Simpson v. City of Highwood

• Court: Illinois Supreme Court
• Writing for the Court: JONES
• Citation: Simpson v. City of Highwood, 372 Ill. 212, 23 N.E.2d 62 (Ill. 1939)
• Decision Date: 13 October 1939
• Docket Number: No. 25222.,25222.
• Parties: SIMPSON et al. v. CITY OF HIGHWOOD et al.

372 Ill. 212

23 N.E.2d 62

SIMPSON et al.

v.CITY OF HIGHWOOD et al.

No. 25222.

Supreme Court of Illinois.

Oct. 13, 1939.

Suit in equity by John M. Simpson and others against the City of Highwood and others to declare certain city ordinances, contracts and bonds null and void, enjoin expenditure of proceeds of sale of bonds and disposition of bonds by purchaser, and require return thereof to city and reconveyance of ground purchased thereby to grantors. From a decree of dismissal, plaintiffs appeal.

Affirmed.Appeal from Circuit Court, Lake County; Ralph J. Dady, Judge.

Paul C. Behanna, of Highland Park, for appellants.

Hall & Hulse, Raymond G. Zack, and Runyard & Behanna, all of Waukegan, Holland M. Cassidy and Essington & McKibbin, all of Chicago, and George S. McGaughey, of Waukegan (Albert L. Hall and William Behanna, both of Waukegan, and Hamilton K. Beebe, of Chicago, of counsel), for appellees.

JONES, Justice.

The city of Highwood owns a system of water mains, hydrants and appurtenances, for fire protection and distribution of water to its inhabitants. It obtains the water by purchase from the adjacent city of Highland Park. The questions in this case involve the validity of proceedings by the city of Highwood to provide facilities for a water supply from Lake Michigan, to be connected with the existing system. Plaintiffs filed a representative suit in the circuit court of Lake county against the city, its officers, the engineers, the contractors, the grantors of a tract of ground conveyed to the city on which to locate a water tower, and the purchaser of water revenue bonds issued to finance a portion of the cost. The relief prayed is that the ordinance providing for the project and bond issue, all contracts thereunder, an ordinance for hydrant rental, and the bonds, be declared null and void; that the city officers be enjoined from expending the fund derived from the sale of the bonds; that the purchaser of the bonds be enjoined from disposing of them and be required to return them to the city, and that the ground purchased be reconveyed to the grantors. The defendants answered and upon a hearing a decree was entered dismissing the amended complaint for want of equity. Under a certificate of the chancellor that the validity of a municipal ordinance is involved and that public interest requires a direct appeal to this court, the cause is here on an appeal by plaintiffs.

The proceedings provide for establishing a pumping and purification plant, a water tower, and a water main to connect with the existing system, to be financed by a Federal grant of $80,120, and water revenue bonds of $165,000, payable solely from the income of the completed project. The bonds bear interest at three and one-half per cent per annum, the principal maturing serially from 1941 to 1973. By a special act of Congress the city obtained as easement for the construction and maintenance of the pumping and purification plant and a water main on the Fort Sheridan Military Reservation adjoining the city on the north. A tract on which to erect the water tower was purchased from private parties. The bonds have been sold, construction contracts were let, work on the project begun, and a hydrant rental ordinance passed. The city has no contract with the city of Highland Park for a water supply. A former contract expired and the water furnished is paid for monthly as used at the rate of fifteen cents per hundred cubic feet. The bonds were sold at a price that will cost the city 5.05 per cent annual interest on the amount received.

The statute under which the proceedings were had is the act authorizing any city, village or incorporated town with a population of less than 500,000 to build or purchase, and to operate, a waterworks system or water supply system, and providing that any such municipality ‘owning and operating a waterworks or water supply system’ may improve and extend such system, and provide for the cost thereof by the issue of revenue bonds payable solely from revenue derived from the operation thereof. Ill.Rev.Stat.1937, c. 24, § 440 et seq.

One of the basic questions to be first determined is whether the city owns and operates a waterworks within the meaning of the statute. Appellants claim that the term ‘waterworks,’ to be given its ordinary and accepted interpretation, of necessity includes machinery and equipment for pumping, filtration, treatment and purification of water. Such an interpretation would exclude a system where a water supply by gravity obviates the necessity of pumping, and all systems using untreated water. Nor is it necessary that the source of supply be owned by the municipality, which, in many instances, might be obtained only from leased premises. It could not be seriously contended that any of these is not a waterworks. The provision for improvement and extension obviously contemplates such a project for systems which do not have complete facilities. Our conclusion is that the term as used in the statute includes such a system as the one owned and operated by the city of Highwood. This view is supported by the definition of ‘waterworks' in section 2 of the act authorizing the purchase, construction and improvement of waterworks systems and providing for the issue of similar water revenue bonds. Ill.Rev.Stat.1937, c. 24, § 456b. It is there provided that the term ‘waterworks' as used in the act shall be construed to mean and include a waterworks system in its entirety, or any integral part thereof, including mains, hydrants, standpipes, impounding reservoirs, purification plants and other enumerated items.

The several steps in the proceedings were taken at special meetings of the city council. Appellants claim the proceedings were void because of a lack of written notice to each alderman, stating the object of the call, as prescribed by ordinance, and the absence of one, and in some instances, two aldermen from the special meetings. Without considering the testimony in that respect, it is sufficient to notice that at subsequent regular meetings of the city council, all the proceedings at special meetings were unanimously ratified. The project was authorized by statute. Where all the members of a city council are not notified of a special meeting, the proceedings thereat, which are not ultra vires, are validated by a ratification understandingly done at a subsequent regular meeting. City of Shawneetown v. Baker, 85 Ill. 563. The contention is untenable.

Section 3 of the act under which the proceedings were had requires that the ordinance providing for the project and bond issue shall, after its passage, be published once in a weekly newspaper published and having a general circulation in such municipality, or if there is no newspaper published therein, then by posting copies in at least three of the most public places in such municipality. If the ordinance authorizes the issue of revenue bonds for the extension and improvement of a presently municipally owned and operated waterworks system to be constructed wholly or in part by a grant from the Federal Emergency Administration of Public Works, the ordinance shall be in full force and effect immediately upon such publication. In all other cases a referendum is required if petitioned for within twenty one days after publication. If no such petition is so filed the ordinance goes into effect at the end of the twenty-one days. After the ordinance providing for the project and bond issue was adopted three copies were posted in the city. No publication in a newspaper was made at that time. Two of the posted copies did not have the signatures of the mayor and clerk, the date of passage and approval, or the yea and nay vote on its adoption. Within twenty-one days thereafter a petition for a referendum was filed, signed by the requisite number of voters, and denied by the city council.

Appellants claim the ordinance never went into effect, because there was a weekly newspaper published in the city of Highwood and the law required publication of the ordinance therein; because, in any event, the copies posted were not complete copies of the ordinance, and because no referendum was had. There is printed and published in the city of Highland Park, a weekly newspaper, designated on the cover as ‘Highland Park News.’ Copies, with advertising matter, and generally the same news content, but with a cover bearing the title ‘Highwood News,’ are distributed to the homes in Highwood by a resident employee of the printing company, who goes after the papers to the plant at Highland Park, takes them back to Highwood in a car, and they are thrown on the doorsteps of the houses. In inclement weather, they are thrown inside. The circulation in Highwood is free, which means there are no paid subscriptions and no subscribers. The masthead on the first page shows the place of publication as Highland Park. After this suit was brought the ordinance was published in the ‘Highland News.’ The certificate of the publisher gives the place of...