*1 AMERICAN TELEPHONE AND al., TELEGRAPH COMPANY et Plain tiffs-Appellees, v. THE OF al., VILLAGE ARLINGTON HEIGHTS et
Defendants-Appellants. (4th Division) First District No. 1—89—1764 28,1991. Opinion filed June *2 J., McMORROW, dissenting. Siegel, Chicago, appellants. for
Jack M. Pines, Carey Epps, R. O. and Dennis S. and Gerald A. Phillips, Thomas Heller, Sidley Ambrose, Schlickman, A. all of & Aus- J. Andrew and John tin, Chicago, appellees. all of for opinion of the court:
JUSTICE JOHNSON delivered the Plaintiffs, Company, American New Hlinois, Inc., an Illi- York AT&T corporation, and Communications AT&T), as collectively nois referred corporation (hereinafter against action in the circuit court of Cook defend- brought County Palatine, Barrington, Lake ants, Villages Arlington Heights, Barrington, Lake, compel al- Crystal cable under low AT&T to install fiber optic corporations. all Illinois municipal defendants’ streets. Defendants are judg- sought preliminary declaratory Plaintiffs initially injunction, ment, and an order of mandamus. of plain- favor injunction trial court entered preliminary cable un-
tiffs, allowing optic them to and maintain the fiber construct by An was taken interlocutory appeal der defendants’ This court affirmed preliminary injunction. defendants from the Court Later, Supreme the Illinois grant preliminary injunction. and the cause returned denied for leave to petition appeal defendants’ to the circuit court for trial on the preliminary injunction. trial court entered an order nunc pro tunc as of June 5, 1989, giving plain- tiffs the construct their fiber optic telecommunications cable beneath streets of the municipalities. defendant Defendants appeal from the judgment final order. following issues before this (1) review: whether
this court’s opinion on interlocutory appeal was a determination merits; on (2) whether a in Illinois may require a a precondition for the use streets by a public utility.
We affirm.
Background Plaintiffs were engaged the construction of an 85-mile-long fi- ber optic planned cable. Plaintiffs to extend the from Glenview, cable Illinois, Rockford, Illinois. At the time this filed, case was major- ity of cable had on already been installed the side of a railroad owned Chicago roadbed and North Western Transportation Company pursuant to an granted easement AT&T.
cable would undercross the defendant points where railroad roadbed owned and North Western Transportation Company intersected with defendants’
AT&T’s first with took place February contact defendants of time, At representative of AT&T was informed of Village Arlington Heights that AT&T would have to obtain a franchise in to order use the of public village for its ca- ble. Plaintiffs were informed also the Northwest Municipal negotiate Conference would between AT&T agreements and the various municipalities whose streets would be used by AT&T.
In March representatives of of AT&T met with representa- tives of the Northwest Municipal representatives Conference. The the Northwest Municipal franchise, Conference informed AT&T that a or a similar agreement, must be obtained from each defendant munici- before pality public utility permitted such as AT&T would to their Municipal the Northwest Con- Representatives ference that AT&T into initially requested agree- enter ment with which was to with agreement them similar AT&T’s agreement City Chicago. City Chicago provided AT&T’s with the consisting for of “franchise payment gross fees” 2% AT&T’s long-distance originating Chicago, revenues derived from calls or a
All pro- to the agree to AT&T refused year. minimum of million per $5 to this be- agree proposal to it declined posal. AT&T maintained to the relationship had no burden requested the franchise fees cause to use of their by AT&T’s upon defendants imposed municipalities. within the defendant safety gross its percentage to to tender agree AT&T refused
When Western that an between revenues, suggested defendants was drafted municipalities, which Union and several an Conference, model for serve as the could Municipal Northwest Union the “Western and AT&T. Under between defendants for defendants model,” been required pay $2.50 AT&T would have AT&T also re- within their municipalities. each foot cable installed jected this proposal. foot of fiber AT&T defendants each
Finally, pay offered $1 optic way, in addition an cable installed within defendants’ representatives $5,000 year. fee of AT&T and the per administrative a compensation failed to reach Municipal Northwest Conference agreement. Heights, and Palatine have Barrington, Villages permission criteria for obtaining
ordinances which enunciate the Lake has Crystal tunnel under their streets. The similar provisions require code. all applicant These ordinances city provide per- information and meet certain conditions before certain per- mit none may requires be issued. of these ordinances mit the munici- applicant agreement” to enter into “franchise with pality in order to obtain a permit.
In applications pursu- AT&T submitted permit May ant ordinances. In municipalities’ respective permit AT&T to the Lake for a to construct a applied Crystal crossings. July cable under its street Villages of Arling- AT&T similar permit applications submitted villages and the ton and Palatine. These Heights, Barrington, AT&T, AT&T de- Lake refused to issue because Crystal permits with them. A was agreements permit clined to enter into franchise however, this per- initially granted by Barrington; of Lake mit to the installation of the fiber prior op- was revoked subsequently tic cable. Villages 10-day notices to the August 11, 1987,
On AT&T mailed *4 Palatine an effort invoke Heights, Barrington, and Act Telephone (here to it in 4 of the rights granted Company section 20). ch. The Act) (Ill. par. inafter the Rev. Stat. its fi- begin constructing stated that AT&T intended 10-day notices optic ber under cable various streets of the defendant municipalities. A similar letter was mailed to City Crystal Lake on September 11,1987.
AT&T commenced work Villages Arlington Heights Palatine having permits, without obtained having without entered into agreements with defendants. responded Defendants AT&T ordering stop working. Subsequently, AT&T filed a com- plaint against defendants.
Plaintiffs a sought preliminary injunction prevent defendants interfering from with installation of under optic fiber cable their public During injunction hearings, defendants main- tained that of a fee as for “[Requiring payment a condition property by enterprise legitimate commercial means of raising revenue.” took position Defendants also that AT&T had “no right whatsoever” to their undercross and that have an “abso- they right lute any except exclude” AT&T on such terms demand. Plaintiffs also they may sought declaratory judgment stating that defendants were not entitled to require them to enter permits agreements. obtain into franchise com- original plaint an prayer also contained order of mandamus requiring AT&T to system allow construct its cable under defend- crossings. ants’ street
On November the trial court or interlocutory entered granting der preliminary injunction plaintiffs in favor of which al maintain, to “construct, alter, lowed them or lay, bore locate and use along, under, its fiber optic upon, any cable and across highway, street, road, or alley under the control claimed control defendants.” defendants appealed from the interlocu Subsequently, On tory part order. this court and reversed in appeal, part affirmed trial Telephone Telegraph decision court. American Co. v. Village Arlington Heights (1988), 381, appeal de nied Ill. 2d 555. 2, 1989,
On filed a May plaintiffs motion to convert the prelimi nary injunction permanent The court issued an injunction. injunc tion enjoined which permanently “interfering defendants from with or disrupting ongoing telecommuni operation plaintiffs’ optic fiber cations had system.” court ruled that to com optic struct their fiber telecommunications cable beneath the streets (Ill. of the defendant Act municipalities pursuant 4), ch. and the Public Utilities Rev. par. 111½, 202). plain court also Stat. ruled 13— disrup- tiffs had a the cable without interference or operate *5 tunc as June pro entered nunc The order was tion defendants. 5,1989. AT&T 1989. on June appeal their notice of
Defendants filed for a di defendants moved Subsequently, dismiss the appeal. moved to 302(b) (134 Ill. 2d to Rule pursuant court supreme rect appeal August on motion defendants’ R. court denied 302(b)). supreme on September to dismiss motion denied AT&T’s 1989. This court court’s order June the trial is taken from appeal 1989. This 1989.
Opinion I inter decision on the
First, this court’s defendants contend Telegraph & Co. v. American locutory appeal reversed be 3d should be Heights App. merits, on the was not a full determination opinion cause this court’s there was and, determining court went whether beyond insofar as this are mere dicta. court, its holdings of discretion the trial abuse of a pre noted that “the purpose Defendants have correctly and not to determine injunction preserve quo is to status liminary (U-Haul Co. v. rights or decide the merits of case.” controverted However, Hindahl a successful 575.) 3d “a likeli must reasonable preliminary injunction movant for a show Inc. v. Guse Systems, Meal hood of on the merits.” success Preferred (1990), 199 3d interlocu opinion on the Defendants are correct this court’s Ameri merits. (See not a on the was full determination tory appeal Heights Village Arlington Telephone Telegraph can beyond this went de insofar as discretion, findings its the trial court abused termining whether question respect are are relevant with they valid because (See on merits. ultimately likely prevail whether Therefore, Inc., Meal we Systems, Preferred this will not reverse find that court’s decision was and we proper, this court’s decision on the interlocutory appeal.
II re- municipality may Next, maintain that an Illinois defendants of public the use quire agreement precondition they assert public utility. Specifically, aby pro- because may require vides that a must to a telephone utility’s consent the public 4.) Defendants argue also necessary that a franchise for a public to utilize the public streets a municipality. Plaintiffs contend that a municipality does not have an absolute abar telephone utility the use of its
Section of the Act contains the following provisions: “No such shall erect any poles, posts, abutments, or piers, wires other fixtures of their lines or along upon any public ground within any incorporated city, town village, without the consent the corporate au- such village. thorities of town or city, consent herein re- *6 quired writing, must be in shall in the and be recorded re- *** corder’s office of the county. right of such any structures, to erect such wires or fixtures the right within ofway any public highway is subject the provisions of Section 9—113 of the ‘Illinois Code’ Highway as the same time may from to time be amended.” Ill. Rev. Stat. 4.
Illinois courts 4 interpreted have section of the Telephone Act. In Telephone American & Co. Telegraph v. Heights (1988), 174 Ill. 3d 381, this court made the following finding: 4 of Telephone the Act clearly shows defend
“[SJection ants’ consent is not mandatory before access the streets [for the purpose installing can be telephone obtained. wires] [Ci 4 Telephone Section of the the expressly authorizes tation.] telephone company to install its facilities it is necessary.” when (American Co., Ill. & 3d at Moreover, this court specifically held “neither nor defendants have absolute the of public over streets.” (American Co., & Telephone Telegraph We also noted that power granted Assembly been General the permit public streets, such but that must power strictly In addition, construed. we have and powers rights found the granted to a municipality city over the streets of a regulatory Co., character. American Telephone Telegraph 387. supreme our court has ruled that municipal
to regulate the use of the streets and the concomitant “to a license fee in regulatory connection with exercise powers” (City Western Chicago Heights v. Union some reasonable relation 428, 433) must “bear (1950), 406 Ill. the business municipality by imposed
additional burdens 433-34. 406 Ill. at City ChicagoHeights, occupation.” fee later, required court ruled that a supreme One year streets municipality’s for the use a telecommunications for the of street used space must some relation to the amount bear (1951), 408 Chicago v. Public Service Co. (City Heights wires. no relation compensation which bears 318.) The court held that is wires space occupied by the amount and discrimina lacking purely arbitrary and “wholly uniformity, Ill. at 318. tory Heights, in its nature.” Chicago municipal court ruled that a supreme Later that same year, are subject powers over ity’s regulatory police “li the court held that to a limitation. Specifically, reasonableness addi cense fees must some reasonable relation charged bear regulation tional involved necessary expense burdens affected, imposing otherwise ordinance supervision business the license fees will be deemed null and void.” Heights 608-09. Public Service cannot, un that “a supreme court also mandated fee for impose der of an license guise police power, exercise Tele Chicago Heights revenue Western Union purposes.” graph Co.
A an absolute We find that a does for the of public require precondition First, defendants maintain utility. a telecommunications *7 they require absolute defendants, because by for the use of their streets precondition 1987, (Ill. Rev. Stat. municipal consent. requires Act Telegraph Act re Telegraph that the 134, 4.) ch. Defendants are correct par. such municipality any from a before quires written consent abutments, or other fixtures wires may any poles, posts, piers, “erect *** any incorpo any ground or within along of their lines 4.) par. ch. rated or Stat. city, village.” town Rev. absolute, arbitrary has municipality the issue of whether a was de telephone utility municipal by over the use of streets power & Tele Telephone court in American against cided this by Ill. 3d Arlington Heights (1988), App. 174 graph Co. v. Co., although we found that Telegraph In American & Telephone the use of permit granted Assembly has to the General been municipal this is strictly (American construed. Co., Telephone App. 387.) & Ill. We specifically ruled that “neither nor defendants have an absolute over the of public (American streets.” Telephone Telegraph Co., & 174 Ill. 3d App. 387.) addition, at In the Illinois Court Supreme twice refused consider pleas defendants’ this court and the trial court erred in rejecting defendants’ claims to unlimited power over the by companies. Defendants have failed to distinguish aforementioned cases upon which we rely. Furthermore, we find upon City defendants’ reliance Spring Independent Inter-State & Telephone Telegraph (1917), Co.
field
rel.
People
Shallberg
ex
v. Central
Telephone
Union
Co.
(1908),
Illinois Bell Telephone
Co. v. Lewis
117 Ill.
Telephone
3d
Lewis v.
Bell
3d
1047, and
Telephone
Reith v.
General
3d
unpersuasive
inappropriate. Defendants
ex
rely upon People
rel.
Shallberg
support
in
their
that the
Act does
position
grant authority to a
telephone utility
place its telecommunication
wires in a
street
municipal
without the consent of that municipality.
ex
(People
Shallberg,
275.)
rel.
defendants cite
following finding
People
made
court in
rel.
Shallberg
ex
in
support
position:
their
***
“The
expressly provides that
contained in it
nothing
[Act]
cities,
shall interfere with the
incorporated
control vested
villages
towns and
regulation
relation
of the poles,
n wires,cables
other appliances.
That control is not limited
prescribing
poles,
location and size of the
and such mat
ters,
subject.”
but extends
whole
ex
People
rel.
Shallberg,
within town any city, village.” (Ill. 4.) However, law, under current Illinois common a mu control the use of nicipality’s over its streets telecommunication does not subject.” (See People whole ex rel. ] “extendf Shallberg, 232 Ill. at A control over the use of municipality’s is (American not absolute. Telephone Telegraph Co. v. Village Arlington Heights (1988), More over, this court has ruled that “consent for the municipality’s pur pose of notifying advance intended construction
483 time, manner, and loca regulatory power can its so it exercise Co., 174 Telegraph Telephone & American tion the construction.” Ill. 3d at 386. App. Inde v. Inter-State Springfield rely upon Defendants also 324. In Co. 279 Ill. (1917), & Telephone Telegraph
pendent municipality's power permit court held that Springfield, the “discretionary” is corporations” by “public use of its streets service council in 327), may, Ill. that a (City “city at Springfield, discretion, of the streets without occupation a license for grant its giving of its upon conditions may impose such qualification, at 279 Ill. Springfield, it deems consent advisable.” 327. a munic law has mandated that
We noted that current case above “strictly streets must right to control use ipality’s & Co. (Emphasis added.) (American Telephone construed.” 381, 387.) 3d This Arlington Heights (1988), App. v. Ill. Village of found does not have specifically has abso Telephone See American lute over the use of its Co., 174 App. 3d (1974), upon Telephone Defendants’ reliance Reith v. General Co. already have found that 3d is also App. inappropriate. We Reith from The issue in Reith was distinguishable is the instant case. from a whether a that obtains a license use. This may liability injuries its streets evade result such when little, issue if case at any, relevance bar. find reliance Lewis v. Illinois
Finally, we that defendants’ Bell Tele Telephone Bell 3d and Illinois phone inappropriate. Co. Lewis 3d is Lewis Bell v. Illinois question private (Lewis, in was
property property. case property Lewis is not relevant to instant because is question public property the instant case committed par. 2.) Act. Rev. More Telegragh Stat. over, public utility’s is the extent of a the issue both these cases do not eminent we find that defendants power. Accordingly, domain have an from the use of plaintiffs absolute bar B right to re- also maintain that an absolute they
Defendants with them as a agreement enter into a franchise quire streets. Defendants ar- for use of their prerequisite plaintiffs’ gue that a franchise is before public utility necessary may utilize the public streets a municipality. find that not a necessary
We prereq uisite plaintiffs’ use of defendants’ streets. do not Defendants *9 have an that enter a right require plaintiffs absolute into franchise agreement First, as a precondition public to the use of their streets. Act has no which states that a Telegraph provision franchise agreement is a necessary telephone utility’s for a use of a prerequisite municipality’s public or that a must a telephone utility pay fees municipality municipality’s for streets. The of merely requires the consent municipal telephone utility authorities before a may place telephone wires upon 1989, 4; Ill. Rev. Stat. also property. see Ameri can Telephone Telegraph Village Arlington Heights Co. v. (1988), of 174 Ill. 3d 385. App. addition,
In the common law clearly states may not charge permit or license which no fees bear reasonable relation ship imposed particular to the burdens use of the proposed City (See Chicago Heights v. Public Service Co. of 604, 608-09; Ill. (1951), City Heights 408 v. Chicago Public Service of 310, 318; Co. 408 (1951), City Chicago Heights Ill. v. Western Un of ion (1950), Co. In 433-34.) Illinois, terms “[t]he and ‘franchise’ ‘license’ are sometimes interchangeably.” (Gen used eral City Electric Corp. (1972), Cablevision v. Peoria 3d of record shows that attempted defendants have charge plaintiffs license or which no franchise fees bear reason able relationship to the burdens imposed by plaintiffs which would be upon defendants. Plaintiffs’ telecommunications cable undercrosses defendants’ streets where owned property North Transportation Western intersects with Company defendants’ attempted charge Defendants of plaintiffs millions dollars in franchise fees. These fees no relationship bore reasonable minimal have imposed upon burdens which defendants by running their cable of segments underneath short defendants’ streets.
Moreover, the record indicates that sought defendants plaintiffs exorbitant raising franchise fees a “means of revenue.” This impermissible. Illinois, cannot, In clearly “a municipality under the guise of an of police power, impose exercise a a fee license for revenue purposes.” Heights, Ill. at City Chicago 406 we find that City defendants’ reliance upon Gene seo v. Illinois Northern Utilities Ill. cert. (1941), Co. 378 denied (1942), 316 U.S. 86 L. 62 1046, Village Ed. S. Ct. West
485 493, City Ill. (1939), 372 Telephone Co. v. Illinois Commercial City 482, Peo Ill. (1923), Co. Telephone v. Union Edwardsville Central (1906), Chicago Chicago v. City ex rel. ple v. Decatur Broadcasting City Commerce v. Illinois Cooperative Electric 2d Coles-Moultrie Cable 946, and Electric 3d General Comm’n 948, inappro City Peoria Corp. vision Village City Edwardsville argue that priate. Defendants that a to require a City West establish that it as agreement with into a franchise enter a house telecommunica using prerequisite City that munici West mandates Village tions cable. We find that (Vil agreement public utility. with a enter into franchise pality may City, 495-96.) Ill. at West lage West force a util telephone has a does state that into a franchise ity enter aby to use of the streets telecommunica precondition
is a necessary Similarly, misinterpreted tions utility. a stat Edwardsville was whether
Edwardsville. The issue exceeding certain poles imposed penalty posts ute which *10 City height Telephone to the Central Union applicable Company. was Edwards statutory (City Edwardsville concerns construction of of ville, 483, of 486-88), 309 Ill. at and it does address issue to enter into a compel telephone utility whether a may necessary franchise is a agreement whether franchise utility’s for a use of prerequisite Therefore, City City inappli West Edwardsville of of cable the case at bar. v. People City Chicago ex rel. Similarly, assert of Chicago Telephone (1906), telephone Co. 220 Ill. mandates that cannot the streets of a company place wires of this is also er without a franchise. Defendants’ case interpretation nature rates which Chicago Telephone roneous. Co. concerned the of Co., charged. Telephone customers could telephone at 240-41. Broadcasting v. that Illinois defendants maintain Electric City Decatur 2d and General (1968), 948, man 3d Corp.
Cablevision Peoria agreements municipal date that franchise between utilities grants ities are munici statutory permit authorized various which We find that Illinois palities regulate their streets. appli- Co. are not Broadcasting Co. and General Electric Cablevision bar, cable to the case at because these cases specifically involve granting franchises by municipalities private cable television cor- porations. Therefore, these cases are not relevant with respect legality and scope agreements between a municipality and a telecommunications utility. Finally, defendants contend that Geneseo v. Illinois North
ern Utilities cert. denied 316 U.S. 86 L. Ed. 62 S. Ct. municipalities mandates that have un limited franchise powers over their this court mis read interpreted Geneseo and it as giving control over munici pal streets to the Illinois Commerce Commission. We are not persuaded by arguments. Geneseo, defendants’ In City the Illinois Supreme Court held that the powers granted the Illinois Commerce Commission the Public Act (Ill. 1112/3, Utilities 202) do not deprive regulatory authority 13— over the Geneseo, streets by public (City utilities. 530.) This court so construed the case and held that “Geneseo is not dispositive bar],” case at in which an different entirely issue is [the (American involved. Co. v. Village Arling ton Heights (1988), The issue in the instant case is whether municipal over regulatory authority placement tele phone facilities in public streets is absolute or is limited by law. reasons,
For these we find that defendants do not have an abso- lute to require a franchise as a for the prerequisite their and that by plaintiffs, agree- ment is not a necessary precondition for to utilize the streets of the defendant municipalities.
For reasons, the aforementioned we affirm the decision of the cir- cuit court of Cook County.
Affirmed.
LINN, J., concurs. *11 McMORROW,
JUSTICE dissenting: I dissent. The respectfully majority erroneously determines that the municipalities possess do the lawful to authority prohibit AT&T’s use of streets public pending negotiation agree- a franchise ment. The decision is in direct conflict with Illinois Su- majority’s preme Court case and Illinois precedent applicable statutory law law. is it majority’s ruling disturbing, virtually because particularly utility’s use public to regulate municipal power the nullifies both fee a franchise to authority municipal the streets and public for such use.
I the munici- question the whether appeal presents The instant their consent to condition authority the lawful palities possess of a franchise negotiation upon of public AT&T’s use streets view, case law my In statutes for such use. AT&T’s prohibit municipalities grant precedent agreement. negotiation of public pending streets use is record, has been public utility According AT&T convenience, the Illinois necessity of public sued a certificate Commission, sys operate AT&T’s Commerce provides explicitly the Public Act Utilities tem this State. does not confer and convenience public necessity that a certificate (Ill. Rev. public franchise, license, power upon utility. or other of a 1112/3, AT&T’s 1987, par. 406.) Consequently, receipt ch. Stat. 8— it the does not necessity grant certificate of and convenience public public purpose. to use streets for its stated business automatic forth limitations AT&T’s use provisions Other set statutory 1987, 134, 4, pars. (hereinafter ch. (Ill. Rev. Stat. Act, respectively).) Act and the Telephone Company that AT&T cannot provides Section 4 of municipalities. of the the consent of the authorities” corporate “without 1987, 134, ch. section (Il par. l. that AT&T’s use of Telephone Company Act states municipalities. in” interfere with the control now vested “shall [not] . Rev. Stat. ch. par. Ill vested” in with municipalities respect “control now (Ill. Const. streets is set forth in Illinois Constitution (Ill. Rev. Stat. VII, §6) Municipal art. and the Illinois Code bar, One the case at seq.). 11—80—1 et “power is a rule unit that is Heights, granted home health, morals regulate protection safety, for the welfare; VII, §6(a).) These license; (Ill. to tax.” Const. art. liberally.” home rule units shall construed “[p]owers v. Yehl VII, Const. Carbondale §6(m); generally art. see 837; ing County 96 Ill. 2d 451 N.E.2d Cook John N.E.2d Sexton Contractors Co. units, are non-home-rule remaining defendant-municipalities, which other “regulate the use of the streets and accorded the *12 24, municipal property.” (Ill. 80—2; Rev. Stat. ch. par. see 11— also v. Illinois Geneseo Northern Utilities Co. of 506, 39 (power N.E.2d 26 to includes regulate power to prohibit).) are They granted also the to expressly authority “prevent and remove encroachments or obstructions the streets.” upon 80—3.) ch. par. upon Based these the principles, municipalities 11— in the at granted regulate, case bar are the to and prohibit, use of public streets aby public utility. law,
Under Illinois all statutory municipalities specifically granted the power charge upon gross a tax the receipts companies telecommunication when those derive from receipts service within the originating municipality. (Ill. Rev. Stat. ch. 24, par. 11—2.)The such a tax is municipal power charge explic 8— itly limiting upon municipal stated to have no effect the authority charge a franchise fee for a public utility’s municipalities’ use public streets:
“The corporate municipality authorities of tax any may any or all of the following occupations privileges:
1. in engaged transmitting Persons the business mes- sages by electricity, means of at rate not to exceed 5% of the gross receipts originating corpo- from such business within the rate limits of the municipality.
* * [*] in this in Any may the taxes enumerated section addi payment money, products tion to the or value or services the municipality by {public utility] compen furnished sation the use alleys, public places, or other therein, or installation and maintenance thereon or thereunder wires, pipes or other used in the poles, equipment operation [public utility’s] (Emphasis added.) the business.” Ill. Rev. Stat. 8—11—2. These constitutional and enactments demonstrate that statutory the and to possess regulate, prohibit, AT&T’s also They municipalities’ establish a reasonable franchise fee for AT&T’s use of authority pub- lic streets. municipal power prohibit public utility’s pending
streets
of a franchise fee derives from Illinois Su
imposition
Chicago
Court
Motor Coach Co. v.
preme
precedent. Originally,
(1929), 169 N.E.
court
Chicago
supreme
required
agree
held invalid a
ordinance that
a franchise
municipal
ment
busses of a
would be
public utility
with
before
court
supreme
municipality’s
permitted
pro-
could
concluded that
Motor Coach
execution
pending
public utility’s
access
hibit
agreement.
Chicago Motor Coach was over
court’s decision
supreme
Northern Utilities
ruled in
Geneseo
held that
Geneseo,
explicitly
N.E.2d
their
the use of
“to
and control
regulate
municipal authority
that use from [pub
to or to withhold
grant
inelude[s]
The court noted
(Geneseo,
utilities.”
“[t]his
lic]
Public Utilities
passage
sustained since the
power has been
*13
not
520),
378 Ill. at
which does
(Geneseo,
“tak[e]
act[]
[citations]”
* **
use
any
the
or
the
‘right
permit
prohibit
the
to
city
”
Ill.
521.)
378
at
street,
public
city.’
(Geneseo,
or
within a
place
alley
to
power
the
municipality
The court has also held that a
possesses
utility’s
public
fee
use
public
reasonable franchise
522-23;
at
(Geneseo,
the
control.
378 Ill.
streets within
municipality’s
Independent Telephone
also City
Springfield
see
v. Inter-State
631;
116
rel.
(1917),
People
Ill.
N.E.
ex
N.E.
Shallberg
Union
v. Central
829;
Cooperative
see
Electric
v. Illinois Com
also Coles-Moultrie
1303;
App.
Diginet
merce Comm’n
3d
476 N.E.2d
ATS,
1991),_E
see
(N.D.
Supp._;
v. Western Union
Inc.
McQuillen,
12 E.
generally
Municipal Corporations
Law
§34.37,
(3d
ed.
determined that “the
1986).)
power
at
vested
to
refuse a license or franchise to a
permit
public
in cities
or
the
Utilities
repealed by
been
Public
provisions
***
act, and
said to the
Motor Coach
anything
contrary
***
Geneseo,
is not adhered to.”
Based the Illinois that: to city pro Motor
“[Chicago involved Coach] re It has been operation company’s hibit busses. *** had occu garded holding as that the Public Utilities Act so grant to or pied the field as to of a repeal right municipality (See: City ***. utilities deny permission Co., v. Illinois Geneseo Northern Utilities *** 518[, 26].) expressly 39 N.E.2d was over proposition[ ] [This] v. Peoria (City ruled in the Peoria Geneseo case." 520, 522-23,144 Transit Lines 11 Ill. 2d N.E.2d Thus, binding Supreme municipali- under Court precedent, grant utility, ties right deny permission public retain AT&T, such public streets within the municipalities’ con- trol pending the execution of a franchise agreement. undertakes majority misguided analysis with regard to the
municipalities’ charge a franchise fee for AT&T’s use of pub lic streets. The majority initially determines that “a does not have an absolute require franchise agreement as a pre condition for the use a telecommunications util ity.” (Emphasis added.) (216 481.) Thereafter, 3d at App. the ma jority finds that a public utility’s receipt of an Illinois Commerce Commission certificate convenience and necessity Rev. 1112/3, Stat. 406) completely overrides the municipal 8— power to prohibit utility’s (216 Ill. App. basis, 3d at 480.) On this concludes majority that “a municipality’s ‘consent is [only] for the purpose notifying in ad vance of intended construction so that it can exercise its regulatory time, manner, and location of the construction.’ [Citation.]” 482-83, 3d at quoting Arlington Heights, 174 Ill. 3d at 386.
To conclusion, reach its erroneous the majority misconstrues the Telegraph Act and the Telephone Company According Act. to the ma “ jority, these Acts ‘clearly that defendants’ consent is not show[ ] mandatory before access to the streets can be obtained. [Cita Section 4 of the Telegraph Act expressly authorizes the tele tion.] ” phone install its facilities it when is necessary.’ (216 Ill. quoting Arlington Heights, 174 Ill. contrary majority’s interpretation, the Acts do re quire municipalities’ prior consent to AT&T’suse *14 Moreover, section 4 of the does not authorize the tele phone to install its facilities “when it is necessary,” without regard to municipal 1987, consent to such (Ill. 134, use. Rev. Stat. ch. In par. 4.) addition, 4 Act, section of the Telephone which Company grants public the utilities to authority exercise eminent domain powers over private does not in property, vest utilities the public uni municipality. lateral to public use streets without the consent of the prior l. 1987, 134, par. 20. Il The majority’s disposition in the instant cause is also founded
upon of misinterpretation scope the of municipal powers. For exam ple, the majority posits that the municipal to the authority “permit *** use of public streets must be strictly construed” and is simply in character.” “regulatory (216 Ill. 3d at citing Arlington Heights, 174 Ill. 3d at 387.) neglects The to majority recognize the powers unit, of Heights, which is home rule
491
VII, §6(m);
1970, art.
see
construed.
Const.
broadly
should be
495, 451
96 Ill. 2d
Yehling (1983),
v.
City
Carbondale
generally
(1979), 75
Contractors Co.
837;
Cook v. John Sexton
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City v. Illinois Geneseo Northern Utilities Co. According 39 N.E “held majority, .2d 26. to the Geneseo the powers granted Illinois Commerce Commission Pub lic Utilities Act deprive municipalities regulatory do not [citation] (Em the use of authority by public over utilities. [Citation.]” phasis 486.) However, the court added.) (216 Geneseo also held that the Public Act did deprive Utilities (Gene utility’s over a use of prohibitory powers seo, addition, the court overruled its 520-21.) 378 Ill. at In Geneseo previous Chicago decision in Motor Coach Co. v. Chicago held that in which court had mu N.E. nicipalities prohibit do not possess authority public utility’s agreement. (See execution of pending Lines, v. Peoria Inc. Peoria Transit N.E.2d fails to take into account majority’s analysis decisions in holding light Supreme
Geneseo of the Illinois Court’s Peoria. Motor Coach and Geneseo *15 majority to the conclusion the directly contrary Peoria are City of adopts appeal. this is also its earlier de unsupported by determination majority’s Village Arlington Co. v. Telephone Telegraph cision in American 381, 528 (hereinafter N.E.2d
Heights to the trial court’s allowance Arlington Heights I), pertained which sequitur, injunction. patent for a In a non preliminary AT&T’s motion this court went determin beyond states that “insofar as majority discretion, findings are valid the trial court abused its ing whether to the of whether respect question are relevant with they because (216 App. on the merits.” ultimately likely prevail of an disposition ap it is well established that not, be, ruling injunctive relief is cannot peal preliminary (See, e.g., Buzz Bar parties’ dispute. on the merits underlying Associates, N.E.2d 108 Ill. 2d ton & Inc. Giannone that majority’s I determination accept cannot in the instant Heights controlling appeal. I is recognized municipal significant
I also find it AT&T nu- fee, and has entered into a reasonable franchise charge municipalities pertaining with other arrangements merous franchise streets. of AT&T’s fiber cable under passage optic the existence upon in the instant cause relied municipalities justification municipalities with other agreements AT&T’sfranchise consent to AT&T’s would not municipalities’ position they for the negotiation of a franchise use of their streets until in the instant appeal. involved municipalities AT&T and the between obligation pay it no legal AT&T insisted that had Although initially bar, later in the case at AT&T fee to the municipalities a franchise linear foot for per municipalities it would suggested pay $1 its use of their executed with munici- that AT&T has agreements
The franchise cause, require in the instant other than those involved palities, that, in The record shows linear foot. per of at least payment $1.00 It cannot per year. to millions of dollars aggregate, these fees amount fran- these agreed pay that AT&T argued would seriously valid. legally if the fees were not to other municipalities chise fees is not municipalities other franchise fees to AT&T’s of such payment to those munici- contributions in the of charitable gratuitous or nature have not other that still AT&T has observed palities. passage for the fee or franchise demanded However, the municipalities’ under the optic fiber cable fee franchise not to chose that one circumstance infringe streets does public utility’s for a reasonable require of another legal *16 fee if it so chooses. considerations, I that the municipalities of these conclude light
In streets public AT&T’s use of authority to prohibit the lawful possess for such use. of a franchise negotiation pending II of a entry per that the
The also determines majority erroneously “at municipalities because the manent was injunction appropriate, in franchise fees charge millions dollars tempted to [that the which plain no minimal burdens relationship reasonable bear] running their underneath by tiffs cable imposed upon segments short defendants’ streets.” The wrong question. the the majority proper addresses excessive, fees whether the franchise were but
inquiry proposed is not capricious they and when arbitrary whether the were municipalities public negotiation refused to consent to AT&T’s use of until agreement. municipality may It is well established that a franchise See, arbitrary capricious in an fashion. authority not exercise its Bank e.g., Chicago Chicago Heights National 135,150 N.E.2d 827.
In or municipalities arbitrary capri- the here were my opinion, early cious. The record that the failure reach an accord indicates large by with to a in precipitated part franchise fee was respect the any municipali- AT&T’s refusal to franchise fee pay whatsoever consent to a requirement ties. There is no legal frame uni- according use of the time public utility’s public operation. laterally public utility’s dictated the intended date by circumstances, to consent municipalities’ Under these the failure AT&T’s characterized as arbi- public fairly use of streets cannot trary and capricious.
Ill ill-advised, I instant majority’s appeal resolution the find authority regulate public nullifies municipal because it both power utility’s municipal use of streets and majority permits fee for use. now franchise such private prop extend its of eminent domain over unilaterally (see 20) to include erty prop Ill. Rev. Stat. also allows a erty majority within a control. municipality’s any eminent domain without utility’s expanded exercise this consent payment any franchise fee whatsoever to the munici- pality having control of the This public property. disposition is con- to Illinois trary statutory Supreme law and Illinois Court precedent, justified is not in majority’s previous ruling I Heights I. am unable to rules in the accept majority’s sweeping instant cause.
In majority’s disposition needlessly entangles inherently municipal majority tacitly affairs. condones AT&T’s refusal to negotiate any place franchise at all. negotiation, majority judicial such allows AT&T to obtain a de proposed nonbinding termination whether the various franchise fees suggested by municipalities were reasonable. As this court I, recognized Arlington Heights of a franchise fee imposition function of the legislative streets is an inherently fee municipalities, particular arrangement and whether a is, instance, imposed prov should be the first matter within (Arlington Heights, ince of the and their residents. *17 This court is not the forum certainly proper the relative of the of arrangements debate merits various I unjusti fered cannot condone the municipalities. majority’s fied into a that should resolved the residents dispute intrusion of the their elected officials. through considerations, I dissent. foregoing respectfully view of the COMPANY, BANK AND TRUST Guardian AMERICAN NATIONAL al., Freeman, Minor, Plaintiffs-Appellants, et Estate of Kennicki a Disabled BRANSFIELD, Defendant-Appellee (Columbus-Cuneo-Cabrini JAMES Center, al., Defendants; Medical et Columbus-Cuneo-Cabrini Medical Center al., Hafeez et Counterplaintiff-Appellant; Mohammed Defendant Counterdefendants-Appellees). Defendants and (4th Division) No. 1—88—2833 First District 14,1991. August 28,1991. Rehearing denied Opinion filed June —