Anderson v. Village of Berwyn

Mr. Presiding Justice Smith delivered the opinion of the court. The parties to this controversy seem to have treated the hearing on the motion for an injunction as a final hearing of the cause, and they so treat it on this appeal. In the absence of any objection, we will so treat it. Appellants by their bill attack the validity of the ordinance and resolutions set out therein. The answers and affidavits of appellees bring to the atténtion of the court the amended resolutions and considerations of fact relating to the propriety of the exercise of the powers claimed to be conferred upon the village trustees by the provisions of chapter 24 of the Revised Statutes under which the village or Berwyn is incorporated. In order to determine the question whether or not the village board exceeded its powers in adopting the ordinance in question it is necessary to resort to the statutes which confer the powers upon incorporated villages. Section 1 of article X of the above chapter provides that “The city council or board of trustees shall have power to provide for a supply of water by the boring and sinking of artesian wells, or by the construction and regulation of wells, pumps, cisterns, reservoirs or waterworks * ; also to prevent the unnecessary waste of water.” Section 3 of the same article provides that “the city council or board of trustees shall have power to make all needful rules and regulations concerning the use of water supplied by the waterworks of such city or village, and to do all acts and make such rules and regulations for the construction, completion, management or control of the waterworks, and for the levying and collecting of any water taxes, rates or assessments, as the said city council or board of trustees may deem necessary or expedient.” By section 4 of an act entitled “An Act authorizing cities, incorporated towns and villages to construct and maintain waterworks, approved and in force April 15, 1873” (Hurd’s Statutes of 1901, page 323), it is provided: “The common council of such cities, or trustees of such towns or villages, shall have power to make and enforce all needful rules and regulations in the erection, construction and management of such waterworks, and for the use of w'ater supplied by the same. And such cities, towns and villages shall have the right and power to tax, assess and collect from the inhabitants thereof such tax, rent or rates for the use and benefit of water used or supplied to them by such waterworks as the common council or board of trustees shall deem just and expedient. ’ ’ We do not doubt that the village of Berwyn has the power under the above provisions to adopt the ordinance in question. The provisions of the ordinance are clearly within the powers delegated by the express provisions of the statute. A grant of power to provide a supply of water and to prevent its waste, and to make all needful rules and regulations concerning the use of water supplied by the village and to make such rules and regulations for the management or control of the waterworks, and for the levying and collecting of water rates as the board of trustees may deem necessary or expedient is sufficiently broad and comprehensive to cover every provision of the ordinance to which our attention has been directed. Wagner v. Rock Island, 146 Ill. 139; Prindiville v. Jackson, 79 Ill. 337. A municipal corporation clothed with the powers conferred by the statutes above referred to,, may require persons taking water from the public waterworks to furnish and pay for water meters to measure the water taken by them. State v. Gosnell, 116 Wis. 606; Wagner v. Rock Island, supra. The ordinance adopts the meter system for measuring the quantity of water consumed or taken by the owners of property as the basis of charging for the water and fixes the rates to be charged therefor. It also provides that the kind of water meters to be used shall be designated by a resolution of the board of trustees. It is contended by appellants that if the right exists in the municipality to designate the kind of meter which shall be purchased and used by the resident who takes water from the public supply, such right can only be exercised by the passage of an ordinance because it is a legislative act; and therefore that any attempt to select the kind of water meter by a resolution is void. With this contention we cannot agree. It is doubtless sound as a legal proposition that a municipality can legislate only through the passage of ordinances; that acts of legislation by a municipality which prescribe a permanent rule of conduct or government should be established by ordinance. But, in the case at bar, the act of legislation, if it can be so termed, expressing the general policy or rule of conduct regarding the taking of water by consumers was done in and by the ordinance. The execution of the ordinance in the selection of the meters- was reserved for further' action by the board, and in other respects its execution was committed to the executive officers of the village. This, we think, was entirely within well-recognized legal principles. The ordinance is not subject to the objection that it delegates to administrative officers power which is legislative in nature or character. Nor is the amended resolution selecting the kind of meters subject to the objection that it is legislative in its nature. The resolution was rather executive and was a reasonable step in the execution of the ordinance. As said in Arms v. Ayer, 192 Ill. 601, quoting from Sutherland on Statutory Construction, see. 68: “ The true distinction is between a delegation of power to make the law,, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made.” See also Owners of Land v. People, 113 Ill. 296; People v. Reynolds, 5 Gilm. 1. We have seen that the adoption of the ordinance in question is within the general powers of the village. The remaining test is whether the regulations sought to be enforced by the ordinance are reasonable or otherwise. The answer filed by the defendants and the affidavits in support thereof show many reasons for the action of the village board in adopting the ordinance, and for the resolution passed on August 20, 1903, amending the resolutions of May 21, 1903. Upon the evidence thus presented to the court we think the court below did not err in holding that the ordinance was a reasonable regulation under the powers conferred. We do not think a case is made by appellants entitling them to the injunction prayed for. No case of irreparable injury or injustice is made out. It does not appear but that appellants could have avoided the trifling losses which they will sustain by the enforcement of the ordinance. The bill does not disclose the time or times when appellants installed in their residences or places of business their water meters. It does not appear what complainants’ water meters cost. The bill does not show that these meters were tested and approved by the proper village officers before they were installed. The bill makes no attempt to show compliance with the requirements of the ordinance or any other village regulations. For aught that appears in the bill, it may be that complainants had notice of the requirements of the ordinance and of the resolution of May 21, 1903, as amended, prescribing the kind of water meters to be used, before they procured their meters, and by the ordinary rules of construing pleadings these questions must be resolved against complainants. We see no reasonable ground for a court of equity to interfere in the affairs of the village upon the facts appearing in the pleadings and proofs. The decree of the Superior Court is affirmed. Affirmed.