Appeal from the Circuit Court of Champaign County; the Hon.
John R. DeLaMar, Judge, presiding.
JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:
The Illinois Commerce Commission (ICC or Commission) appeals an order of the circuit court which reversed a Commission decision establishing new rates for municipal fire hydrant service provided by Northern Illinois Water Company (Northern). The principal points of contention between the ICC and the plaintiffs, the city of Champaign and the city of Urbana (the cities) is whether the ICC provided proper notice of its intention to raise the rates charged by Northern for municipal fire hydrant service and whether the ICC had the power to raise such rates as part of a general review of Northern's rate structure, absent a specific request by Northern that the rates be raised.
The ICC first asserts that the cities have waived the notice issue by failing to raise it in their petitions for rehearing filed with the ICC and in their briefs filed in the circuit court. We agree that the cities' failure to raise this issue in their petition for rehearing resulted in waiver thereof. Section 67 of the Public Utilities Act provides:
"[N]o appeal shall be allowed from any rule, regulation, order or decision of the Commission unless and until an application for a rehearing thereof shall first have been filed with and finally disposed of by the Commission." (Ill. Rev. Stat. 1983, ch. 111 2/3, par. 71.)
This provision requires that a petition for rehearing state "in unequivocal terms the propositions relied upon by the persons petitioning for rehearing." Granite City v. Illinois Commerce Com. (1950), 407 Ill. 245, 250, 95 N.E.2d 371, 374.
• 1 As support for their contention that the issue of notice was properly preserved for review in their petition for rehearing, the cities rely on the following statement contained therein: "The Water Company [Northern] did not request any increase in municipal fire protection rates." In our view, this statement simply does not amount to an assertion "in unequivocal terms" that the Commission's decision is subject to reversal because the cities have not been served with proper notice of the proceedings. Rather, it is in effect an assertion that the Commission had no authority to raise the municipal fire hydrant rates absent a request by Northern that they be raised. Nowhere else in the cities' petition for rehearing are there statements which sufficiently preserve for review the notice issue. Since the issue of notice was not properly raised in the cities' petition for rehearing, the cities have waived this issue for purposes of review. (Granite City v. Illinois Commerce Com. (1950), 407 Ill. 245, 95 N.E.2d 371; Albin v. Illinois Commerce Com. (1980), 87 Ill. App.3d 434, 408 N.E.2d 1145.) Consequently, the notice issue should not have been considered by the circuit court, and the court erred in reversing the ICC's decision on the basis of insufficient notice.
In its order reversing the ICC's decision, the circuit court declined to rule on additional issues properly preserved for review, on the basis that its decision necessitated remand of the cause to the Commission and resolution of such issues "would be premature and injurious as it could be construed as an advisory opinion." The cities did not present argument in their appellate briefs as to some of these additional issues, contending that since they were not ruled upon by the circuit court, they are not properly before this court. The ICC, on the other hand, asserts that since the complete record and all of the parties' arguments (at the trial court level) as to issues not discussed by the cities in their appellate briefs are before this court, we should in the interest of judicial economy consider those issues.
• 2 Two older cases, People ex rel. Barrett v. Fon du Lac State Bank (1941), 310 Ill. App. 28, 33 N.E.2d 714, and Smith v. Johnson (1925), 236 Ill. App. 339, aff'd (1926), 321 Ill. 134, 151 N.E. 550, hold that issues not passed upon by the trial court may not be considered on review. The modern view appears to be, however, that where the full record is before the reviewing court, issues upon which the trial court did not rule, but which are nevertheless discussed in the parties' appellate briefs, will be considered on review. (Krasnow v. Bender (1979), 78 Ill.2d 42, 397 N.E.2d 381; Citizens for a Better Environment v. Illinois Commerce Com. (1981), 103 Ill. App.3d 133, 430 N.E.2d 684.) The present case differs from Krasnow and Citizens for a Better Environment in that both parties did not, in this court, brief all of the issues not ruled upon by the circuit court. However, the cities' extensive briefs filed in the circuit court, which are a part of the record on appeal, provide us with a statement of the cities' position regarding issues raised in the circuit court but not ruled upon by that court. For this reason we will consider the merits of those issues (see First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493), and we therefore deny the cities' motion to strike the portions of the ICC's brief discussing such issues.
• 3 The cities argued in the circuit court, and also assert in this court, that the ICC exceeded its authority in raising rates for water hydrant service absent a request by Northern that it do so, since the ICC has no authority to alter on its own initiative rates not proposed for change, and all ICC orders must be limited to the relief requested in the written complaint filed in the cause. As support for this contention, the ICC relies principally upon the supreme court's decision in Alton & Southern R.R. v. Illinois Commerce Com. (1925), 316 Ill. 625, 147 N.E. 417.
Section 65 of the Public Utilities Act provides in part:
"But nothing in this Act shall be taken to limit or restrict the power of the Commission, summarily, of its own motion, with or without notice, to conduct any investigations or inquiries authorized by this Act, in such manner and by such means as it may deem proper, and to take such action as it may deem necessary in connection therewith. With respect to any rules, regulations, decisions or orders which the Commission is authorized to issue without a hearing, and so issues, any public utility or other person or corporation affected thereby and deeming such rules, regulations, decisions or orders, or any of them, improper, unreasonable or contrary to law, may apply for a hearing thereon, setting forth specifically in such application every ground of objection which the applicant desires to urge against such rule, regulation, decision or order." (Ill. Rev. Stat. 1983, ch. 111 2/3, par. 69.)
Clear statutory language should be given effect without resort to other aids in construction. (People v. Robinson (1982), 89 Ill.2d 469, 433 N.E.2d 674; DeWitt County Taxpayers' Association v. County Board of DeWitt County (1983), 112 Ill. App.3d 332, 445 N.E.2d 509.) This principle, considered together with the above-quoted statutory language, requires us to hold that the ICC acted within its powers when it on its own motion raised the municipal fire hydrant rates despite the absence of a request on the part of Northern that it do so.
Our conclusion that the ICC is authorized to alter rates in addition to those specifically proposed for alteration is consistent with modern practice in the regulation of public utility rates. In recent years, the emphasis in utility rate-making proceedings has shifted from the question of whether the sum total of charges based on the rates proposed by a utility will satisfy the utility's reasonable revenue requirements to whether the rate structure itself is properly designed, i.e., whether all of the proposed rates, compared to all of the other rates in the same structure, are just, reasonable and nondiscriminatory. (See C. Phillips, The Regulation of Public Utilities 27-28, 379-80 (1984).) In the present case, there is some evidence that the proposed rates for fire hydrant service were both unjust and discriminatory in that the allocated cost of hydrant service was $270 per hydrant per year, while cities were only paying $20 per hydrant per year for the service. This represented a subsidization by metered customers of the cost of hydrant service.
• 4 Alton & Southern R.R. v. Illinois Commerce Com. (1925), 316 Ill. 625, 147 N.E. 417, does not require a result different from that which we reach. At issue in that case were proceedings initiated by means of a complaint filed by a group of railroad shippers. Unlike the present case, Alton & Southern did not involve an investigation by the ICC of a ...