Cemetery Assn., 17 Ill.2d 64, 160 N.E.2d 759. In each of those cases, the defendant cemetery associations sold grave markers in direct competition with the respective relators, who were located across the street from the cemeteries. The Supreme Court held in each case that the relator had an interest by which it could contest the association's authority to compete in the monument business. However, the court emphasized that the defendants' activities had produced a currently recognizable effect upon the relators' present business. By their competition they had, in each case, made substantial inroads into the relators' already existing market. Those cases are, therefore, distinguishable from the instant case. In the case at bar, there is no claim that the defendant's action can ever affect the relator's market within its existing...