Chicago Coach Co. v. City of Chicago , 337 Ill. 200 ( 1929 )

I do not concur in the views expressed in this opinion. In view of the importance of this matter and far-reaching effect of the opinion filed, it is necessary that I set forth at some length the reasons for my dissent.

The correct solution of the main problem involved in this case is, as I view it, to be based on the determination of two propositions: First, whether cities, prior to the passage of the Public Utilities act, had power to permit or deny the use of the streets to public utilities; and second, if so, whether the Utilities act has taken that power from the cities. It may be conceded, as stated in the opinion filed, that cities are creatures of the legislature and possess only such powers as are conferred by statute. This is well recognized. The Commerce Commission is likewise a creature of the statute and possesses only such powers as the legislature confers. It was argued in the briefs of appellant that in the absence of and prior to any statute on the subject a public carrier of passengers had a permissive right to use the streets for its business, and its use was, therefore, not unlawful. The streets and highways of the State are under the paramount and primary control of the legislature except where that control is limited by the constitution. (City of Chicago v. Kluever,257 Ill. 317.) All persons, in the absence of legislative edict, are vested with the right to the use of the streets and highways for travel from one place to another in connection with their business when such use is incidental to that business. This is an ordinary use of the streets and highways and is frequently characterized as an inherent or natural right. No person has an inherent or natural right, however, to make the streets or highways his place of business. Such a use is generally characterized as an extraordinary use. (Green v.City of San Antonio, 178 S.W. (Tex.) 6; Hadfield v. Lundeen,98 Wash. 657; LeBlanc v. City of New Orleans, 138 La. 243;Ex parte Dickey, 85 S.E. (W.Va.) 781; Desser v. City ofWichita, 96 Kan. 820; Melconian v. City of Grand Rapids,218 Mich. 397.) The use of the streets for purely private gain may not be given, even by legislative authority, unless there be also in such use a public service. That the use of motor busses for the public carriage of passengers is an extraordinary or different use from that which the citizen is entitled to make of the street without consent, is of a more dangerous character and may not be exercised without consent, has been recognized by this court and the courts of other States. City ofChicago v. Kluever, supra; Melconian v. City of Grand Rapids,supra; Ex parte Dickey, supra; LeBlanc v. City of New Orleans,supra; Green v. City of San Antonio, supra; Hadfield v.Lundeen, supra; Gill v. City of Dallas, 209 S.W. (Tex.) 209; State v. Iams,78 Neb. 678.

It is clear from these authorities that a utility of the character of appellant, in the absence of legislative enactment on the subject, has no inherent or natural right to use the streets as a place of business. By section I of article 5 of the Cities and Villages act, city councils are given certain numerous powers enumerated in one hundred and two clauses of that section. By the ninth clause cities are given power "to regulate the use of the same," referring to streets. By the one hundred and second clause of the section cities are given power to pass all ordinances, rules and regulations proper or necessary to carry into effect the powers by that act granted. The distinction between ordinary use of the highways which may not be denied, and extraordinary use thereof which may be permitted or denied, has been shown in numerous opinions of this court, and by them it has become well settled law in this State that a city may, under the power of exclusive control of the streets granted to it by the legislature, allow or deny any use of them which is not inconsistent with the public objects for which they are held, and may regulate such use and fix a reasonable compensation to be paid therefor. Sears v. City ofChicago, 247 Ill. 204; People v. Clean Street Co. 225 id. 470;West Chicago Masonic Ass'n v. Cohn, 192 id. 210; ChicagoMunicipal Gas Light Co. v. Town of Lake, 130 id. 42;City of Chicago v. Trotter, 136 id. 430; City of Quincy v.Bull, 106 id. 337; Gridley v. City of Bloomington, 68 id. 47;Nelson v. Godfrey, 12 id. 20.

From these authorities it cannot be doubted that in the condition of the law prior to the enactment of the Public Utilities act cities had a right to permit or deny the use of the streets by public utilities. Prior to such enactment they had also the power to regulate the business of utilities conducted on the streets.

Has the power to control the use of the streets been taken away by the Utilities act? The purpose of the Utilities act, as has been many times shown in the construction of the act by the opinions of this court, is to regulate the service of public utilities. The act is sustained on the ground that it is a proper exercise of the police power. (City of Chicago v.O'Connell, 278 Ill. 591; Schiller Piano Co. v. IllinoisNorthern Utility Co. 288 id. 580.) The public interest in utilities is primarily in the service and not in the use of a given street or highway by such utility. The police power arises not so much out of the place of operation of these utilities as from the character of the service given and rates charged by them. Steam railroads, operating upon their own right of way, are nevertheless within the Public Utilities act because of the public interest in the service they render and the benefit to the public of regulating that service. The Public Utilities act is not primarily an act to regulate the use of streets and highways. There is no direct provision of the act empowering the Commerce Commission so to do. The Public Utilities act is comprehensive legislation designed to take over the regulation and control of public utilities.

The opinion filed, as I view it, confuses the powers to regulate the use of the streets specifically conferred on cities by the ninth clause of section I, article 5, of the Cities and Villages act with the power conferred on the Commerce Commission to regulate the business of public utilities. There is no language in the act expressly repealing this clause of the Cities and Villages act. It has always been the rule in this State that repeals by implication are not favored. Whether the power given under an act arises from express words of the statute or by necessary implication, the power exists, and the courts are no more favorable to a repeal by implication of the latter than they are of the former. The Utilities act therefore cannot be said to have repealed said clause 9 of the Cities and Villages act as relates to utilities unless there appear in the former act provisions necessarily repugnant to and inconsistent with clause 9. Section 8 of the Utilities act provides: "The commission shall have general supervision of all public utilities, except as otherwise provided in this act, shall inquire into the management of the business thereof and shall keep itself informed as to the manner and method in which the business is conducted." Supervision is generally defined as the act of overseeing, or superintending, or inspecting. The various sections of the Public Utilities act specify of what this supervision is to consist. Under section 9 it is required that the public utility comply with the requests and orders of the commission. Section 55 provides: "No public utility shall begin the construction of any new plant, equipment, property or facility which is not in substitution of any existing plant, equipment, property or facility or in extension thereof or in addition thereto, unless and until it shall have obtained from the commission a certificate that public convenience and necessity require such construction. No public utility not owning any city or village franchise nor engaged in performing any public service * * * and not possessing a certificate of public convenience and necessity from the State Public Utilities Commission or the Public Utilities Commission, at the time this act goes into effect shall transact any business in this State until it shall have obtained a certificate from the commission that public convenience and necessity require the transaction of such business. Whenever after a hearing the commission determines that any new construction or the transaction of any business by a public utility will promote the public convenience and is necessary thereto, it shall have the power to issue certificates of public convenience and necessity. * * * Unless exercised within a period of two years from the grant thereof authority conferred by a certificate of convenience and necessity issued by the commission shall be null and void. No certificate of public convenience and necessity shall be construed as granting a monopoly or an exclusive privilege, immunity or franchise." Section 55a provides for a bond and sworn statement of ability to pay damages. By section 29 it is provided that no franchise, license, permit or right to own, operate or control a public utility shall be assigned, transferred or leased unless the same shall have been approved by the commission. "Such permission shall not be construed to revive or validate any lapsed or invalid franchise, license, permit or right, or to enlarge or add to the powers and privileges contained in the grant of any franchise, license, permit or right, or to waive any forfeiture."

The right of municipalities to consent to or deny the use of the streets by utilities has been recognized by this court since the passage of the Public Utilities act. (People v.Chicago Motor Bus Co. 295 Ill. 486; City of Springfield v.Interstate Telephone Co. 279 id. 324.) That the legislature did not intend by the Public Utilities act to place this power in the Commerce Commission is further evidenced by the act of 1917, known as the Sixty Million Dollar Bond Issue act. (Laws of 1917, p. 696.) Section 12 of that act provides that the control and maintenance of the highways of the State under the system there established shall be and remain under the jurisdiction and control of the Department of Public Works and Buildings; that "no public utility company or person shall be granted any right, privilege or franchise in, on or along any such highway without the consent of said Department of Public Works and Buildings." Likewise in the act of June 29, 1923, (Laws of 1923, p. 537,) the same provision is found with reference to the roads included in the One Hundred Million Dollar Bond Issue act. It is likewise worthy of note that section 38 of the Road and Bridge act (Smith's Stat. 1927, p. 2349,) provides as to a large number of public utilities that they shall not have the right to locate or construct roads or place poles or wires or lay pipe lines along any State aid road without the consent of the county board of the county where it is proposed to place the same. It is also by that section required that the county board shall receive the approval of the State highway commission to so use the roads before the consent of such board shall become effective. There is no provision of the Public Utilities act which either expressly or by necessary implication repeals the provisions giving to cities the power to regulate the use of streets, and a certificate of convenience and necessity cannot be said to be a license to a public utility to use the streets. The result of the holding of the opinion here filed is to place the Utilities act in direct conflict with the acts just referred to. Obviously, if the power to regulate utilities carries with it the power to say whether they shall use certain streets or highways as a place of business, the powers granted to the Department of Public Works in one case and the county boards in the other do not exist.

It is held in the opinion filed that it is the purpose, as shown by the act, to turn the complete control of the matter of regulating public utilities, and the use of the streets by same, over to the Commerce Commission, and that it is inconsistent that the power to permit or deny the use of streets by a utility be retained by the city. We have repeatedly held that the Public Utilities act covers the whole subject of utility regulation and that by it the State has recalled such power from the cities. (Chicago North Shore andMilwaukee Railroad Co. v. City of Chicago, 331 Ill. 360;Northern Trust Co. v. Chicago Railways Co. 318 id. 402; Villageof Atwood v. Cincinnati, Indianapolis and Western Railroad Co. 316 id. 425.) No former opinion of this court, however, has held that power to regulate utilities includes the power to permit or deny the use of streets or that the two powers are inconsistent. In Chicago North Shore and Milwaukee Railroad Co. v. City of Chicago, supra, the opinion especially points out that "the question here involves the power to regulate the operation of certain railroads now in the streets of the appellee city, and neither the consent of the city to the use of the streets nor the charter contracts of these railroads is involved." In none of these cases cited has power of the city to regulate the use of the streets been brought directly into question. InCity of Chicago v. O'Connell, supra, this court considered a bill of the city of Chicago seeking to restrain the Public Utilities Commission from enforcing a certain order relating to equipment and operation of street cars in the city of Chicago. In that case the distinction between the regulation of the utility and the power to consent to the use of the streets is clearly drawn. Section 4 of article 11 of the constitution prohibits any act of the legislature permitting the construction and operation of a street railway on the streets of a city without the consent of the city. The question was whether the Utilities act contravened these constitutional provisions, and it was held that the act conferring on the Public Utilities Commission the power to regulate the utility was in no way inconsistent with the power reserved to the cities to consent to or deny the use of the streets by such utility. A distinction in principle between that case and the case at bar, as to this point, does not exist. No provision of the Utilities act expressly takes away the power of the city to consent to or deny the use of the streets by a public utility or grants powers to the Commerce Commission inconsistent with the exercise of such powers by the city, and in no case prior to the one at bar has it ever been so held. The opinion filed holds that the rights conferred on cities to regulate the use of the streets was withdrawn by the passage of the Utilities act, and that thereby clause 9 of section I of article 5 of the Cities and Villages act, so far as it relates to this subject, was repealed because inconsistent with the Utilities act enacted later. By the same token it must be said that said clause 9 of the Cities and Villages act, having been re-enacted in 1925 and again in 1927 in its original language, supersedes the inconsistent provisions of the Utilities act, if any existed. This is an undoubted rule of statutory construction and requires no citation to support it. I am of the opinion, however, that there is no inconsistency requiring a holding by this court that the said clause 9 of the Cities and Villages act was repealed by the Public Utilities act.

This case is one of very great importance. The motor bus method of transportation in this State is an important one and is entitled to fair consideration at the hands of the law-makers. This court, however, has no authority to legislate, as the opinion filed seems to me to do. The holding in this opinion cannot be confined to motor bus utilities but must extend to every kind of public utilities and to all use by them of the streets. Clearly, if the power to control the use of the streets has been taken away as to all utilities except street railways which are within the provisions of the constitution, then no city has power to require compensation for the use of the streets or to say what streets may be so used, though the city is required to police the streets to protect the public. Surely such a construction of the act should rest on a more solid foundation if repeal by implication is to be found. It is stated in the opinion that the fact that the Utilities act permits cities to complain to the Commerce Commission regarding the service of utilities indicates that plenary power over the utilities has been given to the Commerce Commission and that no power to exercise any control remains in the city. Section 64 of the Public Utilities act gives the city a right to complain as to rates or the service rendered, and as to that service it is clear that the city can exercise no control. As I view it, such provision of the act, instead of indicating a complete removal of the power from the city, shows the extent of the power granted to the Commerce Commission to be limited to the regulation of the business of the utility. No suggestion appears as to a right in the city to complain to the commission as to what streets are to be used or whether any may be used by the utility. It seems clear that the matter was left to the city, where it has rested since the first passage of the Cities and Villages act. Section 65 of the act provides that "in any matter concerning which the commission is authorized to hold a hearing upon complaint or application or upon its own motion, notice shall be given to the public utility and to such other interested persons as the commission shall deem necessary," in the manner provided by the act. The act makes no express provision for notice to cities of hearings on applications for a certificate of convenience and necessity by a public utility which desires to operate in such city. This indicates an intention on the part of the legislature that a matter so vital to the city as the control of the use of the streets is to remain within the powers of the city.

Mr. JUSTICE HEARD: I fully concur in the foregoing dissenting opinion.