# Carlson v. Village of Worth

> Illinois Supreme Court · February 5, 1976 · 62 Ill. 2d 406

URL: https://www.frixlaw.com/law-library/cases/9739858

## Case

- **Full name:** HARRY A. CARLSON, Appellee, v. THE VILLAGE OF WORTH, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** February 5, 1976
- **Citations:** 62 Ill. 2d 406; 343 N.E.2d 493; 1976 Ill. LEXIS 474
- **Precedential status:** Published
- **Opinion:** Dissent by Ryan
- **Judges:** Schaefer, Ryan, Underwood, Ward
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9739858

## Opinion text

MR. JUSTICE RYAN, dissenting:
It is apparent that there are substantial differences between my interpretation of the Environmental Protection Act and that of the majority of this court. These differences prompted my dissent in the original opinion in this case and cause me to disagree with the conclusions stated in the supplemental opinion. The Attorney General of this State and the corporation counsel of the city of Chicago have filed amicus briefs in support of the petition for rehearing indicating that these offices also share my concern for this court’s interpretation of the Act, which I consider vests more authority in the Environmental Protection Agency than the legislature intended. The Act is lengthy. It covers broad areas of activities which affect many facets of modern living, industry and business. In very general language it vests certain authority in the Pollution Control Board. In language just as general it vests in the Agency the authority to administer and enforce the Act. The Agency is intimately familiar with all aspects of the Act and the interrelationship between its various provisions. The Attorney General, speaking for the Agency, whose duty it is to administer and enforce the Act, states that this court’s interpretation vests in the Agency too much authority; that this court’s interpretation creates serious problems in administering the Act. In view of these remonstrations coming from those who have an overall familiarity with the Act, this court, which only has the opportunity to consider the Act in piecemeal fashion on a case-by-case basis, should grant rehearing. In fact, I would favor asking for additional briefs and a reargument of the case so that this court may be fully informed of all ramifications of the question and fully understand the consequences of its decision.
In this dissent I will discuss the area of my disagreement with the supplemental opinion and will not restate my objections to the original opinion. Before stating the substance of my dissent, there is what I consider to be an erroneous assumption in the supplemental opinion which should be considered.
The majority did not accept the representation of the Attorney General that the Board has not adopted any standards regarding location of sanitary landfills and that authority to govern their location may be exercised by local government units. The opinion finds in the requirement of Rule 316 of the Board’s solid waste regulations that the application for a permit contain a legal description of the proposed site, maps of the site and land use and population density of the site and the area within one mile of its boundaries some standard upon which the Agency may issue a permit. Rule 316 has nothing to do with standards. Although other rules of the Board covering this subject do contain standards, there are none relating to location of. landfills. Rule 316 only specifies what information should be contained in the application for a development permit for a sanitary landfill. If the Agency uses this information as the supplemental opinion suggests, it would be establishing standards which it has no authority to do under the Act. For example, if the Agency were to decide that to accomplish the purpose of a unified statewide program as stated in section 2(b) of the Act no permit for a sanitary landfill will issue if the map and information submitted pursuant to Rule 316 show a population density of 500 people within the area of one mile from the site’s boundary this would be establishing a standard which the Agency has no authority to formulate.
The fact that the Environmental Protection Act does not contain a specific grant of authority to municipalities to regulate sanitary landfill operations does not manifest an intent by the legislature that the State preempt all authority in this field. The supplemental opinion indicates that the failure of the Act to specifically grant to the municipality any authority is evidence that no such authority exists. As stated in my original dissent, municipalities possess authority to legislate in the area involved in this case by virtue of other statutory grants.
In City of Nokomis v. Sullivan, 14 Ill.2d 417 , this court found that the statute conferring on cities the power to define, prevent and abate nuisances could be used to compel property owners to discontinue the use of water closets and privies not connected to the city sewer. Our statute still provides:
“The corporate authorities of each municipality may define, prevent, and abate nuisances.” Ill. Rev. Stat. 1973, ch. 24, par. 11-60-2.
In Strub v. Village of Deerfield, 19 Ill.2d 401 , the village, by ordinance, limited the number of scavenger licenses. This court held that the village had the authority to regulate the collection, removal and disposal of garbage either under the general police power conferred on it by statute or under the statute authorizing a municipality “to do all acts and make all regulations necessary or expedient for the promotion of health and the suppression of disease.” ( 19 Ill.2d 401, 402 .) This court found that the ordinance limiting the number of scavenger licenses “bears a real and reasonable relation to the objects of public health sought to be attained ***.” ( 19 Ill.2d 401, 405-406 .) The present statute has retained the provisions relied upon in Strub and provides:
“The corporate authorities of each municipality may do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of diseases ***.” Ill. Rev. Stat. 1973, ch. 24, par. 11-20-5.
In Consumers Co. v. City of Chicago, 313 Ill. 408, 413 , it was held that the police powers granted to the city “to pass and enforce all necessary police ordinances” gave to municipalities the authority to regulate and provide for the collection and disposition of garbage. This court stated:
“The right of a municipal corporation, under its police powers, to regulate the collection, removal and disposition of garbage and other noxious and unwholesome substances accumulating within its limits, as a sanitary measure for the promotion of the public health, has been sustained. [Citations.] ” ( 313 Ill. 408, 413 .)
See also Montgomery v. City of Galva, 41 Ill.2d 562 . Our statute still provides:
“The corporate authorities of each municipality may pass and enforce all necessary police ordinances.” Ill. Rev. Stat. 1973, ch. 24, par. 11-1-1.
In addition to the above statutory provisions which have been construed as granting to municipalities the authority to adopt ordinances similar to that of the Village of Worth, the Illinois Municipal .Code also specifically provides:
“Every city, village or incorporated town may provide such method or methods as shall be approved by the ' corporate authorities for the disposition of garbage, refuse and ashes. Such methods may include, but need not be limited to land fill, feeding of garbage to hogs, incineration, reduction to fertilizer, or otherwise. ***” Ill. Rev. Stat. 1973, ch. 24, par. 11-19-5.
Also, the Illinois Municipal Code confers zoning powers upon municipal authorities “[t] o the end *** that the public health, safety, comfort, morals, and welfare may otherwise be promoted. ***” Ill. Rev. Stat. 1973, ch 24, par. 11-13-1.
Historically the regulation of the collection of refuse and its disposition have been functions performed by municipalities under the authority delegated by the legislature or that necessarily implied by such delegation. Those statutes from which this authority has been derived are still in effect. If it were the intent of the legislature that the Environmental Protection Act place these functions under the exclusive control of the State, such an intent could have been easily clearly expressed in the Act, or the particular sections of the Code conferring that authority on the municipalities could have been amended or repealed. This was not done, and the authority is still vested in the municipalities to be exercised as stated in City of Chicago v. Pollution Control Board, 59 I11.2d 484, in conformity with the minimum standards established by the legislature.
The Village of Worth is a non-home-rule unit. However, the city of Chicago in its amicus brief voiced concern as to the effect of this court’s holding in this case upon its home rule powers which we sustained in City of Chicago v. Pollution Control Board. As noted above, the collection and disposal of garbage and refuse has long been a function delegated to local governmental emits. It would thus appear to be a power or function pertaining to the government and affairs of a home rule unit and thus a home rule power. Also, under the rationale of Strub v. Village of Deerfield the provisions of section 6(a) of article VII of the 1970 Constitution giving home rule units “the power to regulate for the protection of the public health, safety, morals and welfare,” the regulation of the collection and disposal of garbage would be a home rule function. The State has chosen through the Environmental Protection Act to regulate in this area concurrently with the home rule units; however, it has not specifically limited the concurrent exercise of a home rule unit’s authority, nor has it specifically declared the State’s exercise of authority in this area to be exclusive, as it may do under section 6(i) of article VII of the 1970 Constitution.
The supplemental opinion and the opinion of the appellate court in this case conclude that the failure of the legislature to enact amendments No. 13 and 14 evidences' an intent that municipalities should not be authorized to regulate in the areas covered by the Environmental Protection Act. I cannot read that meaning into the defeat of these amendments. There obviously are many reasons why a bill or an amendment to a bill may be voted down. We do not have the benefit of the transcribed debates on these amendments. It may well be that the General Assembly thought the provisions of the Illinois Municipal Code, several sections of which I have cited, conferred adequate power upon municipalities and that a further grant was not needed in the Act. In reading the two amendments in question there appears to be a very valid reason for their defeat aside from that suggested by the supplemental opinion. The amendments would have completely fragmented the enforcement of the Act by providing for its enforcement in certain cities by the municipality alone and in other areas of the State by a political subdivision and the Agency or the Board, and in areas where no political subdivision had been certified as the agency with primary responsibility, presumably the amendment would have required enforcement by the Agency or the Board alone.
We are in this case dealing only with the regulation of solid waste disposal sites ánd sanitary landfills. The sections of the Illinois Municipal Code cited grant to municipalities authority to regulate these operations. The Village of Worth has adopted the ordinance in question pursuant to this statutory authority. There may be areas covered by the Environmental Protection Act in which the Illinois Municipal Code has not authorized municipalities to legislate, thus denying, at least to non-home-rule units, the power to act and leaving that power solely in the State. The area with which we are dealing in this case, however, is not one of these.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9739858. Public record. Not legal advice.