Mr. PRESIDING JUSTICE GUILD
delivered the opinion of the court:
This is an appeal from the action and order of the Illinois Pollution Control Board in assessing a fine of $1,000 against the City of Waukegan, and an additional fine of $250 each against T-K Disposal Inc., an Illinois Corporation, and Tewes Co., Inc., an Illinois Corporation.
In June of 1971 the City of Waukegan conducted its annual spring clean-up in conjunction with the aforementioned disposal or scavenger firms. The city alleged it had applied from a permit by letter to the Environmental Protection Agency but that no answer was received. In June, for a period of seven days, refuse, not including garbage, was deposited on the site provided by the city. It was then covered with dirt. The Environmental Protection Agency then brought this action before the Illinois Pollution Control Board charging the city with operating a refuse disposal site without obtaining a permit, open dumping, creating a water hazard, failing to provide daily cover, and other offenses incidental thereto.
The sole question presented in this appeal, and raised by petitioners in the hearing before the Board, is whether or not an administrative agency has the authority constitutionally to levy fines under the authority of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, secs. 1033(b), 1042, and 1044).
At the outset, this court is familiar with the case recently decided by the Third District Appellate Court entitled Ford v. Environmental Protection Agency (1973), 9 Ill.App.3d 711, 292 N.E.2d 540. We do not agree with that opinion.
We are fully cognizant of the fact that if a case may be decided without determination of the constitutionality of the act involved, that it should be determined on a basis other than the constitutional question. The presumption is, of course, that the legislation is constitutional. (Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 110 N.E.2d 234.) But as the court stated in Wabash R.R. Co. v. Order of Railway Conductors of America (1949), 402 Ill. 548, at 551, 84 N.E.2d 406, at 408, in discussing the review of orders of the Commerce Commission:
“* * * The purpose of a judicial review of an order of the commission is to keep it within its jurisdiction, so as to not violate any rights guaranteed by the constitution.”
Administrative agencies are creatures of the legislature of rather recent vintage. The emergence of administrative agencies, as a necessary adjunct to the judicial branch of our government in our increasingly complex society, has not been without problems as to the limitation of the authority granted to them. As early as 1867, we find one of the first cases in this regard entitled Willis v. Legris, 45 Ill. 289. In that case the City of Kankakee had enacted an ordinance providing for a penalty to be imposed to prevent horses, mules, goats, sheep or swine from running at large in the city, Animals found at large were impounded and offered for sale. The owner offered to redeem them on the sale day, but the city marshall refused to deliver the animals unless the owner also paid the penalty provided by ordinance. The owner refused and sued in replevin. The supreme court, in holding that such an ordinance was unconstitutional, stated at page 292:
“* * * Every citizen has a right to a judicial investigation when charged with an offense.”
In People ex rel. Martin v. Mallary (1902), 195 Ill. 582, 63 N.E. 508, the Board of Managers of the State Reformatory transferred prisoners to the penitentiary under the Reformatory Act. The constitutionality of this Act was directly challenged, and as the court stated, the question was whether or not an executive or administrative board had the authority under the legislation in question to transfer said prisoners. The court held that the attempt by the Board of Managers to designate the place of confinement was a usurpation of the judicial power of the court.
In Cleveland, C.C. & St. L. Ry. Co. v. People ex rel. Barter (1904), 212 Ill. 638, 72 N.E. 725, the supreme court held that a statute authorizing the tax assessor and county clerk to collect a specific amount as a tax against landowners for failure to clean impediments from streams was nothing more or less than a penalty or fine which could be inflicted only by the judicial power after trial according to law. The court said at page 641:
“* # * To hold otherwise would be to permit the assessor to levy a penalty and deprive the offender of his property without due process of law * * *. It is no answer to say that the property owner can object to the tax in the county court and there have these questions judicially determined, for the reason that if the assessor has the power to impose the penalty and the county cleric has the power to extend the taxes, there is nothing left for the county court but to overrule the objection, as the question of violation has been previously determined by these officers.”
Since the advent of administrative agencies, we find a lessening of the strict separation of powers of the three branches of our government. Certain “quasi judicial” functions have been delegated to administrative agencies. The problem encountered is the line of demarcation between those functions granted administrative agencies that are in fact “quasi judicial” and those functions that are judicial. We do not believe that actual judicial authority can be granted to administrative agencies under the guise of being “quasi judicial” or “ministerial.”
We turn then to cases of comparatively recent date. In Harrison v. Civil Service Com. (1953), 1 Ill.2d 137, 146-147, 115 N.E.2d 521, the court stated:
“It is readily apparent that section 11 (par. 274) of the Administrative Review Act does not contemplate any such broad powers of review, for it is specifically provided in this provision that the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. The court is not authorized to weigh the evidence, nor to make its own independent determination of the facts, as under the statute involved in the Schoeberlein case. On the contrary, the type of judicial review authorized under the Administrative Review Act, whereby the court must regard the findings of the agency as prima facie correct and is permitted to set them aside only if they are contrary to the manifest weight of the evidence, has traditionally been regarded as a judicial function, comparable to the issue at law as to whether there is competent evidence to support a judgment of a lower court. [Citation.]”
Considering the limitations of the judiciary, the rationale of West End Savings & Loan Ass’n v. Smith (1959), 16 Ill.2d 523, 525-526, 158 N.E.2d 608, is that the courts have the power and the duty to determine if administrative findings and orders have support in the evidence, but conversely the courts cannot be invested with power to determine and decide matters of an executive or legislative character.
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Mr. PRESIDING JUSTICE GUILD
delivered the opinion of the court:
This is an appeal from the action and order of the Illinois Pollution Control Board in assessing a fine of $1,000 against the City of Waukegan, and an additional fine of $250 each against T-K Disposal Inc., an Illinois Corporation, and Tewes Co., Inc., an Illinois Corporation.
In June of 1971 the City of Waukegan conducted its annual spring clean-up in conjunction with the aforementioned disposal or scavenger firms. The city alleged it had applied from a permit by letter to the Environmental Protection Agency but that no answer was received. In June, for a period of seven days, refuse, not including garbage, was deposited on the site provided by the city. It was then covered with dirt. The Environmental Protection Agency then brought this action before the Illinois Pollution Control Board charging the city with operating a refuse disposal site without obtaining a permit, open dumping, creating a water hazard, failing to provide daily cover, and other offenses incidental thereto.
The sole question presented in this appeal, and raised by petitioners in the hearing before the Board, is whether or not an administrative agency has the authority constitutionally to levy fines under the authority of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, secs. 1033(b), 1042, and 1044).
At the outset, this court is familiar with the case recently decided by the Third District Appellate Court entitled Ford v. Environmental Protection Agency (1973), 9 Ill.App.3d 711, 292 N.E.2d 540. We do not agree with that opinion.
We are fully cognizant of the fact that if a case may be decided without determination of the constitutionality of the act involved, that it should be determined on a basis other than the constitutional question. The presumption is, of course, that the legislation is constitutional. (Gadlin v. Auditor of Public Accounts (1953), 414 Ill. 89, 110 N.E.2d 234.) But as the court stated in Wabash R.R. Co. v. Order of Railway Conductors of America (1949), 402 Ill. 548, at 551, 84 N.E.2d 406, at 408, in discussing the review of orders of the Commerce Commission:
“* * * The purpose of a judicial review of an order of the commission is to keep it within its jurisdiction, so as to not violate any rights guaranteed by the constitution.”
Administrative agencies are creatures of the legislature of rather recent vintage. The emergence of administrative agencies, as a necessary adjunct to the judicial branch of our government in our increasingly complex society, has not been without problems as to the limitation of the authority granted to them. As early as 1867, we find one of the first cases in this regard entitled Willis v. Legris, 45 Ill. 289. In that case the City of Kankakee had enacted an ordinance providing for a penalty to be imposed to prevent horses, mules, goats, sheep or swine from running at large in the city, Animals found at large were impounded and offered for sale. The owner offered to redeem them on the sale day, but the city marshall refused to deliver the animals unless the owner also paid the penalty provided by ordinance. The owner refused and sued in replevin. The supreme court, in holding that such an ordinance was unconstitutional, stated at page 292:
“* * * Every citizen has a right to a judicial investigation when charged with an offense.”
In People ex rel. Martin v. Mallary (1902), 195 Ill. 582, 63 N.E. 508, the Board of Managers of the State Reformatory transferred prisoners to the penitentiary under the Reformatory Act. The constitutionality of this Act was directly challenged, and as the court stated, the question was whether or not an executive or administrative board had the authority under the legislation in question to transfer said prisoners. The court held that the attempt by the Board of Managers to designate the place of confinement was a usurpation of the judicial power of the court.
In Cleveland, C.C. & St. L. Ry. Co. v. People ex rel. Barter (1904), 212 Ill. 638, 72 N.E. 725, the supreme court held that a statute authorizing the tax assessor and county clerk to collect a specific amount as a tax against landowners for failure to clean impediments from streams was nothing more or less than a penalty or fine which could be inflicted only by the judicial power after trial according to law. The court said at page 641:
“* # * To hold otherwise would be to permit the assessor to levy a penalty and deprive the offender of his property without due process of law * * *. It is no answer to say that the property owner can object to the tax in the county court and there have these questions judicially determined, for the reason that if the assessor has the power to impose the penalty and the county cleric has the power to extend the taxes, there is nothing left for the county court but to overrule the objection, as the question of violation has been previously determined by these officers.”
Since the advent of administrative agencies, we find a lessening of the strict separation of powers of the three branches of our government. Certain “quasi judicial” functions have been delegated to administrative agencies. The problem encountered is the line of demarcation between those functions granted administrative agencies that are in fact “quasi judicial” and those functions that are judicial. We do not believe that actual judicial authority can be granted to administrative agencies under the guise of being “quasi judicial” or “ministerial.”
We turn then to cases of comparatively recent date. In Harrison v. Civil Service Com. (1953), 1 Ill.2d 137, 146-147, 115 N.E.2d 521, the court stated:
“It is readily apparent that section 11 (par. 274) of the Administrative Review Act does not contemplate any such broad powers of review, for it is specifically provided in this provision that the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. The court is not authorized to weigh the evidence, nor to make its own independent determination of the facts, as under the statute involved in the Schoeberlein case. On the contrary, the type of judicial review authorized under the Administrative Review Act, whereby the court must regard the findings of the agency as prima facie correct and is permitted to set them aside only if they are contrary to the manifest weight of the evidence, has traditionally been regarded as a judicial function, comparable to the issue at law as to whether there is competent evidence to support a judgment of a lower court. [Citation.]”
Considering the limitations of the judiciary, the rationale of West End Savings & Loan Ass’n v. Smith (1959), 16 Ill.2d 523, 525-526, 158 N.E.2d 608, is that the courts have the power and the duty to determine if administrative findings and orders have support in the evidence, but conversely the courts cannot be invested with power to determine and decide matters of an executive or legislative character. At page 525 the court stated:
“It is a familiar principle of constitutional law that none of the three departments of our government may exercise powers properly belonging to either of the other two. Pursuant to this commandment we have repeatedly held that where authority has been conferred upon administrative agencies to perform functions of an executive nature, provisions for trial de novo in courts of law violate the separation-of-powers principle. [Citations.]”
In 1938 the supreme court, in Department of Finance v. Cohen, 369 Ill. 510, 17 N.E.2d 327, considered the imposition of a penalty by a ministerial body. The legislature had provided that the Department of Finance could compute a deficiency assessment under the Retailers’ Occupational Tax Act. The court, in holding that the computation by the Department of the deficiency was not an exercise of judicial power within the meaning of the constitution, stated in substance, that the agent, in figuring the deficiency, was performing a ministerial act which required merely a mathematical calculation or computation from data upon which all minds must ordinarily reach the same result. As the court stated:
“The statute sets forth with great detail the matters which must go into the monthly return, and lays down a guide which, when followed, leaves nothing open for arbitrary discretion.” 369 Ill. at 516.
It is thus obvious that no judicial discretionary determination of a fine or penalty was considered in that case. The ruling in Cohen was cited with approval by the supreme court in Department of Finance v. Gandolfi (1940), 375 Ill. 237, 30 N.E.2d 737. In Gandolfi, the Department of Finance computed the amount due under the retailers’ occupation tax against the defendant to be $1035 as the tax, and $258.75 as penalties. In Gandolfi, after stating the substance of the ruling in Cohen, the supreme court held that no constitutional judicial power was delegated to the Department of Finance, but that the collection of the statutory tax and statutory penalty requiring merely mathematical calculation was incidental to the duty of administering the law and did not constitute the exercise of judicial power.
However, in Reid v. Smith (1940), 375 Ill. 147,152, 30 N.E.2d 908, 911, the supreme court held that the Department of Labor or the awarding body could not impose a penalty of $10 a day for each laborer not receiving prevailing wages provided for under the prevailing wage law. The supreme court further held that the statutory authority granted to the awarding body or the Department of Labor was invalid as an attempt to confer judicial power
“* * * upon such bodies contrary to article 3 of the constitution. [Citations.] The fact that an appeal is provided from the decision of the awarding body or Department of Labor in so declaring a forfeiture, does not justify one department of government exercising powers belonging to another. [Citations.]” (375 Ill. at 152.)
It is to be noted that in Reid no discretionary amount was authorized by a flat $10 a day penalty.
It has been uniformly held as stated in Ford v. Environmental Protection Agency (1973), 9 Ill.App.3d 711, 717, that the power to suspend, revoke, and otherwise deal with licenses may be delegated to an administrative officer or agency, and as stated above, if there is a penalty incidental thereto and the same is merely a matter of a specified amount or simple calculation, the same may be considered a quasi-judicial act not offensive to the separation of the three powers of our government. Conceding for the moment the constitutional authority of the administrative body, as stated above, the reviewing court in considering the actions of an administrative body must consider the factual findings of that body as prima facie correct unless against the manifest weight of the evidence. However, that is not the issue in the case before us. It is pointed out merely to illustrate the limitations upon our review of the actions of the Pollution Control Board. In other words, this reviewing court is performing much the same function in its review of the actions of an administrative agency as it is in the review of the actions of a trial court. If we concede the power to an administrative agency to impose a discretionary fine upon a transgressor before that Board, we have invested all of the possible judicial power upon a ministerial body. The only function of a court not granted to that body is the judicial power to collect the fine imposed and only then does the judicial system appear upon the scene.
The subject of ecology and preservation of our natural resources is a much publicized and emotional issue before the public today. Perhaps as a result thereof, the legislature has provided in the Environmental Protection Act that appeals from the decisions of the Illinois Pollution Control Board shall be directly to the appellate courts to expedite time-wise the hearing of pollution cases.
No Illinois case has been cited, nor is there any with which we are familiar, other than the current Third District Appellate Court opinion, Ford, cited herein, which holds that an administrative body may hear evidence, determine guilt, and impose a discretionary fine for the violation.
In the case before us, the Environmental Protection Agency asked for a fine of $10,000 against the City of Waukegan. A fine of $1,000 was imposed. One of the members of the Pollution Control Board, not taking part in the hearing, “concurred” and suggested that the fine be doubled to cover the cost. It matters not in the end whether we consider an order for the payment of money a civil or criminal proceeding, nor does it matter if we call it a penalty or a fine. The result is exactly the same.
We believe, with due deference to the opinion of tire Appellate Court, Third District, that the granting of power to the Illinois Pollution Control Board to impose a $10,000 fine is an unlawful delegation of the judicial powers to an administrative agency. We further believe that nothing is solved by labeling such a procedure quasi-judicial; nor is this power to fine a mere mathematical calculation on data from which all reasonable minds would reach the same result. The Board here imposed fines of $1,000 and $250. These amounts might have been doubled as one Board member suggested, or they might have been any other amount up to a limit of $10,000. The imposition of a discretionary fine is a distinctly judicial act and one that cannot be exercised by an administrative body. Gradual erosion of the judicial power of the State in favor of administrative bodies endangers our system of government. There is no question but that the Illinois Pollution Control Board may hold hearings and make factual determinations; however, the imposition of a discretionary fine and the collection thereof must necessarily be a matter of judicial determination by a court.
Examination of the statutes pertaining to Public Health in Illinois (Ill. Rev. Stat. 1971, ch. 111½), disclose no fewer than twenty-four penalty provisions relating to violations of the various public health laws of this State ranging from a minimum fine to five years in prison. In not one single instance, except under the Environmental Control Act, is authority granted to the administrative body to impose penalties or fines, and obviously, not imprisonment. The argument that the Environmental Control Act cannot be enforced except by granting to the Pollution Control Board the power to impose fines, appears specious when one considers that such actions are not granted in other acts important to public health.
Moreover, we find sections 1033(b), 1042, and 1044, of the Environmental Control Act, read together, are less than a clear investment of such power in the Board. Section 1033(b) provides that after hearing and due consideration, the Board shall enter a final order which may include “the imposition by the Board of money penalties in accord with Title XII of this Act.” Sections 1042 and 1044 are found in Title XII of the Act. It is provided at Section 1042 that any person violating the Act, regulations or order of the Board, shall be liable to a penalty of not to exceed $10,000 which “may be recovered in a civil action” brought in the name of the People of the State of Illinois by the State’s Attorney or the Attorney General. As originally adopted, section 1044 provided, without specifying any penalty, that “it shall be a misdemeanor to violate this Act or regulations thereunder. * * *” Public Act 77-2830, effective January 1, 1973, conforming criminal penalties to the Unified Code of Corrections, amended section 1044 to provide that it shall be a Class A misdemeanor to violate the Act or regulations thereunder. (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005—9—1 provides a maximum fine of $1,000 for Class A misdemeanors.) If for no reason other than the ambiguities or inconsistencies which we believe arise from these sections, we would feel compelled to set aside any fine imposed by the Board.
We therefore reverse and set aside the order of the Pollution Control Board.
ABRAHAMSON, J., concurs.