APPEAL from the Circuit Court of Cook County; the Hon. ALBERT
GREEN, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 21, 1982.
In this appeal, we granted the application under Supreme Court Rule 308 (Ill. Rev. Stat. 1979, ch. 110A, par. 308) of defendant Village of Palatine (Palatine) which sought reversal of an interlocutory order directing it to file applications with the Illinois Commerce Commission (ICC) for approval of both its acquisition of the Ferndale Heights Utility Company (Ferndale) *fn1 and its proposed water rates for Ferndale's former customers.
The facts are largely undisputed. Palatine purchased the plant and facilities of Ferndale, which were located in an unincorporated area outside the boundaries of Palatine and separate and apart from the utility system used by Palatine in servicing its own residents. By ordinance, Palatine adopted water rates for the Ferndale customers which were not only higher than those previously approved by the ICC but also were more than the rates charged Palatine's own residents. Plaintiffs, as former Ferndale customers, then filed this suit as a class action for "injunction, specific performance and other relief" which, in pertinent part, sought certain injunctive relief with respect to the increased water rates and also asked either that the acquisition of the Ferndale plant be set aside or that the court make a determination of reasonable water rates.
It appears that a preliminary injunction was entered restraining Palatine from discontinuing water service to plaintiffs because of any refusal on their part to pay water charges in excess of those contained in the Ferndale tariff. Palatine then moved to dismiss plaintiffs' complaint, but the record indicates that no action had been taken on the motion when Palatine presented a number of motions in a single pleading, pertinent of which were motions (a) for partial summary judgment and (b) to modify the injunctive order. In the former, Palatine alleged that its operation and ownership of the Ferndale facilities was not subject to regulation by the ICC and, following a hearing, the court made a finding that the acquisition by Palatine of the Ferndale facilities and the regulation of water rates to the former Ferndale customers "are subject to the jurisdiction of the Illinois Commerce Commission and require its prior approval." On the basis thereof, an order was entered in which Palatine's motions for partial summary judgment and to modify the injunction order were denied, and Palatine was directed to seek ICC approval of the Ferndale acquisition and of the water rates it proposed.
The sole contention raised by Palatine on appeal is that the trial court improperly directed it to seek approval of the ICC of its Ferndale acquisition and of the proposed water rates.
Initially, we note that the ICC is an administrative body which was established by and derives its authority from the Public Utilities Act (Act) (Ill. Rev. Stat. 1979, ch. 111 2/3, par. 1 et seq.) and that it has no authority except that expressly conferred upon it (Black Hawk Motor Transit Co. v. Illinois Commerce Com. (1947), 398 Ill. 542, 76 N.E.2d 478; Liberty Trucking Co. v. Illinois Commerce Com. (1980), 81 Ill. App.3d 466, 401 N.E.2d 581). Further, the ICC is without power to extend its jurisdiction, as that is within the prerogative of the legislature. Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill.2d 205, 302 N.E.2d 334.
The purpose of the Act is to provide for regulation of public utilities, and its provisions grant authority to the ICC over the ownership and operation of "public utilities" as the term is defined therein in section 10.3. However, we think it clear from the express language of the Act, as well as the case law interpreting it, that while a public utility within the meaning of the statute includes a utility owned and operated by a private corporation, a municipally owned utility is excluded under section 10.3 thereof, which in relevant part provides:
"`Public utility' does not include, however:
1. public utilities that are owned and operated by any * * * municipal corporation of this State, * * *;
Ill. Rev. Stat. 1979, ch. 111 2/3, par. 10.3.
As explained in Springfield Gas & Electric Co. v. City of Springfield (1920), 292 Ill. 236, 240-43, 126 N.E. 739, 741-42, aff'd (1921), 257 U.S. 66, 66 L.Ed. 131, 42 S.Ct. 24:
"Municipal corporations, however, are expressly excepted from the terms and provisions of the Public Utilities act by section 10 thereof and in a very emphatic manner, — so much so that there can be no question that the act was ...