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. 365 Ill. 202.” (People ex rel. Larson v. Thompson, 377 Ill. 104, 112.) But even if the legislature could have validated the prior municipal action, it made no attempt to do so. In such a case, “An ordinance void under a statute existing at the time of its enactment is not validated by amendment of the statute so that the ordinance might be validly enacted under the amended law.” (37 Am. Jur. (Mun. Corp. § 168) p. 798; see also, State v. Owen, 88 S.E.2d (N.C. 1955) 832, and cases cited at p. 835.)
(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, 415 Ill. 274, which did involve such a method of financing, the opinion sustains the charge.
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.