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Edge-scott Fire Prot. Dist. v. Commerce Com.

OPINION FILED MAY 9, 1977.

EDGE-SCOTT FIRE PROTECTION DISTRICT, PETITIONER-APPELLANT,

v.

ILLINOIS COMMERCE COMMISSION, ET AL., RESPONDENTS-APPELLEES. — (EASTERN PRAIRIE FIRE PROTECTION DISTRICT, INTERVENING PETITIONER.)



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of the Circuit Court for the Sixth Judicial Circuit, Champaign County, which affirmed an order of the Illinois Commerce Commission (Edge-Scott Fire Protection District v. Northern Illinois Water Corp., I.C.C. Order No. 59148, May 29, 1975) denying plaintiff's petition praying the rescission, alteration or amendment of another commission order fixing new water rates and new rates for the rental of utility owned hydrants. The order promulgating the new rates was announced by the commission on December 6, 1973. Northern Illinois Water Corp., I.C.C. Order No. 58179, Dec. 6, 1973.

Plaintiff based its petition to the commission on section 67 of the Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 71) which in part provides:

"If, after such rehearing and consideration of all the facts, including those arising since the making of the rule, regulation, order or decision, the Commission shall be of the opinion that the original rule, regulation, order or decision or any part thereof is in any respect unjust or unwarranted, or should be changed, the Commission may rescind, alter or amend the same."

Plaintiff's appeals to the circuit court and to this court are based on section 68 of the Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 72) which provides for the judicial review of administrative proceedings before the commission. See Institute of Shortening & Edible Oils, Inc., v. Commerce Com. (1977), 45 Ill. App.3d 98, 359 N.E.2d 231.

Plaintiff alleges that, prior to entry of the order of December 6, 1973, it paid the defendant utility $62.50 per hydrant for annual rental fees, but that, after the entry of the order by the commission, it was charged an annual "connection" fee of $95 plus an annual rental fee of $55 per hydrant. Plaintiff alleges that it is a fire protection district serving parts of Champaign county and that it has been organized pursuant to section 1 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1973, ch. 127 1/2, par. 21). Plaintiff alleges that the fees charged to it by the defendant utility, pursuant to the commission's order, are substantially greater than the fees charged to cities and villages receiving substantially the same service from the utility in Champaign county. Plaintiff contends that it only uses the water furnished to it by the utility for purposes of public fire safety, but that it is nevertheless charged, pursuant to the commission's order, as if it were a "private fire protection service" and that it is unjustly and discriminatorily required by the order to pay an annual "connection charge" for each hydrant furnished to it by the utility, whether or not such hydrants are initially connected or reconnected to the utility's service system. Finally, plaintiff contends that it has exhausted all of its available administrative remedies prior to the filing of this appeal.

The Public Utilities Act expressly provides for a limited form of judicial review from Commerce Commission orders in that the commission's findings and conclusions regarding factual matters are deemed prima facie true and will not be set aside unless they are against the manifest weight of the evidence. (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 72.) In addressing the scope of this review, our supreme court has stated:

"This court has limited its inquiry in an appeal from the commission to a determination of three questions: (1) Did the commission act within the statutory powers given to it; (2) is there substantial foundation in the evidence upon which the commission could base the order; and (3) has a constitutional right been violated. (City of Chicago v. Commerce Com. 356 Ill. 501.) In reviewing a case of this nature the duty does not devolve upon us to re-try the case upon its merits and substitute our judgment for that of the commission. Orders of the commission are entitled to great weight, for they arise out of the deliberations of its members, who are much better qualified to interpret the testimony and charts of specialists and technicians. We will not set aside a commission order unless it is arbitrary or unreasonable or in clear violation of a rule of law. Basically, a review of commission orders by this court is to keep the commission within its jurisdiction, so as not to violate any rights given by the constitution. When the sufficiency of the evidence to support an order of the commission is questioned the order will not be set aside unless it is clearly against the manifest weight of the evidence. Commerce Com. v. Chicago and Eastern Illinois Railway Co. 332 Ill. 243." South Chicago Coal & Dock Co. v. Commerce Com. (1936), 365 Ill. 218, 224-25, 6 N.E.2d 152; see also Du Page Utility Co. v. Commerce Com. (1971), 47 Ill.2d 550, 558, 267 N.E.2d 662.

Plaintiff alleges in this court that the commission has unjustly and unreasonably increased plaintiff's water and hydrant rental rates in violation of section 32 of the Public Utilities Act which provides that "[e]very unjust or unreasonable charge made, demanded or received for such produce or commodity or service is hereby prohibited and declared unlawful." (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 32.) Plaintiff concedes, however, that the commission may permit a utility to reasonably classify its services according to amount used, time and purpose of use and according to other relevant factors. Here, although plaintiff claims to be a municipal corporation entitled to classification by the utility as a public, not private fire protection district, we note that section 1-1-2 of the Illinois Municipal Code defines a municipality as:

"* * * a city, village, or incorporated town * * * [but it] does not include a township, town when used as the equivalent of a township, incorporated town which has superseded a civil township, county, school district, park district, sanitary district, or any other similar governmental district." (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 24, par. 1-1-2.)

Section 1 of article VII of our 1970 Constitution also states:

"`Municipalities' means cities, villages and incorporated towns. `Units of local government' means counties, municipalities, townships, special districts, and units, designated as units of local government by law, which exercise limited governmental powers or powers in respect to limited governmental subjects, but does not include school districts."

In announcing its proposal for the local governmental article of the constitution, the Local Government Committee of the ...


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