¶1dissenting.
¶2I respectfully dissent from the opinion.
¶3I do not consider that the language of our statute (e 139, § 160.45, Ill Rev Stats) which authorizes the Board of Town Auditors to supervise and control and establish all needful rules and regulations for a sewer system, by ordinance, is sufficiently broad to authorize an ordinance making ineffective the laws of the United States with reference to legal tender. 31 USCA § 392, §§ 451-463. While our General Assembly has provided that taxes may be paid in mediums other (warrants and orders) than those designated by Congress, (c 120, § 672, Ill Rev Stats) they have not said that any public officer shall refuse legal tender in the payment of charges or taxes. While our General Assembly has the power to prescribe the medium in which taxes shall be paid, People ex rel. Swartchild & Co. v. Carter, 376 Ill 590, 35 NE2d 64, People v. Board of Education, 349 Ill 291,182 NE 383, our courts have never said the Illinois Statute permitting payment in other than legal tender as declared by Congress, excluded the right to payment by such legal tender; neither have our Courts ever held that a municipality had the power to provide by ordinances, the medium in which charges or taxes should be paid, to the exclusion of the mediums provided either by the General Assembly or Congress.
¶4To construe the ordinance here in question, which only provides for payment by check or money order, as excluding payment by legal tender, in my opinion makes the ordinance bad; it should be construed as permitting payment by check or money order in addition to payment by legal tender. “Where two constructions can be placed upon a statute or an ordinance, one of which will render it valid and the other invalid, it is the duty of the court to so construe the statute or ordinance that the same be held valid, if the court can reasonably do so.” Bjork v. Safford, 333 Ill 355, 164 NE 699 at 701, 61 ALR 561; 37 Am Jur 829, Mun Corp, par 189. Under such construction it need not be directly attacked or questioned in order for plaintiffs’ complaint to stand, since they have alleged that they tendered the amounts due in legal tender and defendant refused to accept the same. To me it is obvious that plaintiffs are contending that defendant was purportedly acting pursuant to the ordinance, but was really acting in accordance with the defendant Treasurer’s interpretation of the ordinance, which was arbitrary and unreasonable.
¶5Defendant here concedes that the rule is that unless authorized by statute a public officer has no authority to accept anything other than money in payment of any obligation due the State or a political subdivision thereof; 40 Am Jur, Payment, § 41. Even assuming that the ordinance was such statutory authority, it still is not authority for excluding the acceptance of legal tender. Furthermore, our Supreme Court held in Conkling v. City of Springfield, 132 Ill 420, 24 NE 67, that a municipal corporation or subdivision has no power by ordinance to direct the payment of taxes by a medium other than that prescribed by Statute, and no Illinois Statute includes checks or money orders as payment for either taxes or charges; in fact a check for all purposes has been held to be only conditional payment.
¶6Defendant contends, assuming the absence of statutory authority, both an express and implied contractual relationship between the parties, relying on Rockford Savings & Loan Ass’n v. City of Rockford, 352 Ill 348,185 NE 623, and Rosborough v. City of Moline, 30 Ill App2d 167, 169, 174 NE2d 16, which held that a water user does not pay a tax, but has an obligation resting on contract, express or implied. Such argument completely overlooks language in those cases, pointing out that the rule is only applicable where the user has a free choice. Here plaintiffs are forced by the ordinance (section 3) to connect to the sewerage system or be subject to a fine each day. Under such circumstances there was no choice, and no contract. The theory of contractual relationship is to be applied only where the privilege of using the utility is optional at the choice or election of the property owner. Spalding v. Granite City, 415 Ill 274, 113 NE2d 567; Hartman v. Aurora Sanitary Dist., 23 Ill2d 100, 177 NE2d 214.
¶7In addition to alleging the refusal of defendant to accept legal tender, plaintiffs have alleged that defendant, by the enforcement system used, has under the guise of a “service charge” added illegal charges to the bills. They point out that the charges made are neither reasonable nor authorized by the ordinance. They concede that the enforcement provisions of the ordinance are reasonable but object to the strained construction placed upon such provision. The ordinance provides in part:
“All sewer bills shall be due and payable ten days from the date such bills are rendered and a service charge equivalent to ten percent (10%) shall be added and collected if such bill is not paid within ten (10) days. If said delinquent sewer bill is not paid within sixty (60) days further after said first ten (10) day period the superintendent of the Township of Canteen Sewer Department shall cause the sewer to be disconnected from said premises, the same shall not again be connected or used until all delinquent accounts and bills of services are paid in full, including a fee of $10.00 for reconnecting said sewer service plus expenses incurred in the reconnecting of the sewer service.
“If said delinquent sewer bill is not paid within sixty (60) days further after said first ten (10) day period, the Board of Town Auditors shall by resolution order the Township Treasurer to place a lien upon the premises for the amount of sewer service charges due to date.”
¶8Plaintiffs allege and point out that the charges which they have in past paid under protest and for which they have tendered in past in legal tender, consist not only of the 10% provided by the ordinance, but additional 10% charges on the bill and accrued service charges, compounded, and that they are threatened with their sewer service being disconnected to their irreparable damage, making their premises unsafe for habitation, and the implied threats of prosecution for misdemeanor, if they do not pay such illegal payments by check or money order. Defendant contends that under the authority of the ordinance he can compound the 10% monthly. The ordinance, in my opinion, clearly provides reasonable provisions for collection; a 10 % charge for 10 days delinquency in payment, termination of service after 60 additional days with a lien. I do not consider it authority for the Treasurer to add a new 10% on the bill and service charge each month, or authority for proceeding in any method other than specifically provided for enforcement.
¶9Defendant suggests that instead of action for mandamus or injunction, plaintiffs pay the excessive compounded penalties under protest and then sue for their recovery. Such procedure would forfeit the point that defendant cannot refuse legal tender, and that point would become moot. Such procedure and remedy is not adequate, full or complete.
¶10Where the action of the municipality or administrative agency was highly inequitable and most unfair and determined, a writ of mandamus was ordered to issue against the municipality or administrative agency and such action was affirmed on appeal. Catholic Foreign Mission v. Village of Glen Ellyn, 339 Ill App 565, 90 NE 2d 653; Frank v. Village of Lansing, 33 Ill App2d 1, 178 NE2d 415.
¶11In U. S. v. White County Bridge Commission, 275 F2d 529 the court observed that mandamus or injunction
“traditionally maybe used for enforcing or challenging official conduct.” . . .
“The function of the equitable remedy of injunction ... is preventive, prohibitory, protective or restorative, as the law and circumstances of the case warrant.”
¶12Mandamus lies to enforce the performance of statutory duties with respect to the assessment and collection of taxes where such omission has been specifically directed to the attention of the authorities and a demand for affirmative action has been ignored. People ex rel. Park Forest v. Cullerton, 13 Ill2d 575 at 580, 150 NE2d 589; People ex rel. Jones v. Webb, 256 Ill 364, 100 NE 224; People ex rel. Spiegel v. Lyons, 1 Ill2d 409, 115 NE2d 895.
¶13A court of equity will direct its restraining power against the enforcement of an ordinance, if ground exists therefor, to prevent irreparable injury. Ehrlich v. Village of Wilmette, 361 Ill 213 at 221, 197 NE 567; Northern Pac. Ry. Co. v. Weinberg, 53 F Supp 133 at 139; Ex parte Young, 209 US 123, 28 S Ct 441, 52 L Ed 714, 13 LRA (NS) 932, 14 Ann Cas 764; Eastern Oil Refining Co. v. Court of Burgesses, 130 Conn 606, 36 A2d 586.
¶14I would reverse the judgment order dismissing the complaint.