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City of Chi. Heights v. Pub. Service Co.

OPINION FILED JANUARY 18, 1951.

THE CITY OF CHICAGO HEIGHTS, APPELLANT,

v.

PUBLIC SERVICE COMPANY OF NORTHERN ILLINOIS, APPELLEE. — SAME APPELLANT

v.

SAME APPELLEE. — SAME APPELLANT,

v.

WESTERN UNION TELEGRAPH COMPANY, APPELLEE.



APPEALS from the Superior Court of Cook County; the Hon. JOHN F. BOLTON, Judge, presiding.

PER CURIAM:

Rehearing denied March 19, 1951.

On November 12, 1948, the city of Chicago Heights enacted an ordinance relating to gas mains and to compensation to be paid the city for the use of the streets in which said mains were laid, hereafter referred to as the gas ordinance. The city of Chicago Heights likewise, on February 14, 1949, enacted another ordinance relating to compensation to be paid by utilities for the use of streets, having poles therein or wires overhead, hereafter referred to as the electric ordinance.

Separate suits were brought in the superior court of Cook County by the city of Chicago Heights against Public Service Company of Northern Illinois, hereafter referred to as Public Service, and against the Western Union Telegraph Company, hereafter referred to as Western Union, to enforce the provisions of these ordinances. A separate count in cause No. 31517 against Public Service attempted to vacate a judgment obtained by it against the city of Chicago Heights on August 20, 1933. Motions to dismiss or strike these cases were made in the superior court, and, after hearing in each instance allowed by the court, said causes were dismissed. Certificates were made by the trial court that the validity of an ordinance was involved and that the public interest required that appeals be taken directly to the Supreme Court. The cases have been consolidated in this court.

The resemblance of the ordinances involved in the present case to that involved in the case of Village of Lombard v. Illinois Bell Telephone Co. 405 Ill. 209, is so striking that the general provisions of each ordinance should be compared, without setting them forth in detail, to determine the application of that decision. The electric ordinance, enacted on February 14, 1949, makes a general prohibition against maintaining or installing any electric light, telephone, telegraph, or any other type of pole or post, or any electric light, telegraph or telephone, or other type of wires in, upon, across, along or under any street or public place without complying with the ordinance. Section 2 prohibits any poles or wires to be installed without an express consent of the city for such installation. Section 3 provides for the fee to be paid, and requires that to maintain poles, posts and wires across any street, alley, sidewalk, parkway or other public place, such utility shall pay as compensation for the use of such street, etc., an annual fee equal to two per centum of the gross receipts.

The second subdivision of this same ordinance requires an additional fee of two per cent as compensation for the use of space more than twelve feet above the street level. The ordinance then requires a statement of gross receipts to be made by such utilities, and for a failure or neglect to file such statement such utility may be fined not less than $10 nor more than $200 for each offense, and a separate offense shall be deemed committed during each day such violation continues.

The gas ordinance was quite similar in form, except that it provided that a fee of four per cent of gross receipts be paid as compensation for the use of streets, alleys, sidewalks and parkways, by mains, pipes, conduits, etc., by any person, firm or corporation.

The original suit against Public Service, entitled No. 31517 in this court, contained five counts, and made demands under both ordinances. Public Service was in the business of furnishing both gas and electricity. The case against Western Union, No. 31671, comes only under the electric ordinance.

In No. 31517, count 1, after setting forth the provisions of the electric ordinance, prays that the court issue a writ of mandamus to compel the company to file statements, as required by such ordinance, and also that judgment be entered for four per cent of the gross revenue for the part of the year 1949 that the ordinance was in effect. Count 2 is a claim for the penalty, only, of $200 per day for each day after the enactment of the ordinance that the defendant fails to comply with the requirements of filing its statement of gross receipts. Separate appeal was taken from the judgment on these counts, since they applied only to demands under the electric ordinance, and is in this court under No. 31670.

Count 3 prays for the writ of mandamus and for judgment for four per cent of the gross revenue from the sale of gas. Count 4 is a claim for a penalty of not less than $10 nor more than $200 per day for the violation of the ordinance, in failing to show the gross amount of sales of gas. A separate appeal was taken from the judgment on these counts, and is here under No. 31517.

Count 5 alleges facts, in which count plaintiff claims that the judgment obtained by Public Service against the city of Chicago Heights in 1933 was collusive and void because it was obtained by fraud when the city was indebted to a greater extent than was permitted under the constitution, and, being illegal and void, was subject to collateral attack. The judgment dismissing this count is appealed with that on counts 1 and 2, and is here as No. 31670.

The suit brought against the Western Union Telegraph Company, No. 31671, is predicated upon the electric ordinance, and seeks the issuance of a writ of mandamus or mandatory injunction to compel the Western Union to file statements of its gross receipts, and that judgment be entered for four per cent of the gross revenue for 1949, and for other relief.

The city has filed extensive briefs to support the validity of these ordinances, and in effect reargues the Village of Lombard case. The appellees contend that the Lombard case is controlling, because the ordinances are almost identical in form, and certainly are in effect, the only difference being in the language used in the respective ordinances to obtain compensation based upon gross receipts for the use of the city streets, and that, since the ordinances are so similar, no distinction can be made between them, and that our holding in the Lombard case is therefore controlling. If this contention of appellees be true we will not assume jurisdiction of an appeal merely to refer to former decisions or restate the reasons upon which the prior decisions were based. (City of Sterling v. Berry, 367 Ill. 111; Richter v. City of Mount Carroll, 398 Ill. 473; Kinsall v. Village of Omaha, 395 Ill. 399.) We have examined the ordinance in the Lombard case, and compared it with the ordinances involved in this case, and can find very little difference between them.

The Lombard ordinance started out by making it illegal to maintain equipment for the transmission of gas, electric current, etc. under any public street, etc. It also provided for a payment for the privilege of maintaining such equipment on the streets by requiring three per cent of the gross receipts of such utility; and likewise provided that for a failure to make the reports, or for a violation of the ordinance the offending corporation should be fined not less than $10 nor more than $200 for each day it failed to comply with the ordinance, and the suit was based upon the failure to make reports, as required by the ordinance. Appellant claims there is a distinction between ...


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