Hartman v. Aurora Sanitary DistrictHartman v. Aurora Sanitary District
Lead Opinion
delivered the opinion of the court:
The plaintiff, Joseph E. Hartman, applied for a permit to make a connection with a sewer line of the defendant, Aurora Sanitary District. The permit was granted, but only after he had paid, under protest, the required “connection” fee of $160. Thereafter he brought this action to recover the amount he had paid, alleging that the ordinance under which the charge was made, and the statute relied upon to authorize it, violated his constitutional rights. The defendant answered, its motion for judgment on the pleadings was granted, and the complaint was dismissed. The plaintiff appeals directly to this court on the ground that the validity of a statute is involved. Ill. Rev. Stat. 1959, chap, no, par. 75.
The Aurora Sanitary District is organized under the Sanitary District Act of 1917. (Ill. Rev. Stat. 1959, chap. 42, pars. 299-317f.) Its original area was 10 square miles. Annexations have expanded its area to 34 square miles, and its population has increased from 43,000 in 1930 to 80,000. The disposal plant of the District, and its original interceptor lines, were financed by a bond issue which was fully retired in 1946 from the proceeds of taxes levied upon the property then within the District. The plaintiff’s property was annexed to the District in 1953, and since that time the plaintiff has paid the taxes levied upon his property for the operation and maintenance of the facilities of the District. In November of 1960 he applied for a permit to make a connection to one of the sewer lines of the District, and the charge which he seeks to recover in this action was imposed at that time.
The ordinance of the District under which the charge was made was adopted in March of 1958. It recited that “the plant and main or interceptor lines” of the District “will in their operation and expansion conduce to the better preservation of the public health, comfort and convenience of the community of the District if certain required improvements be made to the existing plant and certain extensions made to the existing interceptor or main line system; that these purposes can best be accomplished by the establishment of a capital improvement fund; that this fund should be acquired in a fair and equitable way from landowners within the area of the District, taking into consideration the fact that the existing capital improvement facilities were constructed at the expense of certain landowners of certain areas within the District; that reasonable classification should be made for contributions to this fund; * * * that connection fees to the Aurora Sanitary District system should be charged in proportion to the benefits received and that it is the determination of the Board of Trustees to provide for depreciation and obsolescence of the plant * * * by the establishment of this fund and the contributions thereto in a fair and equitable manner proportionate to the benefits gained.”
The ordinance then divided the District into two areas: “Class One,” including the original territory of the District, and those areas annexed prior to December 31, 1948, and “Class Two,” including all other territory within the District. Four categories, “Single family dwelling,” “Multiple family dwelling,” “Industrial or commercial establishments” and “Public buildings” were defined, and fees were established for each category in each of the two areas established by the ordinance. For structures in Class Two the fee was described as a “connection and inspection fee,” and for those in Class One as an “inspection fee.” In each instance the fee was fixed at a higher amount in the Class Two area than in the Class One area. For single family dwellings, the category with which we are here concerned, a connection and inspection fee of $160 was imposed in the Class Two area. For a single family dwelling in the Class One area, the inspection fee was fixed at $15.
For its authority to enact the ordinance, the District relies upon an amendment to section 7 of the Sanitary District Act of 1917. That amendment, adopted in 1959, provides that “the Sanitary District shall have power to collect a fair and reasonable charge for connection to its system in addition to those charges covered by normal taxes, for the construction, expansion and extension of the works of the system, the charge to be assessed against new or additional users of the system and to be known as a connection charge. The funds thus collected shall be used by the Sanitary District for its general corporate purposes with primary application thereof being made by the necessary expansion of the works of the s)rstem to meet the requirements of the new users threof.” Ill. Rev. Stat. 1959, chap. 42, par. 306.
The parties before us have argued principally the constitutionality of the statute and ordinance. Before reaching the constitutional issue, however, we must first determine if the statute authorizes the adoption of the kind of ordinance here involved. The legislature has empowered the Sanitary District “to collect a fair and reasonable charge for connection to its system * * * for the construction, expansion and extension of the works of the system,” from new users of the system. The ordinance of defendant District has established such connection fee at $160 in one area and $15 in another. While the record before us does not indicate the precise method by which the connection fees were established, the ordinance recites “that connection fees to the Aurora Sanitary District system should be charged in proportion to the benefits received and that it is the determination of the Board of Trustees to provide for depreciation and obsolescence of the plant, interceptor or main line facilities and all other facilities and appurtenances of the Aurora Sanitary District system by the establishment of this fund and the contributions thereto in a fair and equitable manner proportionate to the benefits gained.”
In the case at bar the General Assembly has delegated to the District the power to collect a charge from new users for connection to its system. In the absence of precise directions as to the manner in which such charge is to be established, it is implicit that it must be reasonable. (Dean Milk Co. v. City of Chicago,
It does not appear from the face of the ordinance that the connection fee assessed is unreasonable, arbitrary or oppressive. Rather the ordinance established a connection fee pursuant to statutory authority. Such an ordinance is presumptively valid, and the burden is upon the party asserting its invalidity. (Henson v. City of Chicago,
We therefore must consider the contentions of plaintiff that the purported delegation of power by the General Assembly violates specific provisions of the constitution of Illinois.
The plaintiff insists that both the statute and the ordinance are unconstitutional in that they impose a special nonuniform tax that is neither needful nor for a corporate purpose, in violation of article II, section 2; article IV, section 22; and article IX, sections 1 and 9, of the constitution of Illinois.
The District contends, however, that both the ordinance and the enabling statute are legitimate and nondiscriminatory exercises of the police power, and do not constitute an improper tax.
We feel that plaintiff’s arguments have been carefully considered in the recent case of Spalding v. City of Granite City,
We believe that the reasoning involved in the Granite City case is equally applicable here. It is patent that the rapid expansion of our municipalities has rendered inadequate prior facilities developed for the health and welfare of the community. It is only proper that all citizens of the community should share equally in the cost of maintaining a sanitary plant which benefits the health and welfare of the entire community by the proper disposal of sewage. It would seem equally fair that those property owners who benefit especially, not from the maintenance of the system, but by the extension of the system into an entirely new area, should bear the cost of that extension. Spalding v. City of Granite City,
The pattern created by the present ordinance is not complex. All property owners pay an annual tax for the operation of the sanitary system. New additions to the community, however, create new problems of public health which must be met either by an extension of the present system or the installation of private septic systems. The present statute merely permits the District to offer to residents of a new area a convenient and economical way of handling the sanitation problem they have created. There is nothing mandatory about either the statute or the ordinance. Residents of new areas are merely told that the District will treat all sewage brought into our system for the annual uniform tax. If, however, you wish the District to go out and provide new connections and interceptors to care for your problems, you must pay a reasonable charge for this service.
We have found that such reasonable charges have been uniformly sustained as a service charge rather than a tax. (Maryville v. Cushman,
While the actual prorata cost of the extension and needed plant expansion to each new user cannot be determined with mathematical precision, we find nothing in this record to show that the charge set by the District is unreasonable. The ordinance is, therefore, not vulnerable to that attack in this proceeding.
From the foregoing analysis, we must conclude that the trial court was correct in entering judgment dismissing the complaint, and said judgment is accordingly affirmed. .
Judgment affirmed.
Dissenting Opinion
dissenting:
I dissent from the opinion of the court for the following reasons:
(1) The statute that is relied upon by the Sanitary District can not authorize the ordinance under which the challenged charg'e was made. The ordinance was adopted in March of 1958. It is not suggested that there was then in effect any statute authorizing such a charge. The statute upon which the Sanitary District relies for its authority was not enacted until 1959.
Whether the legislature could have validated the ordinance is at best doubtful. With respect to legislative validation of unauthorized municipal action this court has said: “However, the General Assembly cannot give validity to the exercise of a power where such assumed power did not exist at the time it was purported to have been exercised. The power to levy a tax by an administrative body is jurisdictional. Jurisdiction to act cannot be conferred by subsequent legislation where the power to act was lacking at the time the purported action was taken. People v. Chicago and Eastern Illinois Railway Co.
(2) The statute that is relied upon by the Sanitary District does not authorize the ordinance under which the challenged charge was made. The opinion of the court states that “the record before us does not indicate the precise method by which the connection fees were established.” The concluding paragraphs of the opinion then proceed upon the assumption that what is involved is “a method of financing needed extensions of sanitary systems by means of a service or connection charge rather than a general tax.” Upon this assumption, and upon the authority of Spalding v. City of Granite City,
The underlying assumption is incorrect. The charge with which we are now concerned is not based upon the cost of extensions or additions to the existing system. Rather, the charge is designed to recoup from the new users of the system the cost of the original treatment plant which was paid for by a bond issue that was fully retired in 1946. This purpose, and the basis upon which the charge was computed are entirely clear from the record. The answer of the defendant, “states the fact to be that neither the plaintiff nor his predecessors in title have ever been taxed directly or indirectly for these said capital improvements or for the retirement of the bonds from which money was secured to construct these capital improvements; * * And in its brief, in supporting the reasonableness of the fees, the District points out the basis upon which they were computed. It says : “They represent the amounts paid by similar landowners in the same general territory in the past for the establishment of the treatment plant and interceptor lines in the first instance.” The defendant’s answer states that “The funds thus collected constitute a sum in excess of $100,000, and that said fund has been used both for the establishment of additional interceptor lines and for the rehabilitation and repair of the disposal plant * *
The statute upon which the District relies authorizes a sanitary district “to collect a fair and reasonable charge for connection to its system * * * for the construction, expansion and extension of the works of the system * * (Ill. Rev. Stat. 1959, chap. 42, par. 306.) It does not authorize the imposition of a charge for “repair and rehabilitation” of the original plant,
The statute looks forward toward “construction, expansion and extension,” while the ordinance looks backward in an effort to recoup, from a selected group of new users, costs that were incurred in bygone years. While it is true that the plaintiff did not pay any part of the cost of the original facilities, which were fully paid for by 1946, it is also true that he was not able to use those facilities over the long period that intervened between the original construction and the time when he sought to connect with the system.
Nothing in the forward looking language of the statute suggests that the General Assembly intended to authorize a sanitary district to impose a connection charge for the purpose of reimbursing the taxpayers of the original district for the cost of existing, and perhaps substantially depreciated facilities.
Mr. Justice Hershey concurs in the foregoing dissent.