APPEAL from the Circuit Court of Morgan County; the Hon.
SAMUEL O. SMITH, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1960.
The Illinois Power Company commenced this action in the circuit court of Morgan County to enjoin the city of Jacksonville from carrying out a plan for the construction of a transmission line from Springfield to Jacksonville over which electric power would be transmitted for the use of the municipal utility in Jacksonville. The complaint charged that the power thus transmitted would be used by Jacksonville to supply certain nonresident customers of that utility. The power would be purchased from a municipal utility operated by the city of Springfield.
The Power Company further charged that the Jacksonville utility was engaged in certain extra-territorial operations and that the proposed contract would further expand the extra-territorial aspects of the municipal utility operation. The Illinois Power Company is a public utility and as such is engaged in the business of furnishing electric light and power to Jacksonville and the environs of Morgan County.
The city of Springfield sought and was granted leave to intervene in the proceedings below and filed an answer and further defenses substantially the same as those of the defendant city of Jacksonville.
By its answer Jacksonville admitted the principal factual allegations of the complaint except the allegation that the power to be purchased from Springfield would be used to serve customers outside the corporate limits of Jacksonville. The answer further urged the existence of statutory authorization for the proposed contract and for the ordinances applicable thereto; that the power was needed for the reasonably anticipated needs of the Jacksonville municipal electric system; that the major portion of its electric power was and now is supplied to Jacksonville for its municipal uses and for the inhabitants of the city of Jacksonville.
Further answering an allegation in the complaint that the construction of the proposed transmission line would be the construction of a municipal utility and under the applicable statutory provisions would require a referendum of the voters of the city, the city of Jacksonville asserted that such construction as was proposed would be not the creation of a new municipal utility but only an extension of an existing utility not requiring a referendum vote.
Other matters were set out as separate defenses in the answers, including a charge of laches, estoppel and alleged "unclean hands." The complaint, alleging that Jacksonville was not acting within the orbit of its lawful authority, asserts, basically, the illegality of the ordinances and the proposed contract, and does not charge the city with bad faith, fraud or capricious abuse of its powers.
The circuit court of Morgan County granted a motion of the two municipalities for summary judgment and dismissed the complaint for want of equity. This appeal is from that order and since the validity of a municipal ordinance is involved and the trial court has made the requisite certificates, this court has jurisdiction on direct appeal.
The grant of authority to municipalities to acquire, construct, own and operate any public utility was first contained in an enactment of the legislature in 1913. That enactment authorized the ownership and operation of a public utility "the product or service of which, or a major portion thereof, is or is to be supplied to the city or its inhabitants, * * *." (Laws of 1913, p. 455.) The original language remains substantially unchanged and was re-enacted in 1941 as section 49-1 of the Revised Cities and Villages Act. Ill. Rev. Stat. 1941, chap 24, par. 49-1.
In first considering the granted authority, this court, in Carr v. City of Athens, 304 Ill. 212, held that the city of Springfield could, by contract, sell the product of its public utility beyond its corporate limits. Thereafter, in the case of People v. City of Chicago, 349 Ill. 304, it was held that a city was not limited in the acquisition of a public utility to one whose physical properties were located wholly within the corporate limits of such municipality.
In 1955 the legislature amended section 49-1 of the Revised Cities and Villages Act and inserted the phrase, "within the corporate limits of the municipality," so that the section so far as applicable now reads as follows: "Any municipality has the power (1) to acquire, construct, own, and operate within the corporate limits of the municipality any public utility the product or service of which, or a major portion thereof, is or is to be supplied to the municipality or its inhabitants, and to contract for, purchase, and sell to private persons or corporations the product or service of any such utility."
Other language added to the section in 1955 we do not here consider germane since that language obviously relates only to the acquisition of transportation systems by municipalities, a subject with which we are not here concerned.
The Power Company contends that the insertion of the quoted phrase manifests a legislative intention to repudiate the holding in the City of Athens case and to restrict municipalities to the confines of their boundaries in the construction and operation of their electric utilities. The contended-for construction would lead to the absurd result that a municipal utility would be limited to its corporate boundaries by one phrase and at the ...