People ex rel. Chiperfield v. Sanitary Dist. of Chicago

• Decision Date: 19 February 1900
• Citation: People ex rel. Chiperfield v. Sanitary Dist. of Chicago, 184 Ill. 597, 56 N.E. 953 (Ill. 1900)
• Parties: PEOPLE ex rel. CHIPERFIELD, State's Atty., v. SANITARY DIST. OF CHICAGO. CANAL COM'RS v. SAME.
• Court: Illinois Supreme Court

184 Ill. 597

56 N.E. 953

PEOPLE ex rel. CHIPERFIELD, State's Atty.,

v.SANITARY DIST. OF CHICAGO.

CANAL COM'RS

v.SAME.

Supreme Court of Illinois.

Feb. 19, 1900.

Appeals from circuit court, Fulton county; G. W. Thompson, Judge.

Bill by the people, on the relation of B. M. Chiperfield, state's attorney, against the sanitary district of Chicago, and by the canal commissioners against the sanitary district of Chicago.From a decree sustaining a demurrer to the bills, complainants appeal.Reversed.B. M. Chiperfield, State's Atty., Frederick M. Grant, C. E. Chiperfield, and Howard M. Snapp, for appellants.

Chas. C. Gilbert, Haley & O'Donnell, and John C. Black, for appellees.

PHILLIPS, J.

By agreement of the parties the two cases above entitled were consolidated for hearing before this court, and, with the exception of the names and description of the parties, they are the same.The first bill is brought by the people of the state of Illinois, by the state's attorney in and for the county of Fulton, in said state, and the other bill is brought by the canal commissioners.In both casesthe defendants are the sanitary district of Chicago, a corporation existing under the laws of the state of Illinois, and Alexander J. Jones, Zina R. Carter, and Joseph C. Braden, each of whom is a trustee of the sanitary district.The real complainants in both bills are Clarence Snively, Howard O. Hilton, and Homer J. Tice, described as the canal commissioners of the state of Illinois, and as such alleged to have charge, as proper officers and agents, of the Illinois & Michigan Canal, the dams at Henry and Copperas creek, and the river improvements 1,000 feet each way therefrom.The Illinois & Michigan Canal, it is alleged in the bill, is owned, controlled, and possessed by the state of Illinois, and extends from the city of Chicago to the city of Peru, where it is connected with a system of water improvements in the Illinois river, consisting of the above-mentioned dams; that the canal and locks and dams were constructed by the canal commissioners from appropriations made by the state, as well as proceeds of revenues of the canal; that the commissioners erected the lock and dam at Henry at a cost of $408,437.50, and the dam at Copperas creek was constructed to the height of 6 feet and 7 inches at a cost of $358,832.12; that the latter of these dams was constructed and in use in 1877; that the purpose and objects of the erection of these dams and locks were to make the Illinois river a navigable stream for boats and other crafts from Copperas creek to Peru, and to aid and facilitate the navigability of the Illinois river between those points, and thereby aid the canal, for the purpose of trade and commerce; that prior to the erection of such dams the Illinois river had been of insufficient depth for navigation, except in times of floods, but by reason of the construction of the dams a uniform depth at low-water mark had been produced between Copperas creek and Peru which rendered the said river navigable for that distance, and greatly augmented and increased the receipts of the canal; that during the last year there passed through the locks at Copperas creek 523 crafts, of which 301 were steamboats, and the balance barges in tow, loaded with various articles of merchandise; that the crafts so passing were of various sizes and tonnage, ranging from four to six hundred tons displacement.The bill charges the organization of the sanitary district of Chicago under an act of May 29, 1889, in force July 1, 1889, and then charges that the sanitary district, by its trustees, and by Alexander J. Jones, Zina R. Carter, and Joseph C. Braden, have for several weeks been confederating and conspiring together for the purpose of removing the dams at Henry and Copperas creek forcibly and violently, and charges that such acts are illegal and without authority.The bill sets up certain proceedings of the board of trustees of the sanitary district, had on the 18th of October, 1899, by which they appointed a special committee to remove said dams; that afterwards, on the 10th day of November, the three trustees named met for the purpose of formulating ways for the removal thereof, and adopted a plan for their removal with the use of dynamite and other explosives to blow the same from the river, and wholly remove and destroy the same; and that that committee is daily threatening to do so.The bill then states: ‘The complainants aforesaid show unto your honors that the removal of the dams aforesaid is wholly unnecessary, reckless, and wanton, and is not requisite to the proper use and requirements of the channel constructed by the defendant the sanitary district of Chicago to enable the Illinois river at all times to safely, properly, rapidly, and effectively carry away all the water, sewage, and other refuse matter obtained from the said drainage channel at all times and under all conditions, and that the said dams, as at present erected and existing, will not constitute or be an obstruction in any way to the capacity of the Illinois river to carry away all refuse matter obtained from the drainage channel as aforesaid, but that, upon the contrary, by reason of the added volume of water so received from the said drainage channel should it be turned into the Illinois river, as is claimed by the defendants hereto, the navigation of the Illinois river from Copperas creek to Peru would be benefited and increased, by adding about twelve inches of water to the said river at its low and ordinary stage, and still the said river and the waters thereof would at all times be of ample capacity to safely meet the requirements and properly and effectively receive the discharge of the drainage channel, and bear the same away, without the removal of the said dams, or any change, alteration, or modification of them.’The bill then alleges that the destruction of the dams would be of no benefit to the defendants in the conduct and use of the sanitary district, and their removal would lessen the carrying trade of the canal, and prejudice the rights and interests of the people of the state of Illinois in the navigation of the Illinois river.The bill prays that the defendants be enjoined from in any way interfering, breaking, injuring, or destroying the dam at Copperas creek and the dam at Henry, or any part or portion of either, or from wrecking or injuring any part or portion of the locks at said dams.These bills were presented to the circuit court of Fulton county on the 13th day of November, 1899, and a temporary injunction was issued.Afterwards, on November 18th, the sanitary district of Chicago interposed a general demurrer, and moved to dissolve the injunctions and dismiss the bills.Upon hearing in the Fulton county circuit court on the 28th day of November, 1899, the demurrer was sustained, whereupon the complainants asked leave to amend their bill, which was granted.Upon the filing of the amendmentsthe defendants again demurred to the bills as amended, and moved the dissolution of the temporary injunction, and asked that the bills be dismissed; and upon the 14th day of December the court sustained the demurrer, dissolved the injunctions, and dismissed the bills, from which the complainants prosecuted this appeal.

It was insisted on behalf of the sanitary district that by virtue of section 23 of the act of 1889, providing for the organization of such district, it was...