APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
514 N.E.2d 602, 161 Ill. App. 3d 364, 112 Ill. Dec. 939
Appeal from the Circuit Court of Sangamon County; the Hon. C. Joseph Cavanagh, Judge, presiding. 1987.IL.1510
JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
This case concerns the relationship between (1) the first paragraph of section 5 of the Electric Supplier Act (Act) (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 405), which purports to entitle an electrical supplier to serve customers at "locations" which it was serving on July 2, 1965; (2) section 14 of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 414) which states, in part, that nothing in the Act shall "impair, abridge, or diminish in any way the powers, rights and privileges of incorporated municipalities"; and (3) section 11-117-1 of the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1985, ch. 24, par. 11-117-1), which authorizes a municipality to operate a public utility and sell its services to its inhabitants.
The question presented is whether defendant, city of Springfield (city), operator of a municipal power plant, can validly contract with the owner of a certain tract recently annexed to the city to be the exclusive source of electricity for that tract even though plaintiff, Central Illinois Light Company , had been providing such service to that tract since prior to July 2, 1965. We hold that such a contract is valid.
On October 3, 1986, CILCO filed a complaint in the circuit court of Sangamon County seeking declaratory and injunctive relief to prevent the city from providing electrical power to the previously described tract. Upon the city's motion, on February 2, 1987, the court dismissed the complaint for failure to state a cause of action. CILCO has appealed. We affirm.
The complaint alleged as follows: (1) prior to and on June 2, 1965, the effective date of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 401 et seq.), CILCO supplied electricity to an area known as Harrison Park in Sangamon County; (2) CILCO continued to provide such services up until June 11, 1986, when the sole structure on the premises was demolished so that the land could be subdivided and sold; (3) on September 16, 1986, the city annexed the Harrison Park property to Springfield; and (4) in its capacity as a municipal utility, the city contracted with the landowner to become the exclusive supplier of electricity for the subdivision.
CILCO makes two major arguments on appeal. The first is that the first paragraph of section 5 of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 405) gives it an exclusive right to serve the Harrison Park tract. CILCO's second contention is that its property rights will be violated if the city is allowed to proceed unhindered.
CILCO recognizes that the city is not an "electric supplier" within the meaning of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, pars. 3-105, 403.5, 403.14). CILCO also agrees that the combined effect of the foregoing provision of section 14 of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 414), which states that nothing in the Act affects the "rights and powers" of municipalities, and section 11-117-1 of the Code (Ill. Rev. Stat. 1985, ch. 24, par. 11-117-1), which grants municipalities the power to operate a power plant, appears to permit the city to furnish electrical service to the tract in question. However, CILCO maintains that, if we consider all of the provisions of the Act as intended to be consistent and in pari materia (Sinnock v. Board of Fire & Police Commissioners (1985), 131 Ill. App. 3d 854, 476 N.E.2d 492), we are required to reach a different result.
CILCO seeks to draw an analogy to the decision of this court in Western Illinois Electrical Cooperative v. Illinois Commerce Com. (1979), 67 Ill. App. 3d 603, 385 N.E.2d 149. There, an electric cooperative was serving a 120-acre rural tract on July 2, 1965, and continued to do so until a portion of the tract was annexed to a municipality. This court noted that provisions of section 14 of the Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 414), which were the same then as now, generally prohibited a supplier who furnished service to an area while it was rural to continue to do so after annexation to a municipality unless certain conditions arose or were met. However, this court concluded that the first paragraph of section 5 of the Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 405), also the same then as now, operated as an exception to those provisions of section 14; such exception granted a supplier serving the location on July 2, 1965, the right to continue to do so after annexation without meeting the requirements of section 14.
The difficulty with CILCO's attempted analogy is that it begs the question of whether the legislature intended the first paragraph of section 5 of the Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 405(a)) to provide territorial rights to a supplier which it could assert against a municipality which also seeks to serve that territory with electric power. As CILCO contends, legislation concerning territorial rights of suppliers of services such as electricity should be construed to create a harmonious system. (Stelzer v. Matthews Roofing Co. (1986), 140 Ill. App. 3d 383, 488 N.E.2d 1293.) The wisdom or even fairness of granting less protection to the territorial rights of suppliers where opposed by municipalities rather than other suppliers may be questioned, but we do not find a lack of harmony necessarily exists.
Again, considering: (1) the city is not an "electrical supplier"; (2) the Act is not intended to affect the "rights and powers" of the city (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 414); and (3) the city has the power to operate a plant and sell electricity to its inhabitants, we hold the Act does not give CILCO any ...