
Nos. 2--02--1383 & 2--02--1384 cons.	

______________________________________________________________________________



IN THE



APPELLATE COURT OF ILLINOIS



SECOND DISTRICT

______________________________________________________________________________



THE VILLAGE OF ALGONQUIN,	)	Appeal from the Circuit

)	Court of McHenry County.

Plaintiff-Appellee,	)

)	

v.	)	No. 01--OV--1390

)

RANDY TIEDEL,
	)	Honorable

)	Charles P. Weech,

Defendant-Appellant.	)	Judge, Presiding.

______________________________________________________________________________



THE VILLAGE OF ALGONQUIN,	)	Appeal from the Circuit

)	Court of McHenry County.

Plaintiff-Appellee,	)

)

v.	)	No. 01--OV--1389

)

MARK BARZYK,
	)	Honorable

)	Charles P. Weech,

Defendant-Appellant.	)	Judge, Presiding.

______________________________________________________________________________



JUSTICE BYRNE delivered 
the
 opinion of 
the
 court:



In these consolidated appeals, 
defendant
s, Randy Tiedel and Mark Barzyk
,
 appeal the judgment of the circuit court of McHenry County, finding them guilty of failing to obtain permits to hook up to 
the
 
water system of 
the
 Village of Algonquin (Village)
 in violation of 
the
 Village ordinance.  
We affirm.

The
 following facts are not in dispute.  Defendants are residents of 
the
 Algonquin Hills subdivision in Algonquin.  On February 2, 2001, 
each defendant
 was issued a complaint for failing to obtain a permit by February 1, 2001, to connect to 
the
 Village's water system, in violation of 
"Section 21 Chapter 6A" of 
the
 Algonquin Municipal Code.  "Section 21 Chapter 6A" of 
the
 Algonquin Municipal Code, under which 
defendant
s were charged, is generally cited as section 6A.21.
  See Algonquin Municipal Code §6A.21 (1997).

On July 10, 2002, 
defendants
 filed separate motions to dismiss pursuant to section 2--619 of 
the
 Code of Civil Procedure (735 ILCS 5/2--619 (West 2002)).  Defendants alleged that section 6A.21
 did not apply to 
them
 because it
 was passed in 1997 and was
 applicable only to homeowners who had a public water main available then
, and no water main existed or was located next to their properties until 2000.  Defendants further alleged that 
the
 Illinois Municipal Code (65 ILCS 5/1--1--1 
et seq
. (West 2002)) did not give municipalities 
the
 power to require private homeowners to
 abandon private wells and connect to 
the
 water supplies provided by 
the
 municipalities.  Defendants also maintained that their wells were not contaminated and had not contaminated any surrounding wells and, consequently, mandatory connection was inappropriate
.  
The
 trial court disagreed and denied 
the
 motions to dismiss.

At 
trial, 
the
 parties stipulated to 
the
 following:  (1) 
section 6A.21 
was passed and in effect as of 1997; (2) if called, 
a 
Village official would testify that 
the
 Village municipal water supply is superior to a private well; (3) a water main was within 300 feet of 
defendant
s' properties in 1999; (4) 
defendant
s are receiving 
the
 benefits of fire protection in that fire hydrants are now located in their neighborhood; (5) other private wells in the area have failed, due either to lack of water or to  contamination; (6) 
neither defendant
 had received notice from 
the
 Village that his well had been maintained in an unsanitary manner; and (7) 
Barczyk's
 well had not been tested was 13 years and
 Tiedel's had not been tested for 2 years.  

The trial court found that 
protecting 
the
 public health and general welfare of 
the
 residents of a municipality is a valid
 
exercise of police power and that 
section 6A.21 was rationally related to 
the
 legitimate purpose of protecting 
the
 health and safety of 
the
 residents of 
the
 Village.  Accordingly, 
the
 court concluded that section 6A.21 
was constitutional.  The court further found 
defendants
 to be in violation of 
the
 ordinance.  Defendants timely appeal.

On appeal, d
efendants
 contend that 
the
 trial court erred in denying their section 2--619 motions to dismiss.  In particular, 
defendant
s assert, as they did below, that 
section 6A.21 
does not apply to them, 
the
 Illinois Municipal Code does not give municipalities 
the
 power to require abandonment of private wells and connection to the municipal water supply, and a municipality may not require a private homeowner to receive or use 
the
 water furnished by a municipality.  On an appeal from 
the
 denial of a section 2--619 motion to dismiss, our review is
 
de
 
novo
. 
 
In re Chicago Flood Litigation
, 176 Ill. 2d 179, 189 (1997).
 

Defendants argue 
that section 6A.21 of 
the
 Algonquin Municipal Code does not apply to them because it 
was passed in 1997 and it does not refer to or anticipate a water main that was constructed in 2000
. 
 We reject 
defendant
s' argument for several reasons.  First, we observe that s
ection 6A.21 is divided into four subsections.
  Of relevance to this appeal are subsections (A) and (B).  In support of their argument, d
efendant
s rely solely on subsection (A) of 
the
 ordinance, which provides, in relevant part: "The owners of all houses, buildings, or properties situated within 
the
 Village in which there is 
now located
 a public water main, shall be required to make connection to 
the
 public water main."
  (Emphasis added.)  Algonquin Municipal Code §6A.21
(A) (1997).  D
efendants
 interpret 
the
 phrase "now located" to mean that 
the
 ordinance is applicable only to homeowners who had a public water main available to them in 1997, 
when
 the
 ordinance was passed.  However, tying 
the
 phrase "now located" to 
the
 date 
the
 ordinance was passed would, in effect, render 
the
 ordinance inapplicable to any future growth of 
the
 Village and 
would force 
the
 Village to pass a new ordinance each time 
the
 public water main is extended.  Had 
the
 Village intended only those homeowners with access to a public water main in 1997 to connect to it, it would have specifically stated so in 
the
 ordinance.
  
It is presumed that the legislature did not intend an absurd or unjust result.  See 
In re Marriage of Murphy
, 203
 
Ill. 2d
 212, 219 (2003).  Moreover, a statute should be read as a whole and construed so that no word, phrase, or section is rendered superfluous or meaningless.  
Potts v. Fitzgerald
, 336 
Ill. App. 3d
 500, 504 (2003).  Defendants' argument ignores basic guiding principles of statutory construction.

Even assuming 
defendant
s' interpretation of subsection (A) is correct, 
defendant
s disregard subsection (B) of 
section 6A.21.
  Section 6A.21(B) provides that 
the
 owner of property situated within 
the
 Village and abutting any street "in which a public water main is within 300 feet of 
the
 nearest property line of 
the
 property shall be required to extend 
the
 public water main to and across 
the
 frontage of 
the
 property and make connection as herein provided."
 
 Algonquin Municipal Code §6A.21
(B) (1997).  
Defendants
 
stipulated at trial that a public water main was located within 300 feet of their property lines.  Their stipulation admits a violation of 
the
 Village code
.  Defendants cannot ignore that they are in violation of 
the
 Village code by addressing only subsection (A).  A statute should be read as a whole with all relevant parts considered.  
In re Marriage of Kates
, 198 
Ill. 2d
 156, 163 (2001).  We find their argument
 to be mis
leading at best. 
 

Defendants argue that 
the
 Illinois Municipal Code does not give 
the
 Village 
the
 authority to require homeowners to abandon private wells and to connect to a public water system.  In particular, 
defendant
s rely on section 11--125--1 of 
the
 Illinois Municipal Code (65 ILCS 5/11--125--1 (West 2002)), which states that 
"[t]he corporate authorities in each city and village 
may
 (1) provide for a supply of water by 
the
 boring of artesian wells, or by 
the
 digging, construction, or regulation of wells, pumps, cisterns, reservoirs, or waterworks."  (Emphasis added.)  

As in their argument above, defendants focus exclusively on one section of an entire article and propose an interpretation that is both out of context and against canons of statutory construction.
  First, 
defendant
s ignore the
 general rule in Illinois that the 
authority for 
the
 passage of an ordinance need not be wholly derived from a single grant of power by 
the
 legislature, but may be derived from several different grants of power.  
Father Basil's Lodge, Inc. v. City of Chicago
, 393 Ill. 246, 252 (1946).  Second, 
defendant
s disregard that each part or section of a legislative act must be considered in connection with every other part or section, and not alone, in determining 
the
 purpose or intent of 
the
 legislature.  
Castaneda v. Illinois Human Rights Comm'n
, 132 
Ill. 2d
 304, 318 (1989).  

Here, when 
the
 relevant sections of 
the
 legislative act are read together, it has 
the
 cumulative effect of granting municipalities, including 
the
 Village, 
the
 power to both provide and require connection to 
municipal water systems.
  Further, section 1--9--1 of 
the
 Illinois Municipal Code (65 ILCS 5/1--9--1 (West 2002)) states that 
the
 "provisions of this Code shall be cumulative in effect."  Further, section 11--139--8 provides municipalities with 
the
 power to: 

"(1) make, enact, and enforce all needful rules and regulations for 
the
 
acquisition, construction, extension, improvement, management, and maintenance of 
the
 
combined waterworks and sewerage system of 
the
 municipality and for 
the
 use thereof, (2) make, enact, and enforce all needful rules, regulations, and ordinances for 
the
 care and protection of such a system, which may be conducive to 
the
 preservation of 
the
 public health, comfort, and convenience and to rendering 
the
 water supply of 
the
 municipality pure and 
the
 sewerage harmless insofar as it is reasonably possible to do so, and (3) charge 
the
 inhabitants thereof a reasonable compensation for 
the
 use and service of 
the
 combined waterworks and sewerage system and to establish rates for that purpose." 
 65 ILCS 5/11--139--8 (West 2002).

Accordingly, we reject 
this
 argument also.

Defendants next argue that they cannot be forced to receive or use 
the
 water furnished 
absent a contract or some showing of a compelling public need
.
  Defendants assert that there is no evidence that they ever contracted for 
the
 Village to supply water.  Further, 
defendant
s contend that 
the
 Village did not show any compelling need to require a connection because 
the
 
trial court found that 
their
 wells were not contaminated and they had not received notice from 
the
 Village that their wells were maintained in an unsanitary manner.  
Defendants also contend that
 
the
 ordinance was not a proper exercise of 
the
 Village's 
police power, yet offer no support for this contention.
  Underlying all of these claims, it is apparent that defendants essentially advance
 arguments based on privacy rights and 
the
 general right to be free from government action,
 but since they
 do not identify precisely what parts of 
the
 constitution are implicated, we find no basis to support their claim
s. 
 

The trial court found that 
the
 ordinance in question is a valid exercise of 
the
 Village's police power.  We agree.  Although there are no cases in Illinois concerning 
the
 issue of whether mandatory connection to a municipal water supply is a valid exercise of police power, 
we first point out that Illinois courts have found that mandatory connection to a municipal sewer system is a valid exercise of police power.  The supreme court, in 
City of Nokomis v. Sullivan
, 14 
Ill. 2d
 417, 421 (1958), 
quoting 
Hutchinson v. City of Valdosta
, 227 U.S. 303, 308, 57 L. Ed. 520, 523, 33 S. Ct. 290, 292 (1913), observed that 
" '[i]t is 
the
 commonest exercise of 
the
 police power of a state or city to provide for a system of sewers, and to compel property owners to connect therewith.' "  The court held 
that the
 
defendant
s were not deprived of due process because they were required to connect with 
the
 city sewer system.  
City of Nokomis
, 14 
Ill. 2d
 at 423.  We perceive no meaningful distinction between mandatory sewer connections and mandatory water connections.  See 
Stern v. Halligan
, 158 F.3d 729 (3rd Cir. 1998)
; 
Shrader v. Horton
, 471 F. Supp. 1236 (W.D. Va. 1979). 

Cases from other jurisdictions that have addressed issues
 similar to those advanced by 
defendant
s here have overwhelmingly held that 
the
 requirement of mandatory abandonment of private wells and connection to a municipal water supply is a legitimate exercise of police power. 
 See, 
e.g.
, 
Shrader
, 471 F. Supp. 1236; 
Lepre v. D'Iberville Water & Sewer Dist.
, 376 So. 2d 191 (Miss. 1979);
 
Town of Ennis v. Stewart
, 247 Mont. 355, 807 P.2d 179
 (1991)
;
 
Kusznikow v. Township Council
, 322 N.J. Super. 323
, 730 A.2d 930 (1999)
; 
Rupp v. Grantsville City
, 610 P.2d 338 (Utah 1980)
; 
Tidewater Ass'n of Homebuilders, Inc. v. City of Virginia Beach
, 241 Va. 114, 400 S.E.2d 523
 (1991)
. 

We find 
Stern
 particularly instructive.  In that case
, 
the
 
plaintiff
s contested 
the
 mandatory connection ordinance, raising arguments based on substantive due process, takings, and contract claims.  The court noted that, 
when general economic and social welfare legislation is alleged to violate substantive due process, 
it should be struck down only when it fails to meet a minimum rationality standard, which is an extremely difficult standard for 
a
 
plaintiff
 
to meet.  
Stern
, 158 F.3d at 731.  The court concluded that 
the
 
plaintiff
 failed to meet this burden.  

The court then recognized the myriad problems caused by private wells, including 
the
 potential for chemical infiltration, ease of contamination compared to a public water supply system, and lack of proper monitoring. 
 The court believed that 
these potential harms provided ample justification for 
the
 government to safeguard its citizens.  Because pure water is a precondition for human health, the court found that 
regulating 
the
 water supply is a basic and legitimate governmental activity.  
Stern
, 158 F.3d at 732.
  Further, because a "municipal water supply replaces a myriad of private water sources that may be unmonitored or, at best, difficult, expensive, and inefficient to monitor," 
the
 court held that a "legislature may rationally conclude that a public water supply is 
the
 simplest and safest solution for its citizenry without proof of danger to each and every affected person.  The danger is significant, 
the
 burden of connecting to nearby waterlines is not great, and 
the
 costs and benefits of such legislation are widely shared throughout 
the
 area of service."  
Stern
, 158 F.3d at 732.
 
 

Regarding 
defendant
s' 
argument in 
the
 present appeal that they should not be required to hook up to 
the
 municipal water system 
where there is no evidence of 
contamination to 
their
 wells and where to do so unlawfully forces them into 
contractual obligations
, 
Stern
 is also instructive.  In 
rejecting 
the
 argument that protective measures be limited to actions taken after a crisis has arisen or a catastrophic disaster has struck, 
the
 court pointed out 
that, even though 
the
 parties may stipulate that 
their
 wells are currently safe, a local governing body must necessarily enjoy broad discretionary powers to protect 
the
 public health and general welfare of its residents and 
must anticipate 
the
 potential for problems that may arise.
  
Stern
, 158 F.3d at 733;
 see 
Town of Ennis
, 247 Mont. at 361, 807 P.2d at 183 (potential for such problems always exists)
; see also 
Citizens for Personal Water Rights v. Borough of Hughesville
, 815 A.2d 15 (Pa. Commw. 2002)
; 
McMahon v. City of Virginia Beach
, 221 Va. 102, 267 S.E.2d 130 (1980)
.

In rejecting 
the
 plaintiffs' contract claim
, 
the
 
Stern
 court reasoned that government is not required to deal with citizens on a purely contractual basis where 
the
 state action represents a rational response to a legitimate problem, as 
the
 mandatory connection cases demonstrate.  The court further reasoned that 
the
 
plaintiff
s "may be required to obtain their water service from [
the
 local governing authority] and to pay for that service just as they may be required to adhere to other laws that, one way or another cost money.  The only forced contract is 
the
 broader social contract, which is part of 
the
 nation's policy and as such is unchallengeable here."  
Stern
, 158 F.3d at 735; see also 
Kusznikow v. Township Council
, 322 N.J. Super. 323, 730 A.2d 930
 (1999) (denying 
the
 contract-based argument based on 
Stern
's analysis).
  We agree with 
both 
the
 rationale and holding in 
Stern
 as well as with 
the
 authority 
Stern
 cites in support of its conclusions.

Citing 
the
 dissenting opinion from 
Town of Ennis
, 247 Mont. at 363, 807 P.2d at 184 (Harrison, J., dissenting), 
defendant
s further assert that, because their wells are not contaminated or maintained in an unsanitary manner, 
the
 Village divests itself of its sovereign powers and enters 
the
 marketplace acting in a proprietary capacity, or in 
the
 capacity of a "trader," and not in 
the
 exercise of its police power by requiring 
defendants
 to connect to 
the
 municipal water system.
  As pointed out above, however, 
the
 Village is not acting in a proprietary manner, or as a "trader."  Rather, 
the
 Village is acting pursuant to 
the
 power granted to it by 
the
 legislature and by 
the
 valid exercise of a legitimate governmental purpose. 
 

The exercise of police power is presumed to be constitutionally valid.  
Bibb v. Navajo Freight Lines
, 359 U.S. 520, 529, 3 L. Ed. 2d 1003, 1009-10, 79 S. Ct. 962, 967 (1959).  The party contending that an ordinance is not a valid exercise of police power has 
the
 burden of proving that 
the
 ordinance is unreasonable.  
Goldblatt v. Town of Hempstead
, 369 U.S. 590, 596, 8 L. Ed. 2d 130, 135, 82 S. Ct. 987, 991 (1962).  Here, defendants have failed to raise any argument to demonstrate  that 
the
 ordinance at issue is not rationally related to a legitimate purpose, and therefore,
 
the
 ordinance must stand.  Accordingly, we hold that 
the
 Village can mandate that 
defendant
s connect to 
the
 municipal water system and require that they pay for 
the
 service
.

Defendants next argue, for the first time on appeal, that their wells constitute a legal non-conforming use.  An issue not raised in 
the
 trial court cannot be raised for 
the
 first time on review and is deemed waived.  
Village of Algonquin v. Village of Barrington Hills
, 254 
Ill. App. 3d
 324, 328 (1993).  Because 
defendant
s are alleging for 
the
 first time an issue that was not presented to 
the
 trial court, we find 
that defendant
s have waived this issue.

Incorporating 
the
 arguments set forth within the first contention that 
the
 trial court erred in dismissing 
their
 section 2--619 motions, 
defendant
s last argue
 that 
the
 trial court erred in finding that they
 violated section 6A.21 of 
the
 Algonquin Municipal Code because 
the
 ordinance did not affect 
defendant
s' existing wells, 
the
 ordinance was not a proper exercise of 
the
 Village's authority under 
the
 Illinois Municipal Code, and 
the
 ordinance was not a lawful exercise of 
the
 Village's police power.  Because we previously rejected these arguments, we need not address them again.  

In sum, we find that 
the
 Village had a rational basis to enact section 6A.21, and 
the
 ordinance is rationally related to 
the
 legitimate government purpose of protecting 
the
 health, safety, and general welfare of its residents.  Defendants have failed to demonstrate that 
the
 ordinance is not rationally related to that purpose.  T
he
 ordinance, which is presumed valid, must stand.  Further, because 
defendant
s stipulated that a water main is located within 300 feet of their
 respective properties, they admit a violation of 
section 6A.21(B)
.  Accordingly, 
the judgment of the circuit court of McHenry County is affirmed.  

Affirmed.

GROMETER and CALLUM, JJ., concur.

