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Peoples Gas Light & Coke Co. v. Chicago

OPINION FILED JUNE 18, 1984.

THE PEOPLES GAS LIGHT AND COKE COMPANY, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

PRESIDING JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

The present appeal arises from an action brought by plaintiff, Peoples Gas Light & Coke Company, to have the city of Chicago's "Winter Gas Termination and Reconnection Ordinance" (City of Chicago Municipal Code 1983, ch. 187.1) declared invalid and to permanently enjoin the defendant city from enforcing the ordinance. In a prior interlocutory appeal, we affirmed the trial court's issuance of a temporary restraining order and remanded the case for trial. (Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App.3d 353, 453 N.E.2d 740.) After a hearing on the merits, the trial court held that the subject ordinance is unconstitutional "in that its subject matter is preempted by the Illinois Public Utilities Act." (Ill. Rev. Stat. 1983, ch. 111 2/3, par. 1 et seq.) The order also permanently enjoined the city from enforcing the ordinance. The city of Chicago appeals from this order of the trial court, contending that it may currently regulate winter gas terminations and reconnections pursuant to its home rule powers granted under article VII, section 6(a), of the 1970 Illinois Constitution.

The ordinance in question imposes a blanket prohibition against termination of gas service by Peoples Gas to any residential consumers or master metered residential buildings in Chicago during the months of November through March inclusive. This prohibition applies whether or not the customer makes any effort to pay for the service, regardless of the ability of the customer to pay and regardless of the amount owed for gas service. The ordinance further requires Peoples Gas to reconnect gas service during these months to any individual residential consumer who tenders the lesser of $200 or 25% of his or her outstanding bill and to reconnect any residential master metered building whose owner tenders 25% of the outstanding bill.

We believe that this ordinance cannot be properly characterized as an exercise of local governmental power which primarily pertains to the city's government and affairs. Accordingly, such an enactment is beyond the scope of home rule power envisioned by the framers of article VII, section 6(a), of our State constitution.

Prior to the adoption of the 1970 Illinois Constitution, the extent of local governmental power was proscribed by the limits set forth in Dillon's rule. The rule required that local governmental units could only exercise those powers expressly given by State statute. Taken as a rule of construction, Dillon's rule narrowly circumscribed the powers of local government within those limits expressly stated in the statute with all doubts resolved against expanding powers of local governmental units.

The initial grant of broad home rule powers to units of local government is found in article VII, section 6, of the 1970 Illinois Constitution. The concept of home rule was designed to "drastically alter the relationship which previously existed between local and State government" (Kanellos v. County of Cook (1972), 53 Ill.2d 161, 166, 290 N.E.2d 240) by giving local governmental entities broad and imprecise home rule powers in order to allow for greater flexibility. Section 6(a) of article VII provides:

"Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt." (Ill. Const. 1970, art. VII, sec. 6(a).)

To completely lay to rest the ghost of Dillon's Rule, section 6(m) provides that "powers and functions of home rule units shall be construed liberally." Ill. Const. 1970, art. VII, sec. 6(m).

Once a given matter is determined to be within the broad ambit of home rule power given in section 6(a), the State legislature may act pursuant to sections 6(g) and 6(h) to limit or preempt the exercise of that power by local governmental entities. The sections provide:

"(g) The General Assembly by a law approved by the vote of three-fifths of the members elected to each house may deny or limit the power to tax and any other power or function of a home rule unit not exercised or performed by the State other than a power or function specified in subsection (1) of this section.

(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or function specified in subsection (1) of this Section." Ill. Const. 1970, art. VII, secs. 6(g), (h).

Where the legislature has not specifically acted to limit local governments in areas which are within the scope of home rule, home rule units may act concurrently with the State in exercising governmental power in that area. Section 6(i) provides:

"Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive." Ill. Const. 1970, art. VII, sec. 6(i).

A review of the above cited constitutional provisions indicates that any home rule analysis will properly proceed along three areas of inquiry. First, it must be determined whether the disputed exercise of local governmental power falls within the scope of home rule powers contemplated by section 6(a). The main restriction contained therein requires that the unit of government must be acting in an area "`pertaining to its government and affairs.'" (County of Cook v. John Sexton Contractors Co. (1979), 75 Ill.2d 494, 508, 389 N.E.2d 553.) If the local governmental unit is acting in an area "pertaining to its government and affairs," then it must be determined whether the legislature has preempted this area of otherwise valid home rule power by (1) "specifically" limiting local exercise or (2) "specifically" declaring the State's exercise to be exclusive. (County of Cook v. John Sexton Contractors, Co. ...


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