Judge v. Bergman

176 Ill. App. 42, 1912 Ill. App. LEXIS 21

• Court: Appellate Court of Illinois
• Decided: December 19, 1912
• Docket: Gen. No. 18,957
• Status: Published

Opinion

Mb. Justice Fitch

delivered the opinion of the court.

By section 7 of the Act of 1889, under which the Sanitary District of Chicago was incorporated, it is provided (Hurd’s Stat. 1909, p. 405):

“ The board of trustees of any sanitary district organized under this act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district,, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner.”

After the organization of said Sanitary District the legislature, in 1903, passed another act extending the corporate limits of such district so as to embrace and include therein additional territory to the north and to the south of the same; and by section 2 of that act (Hurd’s Stat. 1909, p. 411) it was provided:

“The board of trustees of said sanitary district shall have the right to provide for the drainage of the additional territory added to said sanitary district by this act by laying out, establishing, constructing and maintaining one or more channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner.”

It was stipulated that the Sanitary District of Chicago constructed its main channel in pursuance of the authority granted by the Act of 1889, and constructed what is known as the “North Shore Channel” in pursuance of the authority granted it by the Act of 1903, above quoted, and that the latter is of sufficient capacity to receive and carry off all the drainage and sewage of the City of Evanston and the villages to the north within the extended limits of the Sanitary District, when the same shall be diverted into said north shore channel.

The sole question raised or discussed in the briefs and arguments of counsel is whether the system of conduits or intercepting sewers and pumping station described in the hill of complaint are “adjuncts” or “additions” to the north shore channel of the Sanitary District of Chicago, within the meaning of those terms as used in the above quoted provisions of the Sanitary District acts.

Counsel on both sides cite and rely on the decision of the supreme court in the case of City of Chicago v. Green, 238 Ill. 258, in support of their respective contentions. That case was a proceeding brought under the Local Improvement Act of 1897 for the purpose of levying a special assessment to pay the cost of constructing a brick sewer in Kedzie Avenue from West Seventy-First Street north to the main channel of the Sanitary District. The appellant, Green, objected to the assessment upon the ground that the proposed sewer was an “adjunct” or “addition” to the main channel of the Sanitary District and that therefore the power to construct the improvement by special assessment was vested in the board of trustees of that district and not in the city council of the City of Chicago. The supreme court, in discussing that question quoted at length from its previous opinions in Wilson v. Board of Trustees, Sanitary Dist., 133 Ill. 443, and People v. Nelson, 133 Ill. 565, and then said (p. 267):

“Considering the opinions in those cases, especially in connection with the dissents filed in both, it is apparent that this court did not then consider that the sanitary district act was intended to turn over to the corporate authorities of the district the control of all of the ordinary sewers and drains necessary to drain the territory within its boundaries, but rather that the law was enacted for the purpose of constructing a main channel or outlet for all the sewers and drains of the various municipalities within the district, and to build such adjuncts and additions and auxiliaries as a part of said main channel as would make it possible to connect all such drains and sewers of the various municipalities with said main channel.”

Then, after reviewing the contemporary circumstances and historical facts which led to the enactment of the Sanitary District Act, the opinion concludes (p. 275):

“The words ‘adjunct’ and ‘addition,’ as used in this act, mean simply auxiliary channels to bring the sewage and drainage from the various sewers and systems■ of sewers of the municipalities in the limits of the sanitary district into the main channel of the sanitary district. It was not intended that the sanitary district should he charged with and have the authority of constructing and maintaining local improvements for the local drainage and sewage of lands and property, such as the one here in question.” (Italics ours.)

In its review of the history of the legislation in question, the court said (p. 270):

“These reports and discussions contain frequently the words ‘main drainage system,’ ‘outlet channel,’ ‘intercepting sewers’ and other terms which indicate clearly that it was an outlet for the sewage, and not the building of ordinary sewers, that was under consideration.”

On page 273, the opinion refers to an act passed in 1899, authorizing cities of 100,000 population and under to construct outlet sewers, and’' says of that act:

“The legislature recognized that Chicago was the only city in the state that had over 100,000 people, and therefore the Act of 1899, in its practical effect, applied to all cities in the state other than Chicago, and was evidently passed to give to the other cities the same power to build outlet sewers that was provided by the sanitary district act for Chicago and the other municipalities within the limits of the sanitary district of Chicago.” (Italics ours.)

It would seem clear from these quotations from the opinion of the court in the Green case, supra, and especially from the language we have italicized, that the supreme court did not hold in that case that the Sanitary District of Chicago has no power to build a sewer of any hind or for any purpose. The proposed sewer there under consideration was purely a local improvement—an ordinary sewer such as has been built by special assessment for years, designed to receive and carry off the sewage and drainage from the houses and lots within the limits of a specified sewer-assessment district comprising only a small fraction of the total area of the City of Chicago, and affording special sewerage facilities and special benefits to the property in the assessed district. Hence the only question directly involved under the facts of that case, so far as the powers of the Sanitary District are concerned, was as to the power of the board of trustees of that district to build that hind of a sewer. It seems apparent that the court, in determining that question, recognized the fact that there was, or might he, a material distinction in this respect between the power to build such a sewer and the right and power under the Sanitary District acts to build, an outlet sewer such as described in the Outlet-Sewer Act of 1899, or an intercepting sewer, designed for the sole purpose of bringing the accumulated drainage and sewage of a completed system of local sewers from the present discharging point thereof to and into one of the main channels of the Sanitary District. It is the right and power to build the latter kind of a sewer that is here involved. It will be noted from the statement of facts preceding this opinion that it was expressly stipulated that “the sole function” of the work proposed “is to receive from the sewers built and maintained by the City of Evanston * # * the sewage before it is discharged into the waters of Lake Michigan, and to convey the same into said north shore channel.” By this stipulation all question as to the character of the sewer in question is removed. Its agreed character is that of an intercepting sewer or conduit and it is so called and treated in the briefs and arguments of counsel.

If the trustees of the Sanitary District had ordered an open channel to be constructed for the same purposes, and along the same route, as the proposed intercepting sewer, the “auxiliary channel” so ordered would have come squarely within the meaning of the words “adjunct” and “addition” as those words were defined in the Green case, supra. If the trustees had the power to construct an open channel as an adjunct or addition to the north shore channel, we are unable to find any good reason for any claim that they have not the power to “accomplish” the same “end” in a more “satisfactory manner” by constructing an underground canal or intercepting sewer for the same purpose. Indeed, on the oral argument made in this court, appellant’s counsel conceded that if an open channel might thus be constructed, the right of the appellees to substitute an underground canal could not reasonably be denied.

It is, however, contended that having constructed a channel, viz.: the north shore channel, of sufficient capacity to carry off all the drainage and sewage of the City of Evanston and of all the villages to the north within the limits of the district as extended by the Act of 1903, the power of the trustees was thereby exhausted and their duty to the public fully performed. If this were true, then that part of the Act of 1903 which gives the trustees power “to provide for the drainage of the additional territory added by this act” by constructing not only “one or more channels,” etc., but also “such adjuncts and additions thereto as may be necessary or proper to canse such channels or outlets to accomplish the end for which they are designed in a satisfactory manner,” is meaningless and of no effect whatever. While it is true that the powers of municipal corporations must be found in the legislative act or acts granting such powers, and that ‘ ‘ any fair, reasonable and substantial doubt surrounding the existence of power is resolved by the courts against the corporations, and the power denied” (Dillon on Municipal Corporations (5th Ed.), sec. 237), yet this principle does not authorize the courts to ignore a whole clause of a statute, couched in plain and simple language, unless it is entirely inconsistent with the objects and purposes of the statute. In the construction of statutes, it is the duty of the courts to give effect, if reasonably possible, to “every clause, sentence and word in a statute.” McReynolds v. People, 230 Ill. 623, 633. “Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.” Chudnovski v. Eckels, 232 Ill. 312, 317. “The statute should be so construed as to give a sensible and intelligent meaning to every part and to avoid absurd and unjust consequences.” People v. Sholem, 238 Ill. 203, 208.

In support of the power claimed by the trustees of the Sanitary District under this Act of 1903, their counsel have also suggested some of the consequences that might flow from the construction contended for by the appellant’s counsel. It is said that one of the important, if not the most important, objects of the Sanitary District acts, was to prevent the pollution of the water supply of the territory included in said district, and that if the trustees have not the power to do the work of connecting the several sewerage systems in the district with the channels of the district, the contaminating discharges of sewage into the lake will necessarily continue until each and every municipality within the district shall acquire the means to pay for such connections or shall be willing, if able, to make and pay for the same. It is pointed out that even if willing to do so, the statutory indebtedness-limit of such municipalities is an insuperable obstacle precluding them from making such connections with funds derived from general taxation; that such connections are in no sense local improvements such as could be built by special assessment; and that until ways and means are found to overcome these and other like difficulties, the expensive north shore channel, designed for the very purpose of receiving the discharges from the existing sewer-systems, would remain a useless ditch, while the pollution of the drinking waters of the lake would continue unabated and practically unabatable. But while consequences such as these are undeniably possible and perhaps are even probable, yet they are important here only as hearing upon the question of legislative intent in enacting the provision giving to the trustees of the Sanitary District the power to build and maintain such adjuncts and additions to its channels as to cause the same to satisfactorily “accomplish the end for which they are designed.” We think the legislative intent sufficiently appears from the language itself of the acts in question without the aid of any consideration of the suggested consequences, though both lead to the same conclusion.

It is urged, however, that in the recent case of City of Berwyn v. Berglund, 255 Ill. 498, the supreme court extended the doctrine of the Green case so as to make it apply not only to an ordinary sewer, but to an outlet sewer of practically the same kind as the one here involved. We think this contention proceeds upon a misapprehension of the facts in that case, or a failure to recognize the well-settled distinction between local improvements, such as may be constructed by special assessment, and general public improvements which cannot be built by special assessment. The proposed improvement in the Berwyn case was in the first class. It is true that it had an outlet extending beyond the city limits to the channel of the Sanitary District, but the power of a city or village to construct that kind of an outlet by special assessment as part of a local sewer-system, was sustained as "far back as 1889, in the case of Shreve v. Town of Cicero, 129 Ill. 226, and definitely settled in 1892 in the case of Maywood Co. v. Village of Maywood, 140 Ill. 216. The principle of these cases was enacted into the statutory law of the state without substantial change by the Outlet-Sewer Act of 1899, and the recent substitute therefor, approved March 8,1910 (Session Laws, 1910, p. 41). The decision in the Berwyn case therefore, merely follows the prior ruling of the Green case “and previous cases,” as the opinion of the court expressly states.

It must be borne in mind that both the Outlet-Sewer Act of 1899 and the Local Improvement Act of 1897 are special assessment acts. The powers given, and the procedure prescribed, by those acts apply only to such local improvements as can be made and paid for by special assessment or special taxation. With this fact in mind, the distinction between such improvements as were involved in the Green and Berwyn cases, supra, and the intercepting sewer and pumping station here in question, seems clear and manifest. The improvement here proposed has none of the characteristics of a local improvement, but is a general public improvement, designed not for any purpose of local benefit to property but for the general public benefit of the whole Sanitary District, the protection of the water supply and the preservation of the public health. It is such an “adjunct” or “addition”0to the north shore channel of the Sanitary District as is not only necessary and proper to cause such channel to satisfactorily accomplish its purpose, but is absolutely essential to prevent a total failure of such channel to accomplish its purpose.

"Whether the City of Evanston could build the same kind of an outlet under the Local Improvement Act or the Act of 1910 depends on the question—which is one of fact—whether it is in fact such a local improvement as may be constructed by special assessment. The test in such cases is whether the proposed improvement will enhance, specially, the value of adjacent property, over and above the amount of general benefits to the whole municipality therefrom. Northwestern University v. Village of Wilmette, 230 Ill. 80, 86. While it is alleged in the bill of complaint that the proposed plan is purely a local improvement, that averment is denied by the answer, and we find nothing in the stipulation of facts tending to prove the allegation. So far as the description of the improvement affects that question, it rather tends to refute than to support the averment, and the stipulation above referred to as to the function of the proposed improvement precludes the idea that it will enhance, specially, the value of adjacent property.

The argument that the construction of the Sanitary District acts contended for by appellees is open to the objection that thereby two municipalities would be vested with the same power over the same subject at the same time and for the same purposes, is, we think, fully answered by what has been already said.

The decree of the circuit court will be affirmed.

Affirmed.