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Western Ill. Elec. Coop. v. Commerce Com.

OPINION FILED JANUARY 9, 1979.

WESTERN ILLINOIS ELECTRICAL COOP., PLAINTIFF-APPELLEE,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLEE. — (UNION ELECTRIC COMPANY, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.

MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 8, 1979.

This case is a contest between two utilities — Western Illinois Electrical Cooperative (Western) and Union Electric Company (Union) — to determine which of the two will furnish service to an area of some 66 acres known as Dirado Lanes, a proposed subdivision now annexed to the city of Hamilton. The contest, played on the Illinois Commerce Commission (Commission) turf, is essentially academic, rather than economic, for we are advised there has been no sale of lots in the proposed subdivision, or at least the number of lots sold has been small. The facts are not in dispute, but everything else is.

In 1944, Western extended a powerline from its then territory to a farm to serve a farm customer — Mr. Richard C. Humphry. On April 1, 1946, Mr. and Mrs. Richard Humphry executed an application for membership in Western and that application was accepted by Western. The application recited that the applicants would "* * * purchase from the Cooperative all electric energy used on the premises described below * * *." The description was that of a certain 120-acre tract which includes that which is now known as Dirado Lanes.

On July 2, 1965, the effective date of the Electric Supplier Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 401 et seq.), Western was serving the Humphrys. In 1971, Mr. and Mrs. Humphry constructed a new residence and Western extended service to that residence. In 1960, Union, which had a franchise from the city of Hamilton to supply electric service, extended a line to some property just north of the Richard Humphry farm. Also, in 1971, Mr. and Mrs. Humphry conveyed a small tract of their farm to Walter Bain, and Union extended service to that tract without objection from Western. On May 15, 1972, a portion of the Humphry farm was annexed to the city of Hamilton, and, although the annexed area was referred to as Dirado Lanes, the description was a metes and bounds description and the annexed area included the Bain tract. On that date, therefore, Union was providing service to Bain and Western was providing service to Richard C. Humphry. In 1972, the Commission authorized Western to extend temporary service to a new residence being constructed by Richard Humphry's son, Wallace.

This contest between the two utilities as to which would supply service to the proposed subdivision was thereafter commenced and pursued through the Commerce Commission. The Commission ultimately entered its order, the substantive effect of which was to allow Western to continue serving the Humphrys with electrical services for farming purposes, but providing it could not extend its lines into such area for any other purpose without authorization from the municipality to which the territory had become annexed. Upon appeal, the circuit court reversed the Commission and remanded for further consideration. Upon this appeal from that order we affirm.

• 1 The Electric Supplier Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 401 et seq.) was adopted in 1965, and it clearly appears that one of the purposes was to put to rest the contest between competing utilities as to which would supply what to whom and when. Section 5 of the Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 405) provides in pertinent part that each electric supplier is entitled to furnish service to customers at locations which it is serving on the effective date of the Act, being July 2, 1965; and it further provides that one supplier cannot construct lines into an area then being served by another supplier except upon the written consent of such other supplier and subject to the approval of the Commission. Section 5 of the Act, so far as is applicable, reads:

"Each electric supplier is entitled, except as otherwise provided in this Act or (in the case of public utilities) the Public Utilities Act, to (a) furnish service to customers at locations which it is serving on the effective date of this Act, (b) furnish service to customers or premises which it is not now serving but which it had agreed to serve under contracts in existence on the effective date of this Act, * * *." Ill. Rev. Stat. 1977, ch. 111 2/3, par. 405.

Section 14 of the Act makes some specific provisions relating to a utility that is serving an area which later becomes annexed to or otherwise located within an incorporated municipality. That section, so far as here applicable, reads as follows:

"Except as otherwise provided in this Section, Sections 5 (other than the first paragraph thereof), 7 and 8 of this Act do not apply to any area which is located within an incorporated municipality on the effective date of this Act and shall cease to apply to any area after it is annexed to or otherwise becomes located within an incorporated municipality. An electric supplier which is serving in an area which has been or hereafter becomes annexed to or otherwise located within an incorporated municipality may continue to furnish service within such annexed or otherwise incorporated area to the premises which it is serving at the time of such annexation or incorporation provided that: (i) no such supplier may extend its lines into any area previously or subsequently annexed or otherwise located within the incorporated municipality in which another electric supplier is authorized to maintain and extend its lines unless in any such case the electric supplier is or shall become authorized to do so by the incorporated municipality and the Commission; (ii) no such supplier serving in an area which has been previously annexed to or otherwise located in an incorporated municipality prior to the effective date of this Act may extend its lines within such annexed or otherwise incorporated area unless in any such case the electric supplier is or shall become authorized to do so by the incorporated municipality and the Commission; and (iii) no such electric supplier which is serving in an area which becomes so annexed to or otherwise located within an incorporated municipality after the effective date of this Act may furnish service to any additional premises or extend its lines into or within such area unless such supplier is or shall become authorized so to do by the incorporated municipality." Ill. Rev. Stat. 1977, ch. 111 2/3, par. 414.

• 2 The circuit court held that the Commission was in error in construing the Act to require approval by the city of Hamilton as a condition precedent for Western to supply power to the premises. The Commission, by its order, reasoned that Western was limited and must supply power only for the same or a more limited purpose than that which it was doing on July 2, 1965. That narrow construction of section 5 would defeat the obvious legislative purpose and would, or could, result in duplication of electrical service in the territory contrary to the clear intention of the Electric Supplier Act. Furthermore, the peace treaty aspect of the Electric Supplier Act would be breached by such construction. Where, as here, the facts are not in dispute and the issue is one of law, neither this court nor the circuit court is bound by the determinations of the Commerce Commission, nor is that determination entitled to a presumption of prima facie correctness. Kensington Steel Corp. v. Industrial Com. (1944), 385 Ill. 504, 53 N.E.2d 395.

• 3 Clearly section 5 authorizes a utility that is serving premises to continue serving such premises, and section 5 does not purport to impose a limitation on future service that the utilities supplied be for the same purpose. We hold that under section 5 of the Electric Supplier Act any utility that is serving an area may continue to serve the area and is not limited to rendering service for such purposes as service was being rendered on the effective date of the Act. The order of the circuit court of Sangamon County was correct and that order should be affirmed.

• 4 The appellee has made a motion to dismiss the appeal on the grounds of mootness. We took that motion with the case. It also appears from this record now that, subsequent to the order entered by the circuit court, the Commission, in accordance with that order, proceeded to enter an order, the substantive effect of which was the same as this order, except that its observations to the limited purpose of service was deleted. Inasmuch as this is clearly a recurring issue, we deem it outside the usual run of cases relating to mootness. The motion to dismiss is denied.

Judgment affirmed.

Mr. JUSTICE GREEN, specially ...

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