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08/03/88 Josephine Kirwin, Indiv. v. the Peoples Gas Light and

August 3, 1988

JOSEPHINE KIRWIN, INDI

v.

AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,

v.

THE PEOPLES GAS LIGHT AND COKE COMPANY ET AL., DEFENDANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

(The Illinois Commerce Commission, Intervenor and, Defendant-Appellee; The Peoples Gas Light and

Coke Company, Defendant-Appellee)

528 N.E.2d 201, 173 Ill. App. 3d 699, 123 Ill. Dec. 656 1988.IL.1197

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE, P.J., concurs. JUSTICE RIZZI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Josephine Kirwin, appeals the circuit court of Cook County's dismissal of her amended complaint against defendants, Peoples Gas Light and Coke Company (Peoples Gas) and the City of Chicago (the city). The gravamen of her complaint is that the city has not enforced, and that Peoples Gas is out of compliance with, an ordinance mandating the testing of every gas meter in the city every seven years. The circuit court granted the Illinois Commerce Commission leave to intervene as a party defendant. The court based its dismissal of the action on Peoples Gas Light & Coke Co. v. City of Chicago (1984), 125 Ill. App. 3d 95, 465 N.E.2d 603, which held an ordinance prohibiting Peoples Gas from terminating gas service to residential customers between the months of November and March invalid as beyond its home rule powers. The appellate court concluded that the State legislature and courts had vested exclusive regulatory jurisdiction over public utilities in the ICC.

On appeal, plaintiff contends generally that the State has not preempted the city's police power to regulate gas meters within its boundaries.

The subject ordinance provides that "[no] meter after having been once tested and sealed as herein provided shall be allowed to remain in service longer than seven years before being again tested and sealed, as herein provided." Chapter 187 of the Municipal Code further provides that such testing is to be done by the city inspector of weights and measures. Chicago Municipal Code §§ 187 -- 12, 187 -- 8 (1983).

On the other hand, ICC general Order No. 159, entitled "Standards of Service for Gas Utilities" (83 Ill. Adm. Code 500.10 et seq. (1984)), promulgated in accordance with the provisions of section 54 of "An Act concerning public utilities" (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 1 et seq.) (the Utilities Act), establishes certain State standards for gas service. (83 Ill. Adm. Code 500.10 (1984).) In contrast to the Chicago Municipal Code, the order contemplates that the testing of gas meters shall be done by the public utilities themselves. (See, e.g., 83 Ill. Adm. Code 500.180, 500.200, 500.215 (1984).) It further provides that "[no] meter shall be allowed to remain in service more than ten years from the time last tested without being retested." (83 Ill. Adm. Code 500.210 (1984).) Finally, the order allows utilities to adopt scientific sample testing of new and in-service meters and sets certain requirements for such testing. 83 Ill. Adm. Code 500.215 (1984).

The validity of the subject ordinance turns on whether it constitutes the exercise or performance of a power or function pertaining to the city's government and affairs as provided for in article VII, section 6, of the Illinois Constitution of 1970. (See County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 508, 389 N.E.2d 553; Peoples Gas Light & Coke Co. v. City of Chicago (1984), 125 Ill. App. 3d 95, 98, 465 N.E.2d 605.) That section of the Illinois Constitution provides, inter alia :

"(a) . . . 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; . . .

(m) Powers and functions of home rule units shall be construed liberally." (Ill. Const. 1970, art. VII, § 6.)

The terms of the grant of home rule power are broad and imprecise, leaving to the courts the duty to determine whether a power exercised by a home rule unit is within the grant of section 6(a). Ampersand, Inc. v. Finley (1975), 61 Ill. 2d 537, 539-40, 338 N.E.2d 15; County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 508, 389 N.E.2d 553.

If the legislature specifically denies or limits any power or function of a home rule unit in accordance with paragraphs (g), (h), (i), (j), or (k) of section 6 of article 7 of the Constitution (Ill. Const. 1970, art. VII, §§ 6(g), (h), (i), (j), (k)), and section 7 of "An Act to revise the law in relation to the construction of the statutes" (Ill. Rev. Stat. 1981, ch. 1, par. 1106), no difficulty arises in resolving the issue. (Hutchcraft Van Service, Inc. v. City of Urbana Human Relations Comm'n (1982), 104 Ill. App. 3d 817, 822, 433 N.E.2d 329.) Where a statute does not contain such specific provisions, however, the courts must determine whether the legislature intended to preempt the area which is the subject of the statute involved. (Hutchcraft Van Service, Inc., 104 Ill. App. 3d at 823.) In the context of State action versus local action, preemption means the end of local legislative control over a given subject where the legislature has adopted a scheme of regulation over the same subject. Hutchcraft Van Service, Inc., 104 Ill. App. 3d 817.

With respect to the Utilities Act we must acknowledge that the legislature has not specifically denied or limited home rule powers over the regulation of public utilities since 1970. The legislature's failure to act notwithstanding, we believe it is beyond peradventure that the regulation of public utilities generally, and of public gas utilities' meters specifically, have been, since 1913, matters of statewide, not local, concern.

Section 1 of the original Utilities Act created a State Public Utilities Commission. (Ill. Rev. Stat. 1913, ch. 111a, par. 1 (Hurd).) Section 8 of the Act provided, inter alia :

"The commission shall have general supervision of all public utilities, shall inquire into the management of the business thereof and shall keep itself informed as to the manner and method in which the business is conducted. It shall examine such public utilities and keep informed as to . . . the manner in which their plants, equipments and other property . . . are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service but also with respect to their compliance with the provisions of this act and any other law, with the orders of the commission . . .." (Ill. Rev. Stat. 1913, ch. 111a, par. 8 (Hurd).)

Section 9 of the original Utilities Act provided, inter alia :

"Every public utility shall obey and comply with each and every requirement of every order, decision, direction, rule or regulation made or prescribed by the commission . . .." (Ill. Rev. Stat. 1913, ch. 111a, par. 9 (Hurd).)

Finally, section 54 of the Act provided:

"The commission shall have power . . . to ascertain, determine and fix adequate and serviceable standards for the measurement of quantity, . . . or other condition pertaining to the performing of its service or to the furnishing of its product or commodity by any public utility, and to prescribe reasonable regulations for examining, measuring, and testing such service, product or commodity, and to establish reasonable rules, regulations, specifications and standards to secure the accuracy of all meters and appliances for examining, measuring, or testing such service, product or commodity. . . .

The commission shall provide for the inspection of the manner in which every public utility conforms to the reasonable regulations prescribed by the commission for examining, measuring and testing its service, product or commodity, and the commission may supplement such inspections by examining, measuring, and testing the service, product or commodity of any public utility." (Emphasis added.) Ill. Rev. Stat. 1913, ch. 111a, par. 54 (Hurd).

Thus, plaintiff is clearly in error when she asserts that nothing in the original act "in any way appears to relate to the testing of gas meters." Rather, the original Utilities Act created a comprehensive scheme for the regulation of public utilities generally, and the testing of gas utilities' meters specifically, by the State.

Moreover, sections 8, 9 and 54 were not changed in the 1921 version of the Public Utilities Act (Ill. Rev. Stat. 1921, ch. 111 2/3, pars. 8, 9, 54), which also replaced the State Public Utilities Commission with the Illinois Commerce Commission and repealed the 1913 Act (Ill. Rev. Stat. 1921, ch. 111a 2/3, pars. 1, 91). Finally, these sections of the earlier Utilities Act continue, as quoted, in the present Utilities Act. See Ill. Rev. Stat. 1985, ch. 111 2/3, pars. 4-101, 5-101, 8-301.

This review of the Utilities Act reveals that the regulation of public utilities generally and of gas utilities' meters specifically have been, since 1913, areas of statewide, not local, concern and that the Utilities Act has preempted the city's authority on those subjects. Because the regulation of gas meters has not been an area pertaining to the government and affairs of the city since 1913, the city did not have home rule powers with respect thereto which were in the contemplation of section 6(a) of article 7 of the 1970 Illinois Constitution.

We must acknowledge the rule that it is manifestly impossible to find a legislative intent to limit a city's home rule powers in statutes predating the 1970 Constitution because the concept of home rule was totally foreign to pre-1970 legislative contemplation. (Kanellos v. County of Cook (1972), 53 Ill. 2d 161, 166-67, 290 N.E.2d 240; City of Rockford v. Gill (1979), 75 Ill. 2d 334, 341, 388 N.E.2d 384.) However, the issue here is not whether the legislature, in enacting and reenacting the Utilities Act since 1913, thereby "limited" Illinois municipalities' home rule powers over public utilities. Rather, we ...


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