*1 (No. 72315.
AMERICAN TELEPHONE AND TELEGRAPH COM al.,
PANY et Appellees, v. THE VILLAGE OF al., ARLINGTON HEIGHTS et Appellants.
Opinion August 26, 1993. Rehearing filed denied October 1993.
McMORROW,J., no part. took
FREEMAN, J., specially concurring.
BILANDIC, J., dissenting.
Jack M. Siegel, Altheimer & Gray, Chicago, appellants. Trienens, Ambrose,
Howard J. A. Gerald J. Andrew Schlickman, Heller, Michelle M. John A. Cain and of Sid- Austin, &ley and Thomas R. Phillips, 0. Carey Epps, Porter, Dennis S. Pines and all L. Timothy Chicago, *3 for appellees. Welsh, R.
Kelly Counsel, Susan Corporation S. Sher, Acting Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Kristine Lynn Mitchell, of counsel), for of intervenor-appellant City Chicago.
Beth Janicki, Anne of for amicus curiae Springfield, Illinois Municipal League. Simon, Thomas F. Geselbracht and John E.
Seymour Mitchell, Wolfe, of Rudnick & for Chicago, of amicus cu- riae ATS, Western Union Inc. Ltd.,
Kevin M. Forde of M. Chicago (Kevin Forde and Katrina Veerhusen, of amicus curiae for Il- counsel), linois Telephone Association. J.
Boyd Springer Jones, and Thomas P. of McNulty, Reavis amicus curiae Illi- Day, & of for Pogue, Chicago, nois Chapter, National Association of Water Companies. Hill, Counsel,
Herbert D. Assistant Corporation of Evanston, for amicus curiae of Evanston. City
Mark C. Goldenberg, City of Granite Attorney, City, for amicus curiae of Granite City City. of Chicago, for amicus curiae Illi- Kelliher,
John P. nois Commerce Commission. Jentsch,
Erwin W. Michael R. Gehrman and William amicus curiae A. of Cogley, of Elgin, City Elgin. Alfton, Minnesota,
Robert J. of Minneapolis, Joseph of Morris & I. Quinn, Boston, of Mulligan, Massachu- setts, Klein, Robert J. of Mangier, Jenkins, & of Thorpe Chicago, Raismes, N. De Joseph Boulder, Colorado, of Frank III, B. of Gummey Beach, Florida, Ben- Daytona jamin Brown, L. Michael P. Moss and Donna Clemons- Sacks, of Washington, DC, Analeslie of Muncy, Fielding, Barrett & of Worth, Texas, Fort Taylor, David Caylor, Paso, of El City Attorney, Texas, Dean, Frederick S. Tuscon, Arizona, City Attorney, III, James H. Epps Tennessee, Johnson City Attorney, Neal M. Ja- City, Solicitor, Baltimore, ney, City Jones, Iris J. Maryland, View, City Attorney Small, Prairie Craig & Werkenthin, Austin, Texas, Kaleta, Victor J. At- City Pasadena, California, torney, Kearns, William J. Solicitor, of Township Willingboro, New Patricia Jersey, Reno, Nevada, A. Lynch, Attorney, of Robert J. City *4 Watson, Kansas, City Attorney, Park, Overland Zimmermann, John J. of Park Ridge, amicus curiae National Institute of Municipal Law Officers. HEIPLE
JUSTICE delivered the of the opinion court:
The question presented this case is whether munic- ipal governments can extort toll charges or franchise fees for the crossing cannot. The public ways. They factual context of this case is that AT&T is an laying un- derground fiber cable an optic along 85-mile line in northern Illinois between Glenview and Rockford. The line being is laid along railroad of the Chi- right-of-way cago and North Western Transportation Company (CNW) to an easement pursuant granted by CNW.
cable designed distance carry only long telephone communications. Additionally, telecommunications traffic can enter or leave the cable at AT&T’s only terminal Glenview, points Rockford, and Meadows. Rolling In transversing 85-mile route cable following railroad right-of-way, cable must pass under more than 140 travelled to the public ways subject jurisdiction of five counties, six townships, cities and villages, plus the Illinois Department of Transportation, Corps Engineers and the Illinois Toll Five Authority.
cities villages path this cable will not per- mit street crossings unless AT&T agrees to so-called franchise agreements or tolls which AT&T refused to Various demands pay. AT&T, were made upon including a percentage of gross revenues and foot per of ca- $2.50 ble within the municipalities regardless whether cable was crossing street or located on entirely CNW’s It is to be property. noted that none of the mu- nicipalities the installation of the object per cable se. want to collect
They simply a toll for it. *5 In an action the by telephone the trial court company, initially entered a preliminary injunction favor of the telephone company allowing the installation of the fiber cable without a optic The agreement. appellate court, on an taken interlocutory appeal by municipal ities, affirmed the granting the preliminary injunction, and the cause was returned subsequently to the trial court for a on ruling A permanent injunction. perma nent injunction barring interference municipalities’ with the installation optic fiber cable was entered the trial court by and the municipalities again appealed. The appellate court concluded that municipalities do have an absolute right require franchise agreement as a prerequisite to a telephone utilization of company’s the public streets. (216 3d App. 474.) We allowed the municipalities’ and, for leave to petition in a appeal split decision, reversed the court. A appellate majority this court held that have the pro hibit AT&T from crossing public streets without a fran chise agreement, and that the franchise agreement could AT&T to rent require for the pay crossing the streets. Thereafter, AT&T’s petition for rehearing was allowed (134 Ill. 2d R. and the 367), case was reargued. Today we rule that do not have a in proprietary terest in the public streets and not raise revenue may by coercing telephone into companies franchise agreements.
FACTS The detailed factual background this case is as fol- Plaintiffs, lows. American Telephone and Telegraph and AT&T Company, Illinois, Communications of Inc. (hereinafter referred to collectively AT&T), were lay- an ing underground 85-mile fiber long optic cable be- Rockford, tween Glenview cable, and Illinois. The pursu- ant to an easement granted AT&T and Chicago North Western Transportation was in- Company, being along stalled the side of a railroad road- ground below was located on exclusively private bed. cable CNW’s at where the railroad in- property except points roadbed tersected with streets. streets, roads,
More than 140 cross the highways route, Glenview/Rockford cable the mu- except for Palatine, nicipalities Arlington Heights, Barrington, Lake, Lake Barrington, and AT&T Crystal was able receive the appropriate for either undercrossing permits no an charge by paying administrative fee. AT&T was informed that the Northwest Municipal Conference would negotiate franchise agreements between AT&T and the defendant municipalities. Initially, Northwest Municipal Conference proposed that AT&T enter into a *6 franchise agreement similar to an existing agreement be- tween AT&T and the City Chicago. This agreement provided for the paying of 2% AT&T’s gross revenues derived from long-distance calls in originating the City of Chicago, or a minimum payment of million per $5 year. AT&T refused to this accept proposal.
The Northwest Municipal Conference offered an al- ternative proposal requiring AT&T to each of the pay defendant municipalities foot of per cable installed $2.50 within the municipality. This proposal made it immaterial whether the cable was undercrossing streets or lo- cated on CNW’s private AT&T also property. rejected this proposal and responded with its own offer of per $1 foot of cable located on the public and right-of-way pay- ing an $5,000 administrative fee of per year. This pro- posal was rejected and an agreement was not reached.
In 1987, AT&T submitted permit applications defendant municipalities seeking permission to install the fiber optic cable beneath the street crossings. The Vil- lage Lake Barrington a initially granted it permit, but was revoked prior the installation of the fiber optic cable. The other defendant refused to is-
sue the The rationale for AT&T’s permits. denying per- mit was based the fact that a application franchise agreement However, had not been entered into. none of ordinances a municipal required permit applicant enter into a agreement in order to a obtain permit. 11, 1987,
On AT&T August mailed notices to the vil in lages Arlington Heights, and Palatine Barrington an effort to invoke the eminent domain of tele phone companies section 4 of the Tele specified Act phone (Ill. Rev. Stat. ch. Company par. The notices 20). gave the notice villages days’ AT&T intended to begin constructing fiber cable optic under various streets with the rail intersecting CNW road. A similar letter was mailed to the City Crystal Lake on 1987. AT&T September commenced work villages and Palatine. Arlington Heights However, since had not permits been issued and a franchise agree ment had not into, been entered or dered AT&T to work. stop
AT&T filed a complaint against defendant munici- palities sought preliminary injunction prevent their future in the interference installation of the fiber optic cable under the streets. hear- During injunction defendants ings, maintained that “[Requiring payment *** a fee as a condition for use of a com- property by mercial means of enterprise legitimate raising reve- nue.” Defendants also took the position that AT&T had “no right streets, whatsoever” to undercross their *7 an they have “absolute to exclude” AT&T right from use of any public streets on such terms as except demand. they may 2, 1987,
On November the trial court entered an in- order in fa- terlocutory granting preliminary injunction “construct, vor AT&T which allowed them to main- tain, alter, bore or locate and use its fiber cable lay, optic road, under, street, along, and across upon, any highway, under the control or claimed control of the alley defendants.” ordered arbitra Additionally, injunction tion AT&T and the defendant municipalities. between from the defendants interlocu Subsequently, appealed order and the court appellate part affirmed tory injunction authorizing AT&T’s use the public streets within the and reversed the municipalities part arbitration to take American ordering Telephone place.
& Telegraph Village Arlington Heights Co. 381, 3d Ill. 2d App. appeal denied
555. 2, 1989,
On AT&T filed a motion May before the trial court to convert to preliminary perma injunction nent A injunction. permanent injunction was entered and trial court determined that AT&T had the to lo right cate the fiber optic cable beneath the streets defendant municipalities pursuant to the Telegraph Act (Ill. Rev. Stat. ch. 4) and the Utili par. Public ties Act Rev. Stat. (Ill. lll2/3, par. ch. 202). 13— Additionally, the court ruled that AT&T had the right operate cable without interference or disruption by the defendant municipalities. Defendants appealed, court, appellate justice with one dissenting, affirmed the trial court, concluding that do an have absolute right a franchise require agreement of a telephone company and that such an agreement not a necessary precondition the utilization of the (216 AT&T. 3d We App. now affirm the court. appellate
DISCUSSION Defendants claim that the have they require revenue-raising or tolls as a agreements pre- condition the use of public streets com- by telephone panies. While have the enact *8 and the use of the public to
regulations relating use, they fees for such regulatory to reasonable charge the to the streets hos public do not have hold of Lombard raising (Village means revenue. tage as a of 209, 217- Bell Co. Telephone Illinois Defendants, current to attempt their by classifying to are agreements, attempting raise as franchise revenue previous prohibit this court’s holdings circumvent both for the of city from rent use ing charging the stat Lombard, 216) 405 Ill. at and streets (Village of the of a telecommunica taxing utory requirement the originat tions must be based business company (Ill. limits the the ing municipality within corporate ch. 11—2(1)). Rev. par. Stat. 8— AT&T seek- It to in mind that is not needs be borne of a operation to streets for the ing city use permission collection limits such as a garbage business within city That franchise, a etc. service, a street cable TV railway, the revenue from is to do not seek say, they garner in is here is different sought use streets. What city a be considered normally character from what would and seeking licensing business protection, franchise-type streets. No person for the use city special privileges in this case or within entity any ca- have the use of fiber optic be connected seek plaintiffs laid. All that sought ble which is to be from side of to the other. here is to one town get name to this particular given Regardless called a enhancement, it is of revenue whether method essence, a is, in its franchise, tax, rental fee or it 1,281 are to be that there toll. it is noted Parenthetically, 1,434 Illinois, 102 counties villages cities and If ways. maintains travelled each which townships, charge had each of these units governmental streets, their under and over going tolls for conduits effect would amount extortion and a legalized crip- pling of communication and commerce as we know it. do not over
Municipalities possess powers proprietary streets. They possess only regulatory powers. streets are held trust the use public. While numerous powers rights regarding *9 public streets have granted been to the municipalities by all they character, General are in Assembly, regulatory and do not grant authority parts, to rent or to lease any all, of Lombard, a street. Ill. public Village at of 216. cite
Defendants
several cases as
authority for
proposition
right
that
to
a
fee
demand
is
an exercise of the municipalities’
power over
proprietary
public
property.
cases relied on
principal
defendants, however,
all
were
decided
to this
prior
court’s
in
decision
Village
Lombard v. Illinois Bell
of
Telephone Co. (1950),
Rev. 24, Stat. ch. rele par. 113.) Today the 23— vant section statutory provides: “Any taxes may enumerated in this section be *** money addition payment the munici- *** ***
pality compensation the use of its streets *** *** thereunder and maintenance
or installation 11—2(4).) par. (Ill. Rev. Stat. ch. wires ***.” 8— the user to tax allows municipalities This section neither of wires the taxation nor does it allow regulatory This section purely the streets. under that the at the same time Assembly, The General nature. sec added, today added what is also was provision above Section Illinois Code. Municipal of the 11—2(1) tion 8— a tax impose 5% authorizes 11—2(1) 8— in the of a business person engaged receipts on the gross The gross receipts messages. electronic transmitting limited to the business are the tax applies to which municipality. of the limits within the corporate which originates 11—2(1).) 1987, ch. par. Stat. Rev. (Il 8— l. to give intended Assembly If the General de revenue-raising streets as to use the explicitly pro unnecessary been vices, it would have and to impose electronic messages to tax way vide for to conclude It is reasonable a tax. such cap upon 5% allowing municipalities Assembly, by General *10 and the installation the use of streets collect for money streets, rein the simply under maintenance of wires and over have municipalities the regulatory power forced the render otherwise would streets. To conclude public Thus, municipali meaningless. taxing provisions express and over regulatory powers ties have only for their use. cannot tolls charge made to proposal defendants’ last
The character of tax al the permissible of meet the scope AT&T did not 1987, 24, ch. Rev. Stat. (Ill. 11—2(1) lowed section by 8— the busi based being than 11—2(1)).Rather par. 8— of the vari limits corporate within originating ness statute, it at required ous municipalities installed foot of cable for each to collect tempted $2.50 the cable of whether regardless municipalities, within the of The villages or private property. on public located was and Palatine are home mu Arlington Heights both rule As construed. nicipalities. such, their are to powers be liberally (I 1970, VII, However, Const. §6.) art. ll. of home lim
power a rule a tax municipality is levy ited to of issues local rather than statewide concern. ex rel. Bernardi
(People City Highland Park 1, 121 Ill. 2d 12-13.) A telephone which company a optic fiber across running cable the State various not through municipalities is a matter of purely local concern and is an issue Thus, of statewide concern.
the fact that the villages Pala Arlington Heights and tine are home rule does not permit this type agreement imposed upon be AT&T.
Defendants rely heavily upon City Geneseo v. Illi nois Northern 506, Utilities Co. for proposition a franchise be agreement may required to a prior public utility’s utilization of the streets.
While this court in Geneseo stated that the Public Utili ties Act did affect the power per mit or a refuse franchise to a (Geneseo, 378 public utility Ill. at 530), case did not involve the of mu power to tax nicipality use, for the or rent, the public streets. Additionally, Geneseo did not involve telephone or the company Telephone Act. Ill. Company Rev. Stat. 134, ch. par. 20.
Under section 4 Act, tele Telephone Company phone companies granted are eminent domain authority over private property to use any public ground of this State which is extension necessary wires, of telephone poles, or (Ill. cables other appliances.
Rev. Stat. ch. In par. 20.) part, relevant sec tion 4 provides: *** “Every [telephone] it company may, when shall be ***
necessary for the telephone sys- construction of its *** *** tem enter take upon, damage private property *11 *** every and such company is authorized to construct wires, proper use appliances cables and other as a poles, *** street, any highway, under and across highways, state, so as not alley, public ground or in this but water Provided, the in the use to incommode thereof: the control that in this act shall interfere with nothing *** cities, to the villages now vested relation wires, appli other regulation poles, of the cables and ances, any such lines shall be provided, that before duty it the along any highway such shall be constructed *** give highway the to the telephone company to *** *** road having control over the commissioners *** such to constructed along proposed which line be and in days company’s written notice of the purpose [10 then the of the commission duty highway tention. It is road portion highway the of such or specify ers] ***; highway may placed which said line be the] [if shall, reason, such any fail to make commissioners no ten of such specification days within after service *** *** tice, [telephone] company may proceed then the *** *** with so as not to interfere place abutments or highway.” (Emphasis other uses said road proper 134, added.) 1987, 20.) (Ill. par. Rev. Stat. ch. telephone companies authority
This section gives wires streets. under lay on section 4 of
Defendant municipalities, relying 1987, 134, ch. ar 4), Act Rev. Stat. Telegraph (Ill. par. not AT&T the give this statute does gue Sec prior their streets without consent. undercross com 4 of Telegraph telegraph tion Act states consent of a municipality must receive written panies (Ill. construction of telegraph equipment. prior Tele 1987, ch. Section 20 of the 4.) Rev. Stat. par. begin companies may Act states that phone telephone after along highway of a line telephone construction 10 days’ commissioners highway giving appropriate Rev. Stat. ch. (Ill. par. written notice. control over commissioners do have
Since highway of the State which are not municipal part *12 413 the 10-day provision notice does highway system, county not lines telephone to construction of apply proposed (People Shallberg such streets. ex rel. along Central 260.) Thus, Ill. a tele Telephone Union Co. must seek consent to
phone company municipal prior or constructing along its under equipment municipal However, streets. the consent of the municipality may or im withheld, be refused for an unreasonably reason. Collection of a toll is an reason. proper improper If the construction is in of fac request light reasonable health, tors such as public necessity and conven safety, ience, consent must municipal promptly given. (City be Vandalia v. Postal Telegraph-Cable Co. 173, 176-77.) Analogous to the aforesaid notice 10-day requirement, municipalities should reasonably respond a telephone company’s request within 10 Since the days.
record reveals AT&T’s proposed undercrossing of streets municipal would not interfere public with the health, or safety, convince, consent should have necessity been given.
While AT&T and the defendant could have voluntarily entered into a contractual relationship under which AT&T would agreed have for the un- pay dercrossing public streets, such an agreement, absent defendants do not have AT&T a pay force toll under the guise of franchise agreement. Addition- it is immaterial ally, that the defendants have able been to coerce other companies agreements into similar or that AT&T been has coerced such in into agreements The mere fact past. that AT&T chose not to litigate it thrust does not it from as- every wrong prevent serting at the rights present time. Defendants’ only interest streets is regulatory nature. As such, to which enti- any payment defendants would be costs, tled should only cover actual including inspection, associated costs repair administrative regulatory, under streets. tunneling with the certain seeks to undercross that AT&T The fact in no results a fiber cable optic in this case with of the of, the use or on, safety or diminution intrusion is a for-profit corporation that AT&T streets. fact ask, if the Salvation reasonably moment. One may of no proposing lay of St. Francis were or the Sisters Army otherwise? It would cable, the law be would optic fiber non- home rule or whether not. Municipal governments, (Ill. the Illinois Constitution. home-rule, are creatures of other have no VII, §§6, 7.) They art. Const. Illinois in the Illinois Constitution Nothing powers. *13 charge villages cities and law authorizes statutory If the were plaintiffs of the streets. crossing for the tolls commuting between in trucks messages carrying phone instead imagined), such can be (if and Rockford Glenview cable, the mu on a fiber optic the messages of carrying the plaintiffs’ authorized to stop would not be nicipalities municipal them tolls as crossed they and charge trucks of the entire exist for the benefit The streets boundaries. re regulations are to reasonable only subject created Streets do not exist were garding usage. revenue-producing property as either obstructions municipalities. above, affirm the judg- we the reasons set forth
For court. ment of the appellate
Affirmed. no the consider- part McMORROW took JUSTICE of this case. ation or decision FREEMAN, concurring: specially
JUSTICE not exact municipalities may court holds this Today met with companies rent from telecommunications of fiber in the laying crossing public obstacle of along rights of I I optic private way. agree. cable join the conclusion that plaintiffs, referred to as collectively AT&T, charged can be fees only associated with cost of installing the cable beneath the pavement.
But is my agreement limited to the facts of this case. I believe there is too little to tie AT&T the municipali- ties virtue of the particular presence jus- cable fees tify amounting rent. The communications service made possible through the network of cable does not originate or terminate within the municipal boundaries.
It merely happens of the network re- completion quires AT&T to snake the cable track alongside railroad into and out of the municipalities, inevitably intersecting streets. AT&T is just passing through, as it were.
I reluctant, am however, to preclude possibility that different circumstances could justify types fees sought be here. imposed The closer a en- private tity joined, to a economically speaking, municipality use of through municipal the ar- property, stronger gument for fees amounting to rent A becomes. realistic uncertainty to the nature and extent of future uses of municipal property convinces me that the facts of this case no provide reason to assert such fees could never be proper.
The particular second, facts also suggest separate point. majority concludes municipalities do not enjoy proprietary power over public streets. That conclusion *14 seems to a beg more fundamental Is a question: proprie- tary power implicated the use at issue by here?
The use is the existence of fiber optic cable buried be- neath streets for a distance sufficient to traverse street width. Initial installation of the is not the cable use that it is argued justifies the fees sought be imposed.
use is the of presence cable.
That without presence, other circumstances marrying the use to the municipalities, does not seem to be a use
416 all, of it an ex- nothing being at public say property such use is different one. traordinary Unquestionably, in has encountered de- from that which this court before to rent in con- amounting of fees termining propriety char- use of streets. Such use can be public nection with enjoyment by acterized as one that compromises for their normal ob- the whole of streets city public facilitating travel. ject: In v. Inter-State City Springfield
For example, Ill. Co. Telephone Telegraph (1917), & dependent Co. Telegraph-Cable v. Postal City Springfield and munici rental fees under a imposed a telephone were deemed where proper ordinance pal appropriated portions telegraph company exclusively v. City In Co. Chicago Ry. of streets with General poles. rental fees were held ap Chicago (1898), track for a for the propriate occupation city There, the court noted that railway system. street the fees of the use on the public part justified effect on streets de imposed. Specifically, railway system for normal traffic interfered with normal travel signed of that street. (Chicago and would avoidance encourage Co., 176 Ill. at Greater Ry. expense General for those streets where necessary maintenance would be alternative track as well as others used as was present Co., Ill. at 257. routes. Chicago Ry. General in Broeckl v. Chi this court’s decision Incidentally, nei 79, involving 131 Ill. 2d Park District cago service, of a can be ther a street nor the provision impedes An both explained. occupied mooring similarly of the boating that other members mooring by the use of of the access, to that generally, portion and public of water. body of the as an arm municipality,
It seems
extent
to rent to the
amounting
could
fees
impose
public,
streets,
ul-
endeavor affects normal use
private
*15
417
timately
public’s
(See
Motor Coach
property.
Chicago
Co. v. City Chicago (1929),
337 Ill.
If the
206-07.)
justification
such fees
on
depends
a mu
recognizing
nicipal
so be it. If the
proprietary power,
is to
be
limited to situations where the
use of
public’s
property
compromised
Postal
(see
Telegraph-Cable
Co.,
This court has spoken inconsistently on the issue.
(See Village
Lombard v. Illinois Bell Telephone Co.
that
(stating
powers legislatively
granted to municipalities
concerning
are regula
tory and do not grant
any authority
rent parts of pub
lic streets);
Inter-State Independent Telephone & Tele
graph Co.,
without should so. be BILANDIC, dissenting:
JUSTICE (AT&T survivor of the old majority As the sole *16 (December 1992), No. Arlington Heights Village of (Justices is me to 72315), respond. it incumbent Clark, and retired December Cunningham Moran old did not suffer minority any The three-member to their attrition. the addition two new members With into the ranks, the old has been transformed minority and I hasten to add my congratulations new majority. dissent. respectful as is the same substantially
The new majority opinion not, in my judg- the old The few did changes dissent. ment, a flawed fatally argument. rehabilitate no to this dissent with a unduly
There is need burden made in the arguments prior majority restatement dissent, to this appendix which is attached an opinion, reference to the De- since can be they incorporated confined to 4, 1992, This dissent will be opinion. cember additional argument.
I not denied being It is to note that AT&T is significant streets of of the ordinary any municipali- use difficulty ties. The most casual would have little observer using AT&T vehicles and observing personnel ordinary of the in an defendant-municipalities in common with other users. manner authorizes opinion unwittingly The new majority on of the AT&T to a tax the residents levy from them for the construction of a and exact a subsidy AT&T could achieve a maximum cable so that system To accom- an advantage competitors. over profit end, judi- this the new has abandoned its majority plish cial function and undertaken a function. legislative that the it sum, municipalities give
In AT&T demands the same time while at something nothing paying amount of for the money railroad “substantial” private addition, In AT&T have to expend same service. would sums of its cable money complete system substantial under other to it. The any option available has given are already financially strapped. majority to other green light private profit-making organiza- tions to in line and demand free service from munici- get whom are no benefit. palities upon they conferring on “The Commenting Judge as a Justice Legislator,” Benjamin N. Cardozo offered this advice: free,
“The judge, wholly even when he is is still not free. He pleasure. knight- to innovate at He is not a errant, roaming at will in of his pursuit own ideal of beauty goodness. He is to draw his inspiration from consecrated He principles. yield spasmodic is not sentiment, vague unregulated benevolence. He is by tradition, exercise a discretion informed methodized *17 by analogy, disciplined by system, and subordinated to ‘the primordial necessity of in order the social life.’ Wide enough in all conscience is the field of discretion that re- Cardozo, mains.” B. The Nature of the Judicial Process 141(1921).
The new is unconstitutional in majority’s opinion that it violates both the fundamental doctrine of the separa- tion of powers and the fundamental rights guaranteed fourteenth amendment of the United States Con- stitution.
Under the of guise construction, statutory major- has rewritten ity fundamental Illinois law judicially gov- erning and municipal powers authority granted to munic- ipalities through Illinois Constitution of 1970 and through legislation the General passed by The Assembly.
Illinois Constitution citizen of lili- guarantees every
nois constitutional to a of right system government based on the in the principles separation embodied doctrine, this each of our powers doctrine. Under branch is a with and au government co-equal powers branch of its own which cannot be encroached thority upon by the other branches. Under the doc separation powers trine, the encroach judiciary may usurp or the function. legislature’s legislative (Fergus powers v. Marks The constitutional 513-14.) to a right government which accord system operates to the doctrine is a vested ing separation powers right and, such, of each citizen in Illinois is a States constitutional dimension entitled to Fed United eral constitutional protection.
Home Rule Municipalities it must be noted that home rule units did Initially, not exist this State until after the ratification of the result, 1970 Illinois Constitution. As a all the cases that discuss and control specifically municipal power streets, over its Constitution, which the 1970 precede involve only statutory power of were not home rule units. those cases do Consequently, not control the issue before this court with respect the home rule defendant-municipalities. stated,
As the Illinois Constitution 1970 estab existence, lished the powers, of home rule (Ill. VII, units Illinois. Const. art. §6.) Constitution, Under the Illinois home rule units may, to a few constitutional subject limitations, “exercise function any power perform to its any pertaining government VII, and affairs.” Const. art. (Ill. §6(a).) constitution further mandates the. and functions of home rule units shall be “[pjowers construed liberally.” (Emphasis added.) (Ill. Const. *18 1970, VII, art. These constitutional §6(m).) provisions
421 rule units the intention that home “written with were Stat., Ann. powers possible. the broadest (Ill. be given Const., VII, §6, Commentary, art. Constitutional added.) (Scadron 1971).)” (Emphasis at 24 (Smith-Hurd v. Des Plaines 164, 174-75.) 153 Ill. 2d City of (1992), designed home rule were provisions constitutional the State relationship to revolutionalize between A Ser government. Triple of local and home rule units vices, Inc. v. Rice 217, 230. (1989), 2d intended to grant
The drafters of the constitution home and than was greater autonomy rule units power v. (Kanellos non-home-rule units. previously enjoyed by It County Cook 53 Ill. 2d was (1972), 166.) the au intent of the drafters to home rule units grant func to exercise thority any power perform any State, with the tion the General concurrently unless Assembly specifically limits the concurrent exercise of specifically declares such ex State’s Ka VII, ercise is (Ill. §6(i); exclusive. Const. art. v. Village lodimos Morton Grove 103 Ill. 2d “ ‘
483, 502-07.) rule units are to be supposed “[H]ome free to on activities that relate to their communi carry ties if the even state also is interested and is active ’ Contrac (County Cook John Sexton the area.” tors Co. 494, 510-11, Baum, 2d quoting (Part 1): Survey Tentative Illinois Home Rule A Limitations, Powers and Ill. L.F. 155.)” U. (Scadron, 153 Ill. 2d at As counsel to the consti Government, tutional convention’s Committee on Local Baum Professor “that explained government language affairs of section 6 ‘does not contemplate restraint added by judicial interpretation-, substantial indeed, it was to make dif designed interpretation this doctrine ficult if not judicial preemption A impossible.
based was legislative regulation existence of specifically upon.’ 1972 U. Ill. L.F. at 156.” frowned *19 added.) (Scadron,
(Emphasis 175-76.) 153 Ill. 2d at purpose pro constitutional intent and of the home rule severely judiciary’s ability visions was to limit preempt powers through judicial interpreta home rule unexpressed legislative (Scadron, tion of intent. 153 Ill. 186.) majority 2d at In case, this the new has accom plished precisely provisions what these constitutional designed prevent: majority were has, the new under guise judicial interpretation and the absence of legislative any entirely pre indication, denied and empted powers authority. fundamental home rule and any authority, majority
Without citation to the new sepa- itself, has determined for in contravention of the powers ration of doctrine, that:
“[mjunicipalities do not possess proprietary powers over the public streets. They only possess regulatory powers.” (156 409.) Ill. 2d at majority erroneously
The new
continues:
“While
powers
numerous
rights
regarding
and
granted
have been
to municipalities by the Gen
eral Assembly, they
character,
are all regulatory in
and
do not grant any
authority
rent or to lease parts, or
all, of a public
Village
Lombard,
street.
It is clear
to the
the issue before us with respect
or control
pass
It is
home rule municipalities.
undisputed
instant
Lombard involved a
*20
that was
Village of
municipality
not a home rule unit.
Lombard
Village of
encompassed
the
was
village
properly
whether
only
question
Therefore,
it pro
statutory authority.
exercising
its
for the
assertion
majority’s
vides no
new
A
Triple
See
to home rule municipalities.
with respect
Services, Inc.,
Contrary majority’s unsupported, no ket assertion that have proprietary a enter into franchise and agreements charge power use of extraordinary fee in the nature of rental for the in matters streets, per their home rule municipalities, affairs, to their taining government possess such “same as the where powers sovereign, except Assembly.” (Empha the General by are limited powers Services, Inc., A 230; 131 Ill. 2d at added.) (Triple sis Urbana v. Houser 268, 67 Ill. 2d City of has no that the argued sovereign It cannot be seriously its extraordinary use over proprietary power streets for Likewise, home rule munici a private gain. or clear legislative preemption in the absence of
pality, over its limitation, powers public possesses proprietary property. are home rule
Although powers dependent upon has any legislative grant authority, legislature recognized explicitly municipality’s proprietary powers over its on public occasions. property many 24, e.g., (See, Ill. Rev. Stat. ch. par. 11—74.2—10 (power redevelop acquire convey property ment area to school or park charge authorities and any price agreed by power to ease upon parties; grant utilities with or without charge); ments to par. (power to transfer and sell fee 74.2—14(1) simple 11— title, estate, or real lesser in redevel any property alia, inter to, area opment pars. private corporations); 75—1, 11—75—2 to lease (power space any over 11— street, or alley public place); 11—76—4.1 par. (power sell real surplus public estate); par. (power 11—121—8 alia, inter to, lease pur subways transportation en prevent poses); 11—80—3 or par. (power remove croachments or obstructions its streets and prop In erty).) fact, has also legislature recognized municipalities to enter into agree franchise e.g., See, ments with utilities. Stat. Rev. ch. 11—117—6 reserve par. (municipality may rights granted to public utility company); par. 11—117—7 may acquire (municipality public utility alia, inter under, franchise); par. operating 11— 5(J) (municipal power agency may grant the use 119.1— by franchise, any owned it property facility *21 otherwise). lease or
A home rule municipality’s power even broader than above-cited proprietary powers granted by legislature to other bodies. municipal As stated, instance, home rule in the first powers, were intended be as as possible. broad Home rule municipalities may exercise any power and perform function any State, with unless the concurrently legislature limits the concurrent specifically exercise or declares that the State’s ex specifically power such Kalodimos, (See of such is exclusive. power ercise In the 502-07.) legislative Ill. 2d at absence of express or home rule the power action to limit preempt power, to require of the instant home rule municipalities agreement pay AT&T to enter into a franchise fee an in their streets rental a franchise easement these municipalities’ is valid because it pertains This limita and affairs.” constitutional “government to mean tion on home rule has been powers interpreted “ ‘ their that “the of home-rule units relate to powers to those of the state or the problems, own ’ City Chicago Des Plaines v. & North nation.” Ry. Western Co. (Kalodimos, 65 Ill. 2d 5.” 103 Ill. 2d at is of 501.) Whether issue problem “ or local statewide dimension must be decided ‘with for the nature regard and extent of the problem, units of the most government which have vital interest solution, in its and the role local traditionally played by ” and Statewide authorities Sca in dealing with it.’ dron, Kalodimos, 103 Ill. 2d 153 Ill. 2d at quoting at 501. asserts, new majority merely without citation
to any AT&T’s authority, because construction of its fiber cable across the optic State “is not a matter local concern purely and is an issue of statewide concern,” home rule units have no impose franchise agreement AT&T for its extraordinary use their streets. Ill. at court (156 411.) 2d This has repeatedly rejected new majority’s premise home rule powers may not extend to matters which Scadron, touch issues of statewide concern. (See at Indeed, 2d this court has held repeatedly that even matters the State extensively regulated by are matters which properly within the exercise fall a home rule municipality’s power. (See, Scadron, e.g.,
426 (home regulate municipality may
Requiring
agree
AT&T to enter into a franchise
extraordinary
pri
their streets for
ment for the
use of
gain
pertaining
government
vate
is a matter
to the
municipalities and,
affairs of these home rule
there
proper
fore, falls within the
exercise of home rule
(See
powers.
Stat.,
Const.,
VII, §6,
Ann.
Ill.
1970
art.
(Smith-Hurd 1971).)
Commentary,
Constitutional
at
municipality
greater
A
has a
and more vital interest
determining
than the State in
under
conditions
public property
entirely
which the
located
its
within
may
private gain.
boundaries
used
Control over
be
for
municipality’s
traditionally
the use of a
streets has
government. (See, e.g.,
in the local
Ill.
been vested
seq.)
par.
1987,
24,
Indeed,
Rev. Stat.
ch.
11—80—1 et
recognized
right
this court has
to exercise
including
streets,
control over the use of
grant
utilities,
or to withhold that use from
a matter
is
Triple
of local rather than
concern. See
A
statewide
City
Services, Inc.,
Ill.
237;
2d at
Geneseov. Il
linois Northern Utilities Co.
In the instant the new blatantly remiss in erroneous even more its conclusion legislature expressly has indicated that it because municipality’s considers AT&T’suse of a streets to be government. Telegraph an affair of the local Act expressly requires public utility to obtain the mu- nicipality’s lay in order it its cable consent Rev. Stat. boundaries. (Ill. municipality’s within the v. Cen 4; Shallberg ex rel. People par. ch. Ad 232 Co. Telephone tral Union AT&T the authority statute which grants ditionally, the utility’s lay expressly provides cable *23 control shall not interfere with the authority statutory Stat. in the Rev. municipalities. vested (Ill. already 20; 232 Ill. at par. Shallberg, ch. that the condi Therefore, argued it cannot be seriously a will allow a municipality utility tions under which private use its streets in an manner extraordinary for matter of local concern to the subject is not a gain home rule of the powers municipality. acts as exer
Our courts have similar valid upheld See, rule Crain Enter e.g., cises of home powers. v. 189 Ill.
prises, City (1989), App. Inc. Mound City of a railroad 3d 130 ordinances a business (city granting franchise and streets for the economic vacating public of the legiti benefit and citizens constituted city mate exercises of home rule where city’s powers, streets were within and did not wholly city borders form link in State highway); Krughoff City Naper ville 41 Ill. 3d App. (ordinance requiring land, land, contribution of in lieu of money school and sites as a condition to of a park approval subdivision is a valid exercise of home rule plat on powers), 352; other 68 Ill. 2d grounds (1977), aff’d Kalodimos, see also 103 Ill. 2d at 501 (ordinance ban to the ning possession operable handguns pertained and municipalities’ “government affairs”); City of Create, Evanston v. Inc. (1980), 84 3d 752 Ill. App. (residential landlord and tenant ordinance is a valid ex ercise of home rule 85 Ill. city’s powers), aff’d 101; 2d Inc. (1979), v. Pioneer City Chicago Towing, 73 3d 867 com App. (ordinance requiring towing to bear the cost of panies signs indicating posting
unauthorized cars would be from towed which premises serviced is a company valid exercise of home rule powers).
Clearly, light above, of the home units, rule instance, first have the constitutional require a public utility enter into a agree- ment and to pay a rental fee for the extraordinary use of their streets for Such a private gain. requirement proper exercise of home rule municipality’s proprie- tary power over its property pertains its “gov- ernment and affairs.”
Separation Powers The new majority’s denial of this home rule power flies in face of constitutional provisions and amounts to a legislative act. Our 1970 Constitution provides that home rule powers authority may be limited or only preempted by General Assembly. (See Ill. Const. VII, art. §§6(h), (i).) Section 6(h) article VII provides:
“The General Assembly may provide specifically by law for the exclusive by exercise of any State power or function of a rule home unit ***.” (Emphasis added.) (Ill. 1970, VII, Const. §6(h).) art.
Section 6(i) of article VII provides:
“Home rule may units perform exercise and concur rently with the any power State or function of a home rule unit to the extent that the Assembly General by law does not specifically limit the concurrent spe exercise or cifically declare the State’s exercise to be (Em exclusive.” phasis added.) Ill. VII, §6(i). Const. art.
Pursuant to these constitutional provisions, legis lature may only preempt or restrict home rule powers it and specifically expressly states intent to do so. if (Scadron, Ill. 185-88; 153 2d at Kalodimos, 103 Ill. 2d 503; at Stryker Village Oak Park 62 Ill. 2d 430, 435.) 55 Ill. 2d 523, 528; v. Korshak Rozner has the legislature expressly Nowhere our statutes limit, or the proprie stated its intent deny, preempt (Cf. of home rule units over their streets. tary powers Scadron, 188-89; Rozner, 55 Ill. 2d at 2d at court that has It is the new of this only majority done so in of our constitutional home rule contravention provisions and our intent. The legislature’s judiciary, however, limit, has no valid deny, preempt home rule On the powers authority. contrary, home rule provisions were in their specifically drafted present to eliminate the that courts possibility form or limit might preempt powers through home rule judi Scadron, 175-76, 186. cial 153 Ill. 2d at interpretation.
The new judicial encroachment majority’s upon of the usurpation legislature’s exclusive constitutional to limit home rule violates our State powers constitutional governed be system gov- ernment based Article separation powers.
II, section of the Illinois Constitution of pro- vides: legislative,
“The judicial executive and are branches separate. powers No branch shall exercise properly be longing (Emphasis added.) (Ill. to another.’’ Const. II, §1.)
art.
As this court has previously stated:
“By powers Illinois of the gov- [the constitution] ernment of this State are into divided three distinct de- partments, legislative, judicial, executive and —the —and person no or collection of persons, being one of these de- partments, may any power exercise properly belonging others, to either of the except as directed or expressly permitted by the constitution. Neither of these three de- partments may subordinate to or exercise control any except over another as is provided by constitution.
Their status is that of equality, acting each within its others, own sphere independent of each of the long so powers it, its action does not exceedthe unless confided particular are exceptions general made to this rule by the constitution itself. legislative department The deter be, mines what the law shall the executive department law, executes or administers the the judicial depart ment applies construes and the law. Neither one these departments arrogate to any can control over either itself departments one the other in matters which have been solely by the constitution to depart stick other confided power is, ment. The to enact clearly, solely statutes a legislative power by confided leg constitution islature. to construe statutes is confided to the judiciary.” (Emphasis added.) (Fergus v. Marks 513-14.) In holding home rule municipalities have no propri- over their etary power streets and may require AT&T to a franchise fee for its pay use of extraordinary streets, their the new has reached far majority beyond function judicial and has usurped legislative authority to alter home rule powers, role reserved to specifically our legislature our constitution. Clearly, arrogating to itself the legislature’s constitutional to alter home rule the new powers, violates our State majority constitutional right to be governed by gov- system ernment based separation This de- powers. nial of our State constitutional right is a clear violation of our fourteenth amendment due process rights and cannot be tolerated.
Fourteenth Amendment Due Process
A The new violation of our constitution’s majority’s turn, separation powers violates the provision, fourteenth amendment due of all Illinois process rights citizens. An issue concerning separation powers “reaches the foundation which our very principles upon government is based. It is no less delicate than funda-
431 (1857), v. Bissell (People important.” mentally of govern of a 229, system The ultimate 230.) purpose the structural pro on powers ment separated based liberty therein is the protection tections incorporated of Wash governed. (Metropolitan and the security of the Abatement v. Citizens ington Airports Authority Noise, 272, 252, 115 Inc. 501 U.S. of Aircraft L. Ed. 2d 2310; 236, 256, 2298, 111 Bowsher v. S. Ct. 599, 714, 730, 583, L. Ed. 478 U.S. 2d
Synar (1986), to be right gov 106 S. Ct. Illinois citizens’ of is a matter of erned aby system separated powers to us right granted substantive due liberty process — —a law of our State constitution. by fundamental
Furthermore, State of system gov- our constitution’s right. ernment is also a due As the Su- process property Court has stated: preme interests, course, process] are not [property
“[Due Rather, created by they Constitution. are created and their by existing dimensions are defined rules or un- derstandings independent that stem from an source such understandings as state law—rules or that secure certain support benefits and that claims of entitlement to those (Board Regents benefits.” v. Roth Colleges State 564, 577, 548, 561, (1972), 408 U.S. L. Ed. 92 S. 2d 2701, 2709.) Ct.
Later, Roth, the reach limiting Supreme Court further explained: apparent
“It is from our that there exists a decisions of interests which are difficult of definition variety but meaning are nevertheless of ei- comprehended within ther ‘liberty’ ‘property’ or as meant in the Due Process Clause. These interests attain this constitutional status by they initially recog- virtue of the fact that have been law, repeat- nized and state and we have protected by edly guarantees ruled that of the Four- procedural teenth Amendment whenever the State seeks to apply *** significantly protected remove or alter that status.
In each of these
recognized
cases
pro
due
[which
violation],
cess
aas
result of the
complained
state action
of,
or
previously
status
recognized by state law
was distinctly altered or extinguished.
It was this altera
tion, officially removing the interest
recognition
from the
and protection
State,
previously
afforded
which
we found sufficient
procedural guarantees
invoke the
contained in the Due Process Clause of the Fourteenth
(Paul
Amendment.”
v. Davis
424 U.S.
710-
405, 419-20,
47 L. Ed. 2d
1155, 1165.)
96 S. Ct.
The interest of Illinois citizens in being governed
aby
government
separated
is much “more than
powers
an
abstract
need
desire for it.” (Board
Regents
State
Colleges Roth (1972),
564, 577,
408 U.S.
33 L.
*27
548, 561,
Ed. 2d
2701,
92 S. Ct.
too,
So
2709.)
our in-
terest
is “more than a unilateral expectation of it.”
(Roth,
577,
L. Ed. 48 S. Ct. The new majority’s violation of our State constitution’s separation powers provi- sion constitutes a clear violation of our fourteenth amendment due process rights and cannot be tolerated.
B The is, effect, new its in majority, by opinion, levying a tax upon citizens of the defendant municipalities. Pursuant mandate, to the majority’s these .municipalities must grant easement, AT&T a valuable an estate in land, of an easement is Generally, grantor for free. for such a entitled to receive consideration in return This is true in the instant case where AT&T grant. even railroad for has a substantial sum to the money paid of an easement to AT&T. The new grant majority’s however, to grant opinion, requires municipalities an AT&T easement and receive return. The nothing effect, the munici- majority’s opinion, new deprives of revenue otherwise would have received. palities they is these forcing municipalities new sub- majority AT&T. sidize
Since the hold in trust for their streets citizens, of their in effect, benefit forced subsidy, local, to an amounts exactment a tax indi- vidual inhabitants of the defendant who no receive benefit. The new imposition this majority’s tax in the nature of a taking, just without compensa- tion, for a private runs afoul the four- purpose teenth amendment rights these citizens in numerous respects. this court
As has stated: is a “It violation of the due process of law clause of the National and State constitutions to take citizen’s money guise from him any under of taxes for other than a public Chicago v. purpose.” Kinney Motor Club 329 120, 130. See Spencer 345, 353, Merchant 125 U.S. 763, 767,
L. Ed. 8 S. Ct. 925.
The Court has Supreme stated:
“The process due of law specific clause contains no states, limitation right the of taxation in the it but come to has be settled the of the authority states to does right tax not include the taxes for impose merely *** ‘In private purposes. the Fourteenth Amendment provision regarding taking of private property is omitted, and the is prohibition against the state confined depriving life, liberty to its any person property, claimed, however, without process due of law. It is the citizen is of his due deprived property pro- without law, if it by cess of be taken or under state for use, any other than a public guise either under the by taxation or assumption eminent ” v. Frazier 233, Green domain.’ 238- U.S. 878, 881, L. Ed. 2d 40 S. Ct. quoting Irrigation Fallbrook v. Bradley District 164 U.S. 112, 155, 158, 369, 387, 388, 56, 61, 41 L. Ed. 17 S. Ct. 63.
The result of the new majority’s opinion solely benefit to AT&T. The has private legislature already granted telephone companies like AT&T the power eminent domain easements from acquire private owners to the construction of its ca- property necessary however, Along ble. with this comes the corres- power, The ponding duty provide just compensation. utility’s domain, however, of eminent does statutory power extend to neither municipal property. municipalities nor solicited invited AT&T to use their streets. They However, were content left be alone. it was AT&T go which chose to it through municipalities because was more profitable for it and would it an advan- give over its tage competition.
Although it admits to a “substantial” fee to a paying easement, railroad for an AT&T refuses to pay any to the for the compensation extraordinary use of their streets. AT&T could have avoided going through the exercising eminent domain to easements from obtain private prop- erty However, owners boundaries. beyond municipal AT&T would be required “just compensation” pay those It easements. would also be because of delayed the constitutional with “due requirement compliance eminent domain process” any proceedings against private owners. The end result of new ma- property jority’s is to save AT&T both and time. opinion money *29 company profit-motivated Clearly, saving private, purpose. not serve any public and time does money tax from exacts a Therefore, the new majority’s opinion of their fourteenth inhabitants violation municipal rights. amendment due process
II
Conclusion reasons, I dissent. Ac- respectfully
For the foregoing I would reverse the decisions of cordingly, appellate circuit courts. DISSENT
APPENDIX TO Docket 17—March 1992. Agenda No. 72315— AMERICAN TELEPHONE AND TELEGRAPH COM- al.,
PANY et THE Appellees, v. VILLAGE OF al., Appellants. ARLINGTON HEIGHTS et opinion JUSTICE BILANDIC delivered the of the court:
Plaintiffs, Telephone Telegraph Company American & Illinois, Inc., and AT&T brought Communications of an action in the circuit court County against of Cook defendants, Palatine, the Villages Arlington Heights, Barrington Barrington, City Crystal and Lake and the plaintiffs sought Lake. The to enjoin the defendants from interfering with AT&T’s optic installation a fiber tele communications under the The cable defendants’ streets.
trial court interlocutory enjoining entered an order interfering defendants from with installation of the ca appellate part ble. The court affirmed in and reversed in part. (American Telephone Telegraph Village & Co. v.
Arlington Heights (1988), 381.) 3d App. Subse quently, injunc- the trial court the preliminary converted injunction.
tion into a court af permanent appellate (216 App. firmed. 3d We allowed the defendant 134 Ill. 2d R. municipalities’ petition appeal. leave to 315(a).
Plaintiffs, Telephone Company American Telegraph and Illinois, (hereafter and of Inc. col- AT&T Communications a lectively AT&T), planned referred to as to construct fiber Rockford, Illinois, optic system cable from Glenview to distance of 85 miles. are approximately optic Fiber cables glass through light bundles of hair-thin fibers which laser communications, carry computer beams and other data at high The are located in speed. underground cables conduits buried in trenches. The carries Glenview—Rockford cable exclusively long distance telecommunications traffic. The telephone cable route cannot be used for local service. AT&T system private prop- installed most of the cable on Railroad, erty Chicago by pursu- owned and Northwestern ant to an easement which purchased AT&T from rail- road company. Although actual amount compensation paid which AT&T for the easement is not part appeal, stipulated the record on AT&T amount was “substantial.” Where the railroad in- property streets, highways sought tersects and crosses AT&T to route the under the public way. cable
In an February agent began inquiries of AT&T with municipalities through system which the cable would pass for purpose securing permits to install the ca- ble under streets. The five involved dispute (hereafter, this municipalities) defendant informed they require agreement AT&T that would a franchise be- issuing permit. fore The defendant in- formed Municipal AT&T that the Northwest Conference (hereafter Conference), organization municipalities, an represent negotiations would them in with AT&T over the agreements. Negotiations repre- franchise ensued between representatives sentatives of AT&T and of the Conference.
Initially, requested the Conference that AT&T enter into a agreement agreement similar to the AT&T had City Chicago, provides entered into with which gross annual of 2% of revenues from payments derived long originating Chicago, distance calls or a minimum of annually. rejected proposal. million AT&T $5 proposed agreement The Conference next a franchise agreement modeled after a franchise adopted Western model, Union. Under “Western Union” AT&T would paid municipality ($2.50) have each a set sum for each foot boundaries, laid within municipality’s plus cable an annual administrative fee. rejected proposal AT&T this pay counteroffered to a foot for cable installed under $1 municipal and an annual administrative fee $5,000. municipalities rejected proposal AT&T’s negotiations Representatives continued. of the Conference *31 offered several alternative of compensation methods based on present the amount of in each municipality, cable no but agreement was reached. 1987,
In June AT&T municipali- advised the defendant ties in writing that it negotiations concluded that with the impasse. Conference were at an AT&T then the posi- took tion that Illinois law does not require agree- a franchise ment precedent as a condition permits to the issuance of install its optic public ways. fiber cable beneath the AT&T subsequently formal permit applications submitted to the municipalities, defendant which were denied.
The record demonstrates that the defendant municipali- ties had previously permits undercrossings only issued negotiated to businesses that agreements franchise with them, Edison, Union, such as Illi- Commonwealth Western Bell, Gas, nois Northern Illinois and Centel Cable Televi-
sion. Although negotiated terms of those agreements vary, agreements required applicant all to compensate the municipality in some manner for the privilege using the streets. The record also shows that AT&T has entered agreements, into numerous municipalities, with including Chicago, Bloomington, Decatur, Champaign, Springfield, Peoria, Morton, require it pay compensation for the use of public streets. August
In AT&T sent “10-day notices” to the defendant municipalities, purporting to powers invoke con ferred under Telephone (Ill. section 4 of the Company Act Rev. Stat. par. 20). ch. The notices stated that AT&T begin intended to construction optic of its fiber ca ble network under various streets of the defendant munici palities and informed them that had they days pro time, vide place and manner specifications regarding the work. The municipalities respond. did not After days, AT&T commenced work in two of the defendant municipal ities without a agreement franchise or required per mits. The municipalities defendant stop issued work or ders. complaint
AT&T then filed a in the circuit court of Cook County seeking preliminary injunction barring the defendants from interfering with the installation of the fi- optic ber cable under their streets. AT&T also sought a declaratory judgment stating that the defendant require could not them permits to obtain to enter into agreements. The complaint also contained a for an prayer order of mandamus requiring the defendant allow AT&T to construct system cable under the defendants’ crossing. street defendant municipalities argued that AT&Thad no *32 undercross their streets and that an they had absolute right prohibit using AT&T from in- except they stall its cable on such might terms demand. 1987, 2, court,
On following November the trial evi an dentiary hearing, entered interlocutory enjoining an order the defendant from with municipalities interfering AT&T’s installation of the under cable streets within the mu nicipalities. The trial court found that AT&T would suffer irreparable injunction entered, harm unless an were be might cause AT&T lose competitive over edge other long if distance carriers it did meet the deadline it had established for installation system. of the cable The trial court also parties ordered the to choose a team of arbitra tors to determine what “fair compensation” paid should be for the use of their streets. The defendants from appealed the interlocutory ap order. The pellate court affirmed the preliminary injunction, re but order, versed the trial court’s finding arbitration that the question of compensation legislative fair was a determina tion properly resolved themselves. Telephone
American Telegraph & Co. v. Village Arling ton Heights (1988), 3d 381. App. 2, 1989, May
On AT&T filed a motion to convert the preliminary injunction to injunction. a permanent The trial injunction court issued an which permanently enjoined the defendant municipalities interfering disrupt from with or ing ongoing operation optic fiber plaintiff’s telecom system. munications The trial court ruled that the plain tiffs had optic construct their fiber cable beneath the streets of defendant municipalities pursu ant to the (Ill. Public Utilities Act Rev. Stat. ch.
lll2/3, par. 202) pursuant Telephone Com 13— pany (Ill. Act par. Rev. Stat. ch. 4). The defend court, ant municipalities appealed. appellate with one justice dissenting, court, affirmed the holding trial
Appendix to Dissent only authority exercise over municipalities may regulatory charging to fees regulatory and are limited public streets the the of such streets. This court allowed defend for use (134 Ill. 2d for leave to municipalities’ petition appeal. ant Chicago of the of 315(a).) city also allowed the motion We appellants. leave intervene as for the appeal in this is whether question presented may agree- a franchise municipalities require
defendant public of for ment as a AT&T’suse streets precondition To question, answer this we must consider private gain. separate (1) municipali- two issues: whether the defendant nego- may pending ties AT&T’s use of the streets prohibit whether the agreement; (2) tiation of a franchise fran- may require pay AT&T to a municipalities defendant rent, using fee, privilege the of for the of chise nature the law the streets. conclude that relevant case We statutory provisions clearly the demonstrate have the municipalities prohibit defendant do negotiation fran- pending AT&T’suse agreement, require chise and to AT&T franchise pay fee, rent, using for privilege in the nature of streets in the manner AT&T desires.
Prefatory Note do whether emphasize We that we not consider proposed fees compensation, amount rent or exces- was reasonable by municipalities the defendant AT&T here because question presented sive. That not not entitled municipalities are the defendant claims that costs, regulatory than any other compensation, not did complaint AT&T’s using their streets. privilege per- fees are contend, alternative, that if franchise in the the defendant which missible, compensation the amount or unreasonable. was excessive municipalities proposed Rather, AT&T claims that defendant AT&T may charge rent for its use of the streets. argues any imposed
AT&T fee the defendant mu- nicipalities pur- must based and collected for the be pose incur defraying expenses (hereaf- a direct result of AT&T’s installation of its cable ter, regulatory regulatory fees). costs or
ANALYSIS Municipal corporations possess a double character—one *34 governmental, regulatory public, or and the proprie other (1 tary private. McQuillin, or E. Municipal Corporations (3d 1987).) ed. defendant here §2.09 ar gue they have both regulatory proprietary powers over the They argue streets. that they may, pursuant to their proprietary control, over streets within their impose fees, rent, in the nature of upon those who seek to use such for streets other than purposes ordi AT&T, nary hand, travel. on the argues other that munici palities have only (or regulatory authority police powers) over public streets and have no right prohibit AT&T using public from streets install optic its fiber cable sys tem. AT&T claims that a municipality’s limited to enacting regulations relating to the use of public streets charging and to regulatory reasonable fees for such use.
This previous court’s decisions and applicable State stat utes, however, directly repudiate See, AT&T’s argument.
e.g., City Geneseo v. Illinois Northern Utilities Co. of 506; (1941), 378 City Ill. v. Springfield Postal Telegraph- of 346; (1912), Cable Co. City Ill. v. Springfield Inter- of Independent State Telephone & Telegraph (1917), Co.
Ill. 324. Illinois,
In simple fee title to the streets is vested in municipal corporations. (10A McQuillin, Municipal E. Cor- 1990); Wilmot
porations through (3d 30.36 rev. ed. §§30.35 552; City City Chicago (1927), 328 Ill. Sherwin v. v. of of Wabash, 458; v. City 257 Ill. Chester Aurora is well Co. It Chester & Western R.R. title in trust hold to streets established such by public, principle, of use and on for the benefit municipality only can property disposed trust be McQuillin, E. (10A with the interest. public in accordance 1990); 2 Dillon Municipal Corporations (3d rev. ed. §28.38 §§544, 551.) Corporations municipali Because Municipal on public, to the the benefit of the ties hold title streets for with recognized that all citizens are vested this court has travel from one right place use streets for or pleasure. in the course of business ordinary another (1929), 337 (Chicago City Chicago Coach Co. v. Motor however, an un 206-07.) person company, No has greater use of streets fettered to make gain. (Chicago its Motor Coach Co. private his or own Here, 206-07.) AT&T Chicago (1929), 337 Ill. City of in an extraordi privilege using public streets seeks as a AT&T not want use nary manner. does Rather, up wants to tear means travel. AT&T them, install its cable underneath permanently streets and goal increasing market share with the obvious telephone service. long distance *35 private upon
A or conferred special privilege extraordinary in an man to use streets corporation E. (12 a “franchise.” commonly ner is referred as ed. (3d rev. McQuillin, Municipal Corporations §34.01 v.Co. Municipal Light Gas & Fuel 1990); Chicago see also 42, 54.) grant power The Town Lake primarily use the streets resides or refuse franchises to power full and legislature, possesses paramount which The in the State. streets and located highways, alleys over legislature’s grant refuse for the authority or franchises may use ei municipalities, of the streets be delegated ther or E. provision by (12 constitutional statute. 42;
McQuillin, §34.10a, §34.13, at Municipal Corporations 1990); Coach, at (3d Chicago 49-50 rev. ed. see Motor also 207.) parties dispute legis at here whether the authority grant lature’s or franchises has refuse been upon municipalities. conferred the defendant To this it is dispute properly, necessary resolve to dis tinguish those municipalities between defendant that are home units those are rule and that rule home units.
This distinction is important because the of non- powers from, municipalities home-rule are different and be may than, more limited those of rule home units. Cities and vil lages that are not may home rule units only exercise those powers them, the legislature confers ex either pressly impliedly, by (Pesticide Policy statute. Public Village Foundation v. Wauconda 117 Ill. 2d Consequently, to the three defendant
are not home rule units (Barrington, Barrington Lake Crystal Lake), question whether exceeded their they statutory authority when in they prohibited AT&T from stalling negotiation its cable under their pending streets agreement. a franchise
Two of the involved in this dispute (Arlington Heights and Palatine) intervening mu- however, nicipality (Chicago), home are rule units. Home rule constitution, units derive their from the rather than from statutes. as to three Consequently, munici- palities units, that are question home rule is whether they exceeded their they constitutional when prohibited AT&T’s use of their pending negotiation of a franchise agreement. We powers will address
444
Appendix to Dissent sepa- units and the home rule units non-home-rule rately. Municipalities
1. Non-Home-Rule statutory powers the non-home- We first consider of stated, (hereafter, municipalities). rule As municipalities powers inquiries: these two separate discussion of involves (1) power whether the defendant have the using municipal such as AT&T from prohibit company a gain agreement; a property private for without (2) and to re- whether have fee, rent, in the quire pay AT&T to a franchise nature extraordinary privilege using for an public profit. manner for private recognized municipali
This consistently court has utility statutory authority prohibit public ties have agreement. from streets without a franchise using Ill. People v. R.R. Co. 178 ex rel. Jackson Suburban 594, (“[i]n respondent 607 the absence of the ordinance the company power had no or to enter the streets string erect thereon and village poles, and wires and by electricity upon construct its road operate and along streets”); 25 Ill. City Chicago (1962), such Olsen v. 292, regulate 2d (“[t]he power municipality 294 of a of its is estab prohibit private gain the use streets for lished”); Cooperative v. Illinois Coles-Moultrie Electric (municipali 3d App. Commerce 946 Comm’n to util grant ties have discretion to or withhold franchises ity, right municipalities derives from the this streets); City see regulate their Blair control Chicago L. Ed. 26 S. Ct. (1906), 201 U.S. of the
(the required the use municipality consent of a railroad). by street ways City In Geneseo v. Illinois Utilities Co. Northern (1941), 378 this specifically court held munici palities statutory authority have utilities prohibit public *37 agreement. from using the streets without a franchise In Geneseo, two to ordered utilities remove their property public ways, upon from the expiration the agreements, franchise so municipally that owned utilities the replace private (Geneseo, could utilities. Ill. at utilities, here, like AT&T claimed that municipali the right regulate streets, ties had the to the use of the but right prohibit had no to utility from using public streets in an extraordinary manner where the had a utility certifi of public cate necessity convenience and from the Illinois Commerce Commission. for support claim,
As this the primarily utilities relied upon Chicago City Motor Coach Chicago (1929), Co. where the court invalidated a municipal ordi required
nance that companies bus to enter into a fran agreement chise city using with the before the public streets. The court in Chicago Motor Coach held that the Chicago City had no statutory prohibit to authority private company from using the streets in an extraordi nary manner without a agreement. franchise The court that, held while the city had statutory authority regulate to a private corporation’s streets, use of the it had no statu tory authority to prohibit or it exclude from the using altogether. streets The court “[Regulation concluded that prohibition inconsistent with or exclusion.” Chicago Mo Coach, tor at 206. Gene.seo,
In this court repudiated Chicago Motor Coach and held that have statutory to prohibit public and private companies using from streets for extraordinary without a purposes agreement. The court Geneseo the specifically discussed power. for this The court noted that the
statutory bases
383)
villages
(Ill. Rev. Stat.
ch.
par.
cities and
act
gave
over streets. The
municipalities significant control
powers relating
to
specific
court enumerated a number
granted
the
which
statute
to mu
use of
included,
alia:
statutory powers
These
inter
nicipalities.
municipal
power
reg
the
to
power
property;
to control
streets;
remove
power
prevent
ulate use of
to
and
streets;
to construct
tun
power
encroachments from
streets;
nels, sewers, bridges and viaducts on and under
the use
prevent
signs, posts,
to
of streets
power
advertisement;
pass
and
all ordi
poles
necessary
carry
powers
into effect the
proper
nances
granted
(Geneseo,
519-20.)
378 Ill. at
The court
by statute.
statutory powers
municipali
these
authorized
found that
streets,
ties
of their
regulate
and control
use
grant
or to
“included the
powers
these
*38
Geneseo,
that use from utilities.”
447 AT&T, using property private such from for municipal gain agreement. The court also held without public necessity that a of convenience and certificate prohibit override a to municipality’s sufficient to access to streets. The statutes relied utility’s public in today. (Ill. remain effect Rev. Stat. Geneseo 24, par. seq.) Consequently, et under ch. 11—80—2 Geneseo, au statutory the defendant have from in thority prohibit using public AT&T streets to stall its without agreement. cable a franchise prohibiting
In addition to for use of private gain, municipalities statutory authority also have permit any use of the streets that is not incompatible (Sears City ends for which streets are established. v. of 204; Chicago (1910), City 247 Ill. see Springfield also v. Telegraph-Cable Postal (1912), 346; Ill. City Co.
Springfield Independent Telephone v. Inter-State Tele & graph (1917), 324; Co. 279 Ill. Chicago Municipal Gas Light Co. 42; & Fuel v. Town (1889), City Lake 130 Ill. Quincy (1883), v. Bull 337.) 106 Ill. Our courts have held
that the authority to enter into fran have chise agreements which permit public utilities and private companies use the public ways purposes other than ordinary travel. (Chicago Municipal Light Co. Gas & Fuel v. Town (1889), Lake Ill. Our decisions also es tablish that a municipality, granting a franchise use streets, may impose performed conditions to be be fore or the rights after under the franchise are claimed.
(City Springfield Independent v. Inter-State Telephone& Telegraph 324; Co. City Springfield Telegraph-Cable Postal 346; Chicago Co. *39 Ry. City
General Co. v. Chicago (1898), 176 Ill. In of City Springfield, this court specifically acknowledged: of
448 grant city required privileges public is not to to ser
“A all power permitting corporations on the same terms. The vice of discretionary required and is the use the streets is not to of applicable general alike to all be exercised a ordinance cases, with may upon each case be acted reference its but city may, conditions and circumstances. council own discretion, grant occupation the of its license for the impose qualification, may streets without or such conditions giving particular company any as it the its consent of added.) City (Emphasis advisable. deems [Citation.]” of 279 Springfield, Ill. at 327. case, recognized to this our have specific More decisions that, depends upon of a franchise the enjoyment where right impose conditions au municipality, consent of fee, it to of a for payment compensation thorizes exact extraordinary in an privilege using public of Tele City Springfield Independent manner. Inter-State of 324; Spring Ill. phone Telegraph (1917), City Co. 279 & 346; Chi Telegraph-Cable (1912), v. Postal Co. 253 Ill. field 253; cago Ry. City Chicago (1898), 176 Ill. Co. v. General 218; City Chicago see Lobdell v. also 79; Chicago Ill. 2d Broeckl v. Park District 556, 565. Chicago (1948), 401 Ill. MacNeil v. Park District however, are argues, limited AT&T using pub charging regulatory privilege fees claim, argues that lic As for this AT&T support streets. only regulatory, proprietary, have However, decisions of this powers over streets. to demand a specifically court have stated that proprie municipality’s franchise fee an exercise Springfield, 279 tary property. (City over power 257; 327; Chicago Ill. 176 Ill. at see also Ry., at General re Broeckl, 86-87.) repeatedly The court has 2d at grant a franchise jected contention that Springfield, power. (City is a regulatory police
449 Appendix to Dissent 327; Chicago 257; at 176 Ill. see also Ry.,
Ill. General at Broeckl, 86-87.) consistently 131 Ill. 2d at It has also re jected enacting the claim that are to limited regulatory collecting City regulatory measures fees. 327;
Springfield, Shallberg 279 Ill. at ex rel. v. Cen People 260, 275; tral Telephone (1908), Union Co. 232 Ill. MacNeil 556, 565; v. Chicago Chicago District 401 Ill. Park 257; Broeckl, General 176 Ill. at Ill. 2d at Ry., see also 131 86-87. City
For in example, Chicago Ry. General Co. v. Chi cago 253, (1898), 176 Ill. city the enacted an ordinance granting right the defendant railway lay the to its tracks upon subject the streets to the condition that the defend ant an pay city per annual fee of ofmile track. $500 The defendant claimed that the ordinance invalid. It was city’s claimed that the power to consent to railway’s use of and, the streets was a police power mere conse quently, the had city power no to exact a monetary sum beyond a small regulatory This expressly fee. court re “ jected contention, ‘the stating that here con ” ferred is not a police power.’ (Chicago Ry., General at Ill. quoting City Providence Union R.R. Co.
(1879), 12 R.I. The court concluded that a municipal ity right has a monetary to exact a for consideration consent to the occupancy of the streets. The court ex “ plained right compensation money, exact in ‘[t]he bonus, otherwise called on justified ground right road-bed, to use a street already graded, as a is a privilege valuable ***. enjoyment Where the the fran chise depends authorities, consent of the local their impose conditions authorizes them exact ” payment of a bonus’ (Emphasis original.) Chicago Ry., Booth, General Ill. at H. Street Rail quoting §284, ways (1892). at 382-83 Indepen v. Inter-State City Springfield
Similarly, this (1917), 279 Telegraph & Co. Telephone dent corporations required an ordinance which upheld court wires, signs, any pole support used pay annually $1 to the compensation advertising displays awnings or Springfield (See City also for the use of its streets. city 346.) The Co. Telegraph-Cable v. Postal explained: court police ordinance. was
“The ordinancewas not
passed
It
*41
governmental
supervision, but
of local
for the enforcement
for the ex
charge
a
in the nature of rental
only to establish
fixing
charge in
The
of a
parts of the streets.
clusive use of
by
a
service
occupation
for the
the nature of rental
city is not the exer
parts of the streets of a
corporation of
pro
is the exercise the
but
governmental power
any
of
cise
of
added.) City
city.” (Emphasis
prietary power
the
Springfield,
Thus, our decisions
conclusively
have
established the
propositions
First,
two
necessary to decide this case.
mu
nicipalities have statutory authority
prohibit
a company,
AT&T,
such as
using
from
public streets for extraordinary
purposes
agreement.
without a franchise
This
was in
disputably recognized Geneseo,
(a
ch. par. Second, 11—80—2 et seq.) court, this in long decisions, line of recognized has that municipalities, pursu ant to their proprietary powers over public property, may require payment of compensation in the nature of rental fees, for the privilege of using public streets. City of Springfield, 327; 279 Ill. at City Springfield v. Postal Telegraph-Cable (1912), 346; Co. People 253 Ill. ex rel.
Shallberg v. Central Telephone Union Co. 232 Ill.
260, 275; MacNeil v. Chicago Park
District
556, 565; Chicago General Ry.,
257;
176 Ill. at
see also
Broeckl,
AT&T nevertheless claims that a agreement *42 not a necessary prerequisite its to use of the defendant municipalities’ streets. AT&T claims that Geneseo is not binding precedent in this dispute because “Geneseo did not involve a telephone company or the Telephone Company (Ill. 1987, Act 134, Rev. Stat. ch. par. 20).” These at tempted “distinctions” any lack substance whatsoever.
Geneseo long reaffirmed a line of Illinois decisions holding that a municipality has statutory power prohibit public a utility, AT&T, like from utilizing a street pur poses other travel, than ordinary without a franchise meaning utility is a within AT&T
agreement. 1987, 95V2, 15— par. ch. Ill. Rev. Stat. (See, e.g., Geneseo. Gene instant case is controlled 100.) Consequently, progeny. seo and its controlling here is not that Geneseo
AT&T also claims Act. Telephone Company not involve the it did because prohibits Act Company Telephone that the argues AT&T as a agreement a franchise requiring from its ca the streets to install to AT&T’s use of precondition (Ill. Act Telegraph 4 of the contrary, section On the ble. 134, authorizes mu 4) implicitly par. ch. Rev. Stat. this agreement, because a franchise require nicipalities to obtain telephone company requires of the Act section constructing equipment its prior consent municipal states, in rele streets. Section municipal or under along part: vant right any poles, to erect company shall have the
“No such abutments, of their lines or other fixtures posts, piers, wires *** any incorporated ground any public within along corporate au village, without the consent city, town or re village. herein city, The consent town or thorities such in the re writing, be recorded and shall quired must be (Ill. ch. county.” Rev. Stat. office of the corder's par. requires telephone Act
Thus, Telegraph section constructing prior consent municipal to seek company language The plain streets. municipal under equipment Telephone that the claim AT&T’s repudiates of that section tele- requiring from prohibits Act Company as a agreements into franchise to enter companies phone Further, previ- of the streets. to their use precondition enjoy- that, held where stated, decisions have our ously a munici- the consent depends upon ment of a franchise it to exact authorizes conditions impose pality,
453 Appendix to Dissent fee,
payment compensation of a for the privilege us ing public City streets in an extraordinary manner.
Springfield v.
Independent Telephone
Inter-State
& Tele
graph
324;
City
Springfield
Co.
v. Postal
Telegraph-Cable
346;
Co.
Chicago General
Ry.
City Chicago (1898),
Co.v.
AT&T claims that section 4 of the Com- pany grants Act it the lay cable under streets within the defendant municipalities without first obtaining the municipalities’ disagree. consent. We Section grants telephone companies acquire private property through domain, eminent upon payment of proper compensation. That section also authorizes telephone com- panies to construct poles, wires or cables and across highways, provided that telephone company gives to highway “the having jurisdiction commissioners and con- *** trol over the road over which such line is proposed to be constructed” written notice of company’s intent to construct such line along over or the highway. The statute provides that the highway commissioners may, within 10 days notice, after receiving such specify portion of the highway on which the line shall placed. be
AT&T claims that this portion Telephone of the Com- pany grants Act it the authority to install its under cable the streets of the municipalities defendant without a fran- stated, chise agreement. As AT&T sent so-called “10-day notices” to the here, defendant municipalities involved in an attempt to powers invoke in purportedly conferred sec- tion 4. AT&T notified the defendant of its intent to install its gave cable and them 10 days within when, which designate where and how the cable could be installed.
Nothing Act, section 4 of the Telephone Company however, authorizes AT&T to install its cable under streets without the consent of the defendant reading A of that section re municipalities. plain
those
only
high
notice
10-day
provision applies
veals that the
*44
incorporated
of
areas and under the control
ways outside
specifically pro
of
commissioners. That section
highway
interfere with the con
nothing
vides that
the act shall
cities,
villages.
and
incorporated
trol now vested
towns
noted,
(Ill.
20.)
ch.
As
par.
previously
Rev. Stat.
the “control now vested in”
includes the au
municipalities
thority
prohibit
pending nego
AT&T’suse of the streets
agreement. City
tiation of a franchise
Geneseov. Illinois
of
(1941),
Northern
Co.
Shortly Telephone Company after the 10-day provision this held that the notice specifically court (People cities. ex rel. apply incorporated did not Telephone Co. Shallberg v. Central Union contention, now ad rejected This court also control to AT&T, city’s section 4 limits a by vanced time, manner restrictions tele place and prescribing on equipment to install their that seek phone companies v. Central Shallberg ex rel. People In streets. 260, 275-76, this court Telephone Co. Union stated:
“[The Telephone Company Act] [***] gives no a tel- ephone any incorporated corporate authorities. corporation to set city, town poles [***] The act or village without the string *** wires expressly in the street consent provides with control nothing in it shall contained interfere villages in relation cities, incorporated towns vested in wires, appli- other poles, cables and regulation of the prescribing the location limited to control is not ances. That matters, to the whole but extends poles, such and size of city to a giving notice subject. provision is no There city line, privilege to the to construct a with intention shall on which the line be portion of the street specifying the highway commissioners. The the case of placed, there is in where it remains control whole matter of added.) (Emphasis passed.” the act was was before *45 in the nothing Telephone Thus, it is well established municipality’s a Act interferes with Company Moreover, in cases the use of its streets. and control over Act Company Telephone and after the decided before both au enacted, municipality’s that a this court has held was the method regulation reasonable thority is not limited to of 327; Ill. at (City Springfield, using the streets. of of Telephone Co. Shallberg v. Central Union People ex rel. District 260, 275; Chicago Park
(1908), 232 Ill.
MacNeil
556,
Ry.,
257; see also 2d 34.13; §34.19, at through Municipal Corporations §§34.10a Chicago 1986), citing City Blair v. (3d 76 n.4 rev. ed. of Rather, 26 S. Ct. (1906), 201 U.S. 50 L. Ed. over municipality, pursuant proprietary
a streets, exacts a rental a franchise fee which may require in an extraordi- using of the streets privilege fee for the nary manner. (City Springfield, 327; 279 Ill. at Chicago of Ry., 257.) Thus, General 176 Ill. at contrary AT&T’s ar gument, nothing in Telephone Company Act interferes with a municipality’s power to condition its consent a agreement requres payment fee, which of a rent, the nature of for the privilege using of the streets in an extraordinary manner.
AT&T also cites this court’s decision in Village Lom of bard v. Telephone Illinois Bell Co.
authority for its claim that it need not pay a franchise fee for the privilege using streets within the defendant mu nicipalities. AT&T contends that Village Lombard stands for the proposition that a municipality may not demand compensation for utility’s use of public streets. Village of Lombard does not control here.
Village
Lombard
validity
considered the
of an ordi
nance
required
which
corporations maintaining pipes, con
duits, cables, poles or wires in
any
or under
public place to
pay
village
gross
3% the
receipts from services ren
dered within the village, for
privilege
of using public
property. The court Village
Lombard first concluded
that the ordinance
anwas
invalid attempt
impose
an oc
cupational
tax upon
utility’s gross receipts. The
court found that the municipality lacked specific statutory
authority to impose such an occupational tax. (Village of
Lombard,
After the mu hold that on to Lombard went Village court of charge authority statutory involved lacked nicipality using public prop of the privilege rent for utilities court Lombard, 216.) The 405 Ill. at (Village erty. of Instead, conclusion. for this authority no cited Lombard made unpersua or ignored completely court the Lombard of this court decisions distinguish prior attempts sive (Vil conclusion. opposite precisely which had reached relies Lombard, mistakenly 218.) Ill. at AT&T lage of authority as Village of Lombard part this second in this involved that the proposition for the authority compen to exact statutory lack dispute likewise using streets. privilege AT&Tfor the sation from however, after shortly recognize, fails to AT&T decided, legislature repudiated was Village Lombard statutory holding lack that decision’s using privilege for the charge compensation 1955, 24, 113.) par. ch. (Ill. Rev. Stat. public streets. 23— 750, Senate Bill which 1955, legislature In enacted (Ill. Rev. Villages Act. amended the Revised Cities amendment, 24, This inter par. Stat. ch. 23— alia, occupa an gave municipalities impose engaged in the business upon “[pjersons tional tax at a rate electricity, means of transmitting messages by from such business gross receipts of the not to exceed 5% municipality.” of the corporate within the limits originating signifi More 113(1).) ch. (Ill. par. Stat. Rev. 23— case, stated: expressly this cant to this amendment may be in “Any enumerated in this Section the taxes products or payment money, or value of to the addition utility] [public municipality furnished to the services streets, pub alleys, or other compensation the use of therein, thereon places, or installation and maintenance lic *47 458
Appendix to Dissent wires, poles, pipes equipment thereunder of or other used in operation [public utility’s] the of the (Emphasis business.” 1955, 24, added.) (Ill. par. Rev. Stat. ch. 23— statute, This which remains in effect today, clearly repudi law, any prior ated it statutory judicial, be which denied municipalities the to for compensation demand 1987, use of its streets. Ill. par. Rev. Stat. ch. 8—11— 2. legislative
The action taken in amendment was Lombard, unnecessary prior Village to because this of court, decision, to that prior accurately had construed the legislature’s intent. This court’s decisions have consistently held that municipalities implied statutory have to authority rent, compensation, exact in the nature of the privilege for of using public gain. (See streets for private City of Springfield v. Independent Telephone Inter-State & Tele graph (1917), 324; Co. City Springfield v. Postal of Telegraph-Cable 346; Chicago Co. 253 Ill. General Ry. 253; Co. v. City Chicago (1898), City 176 Ill. see also of Geneseo Illinois Northern Utilities Co. 506.) The court in Village legisla thwarted the Lombard intent, making ture’s an departure unwarranted from Following decision, these decisions. leg that erroneous repudiated Village islature holding Lombard and ex pressly municipalities stated that do have the to col lect for the compensation use of streets. legislature has expressly stated that municipalities utilities,
have the authority require public such as AT&T, compensation for pay privilege using pub lic (Ill. 11—2.) streets. Rev. Stat. ch. par. 8— AT&T argument contrary rests its entire to the upon Vil lage holding Lombard’s that lack such municipalities clear, however, It statutory authority. Village sum, longer Lombard is no In case today. viable relevant defendant establish statutory provisions law and prohibit statutory have the of a fran- negotiation pending use of the streets AT&T’s a franchise pay require AT&T agreement chise using rent, privilege for the fee, in the nature of profit. extraordinary private manner in an Municipalities Rule 2. Home involved next consider whether
We Heights, Pal- (Arlington *48 are rule units this that home dispute power intervenor) have Chicago, City atine and the their con- using streets within AT&T from prohibit re- and to negotiation agreement, of a franchise trol pending of install- privilege for the pay compensation AT&T to quire under their streets. ing optic its cable fiber in units did not exist this note that home rule initially
We the 1970 Illinois Constitu- after the ratification of State until result, that discuss specifically all of the cases tion. As a its of its streets and prohibit use municipality’s power rent, for the fees, the nature of charge franchise power to gain, involved using public private streets for privilege of home rule that were not statutory power units. from the units, however, power their
Home rule derive pro constitution constitution, than from statutes. Our rather and any power “may that a home rule unit exercise vides any government perform pertaining affairs.” function VII, §6(a).) This lan art. added.) (Ill. Const. (Emphasis de possible the broadest guage designed to establish was exercise. rule units can that home scription powers VII, Constitutional Stat., Const., §6(a), art. (Ill. 1970 Ann. The constitution also 1971).) 24
Commentary, (Smith-Hurd at rule units of home and functions “[pjowers specifies VII, §6(m). art. liberally.” Const. shall be construed The drafters of the grant constitution intended to home greater rule units power and autonomy than was previously enjoyed by non-home-rule units. Non-home-ruleunits ex may ercise only powers those legislature the State confers them, upon' either expressly or impliedly, by (Pesti statute. Policy cide Public Foundation v. Village Wauconda 117 Ill. 2d units, Home rule hand, on the other may any exercise power perform any function concurrently State, with the unless the General lim Assembly specifically its the concurrent exercise of power such or specifically de clares that the State’s exercise is (Ill. exclusive. Const. VII,
art. §6(i).) The General Assembly has not limited the power of home rule to require public units utilities to enter agreements which exact rent for the privilege of using public property in an extraordinary manner.
Consequently, which the home rule units seek valid, to exercise here is if that power pertains to those mu nicipalities’ “government and affairs.” A municipality’s power to require utility to enter a franchise agree ment fees, which exacts rent, the nature of for the privi lege of using public property within wholly the municipality’s control for private gain is certainly a matter “pertaining to government Stat., and affairs.” Const., See Ill. Ann. VII, §6, art. (Smith-Hurd Constitutional Commentary, at *49 1971). argues, however,
AT&T that home rule units lack author- ity to require a agreement franchise and franchise fees be- cause AT&T’sinstallation of the optic fiber cable is a matter statewide, local, rather than concern. This court has previ- stated, however, ously “[wjhether that particular problem is of statewide rather than local dimension must be decided *** with regard for the nature and extent problem, of the government units of which have most interest vital in solution, and the role traditionally played by local and (Kalodimos v. Vil dealing in with it.” statewide authorities 483, 501.) A munici 103 Ill. 2d Grove lage Morton than the State greater has a interest undoubtedly pality lo public property conditions under which determining the may be boundaries municipality’s within the entirely cated Further, gain. extraordinary private manner for used in an right that the noted, recognized this court has as previously streets, including the the use of exercise control over to utilities, a mat that use from is right grant or to withhold (See City Gene rather than statewide concern. ter of local 506.) Fi (1941), 378 Ill. Northern Utilities Co. seo v. Illinois expressly delegated has legislature the fact that the nally, franchises grant non-home-rule using public compensation privilege and to exact that such matters are of understanding streets reflects its local and not State concern. however, important in matters as suggests,
AT&T service, recognition unqualified of an long telephone distance in- permitting is municipal preferable to use streets court, This by government. dividual control local units of however, recognized: has *** assumption problems predicated
“Home rule on the legitimate governments local have a and substantial which experi open to local solution and reasonable interest should be needs, by free from veto voters and mentation to meet local might representatives parts of other of the State who elected repre disagree particular approach advanced with locality appreciate fail to the local sentatives of the involved or (Kalodimos, at perception problem.” 103 Ill. 2d con- have inherent conclude that home rule We negotiated require AT&T to enter stitutional fees, in the nature agreement, which exacts extraordinary use of rent, to AT&T’s precondition as a wholly municipalities. within the control of those *50 462
Appendix to Dissent
conclusion,
support
As further
for this
we
our
note that
courts
upheld
have
similar acts as valid exercises of home
See,
rule powers.
e.g.,
Enterprises,
Crain
v. City
Inc.
of
Mound
189
City (1989),
(city
Ill.
3d 130
App.
ordinances
granting a
a railroad
vacating
business
franchise and
public
economic
the city
streets for the
benefit of
and its citizens
legitimate
city’s
constituted
exercises of
home rule powers,
wholly
city
where streets were
within
borders and did not
form link
highway);
City
in State
v.
Krughoff
Naperville
of
(1976),
App.
grounds
41
3d
other
(1977),
Ill.
on
68
affd
Ill. 2d
(ordinance requiring
land,
352
contribution of
land,
money in
for school
park
lieu of
sites as a condition
approval
plat
of a subdivision
is
valid exercise of
home
powers);
Village
rule
also
see
Kalodimos v.
Morton Grove
of
(1984),
2d
501 (ordinance banning possession
operable handguns pertained to the municipalities’ “govern
Create,
affairs”); City
ment and
(1980),
Evanston
Inc.
(residential
Ill.
3d
Conclusion sum, In conclude that all we of the involved require in this have dispute agree- ment, fees, rent, which exacts in the as a precondi- nature tion to use private gain. AT&T’s statutory authority pro- non-home-rule have hibit AT&T’s use streets and condition their con- agreement sent to such use a franchise which exacts compensation privilege using public for the streets in an Likewise, the private manner for home extraordinary profit. in this have inherent constitu- dispute
rule units involved *51 their consent to AT&T’s use precondition tional streets, agreement negotiated using public which exacts rental fees for the privilege those control in extraordi- property municipalities’ within an nary manner. constitutional, ignores
The dissent the well-established legislative judicial precedents which support powers government. of units of local It a recent of the opinion cites Seventh Court Appeals Circuit which refers to Illinois mu nicipalities many as “so little medieval German principalities” (D iginet City Chicago (7th Western Cir. Union ATS 1992), F.2d 1400), but omits the fact the same opinion by the admission that courts are qualified “State bound federal courts’ of State law.” interpretations (Diginet, 958 F.2d at The dissent wants to reinstate Lombard, the decision in Village despite the fact that the legislature repudiated shortly that decision after it was an form, nounced. We are bound to in present follow the law its not as it erroneously was in 1950. The law interpreted une quivocally establishes that all of the involved dispute this have the require agree a franchise ment, fees, rent, precondi which exacts the nature of as a tion to AT&T’s use of public private gain. streets for
Accordingly, the appellate decisions of the and the circuit courts are reversed. reversed;
Appellate court circuit court reversed.