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Friederich v. Illinois-american Water Co.

OPINION FILED MARCH 11, 1981.

JAMES F. FRIEDERICH ET AL., PETITIONERS-APPELLANTS,

v.

ILLINOIS-AMERICAN WATER COMPANY, RESPONDENT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. PATRICK FLEMING, Judge, presiding.

MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

This appeal results from the dismissal of plaintiffs' first amended petition, in which they requested a mandatory injunction and actual and punitive damages from the defendant water company. In their petition, the plaintiffs alleged that they own property known as 1401 South Illinois Street in Belleville, abutting State Bond Issue Route 159 right-of-way; that such property is without water service; and that defendant provides water service to the area but has refused to service the property until the plaintiffs pay for the installation of a service pipe to connect the property with defendant's water main on the other side of Route 159. Plaintiffs attached to their complaint a copy of an Illinois Commerce Commission regulation which requires the installation, at the utility's expense, of service pipes to premises which abut streets, highways, or rights-of-way containing water mains.

On March 17, 1980, defendant filed a motion to dismiss, contending that plaintiffs have failed to pursue their remedies with the Illinois Commerce Commission. Defendant argues that plaintiffs' property is separated from Route 159 by a township road called Taft Street and that, as a consequence, defendant is not required to install a service pipe without charge.

Defendant's motion to dismiss was granted on May 14, 1980, and plaintiffs appeal from the order of dismissal, contending that Taft Street is actually owned by the State of Illinois, and the provisions of that I.C.C. regulation mentioned above apply here.

On appeal defendant raises two issues for determination by this court: (1) whether this controversy is a "rate dispute," which the legislature has entrusted to the Illinois Commerce Commission for resolution; and (2) if not, is injunction an appropriate remedy.

A determination of these issues requires construction of the Public Utilities Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 1 et seq.), hereafter referred to as "the Act."

Section 72 of the Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 76) outlines the procedure to be used to resolve a rate dispute. It states, in pertinent part, that:

"When complaint has been made to the Commission concerning any rate or other charge of any public utility and the Commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the Commission may order that the public utility make due reparation to the complainant therefore, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount."

In the event the utility does not comply with that order, section 72 allows suit to be brought by the complainant, or others, for civil damages; and it is specified that such remedy "shall be cumulative, and in addition to any other remedy or remedies in this Act provided in case of failure of a public utility to obey a rule, regulation, order or decision of the Commission."

Section 73 of the Act (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 77) provides in part that:

"In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, * * *."

Section 73 permits the recovery of punitive damages and declares that an action may be brought in the circuit court by any person or corporation.

Section 74 provides that the Act "shall not have the effect to release or waiver any right of action by * * * any * * * person or corporation for any right or penalty which may have arisen or accrued or may hereafter arise or accrue under any law of this State.

All penalties accruing under this Act shall be cumulative of each other, and suit for the recovery of one penalty shall not be a bar to or affect the recovery of any other penalty * * ...


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