The opinion
Mr. JUSTICE DIXON dissenting:
I cannot agree that the Circuit Court did not have jurisdiction to hear this case. Here we have a complaint for injunction, to abate a public nuisance, brought by the Attorney General in the name of the People of the State of Illinois and the majority holding is that the Circuit Court has no jurisdiction of the subject matter.
The complaint basically alleges: that the Environmental Protection Act prohibits dumping of garbage except at a facility which meets the requirements of the Act; that the defendant has possession of property in Peoria County used for dumping; that he has permitted the operation of dumping and open burning as prohibited by the Act; that an injunction be made permanent, defendant be penalized as provided in the Act and that a mandatory injunction be ordered requiring defendant to comply with sanitary landfill requirements of the law.
The Environmental Protection Act provides for alternate ways of enforcement. Under Title VIII an administrative procedure is created. The complaint did not in any manner attempt to invoice this administrative procedure.
Title XII, Section 42 provides an alternate remedy. The applicable portion reads:
“Any person who violates any provision of this Act * * * shall be liable to a penalty * * * and such person may he enjoined from continuing such violation as hereinafter provided # # The State’s Attorney of the County in which the violation occurred, or the Attorney General shall bring such actions in the name of the People of the State of Illinois.”
The majority state, “There is no escaping the conclusion that the plaintiffs were charging violations of the Environmental Control Act.” Of course they were. Under Title II, Air Pollution, certain acts are declared to be a public nuisance and are prohibited. Among them are, “Cause to allow open burning of refuse”. Sec. 9(c).
Under Title V, Land Pollution and Refuse Disposal, certain acts are also declared to be a public nuisance and are prohibited. Among them are, “Cause or allow the open dumping of garbage.” Sec. 21a.
The General Assembly has power to declare certain conditions to be nuisances even though they were not so regarded at common law. (People v. Jones, 329 Ill.App. 503 .) The general rule was that relief against a public nuisance could be secured only by a public prosecution (Swain v. Chicago B. & Q. R. Co., 160 Ill.App. 533 .) Chancery has jurisdiction to abate a public nuisance. In City of Chicago v. Fritz, 36 Ill.App.2d 457 , an injunction restraining use of land for purpose of dumping or burning garbage was upheld, the court holding such to be a common law public nuisance.
The Attorney General has both statutory and common law powers to maintain actions on his own initiative. In addition to Sec. 42, previously discussed, the Attorney General has power to sue under his own Statute (Ill. Rev. Stat. 1971, ch. 14, sec. 12) which refers to the Environmental Protection Act for its general definitions of “pollution” but which does not in any way adopt or incorporate the detailed regulations of the Board. He also has common-law power to maintain all actions necessary to protect the welfare of the public. Fergus v. Russel, 270 Ill. 304 .
Section 45a of the Act also declares that, “No existing civil or criminal remedy for any wrongful action shall be excluded or impaired by this Act.”